The Cosmopolitanism of the world and the idea of the world being a global village endeavor for inclusivity in terms of people’s cultures and societal norms as well as nations’ policies and laws. India too in the scenario is not lagging, accepting one western culture at a time, with a pinch of Indianness.
When talking about relations in India, the “sacred institution” of marriage is deemed legitimate and acceptable by society and the law. In comparison to it, newer modes of cohabitation, like live-in-relationships are for the most part considered as very “un-society” like.
Such relations often become a victim of widespread criticism, rejection to even ousting in some cases.
The notion of pre-marital sex seems to be the obvious woe for our elderly diehard society preventing acceptance of cohabitation without marriage. In these postulating events, the absence of a legal framework only adds to the worry.
In today’s day and age, youngsters prefer to be in a live-in relationship than in the institution of marriage for putting a test to compatibility, financial stability, or inter-faith challenges to marriage or a mere distaste for the traditionally recognized system of marriage among an array of other reasons.
This calls for legal measures to be in place for when it might be called for or reliefs sought for a variety of grounds like maintenance on discontinuance, custody of the child, and such others.
While live-in-relationship, infamous cohabitation sans marriage, has been validated by the Apex court and many high courts in a plethora of judgments; the problematic concern is that live-in-relationships have similar stumbling blocks as marriage apart from other additional woes for which there is no particular legal mechanism in place.
Essentially, though the couples have a right to live together without marrying as per Article 21 of the Constitution, and such relationship may be recognized as per section 114 of the Indian Evidence Act, along with the children born out of such relationships being legitimate, any other legal concerns for a couple cohabiting outside wedlock would have to be sought based on available legislations, and not legislation tailor-made.
Implying that, although a relationship without marriage is not impermissible under the law, concerns leading to and post discontinuance might call for new legislation to depict a clear picture. We, as a system, welcome the western traditions and want to be progressive in our outlook, yet the present scenario tells us there is still a long way to go.
In a recent plea of a reunited couple to get their child back, earlier given up for adoption to a childless couple via the help of a social worker, the Kerala High Court’s division bench of Justice A Muhamed Mustaque and Justice Dr. Kauser Edappagath observed,
“If a woman feels she is nothing without the support of a man, that is the failure of the system.”
The court also stated that it is pertinent for the State to make her feel validated using the supporting hand of rule of law.
The brief facts are such that the couple was in a live-in relationship and had a child together before they faced distraught relations, leading to the man remaining elusive thereafter, ultimately resulting in the broken bond.
Although the woman persevered for reconciliation, all her efforts were in vain. Distressed about her child due to lack of social and financial support, the anxious woman gave the child up for adoption to the Child Welfare Committee. Later, the man reappeared, and both filed for a plea, seeking their child back.
Albeit, the honorable High Court was kind enough to consider their plea and set aside the certificate of adoption as per section 38 of the Juvenile Justice Act; it also made a significant remark as regards the systemic deficiency and demanded a scheme from the Government to support single mothers.
The court was also considerate enough to regard the offspring as a child born to a married couple and the woman as the wife for the application of provisions of the Juvenile Justice Act.
This distinctly points out lacunae in the law, as no available legislation defines a live-in-relationship let alone substantiate the existence of the same and grant legal status to such connections in the language of the law.
Despite the judiciary stepping up on multiple occasions, where the legislative falls short, the inclination of the younger generations towards cohabitation sans marriage even in the long run, preferably for avoiding the legal hassles of judicial separation or divorce, makes it imperative to have legislation in order, for the advancing times.
While there is no custom-made legislation for the issue at hand, there are some reliefs although under indirect nebulous terms.
The Protection of Women from Domestic Violence Act, 2005 has defined Domestic Relationship u/s 2(f) to include the phrase “relationship like marriage” and are thus befitted for individuals in a live-in-relationship.
Courts have stood by this in a range of judgments. In spite of the fact that section 125 of the Criminal Procedure Code, 1973, was enacted for avoidance of destitution of wife/minors, the same has now been made applicable to individuals in a live-in-relationship.
Importantly, the Domestic Violence Act provides for the protection, maintenance, and right of Palimony. (alimony to a former partner from non-marital relations) to the female partner in a live-in-relationship.
The Supreme Court has also made a significant comment in a related concern of victims of illegal relationships to be included for the meaning of section 2(f) of the Domestic Violence Act; requesting the Parliament to form legislation on the same.
As mentioned above, some aspects of a live-in-relationship have been included in the above-mentioned legislation by way of judicial intervention and interpretation needed for the alias used in them and certain court precedents on these issues; however, the default of no proper legislation has led to some differences as well.
While the court in Mohan Singh v. Rajni Kant held that if a live-in-relationship is continued for long, there will be a presumption of marriage and thus it cannot be termed as “walk-in and walk-out relationship”; the Delhi High Court in Alok Kumar v. State, held a couple to be in a “walk-in and walk-out relationship” as the couple was in an illegal relationship.
As regards the application of the provisions of the Domestic Violence Act, also requires a relationship to be stable and long. Notwithstanding the differing facts of the cases, the lack of legislation in this regard makes it uncertain as to which relationship can be considered legal and how long should the cohabitation be for that matter.
The questions that remain:
why are women not in wedlock differentially treated by society?
Why do most single women feel powerless and in need of social and financial solace from a male parent or partner?
Were the societal norms of policing women and prioritizing men not enough, that we, a society of a developing and advancing economy, provide meager support to women leaving their cohabitation home?
Although, a live-in-relationship may be legally recognized in India and may be given the status of a legal marriage,
why does an anguished wife and mother have little consolation post discontinuance of cohabitation?
Why is there no certain set of rights and obligations of biological mothers and fathers?
All boils down to the fact that we might accept live-in-relationships legally and consider them “marriage-like”, but we lack a proper system for this kind of relationship, which is manifestly going to be pursued more in the coming years.
The Indian society has matured a lot since ancient times which regarded marriage as a sacrosanct union of two individuals and their families to borderline accepting cohabitation without marriage and the union of same-sex couples.
Partners in live-in-relationships still face the brunt of society regarding their acceptance, reputation, or finding a decent home for themselves. While their struggle with society persists; the ambiguity regarding the legality, status, maintenance, guardianship, and succession for partners in a live-in-relationship, makes it crucial to have customized legislation.
This will perhaps also provide consolation to single mothers out of cohabitation without marriage and conceivably provisions in this regard in favor of same-sex couples living together too.
By Pancham Jhala, 4th Year B.A.LL.B (Hons.), Faculty of Law, The Maharaja Sayajirao University Baroda, Vadodara