Right of Women and Children in Live-in Relationship- Judicial Decision.

Introduction

Live-in relation, i.e. cohabitation, is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married.

Today, cohabitation is a common pattern among people in the Western world but in some parts of world these types of relationships are valid but some countries are highly strict for accepting the concept.  People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.

The main idea, according to some, of cohabiting or conducting a live-in-relationship is that the interested couple wanted to test their compatibility for each other before going for some commitment. Live-in-relationship is a de facto union in which couple shares common bed-room without solemnizing marriage. It is non-marital relationship prevailing in West with the different name like, common law marriages, informal marriages or marriage by habit, deemed marriages etc. It is a form of interpersonal status which is legally recognized in some jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry.

Some bold couples believe that going for a wedding is just a waste of money, because they think their love doesn’t need any paper certification or social drama. According to Osho, in their true nature of all human beings are polygamy, marriage makes them monogamy which is against its nature. So that’s the reason after marriage too people keep relation outside wedlock. We can infer from analyzing the relationships that it is evident that live-in couples are still largely from professions like entertainment, advertising, modelling and media. According to Samindara Sawant, clinical psychologist, Disha Counselling Clinic, Mumbai has found that the trend of live-in-relationships has not really caught on in India, especially in the middle and upper middle classes, where marriage is still very much the norm. Live-in-relationships are practiced mostly in the metropolitan cities. Such practice is still a social taboo in a major part of our country which is constituted by villages and towns. According to a view the live-in-relationships are earlier in existence in the form of ‘Maitraya Karars’ which has been practiced in some parts of Gujarat. There is a gradual transition from the sacrament of arranged marriages to love marriages and ultimately to live-in relationships, due to many reasons like lack of tolerance and commitment.

Position Of Live-In Relationships Abroad

With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.

• Scotland

Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.

• Australia

The Family Law Act of Australia states that a “de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a defacto relationship with someone else.

• United States

Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents. In USA the expression ‘palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him (see ‘palimony’ on Google). The first decision on palimony was the well known decision of the California Superior Court in Marvin v. Marvin [1]. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him, and was then deserted by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony. However, the New Jersey Supreme Court in Devaney v. L’ Esperance[2] held that cohabitation is not necessary to claim palimony, rather “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony. Thus, there are widely divergent views of the Courts in U.S.A. regarding the right to palimony. Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements. 29. Written palimony contracts are rare, but some US Courts have found implied contracts when a woman has given up her career, has managed the household, and assisted a man in his business for a lengthy period of time. Even when there is no explicit written or oral contract some US Courts have held that the action of the parties make it appear that a constructive or implied contract for grant of palimony existed.

Judicial Decisions On Right To Claim Maintenance By Women In Live-In Relationship

Indian judiciary is neither expressly encouraging nor prohibiting such kind of live-in-relationships in India. The judiciary is only rendering justice in accordance with law in a particular case. The main concern of the judiciary is to prevent the miscarriage of justice. The judiciary in deciding the cases keeps in mind the social mores and constitutional values.

The connotation of the phrase “in the nature of marriage” is far from obvious and this is already a ground for contestation of The Protection of Women from Domestic Violence Act, 2005. In the case of Aruna Parmod Shah vs Union Of India, the petitioner challenged the constitutionality of the Act on the grounds that, first, it discriminates against men and second, the definition of “domestic relationship” contained in Section 2(f) of the Act is objectionable. Regarding the second, the petitioner argued that placing “relationships in the nature of marriage” at par with “married” status leads to the derogation of the rights of the legally-wedded wife. The Delhi High Court rejected both these contentions regarding the constitutional status of the Act. With regard to the second contention, which is of concern to us, the court said that “there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his “common law” wife or even as a mistress” . In this case the judges interpreted “a relation in the nature of marriage” as covering both a “common law marriage” and a relation with a “mistress” without clarifying the legal and social connotations of these terms.

