Family law CIA 3 RESEARCH PAPER : live in relationships-recognition in Hindu personal laws

ABHILASHA 1216302 BBA LLB A

Acknowledgement

The author is highly obliged to Christ University for providing her, an opportunity to research on a topic of such a contemporary relevance. This opportunity in the form of a component of internal assessment has been extremely enriching and given her the requisite impetus to improve her understanding and other nuances in the field of Family Law. The author is highly indebted to Mrs. Ambily who has been a guiding light in preparation of this paper and shared her views and for guiding me during her many interactions.

ABSTRACT
A country like India is slowly becoming inclined towards western culture and idea, one of which is the idea of live in relationship which is of relevance to this paper. Live-in relationships in India are often seen as a taboo and a sin. This trend is increasing especially in the metropolitan cities and urban areas. According to Manu, premarital relationships existed in ancient times but were a rare occurrence. This concept of live-in relationship is not new in India; it was earlier known as maitri-karar in which a written agreement was made between the two opposite sex that they would live together as friends and look after each other. Such relations was criticized as destroying the sacred institution of marriage. Due to modernization and liberal thinking there has been a transformation towards a new concept namely live in relationship. Law plays an indispensible role for social change and the Indian judiciary has shown a right path for the progress of the society relating to the concept of live in relationship. Live in relationship basically is when two consenting adults of opposite sex (married or unmarried) live together without tying the knot of marriage for a long period of time. The main issue dealt with in this paper is whether such relationships are recognized under Hindu personal laws, the legitimacy, guardianship and inheritance rights of children born out of such relations, protection of woman in such relationship relating to maintenance and domestic violence and compare the status of live in relationship with that of marriage. Furthermore, this paper also discusses the judicial attitude towards such relations and whether there is a need to legalize it. In addition, some suggestions have been made to improve the womans position in such relations. In conclusion it highlights the fact that it is difficult if not impossible to fit the concept of live in relationships within personal laws governing the institution of marriage and its related aspects.

Introduction

Aim and objectives The relevant objective of this paper is to understand the extent of
recognition of live in relationship in the Hindu personal laws. It aims to explain with clarity the judicial attitude towards live in relationship in the Indian scenario. It helps in knowing the problems arising from such relations and touches upon the societal attitude towards live in relationship. The purpose and objective of this paper is to enumerate how the live in relationship has become a reincarnation of marriage in the modern era. Basically the aim and objective of this paper is not to criticize or support live in relationship but is only a critical examination of the contemporary issue dealing with the concept of live in relationship. The quality of content in this paper is useful in better understanding of the above mentioned objectives.

Scope-

This paper has been developed taking into account the recent trends in the modern scenario.

This topic is of indispensible importance because the extent of its recognition should not harm the institution of marriage. The scope of this paper is limited to the Indian perspective alone. The rights of women, rights of children born out of such relationships and the impact of status of live in relationship with status of married couples is also included in the scope of this paper. Also, the discussion dealt with in this paper is only with respect to the Hindu personal laws.

Research questions1) Should live in relationship be legalized? If so, what are the consequences of legalization of such relationship on married partners? Should a new law be made in India to regulate such kind of relationship? 2) What is the status of children in the eyes of law(legitimate or illegitimate) with respect to right to maintenance, guardianship and custody and inheritance rights of children born out of live in relationship? What is the status of live in relationship with that of married couples in the above aspects? 3) What is the status of women in live in relationship with respect to maintainence, marriage and divorce? 4) Whether the Indian society is prepared to accept such new kind of relationship?

