Emergence Of Live-In Relationship In Nexus Family Laws In Indian Context

Introduction

The terms like convention and custom have a firm hold on human civilization. The majority of us embrace the steadiness of history above the vagueness of the future. We frequently oppose or even dread change as a consequence of this. Indian society, which values its devotion to generational rituals, is where this reluctance to change is particularly strong. The tradition of the family is one of the most well-known of them. And in India, marriage has historically been a crucial component in the formation of a family. This demand has been heavily dictated and reinforced by society; it is not a biological one. Is it, however, one that the law also enforces? The institution of marriage no longer has the same hold on humanity as it once did due to cultural change. New and diverse types of partnerships with various compositions, purposes, and durations are emerging all over the world. The live-in relationship is one of the most well-liked ones today. It is a partnership between unmarried individuals who live together in the same home but are not legally or religiously considered to be spouses. These couples frequently own property jointly, divide and care for finances equally, and even have children together.

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Live in relationship

Because living together is a matter of choice rather than a familial arrangement, as is the case with many weddings in India, these unmarried couples are often significantly closer emotionally, but they don’t necessarily have any weaker ties than married people. As a result, it would be challenging to immediately identify the distinctions between two couples—one married and the other living together—if one were to examine them from the viewpoint of a third party. The reality, however, is more nuanced, particularly in terms of the law. Next, let’s look at the social and legal evolution of the live-in relationship in India to determine if they coexist. If not, let’s try to figure out how or why.

Live-in relationships have evolved with time

We must first examine how live-in relationships have developed and matured in Indian society in order to comprehend how the law views them. The rise of live-in partnerships is inextricably tied to changes in how marriages are perceived around the world and how strongly they influence social life. This perception shift in India involved a protracted and difficult process. /This is due to the fact that marriage is a very important social and religious institution in India and has been for many years. Along with this, Indian society historically placed a strong focus on community living and links to family. When taken together, these elements have aided the court of public opinion in its endeavors, particularly when it comes to relationships and sexuality. In most cases, family and public opinion came before individual choice. The popularity of arranged weddings in India serves as an example of this, with the families of the prospective spouses arranging the union on their behalf depending on how fit they considered a “candidate.” This was especially true for Indian women, whose romantic connections and future selves were heavily influenced by their father’s opinion of a potential suitor. These unions are still very common nowadays. The statistics are so stark, in fact, that a 2018 survey of more than 1.5 lakh households found that over 90% of couples were united via the institution of arranged weddings..[1] The idea of a live-in partnership first penetrated the Indian landscape and psyche in this scenario. Due to increased exposure to outside views and media, Indians began to question various aspects of marriage, considering it to be sometimes needless and other times unpleasant. The concept of a live-in relationship was developed with two main goals in mind: to determine a partner’s domestic compatibility before marriage and to serve as a viable alternative to marriage in the event that one party considered the associated rituals or customs to be burdensome or limiting. As a result, sharing a home with someone was viewed as nothing less than blasphemous by India’s predominately orthodox community.

Being in a meaningful relationship at the time (especially one with sexual overtones) was practically forbidden if it occurred outside of a marriage.[2] Thoughts evolve over time and among generations, and it becomes possible and occasionally even real to accept concepts that were once considered to be wrong. Rarities become common place, and anomalies become the standard. Today, live-in partnerships are more frequent, particularly in large cities with diverse ethnic populations. Over 80% of adults favour the idea of living together as a type of partnership, according to a recent poll with a sample size of 1.8 lakh people (primarily between the ages of 18 and 35). Many of these young adults also think that Indian culture as a whole still views live-in relationships negatively., according to the same research, which was another important finding. This indicates that while the younger generations generally embrace the idea of a live-in relationship, the elder generations who still exercise major social influence and power may have their doubts about it.