 The questions related to live-in relationship came before the Supreme Court for the first time in case of S. Khushboo v. Kanniammal & Anr[3]. The 3 Judges Bench comprising of K. G. Balakrishnan, C.J. ,Deepak Verma and B. S. Chauhan, JJ held that,

“the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’…At this juncture, we may refer to the decision given by this Court in Lata Singh v. State of U.P. and Anr.[4] wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of ‘adultery’), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or “live with anyone she likes“.” 

            In D. Velusamy .v D. Patchaiammal case, the division bench of Supreme Court comprising of Markandey Katju and T. S. Thakur, JJ. held that,

“A divorced wife is treated as a wife for the purpose of Section125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent could not claim maintenance under Sec 125 of Cr. P.C.”.

The court reached to this conclusion by taking note of the definition of word ‘wife’. The word ‘wife’ has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows, “Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.” And in case of Savitaben Somabhat Bhatiya v. State of Gujarat and Ors[5]. this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’. The Bench held that this inadequacy in law can be amended only by the Legislature.

            In this case, the appellant had alleged that he was married according to the Hindu Customary Rites with one Lakshmi. The respondent D. Patchaiammal filed a petition under Section 125 Cr.P.C. in the year 2001 before the Family Court at Coimbatore in which she alleged that she was married to the appellant on 14.9.1986 and since then the appellant and she lived together in her father’s house for two or three years. It is alleged in the petition that after two or three years the appellant left the house of the respondent’s father and started living in his native place, but would visit the respondent occasionally. It was alleged that the appellant deserted the respondent. The respondent alleged that she did not have any kind of livelihood and she was unable to maintain herself, whereas appellant is a Secondary Grade Teacher drawing a salary of Rs.10000/- per month. Hence it was prayed that the appellant be directed to pay Rs.500/- per month as maintenance to the respondent. Thus it was the own case of the respondent that the appellant left her in 1988 or 1989 (i.e. two or three years after the alleged marriage in 1986). It is important to note that the respondent had filed the maintenance petition after twelve years of her desertion by the appellant. The lower Family Court had held that the appellant was married to the respondent and not to Lakshmi. These findings have been upheld by the High Court in the impugned judgment.

In opinion of the apex court, since Lakshmi was not made a party to the proceedings before the Family Court or before the High Court and no notice was issued to her hence any declaration about her marital status vis-à-vis the appellant is wholly null and void as it will be violative of the rules of natural justice. There is also no finding in the judgment of the learned Family Court Judge on the question whether the appellant and respondent had lived together for a reasonably long period of time in a relationship which was in the nature of marriage. The apex court opined that such findings were essential to decide the case. Hence it set aside the impugned judgment of the High Court and Family Court Judge, Coimbatore and remanded the matter to the Family Court Judge to decide the matter afresh in accordance with law. The judges in the case observed that the woman in live-in relationship cannot claim compensation under Sec 125 of Cr.P.C. but could file a suit for maintenance under the provision of  The Protection of Women from Domestic Violence Act, 2005. Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, this Court point out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The court interpreting this word to widest possible extent held that live-in relation comes within the meaning of ‘in the nature of marriage’. The Apex Court before reaching to this conclusion observed that

 “In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act. It seems to us that in the aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship…. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”

Legitimacy and Rights Of The Child Born Out Of A Live-In Relationship

Inheritance Rights of Such Child

Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardising the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only and not the ancestral property of the parent.

The question of inheritance of property came before the Supreme Court in case of Bharatha Matha and Anr. v. R. Vijaya Renganathan and Ors[6] in which a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property.

“a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties… In the instant case, respondents had not pleaded at any stage that the Suit land was a self acquired property of Muthu Reddiar. It is evident from the record that Muthu Reddiar did not partition his joint family properties and died issueless and intestate in 1974. Therefore, the question of inheritance of coparcenery property by the illegitimate children, who were born out of the live-in-relationship, could not arise.”

