By Siddhartha Shankar Mishra
The British ruled India for about two hundred long years.Even after they retreated , they left an indelible mark on the mind of the young India, whether it be in the form of legislation their culture or most importantly the craze for westernization. We are always in the run of aping the west be it through western outfits or their lifestyles without delving deep into the consequences or repercussions of those acts on our society. Sometimes we defy our own culture in order to endorse theirs and label ourselves as the children of the globalized world. One of the such ongoing trends is the culture of live in relationship.
Live-in-relationship is the arrangement in which a man and a woman live together without getting married. This is now a day’s being taken as an alternative to marriage especially in the metropolitan cities. Currently the law is unclear about the status of such relationship though a few rights have been granted to prevent gross misuse of the relationship by the partners.
“Married in haste, we repent at leisure”
The above line by William Congreve truly defines the mentality of the live in couples.The hectic lives of the metros don’t leave time for nurturing a family in its true sense.Now a days people are becoming more and more individualistic and career oriented. They spend less time at home and more time in offices.With more and more women going out for work, the nurturer of the family is not giving enough time for family and children. So actually why is there the need to go into marital bonding and forsake one’s liberty?Everyone likes a life free of tensions and responsibility.After working for night shifts who wants to get up early the next day to prepare children’s tiffin and make ready them for school?
Moreover, the divorce laws are too cumbersome in India.If one has to get a divorce then it takes years to finally get it done and trauma suffered by the partners during these years is too much. This is also one of the biggest reason for live in relations.There are too many legalities involved with the institution of marriage which one can easily escape in the case of live in relationships. It’s a much popular analogy of live in relationship that its like “taking a car for a test drive “as the couple can easily walk in and walk out of the relationship without any legal bondage. Its better to know the person beforehand than marrying in haste and getting oneself in a legal mess.
We have to view the relationships from an important perspective of the institution of marriage and our duty to protect and preserve the sanctity of marriage. There are certain venues and spheres which are beyond the realm of law. Those are the norms and dictates of conscience, sanctity of marriage, lifelong commitment and responsibilities of parenthood.
I feel the live in relationships are permissible so long as the person doesn’t undergo the ceremony of marriage. It is alright if the factum of pre – marital relationship is disclosed to the person and it is ignored or condoned. But in several cases the non disclosure of this material fact especially in NRI marriages are resulting in the nullification of the marriage on the ground of fraud under section 5(1)(c) of the Hindu Marriage Act. There are still arranged marriages prevalent and the boys and girls are willing to undergo the same trusting their parents and their experience. The character, the antecedents of the boy or girl assume importance in such marriages. The marriages are made on earth and are broken on earth and that is the accepted state now, especially when we accept and approve the pre-maritial relationships before marriage.
The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants.Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law.In case of Kushboo,the south Indian actress who endorsed pre- marital sex and live in relationship,22 criminal appeals were filed against her which the Supreme Court quashed saying that how can it be illegal if two adults live together, in their words “living together cannot be illegal.”
Now the problem is not just limited to the legality of the relationship but now people are coming up about the rights of the live in partners and the status of children born out of such wedlock.The Hindu Marriage Act 1955 gives the status of legitimacy to every child, irrespective of birth out of a void, voidable or valid marriage. However, they don’t have property and maintenance rights.In case the couple break up then who would maintain the child in case none wants to take responsibility remains a big problem.
In S.P.S Balasubramanyam Vs Suruthaya @ Andali Padayachi and Ors. AIR 1992 SC 756, the Supreme court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act, that they Live as husband and wife and the children born to them will not be illegitimate.
In Adan Mohan Singh Vs Rajni Kant, the Supreme Court observed “The courts have consistently held that the law presumes in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (vide: Mohabbat Ali Khan Vs Mohd. Ibrahim Khan, AIR 1929 PC 135; Gokalchand Vs Parvin Kumar, AIR 1952 SC 231; S.P.S Balasubramanyam Vs Suruttayan (1994) 1 SCC 460; Ranganath Parmeshwar Panditrao Mali Vs Eknath Gajanan Kularni (1996) 7 SCC 681; and Sobha Hymavathi Devi Vs Setti Gangadhara Swamy and Ors., (2005) 2 SCC 244).