Nevertheless, despite the extraordinary rise in acceptance and tolerance for a type of relationship that the nation has only just been exposed to, the power of stigma and societal scrutiny over the issue still somewhat grips the populace. The law’s slant must also be taken into account. Is this shift in the general public’s opinion about live-in relationships something that is supported by the law? Or has the law taken a different path than society as a whole? To learn out, let’s examine the development of the law and the court system.

Stance of the Legislation Concerning Live-In Relationships

Religion has a notable influence in Indian culture, not just on a spiritual level but also in terms of the law. As a result, many personal and societal issues are governed by laws with religious foundations. Areas like marriage, divorce, inheritance, kinship property and wealth, adoption, etc. are governed by these religious personal rules. India also has specific secular laws that cover all the aforementioned areas for people who do not follow any religion or who follow a religion that does not have its own unique personal laws. Overall, we can conclude that personal laws specify the many rights and obligations that result from those interactions and manage a person’s interpersonal relationships from a familial perspective. As a result, personal laws in India place a lot of restrictions on the family as a unit. These rules of conduct are flexible. When necessary, they are modified as they become necessary. It makes sense that religious personal laws initially did not recognize live-in partnerships given how religion feels about marriage and how new the idea of living in is. Has this altered, nevertheless, in light of live-in couples’ rising popularity and social acceptance in Indian society? Interestingly, the response is negative. There is no law in India that officially legalizes or controls live-in relationships, despite the fact that family law is flexible and live-in relationships are common among Indian adults. No specific reference is made to the existence of any legally recognized live-in relationships in either religious or secular family laws. The Protection of Women from Domestic Violence Act of 2005 (PWFDVA) protects women who live in “partnerships in the nature of marriage” against cruelty, violence, or other types of atrocities, and is the only law that even vaguely acknowledges live-in relationships.[3]

The absence of live-in partnerships from family law is remarkable overall and has two separate perspectives, though. On the one hand, because these relationships are not legally recognized, couples cannot derive statutorily born rights from these connections. When it comes to indoctrinated laws, they hold a more casual position.

The second way to look at it is that because live-in relationships are not legally recognized, they are not subject to restrictive regulation. As a result, people are free to set their own rules for these types of partnerships.

Evolution of Live-In Relationships Through Judicial system

Thanks to court rulings, Indian law has altered as much as it has through legislation. Because of this, the judiciary has had a significant impact on Indian law, frequently swaying public opinion. It has done this by upholding the law as it is when necessary or when a circumstance requiring such action is brought before it, as well as by striking down or interpreting the law in a particular way. The Indian courts currently take a nuanced approach to live-in partnerships. This position is mostly the result of the absence of any definitive legislation on the subject, as was demonstrated in the earlier section of this study. As a result, what little jurisprudence there is on the subject is the result of a great deal of subjectivity, personal judgement, and judicial interpretation of the connection in light of constitutionality and acceptability. Regarding live-in-relationships, the judiciary has made numerous attempts to provide answers. It has addressed the common social perceptions of these partnerships and has attempted to provide a response as to whether or whether the law even allows for such interactions. It has made an effort to categories a variety of subjects, including what kind of relationship cohabitation falls under, the rights and obligations it bestows on its participants and their heirs, and what happens to the property the relationship’s partners hold. The Allahabad High Court offered its opinion on the first and possibly most significant issue of absolute legality in 2001. [4]Living together was a decision made by the parties in question, and the court made it clear that the law could not prevent them from doing so. Even if society views the relationship as evil, that is no justification to make it unlawful and restrict anyone’s right to personal freedom. After been supported repeatedly in various judgements, including Guljar Khan[5],Shahjahan Khan[6], Lata Singh[7], and Gaytri v Rajasthan[8], this viewpoint has now become established in Indian family law. The Supreme Court also reiterated and affirmed the same stance by situating it within the framework of the right to life and liberty in S. Khushboo vs. Kanniammal & anr.[9]. The next question that emerges is about the nature of such relationships after it is known for sure that a live-in relationship is lawful and permitted by law. The complexity of the problem becomes clearer at this point. In Badri Prasad[10], the Supreme Court assumed that a couple who had been living together for 50 years was married. According to the court, such a presumption may undoubtedly be disproven with the right proof, but its initial emergence was due to the long-lasting nature of the relationship. SPS Balasubramanian[11] also provided support for such an assumption. In Him ani and another v. State of Haryana[12], the Punjab and Haryana High Court stated that merely living together for a few days cannot result in a presumption of marital ties within a relationship, illustrating the importance placed on the length of the relationship in determining whether it is recognized as marriage.