The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in relationship with some other person and seek inheritance for the children from the property of that other person. The relationship with some other person, while the husband is living is not ‘live-in relationship’ but ‘adultery’. It is further clarified that ‘live in relationship’ is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code).

Later on, the Supreme Court of India in case of Madan Mohan Singh and Ors. v. Rajni Kant and Anr.[7] had an altogether a different stand regarding the  debate on legality of the Live-in Relationship as well as legitimacy of Child born out of such relationship which this court has adopted in the prior case of Bharatha Matha and Anr. v. R. Vijaya Renganathan and Ors[8]. The court in this case held that,

“The live-in- relationship if continued for such a long time, cannot be termed in as “walk in and walk out” relationship and there is a presumption of marriage and the children born out of living in relationship is entitled to inheritance in ancestral property.”

Many scholars are of the view that both the decisions are contrary to each other but both these decisions could be reconciled based on the factual matrix of each case. In Bharat Matha case, the woman claiming inheritance was already married to a living person and because of reasons which are unknown, she started living in a live in relationship with the other man who died later on. The court did not create the legal fiction of presumption of marriage because she was already married while they were in live-in relationship. While on the other hand, in Madan Mohan Singh and Ors. v. Rajni Kant and Anr. case, the relationship between the woman and the man, who died later on, was accepted by their family and society at large. Further, the woman has also produced evidences which showed that the man acted as the father of the children born out the live-in relationships like school-admission certificate etc.

Conclusion

It becomes evident that the judiciary is not ready to treat all kind of living relations as akin to marriage. Only stable and reasonably long period of relations between the parties are given the benefit of the 2005 Act. At the same time it is not against the new emerging relations like live-in-relationships particularly in cities. The legislature is equally aware of the fact that the law must accommodate the changing scenario of the society. Therefore, legislation should be drafted for regulation of such relationships. Following are the recommendations that the legislature should kept in mind while drafting such legislation:

1) Taking light from the legislations enacted in Australia and other countries, it should define the ingredient of such relationship precisely. An attempt has been made by the author to define such relationships taking help from the Australian legislation named as Family Law Act 1975.

“De facto relationships:(1) A person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other or to any other person; and

(b) the persons does not come under prohibited degree as per Sec 2(b) ; and

(c) having regard to all the circumstances of their relationship, they have in prolonged relationship as a couple living together on a genuine domestic basis.

Explanation I: ‘circumstances’ may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life; “

2) Relevant provision should be made for the registration of such relationship so that it may help court to different between a live-in relationship and a mere one night stand.

3) Provisions should be made for the woman so that she could claim damages for the mental cruelty she had suffered in those years but she should not be entitled to maintenance or alimony because by doing so we are putting her on the same strata as of  any other married woman who has married under a given Personal Law. Marriage is an sacrosanct relationship in every religion, whether it is Hinduism or in Muslim or any other religion, while live-in relationship is a mere cohabitation. So a demarcation should be made between such relationships at this level otherwise we would going back to those period when human being was equal to any stray animal who undergo coitus with anyone for pleasure.

To prevent victimization of women undergoing such a relation, relevant penal provision should be made to prevent men from cheating those women.

---

[1] Marvin v. Marvin (1976) 18 C3d660

[2] Devaney v. L’ Esperance 195 N.J. 247 (2008)

[3] S. Khushboo v. Kanniammal & Anr AIR 2010 SC 3196.

[4] Lata Singh v. State of U.P. and Anr AIR 2006 SC 2522

[5] Savitaben Somabhat Bhatiya v. State of Gujarat and Ors MANU/SC/0193/2005 : AIR 2005 SC 1809

[6] Bharatha Matha and Anr. v. R. Vijaya Renganathan and Ors AIR 2010 SC 2685

[7] Madan Mohan Singh and Ors. v. Rajni Kant and Anr.AIR 2010 SC 2933

[8] Bharatha Matha and Anr. v. R. Vijaya Renganathan and Ors AIR 2010 SC 2685

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#children #liveinrelationship #rights #women