In appeal filed by the well know actress, Khushboo seeking quashing of criminal proceedings filed against her mostly in the state of Tamil Nadu, for the remarks made by her in an interview to a leading new magazine. The Hon’ble Supreme court opined that a man and woman living together without marriage cannot be construed as an offence.
The Apex court said there was no law which prohibits Live-in relationship or pre-marital sex.
The Supreme court, held that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under section 497 IPC.
In June, 2008, The National Commission for Women recommended to Ministry of Women and Child Development made suggestion to include live in female partners for the right of maintenance under Section 125 of CrPC. This view was supported by the judgement in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others . The positive opinion in favour of live in relationship was also seconded by Maharashtra Government in October, 2008 when it accepted the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC.
In France, there is the provision of “Civil Solidarity Pacts” known as “pacte civil de solidarite” or PaCS, passed by the French National Assembly in October 1999 that allows couples to enter into a union by signing before a court clerk. The contract binds “two adults of different sexes or of the same sex, in order to organise their common life” and allows them to enjoy the rights accorded to married couples in the areas of income tax, housing and social welfare. The contract can be revoked unilaterally or bilaterally after giving the partner, three month’s notice in writing.
In Philippines, live in relationship couple’s right to each other’s property is governed by co- ownership rule. Article 147, of the Family Code, Philippines provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
In the UK, live in couples does not enjoy legal sanction and status as granted to married couple. There is no obligation on the partners to maintain each other. Partners do not have inheritance right over each other’s property unless named in their partner’s will. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. However, the law seek to protect the right of child born under such relationship. Both parents have the onus of bringing up their children irrespective of the fact that whether they are married or cohabiting.
The live in relation were conferred legal sanctity in Scotland in the year 2006 by Family Law (Scotland) Act. Section 25 (2) of the Act postulates 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, in case of breakdown of such relationship, Section 28 of the Act gives a cohabitant the right to apply in court for financial support. This is in case of separation and not death of either partner. If a partner dies intestate, the survivor can move the court for financial support from his estate within 6 months.
Supreme Court’s verdict on live in relationships has been welcomed by couples, who are living in, but people who have high respect for tradition still remain on the other side.
Talking about prostitution, it is illegal in India, but do we see a reduction in the number of brothels in the country? Can we legalize this practice in India, which is prevailing for decades now? Same holds for live in relationships.
One big question is that if a living in couple wants same rights as marriage couples, why not they get married then? There are many grey areas. Will the law treat single, married man cohabiting with a man in the same way? For how long the woman or man have to be in live in to qualify for maintenance? If a live in couple has a child and later decide to part ways, what will be the future of the child ? Why should an innocent child suffer without any mistake?
Did we hear of the oldest profession in the world? Is it not true that ever since human memory is recorded, there have been instances of man seducing the other woman or the woman seducing the other man. The Indian values have been undergoing changes. Even 50 years ago, there was a joint family system, all living under one roof; no longer so, the couple look for a separate apartment even before getting married. With the internet culture overtaking all other cultures nothing is any more taboo. Moreover, there can be many, many genuine reasons that a couple wants to stay together without creating encumbrances. How many young wives are there in India with a child or two, whose legally married husband has deserted? Live-in will avoid at least children and their misfortunes in most cases, and both will have an option open to rectify the mistake, if it was so. Both will not treat the other as their private property and will learn to respect each other and be more matured in the process. So, nothing is wrong. Anyway, no values are left in Indian society, politics, business and even religious activity except one value and that is hypocrisy.
Many people imagine that living together before marriage resembles taking a car for a test drive. The “trial period” gives people a chance to discover whether they are compatible. This analogy seems so compelling that people are unable to interpret the mountains of data to the contrary.
Here’s the problem with the car analogy: the car doesn’t have hurt feelings if the driver dumps it back at the used car lot and decides not to buy it. The analogy works great if you picture yourself as the driver. It stinks if you picture yourself as the car.
Legalizing live in relationship means that a totally new set of laws need to be framed for governing the relations including protection in case of desertion, cheating in such relationships, maintenance, inheritance etc.Litigation would drastically increase in this case.
Moreover the psychological impact on children born out of this relationship would be very bad leading to mental diseases and criminal tendencies. All this would give rise to an unstable society.
The most important fact that why do people get in live in relationships? If we would make so many laws regarding it then what will happen to the whole idea of liberty that is attached to such live in relationship. Now it is upon us to weigh the pros and cons of this and then accordingly take a decision for ourselves.