We can conclude from the aforementioned instances that a live-in relationship must last for a significant amount of time in order to be termed a marriage. What that time frame might be, though, is not yet apparent. In addition, several parameters have not been well investigated. The pivotal case of Indra Samra[13] broke away from the marriage-not-marriage distinction. The Protection of Women from Domestic Violence Act of 2005 and the language employed in the act, in particular the reference to the sort of relationship described there as one “in nature of marriage,” were brought to light by this case. In terms of particular partnerships, this effectively signified a compromise between marriage and the absence of one. The act did not, however, define what such a connection would entail. As a result, the court intervened and established a list of requirements for a relationship to be “in the essence of marriage.” It stated that a number of aspects need to be taken into account, including the length of the relationship, domestic living arrangements, shared resources and finances, cohabitation, sexual interactions, children, social behavior, and intentions of the partners. However, this case did not establish any specific criterion along these lines and instead called on the legislature to pass laws specifying the same. In Velocity v. Patchaiammal, further requirements were laid down, including the need for those involved in such relationships to be of marriageable age, legally able to wed, living together for an extended period of time, and behaving in society similarly to married persons. This case also demonstrated that merely cohabitating for sexual purposes or engaging in “one-night stands” does not constitute a relationship that is ready for marriage. Another crucial ruling was established in Indira Sharma[14], which declared that live-in partnerships cannot be classified as marriage if one or both partners is already married to another person because this would constitute adultery or bigamy. Live-in partnerships appear to have made significant progress in Indian law as of late. Whereas it was formerly debatably lawful, it is now widely acknowledged as an issue of individual rights. Although the nature of live-in partnerships is unclear, it is obvious that specific law is required to give a definitive response to the query.

Rights Of Women and Children in Live-In Relationships

We need to address some very important issues about the rights granted to people who live together. Given the possibility of exploitation they may experience in a situation like living together, do women ever had any protection under the law from this, similar to those granted in marriages or other relationships? Do they enjoy any unique rights as a result of the connection? What rights, specifically in terms of legacy, will be accorded to these children, if a couple decides to have children while residing there? The judiciary and some degree of legislation have made an effort to address these issues. Wives have a right to maintenance after a divorce or separation in a marriage. A live-in relationship did not previously give rise to this kind of right. However, the Malimath Committee on Criminal Justice Reform suggested amending Section 125 of the Code of Criminal Procedure to include live-in partners in the definition of “wife” for purposes of the support provision.[15] In consideration of this, the Supreme Court eliminated the rigorous requirement of marriage for a woman to make a maintenance claim, therefore extending the reach of maintenance to cover women who are living together.[16] This viewpoint has been strengthened by later rulings in cases like Rajnesh v. Neha[17], Ajay Bhardwaj v. Jyotsna[18], and Abhijit Bhikaseth Auti[19]. Live-in relationships also count as domestic relationships under the act since, in some circumstances, they fall under the PWFDVA’s definition of those that have a marriage-like quality, and women in these situations benefit from the protection it provides against abuse or violence.

Participants in these partnerships are not, however, entitled to any property under succession laws because personal law does not regard live-in relationships are such which can develop into or create a family. As a result, it was up to the judiciary to ensure that women in live-in relationships had access to these rights. Problem is, this inheritance right only pertains to the partner’s personal property; it does not pertain to the partner’s ancestral property. If a live-in relationship results in a child, its legitimacy is called into doubt. However, it has been determined that children born out of long-term partnerships that are similar to marriage would be considered as legitimate offspring and inherit their parents’ separate property in the same way that their parents would inherit. These children may be regarded as illegitimate children in accordance with Hindu law, in which case they are entitled to the inheritance rights outlined in Section 16 of the Hindu Succession Act for illegitimate children. Children born into live-in partnerships have the same maintenance rights as their mothers, according to Section 125 of the IPC. Courts provided this security along with maintenance for the women in these partnerships. Thus, it is clear that women in live-in relationships and children born into them in India have access to a number of rights and safeguards. The judiciary has frequently intervened to protect their wellbeing, particularly in cases where the law was unable to do so.

What Follows Is?

Live-in relationships have proliferated in importance and frequency as a result of our society’s quick social development. Family laws haven’t kept up with changes in society and the law, though the stigma surrounding the subject still exists. Therefore, at this point, when these relationships have been ingrained in society and cannot be undone, we must adapt to them, embrace them, and seek to draught inclusive laws to regulate them and protect the rights of those affected. Women, those who have children from these unions, and the large LGBTQ population who cannot yet legally marry and must only cohabitate rely on society and the law to uphold their rights and make these unions more stable.

Conclusion

Live-in relationships are considered forbidden in India because they are perceived as an encroachment on the cultures of other religious groups. Effective legislation must have the support of the broader people and frequently must be written to reflect the preferences of the majority. In a live-in relationship, the legal situation controlling a partner’s inheritance rights is hazy. The current legal system lacks a clear framework and is rife with contradictions and ambiguities. The refusal to acknowledge & promote unions other than legal marriages has left a great deal of ambiguity regarding people’s rights & obligations. Couples in identical situations are treated differently as a result of the absence of legally recognized alternatives to marriage.

Author: Nikita Mertia, A Student at OP Jindal Global University, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[1][1] Rukmini S, What the data tells us about love and marriage in India, December 8, 2021, available at https://www.bbc.com/news/world-asia-india-59530706 (last visited on November 4, 2022).

[2] Choudhary Laxmi Narayan et al, Live-In Relationships in India—Legal and Psychological Implications, 3 Journal of Psychosexual Health (March 19, 2021).

[3] The Protection of Women from Domestic Violence Act, 2005.

[4] Payal Katara vs. Superintendent, Nari Niketan and others, 2001(3) AWC 1778 : AIR 2001 All 254.

[5] Guljar Khan v/s The State of Madhya Pradesh and Ors., WP No. 1714 of 2022.

[6] Shahjahan Khan vs State Of U.P. And Ors., 2002 (1) AWC 598.

[7] Lata Singh vs State of U.P. & Another (AIR 2006 SC 2522).

[8] Gaytri and Another v. State of Rajasthan, 2022 LiveLaw (Raj) 250.

[9] S. Khushboo vs Kanniammal & Anr (2010) 5 SCC 600.

[10] Badri Prasad v. Dy. Director of Consolidation and Others, AIR 1978 SCC 1557.

[11] SPS Balasubramanyam vs Suruttayan (AIR 1992 SC 756).

[12] Himani and another v. State of Haryana, CRWP-11197-2021.

[13] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.

[14] Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309.

[15] IBID

[16] The Times of India, SC lays down conditions for women seeking maintenance in live-in relationships, October 21, 2010, available at https://timesofindia.indiatimes.com/india/sc-lays-down-conditions-for-women-seeking-maintenance-in-live-in-relationships/articleshow/6786239.cms (last visited on November 5, 2022).

[17] Rajnesh v. Neha, (2021) 2 SCC 324

[18] Ajay Bhardwaj v. Jyotsna, (2017) 1 HLR 224

[19] Abhijit Biases Auto v. State of Maharashtra, (2009) 1 AIR Bom R 212.

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