Research methodology-

Doctrinal research

1) Whether the Indian society is prepared to accept such new kind of relationship?
Some of the traditional people of the society are of the view that it encourages extra-marital relationship and casual sexual relationship, out of wedlock, which will dilute the concept of holy marriage or scared union thereby causing damage to the age old-family values practiced by Hindus since time immemorial. They are of view that losing virginity is sin as per customary law, in Mythology Kunti abounded Karna ,because he was born out of wedlock. The Rama is ideal husband and Sita is ideal wife. Many are of view that if live-in relationship is encouraged, it will increase teenage and child pregnancy, HIV, children born out of wedlock may be not properly brought up, which will lead to juvenile delinquency. It will have adverse impact on the society. They feel that all this has destroyed the institution of marriage. But the fact is that Hindu Marriage laws are no more religious law or customary law, it has assumed secular character after codification in 1956. Some liberal thinking people of the society who have an open mind set accepted the concept of dating ,which is prevailing in cities and towns and the reality that most young dating couples are entering into live-in relationship to test their compatibility to each other ,the cohabitation (and other conjugal aspects) will allow them to understand each other well ,which will help them to take decision for permanent commitment through legal marriage and legalize relationship by entering into legally valid marriage. It is better to opt for live-in relationship than going for divorce; this is basic logic of live-in relationship. This purely western concept of relationship based individualism; primary motive is more freedom, monetary independence, non-interference of their personal affairs and career.1 Hence, society has people who accept the concept of live in relationship and some who are against it saying detrimental to the sacrament of marriage.

http://legalgensis.blogspot.in/2011/09/live-in-relationship-legality.html

2) Should live in relationship be legalized? If so, what are the consequences of legalization of such relationship on married partners? Should a new law be made in India to regulate such kind of relationship?
There is no special law in India to deal with the concept of live in relationships. The Courts in India, through their decisions in different cases, have laid down the law in respect of such relationships. It is argued that it is better if live in relationship is not legalized because In the debate in the Lok Sabha on 15th December, 2008 in the question hour, Mr.H.R.Bhardwaj , Honble Union Law Minister while answering to the question related to live-in-relationships said that if live-in- relationships are acceptable by society, then the government can make laws. Laws are made keeping in view societal trends. It is hypothetical to ask a question whether we are contemplating a law to govern live-in relationships. Less than one percent of the people are in such relationships. If a law is enacted, it will only be misused.2 In this regard we should not blindly follow what is happening in other countries because the societal structure of our country is different from them. At the same time we should not ignore to consider the real pulse of our society in the light of progress of the society. Therefore it is not useful to see the legal trend in India as imitating the western model.

3) What is the status of children in the eyes of law(legitimate or illegitimate) with respect to right to maintenance , guardianship and custody and inheritance rights of children born out of live in relationship? What is the status of live in relationship with that of married couples in the above aspects?
Section 112 of the Indian Evidence Act, 18723 provides that legitimacy of a child is proved only if he or she was born during the continuance of a valid marriage between his mother and father but the Supreme Court in Tulsa v. Durghatiya4 held that children born out of such a relationship will no more be considered illegitimate.5Again in Vidhyadhari v. Sukhrana Bai,6 the Supreme Court held that even if a person had contracted into second marriage during the subsistence of his first marriage, children from the second marriage would still be legitimate though the second marriage would be void. Since there is no specific law that recognizes the status of the couples in live in relationship, hence the law as to the status of children born to couples in live in relationship is also not very clear.
2 3

http://www.Indialawjournal.com/volume2/issue_2/article_by_saakshi.html

Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
4 5

(2008) 4 SCC 520 Mohd. Bauker v.Shurfoon Nissa Begum, (1859-61) 8 MIA 136 6 (2008) 2 SCC 238 : (2008) 1 SCC (L&S) 451

The Hindu marriage Act, 1955 gives grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live in partners. The future of children of live in partners becomes very insecure in case the partners step out of their relationship. There comes the requirement of a strong provision to safeguard the rights of such children. The must be provision to secure the future of the child and also entitling the children to a share in the property of both the parents.

Again in the absence of a specific legislation, the Supreme Court of India took the initiative to safeguard the interest of children of live in couples. In the case of Bharata Matha & Ors. vs. R. Vijaya Renganathan & Ors., the Supreme Court of India has held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu ancestral coparcenary property. At present there is no specific legislation that deals with concept of live in relationship and the rights of the parties and the children of the live in partners. Through its various decisions the judiciary has tried to accord legality to the concept and protect the rights of the parties and the children of live in couples. But at present there is a need to formulate a law that would clarify the concept. There should be clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it. The utmost need of the hour is to secure the future of the children born to live in couples. The steps taken by the judiciary are indeed welcoming and pragmatic in approach. Though the live in relations provide the individuals individual freedom but due to the insecurity it carries it with, there needs to be a law to curtail its disadvantages. A legitimate son, son of predeceased son or the son of predeceased son of predeceased son, so long as he is minor, and a legitimate unmarried daughter or unmarried daughter of the predeceased son or the unmarried daughter of a predeceased son of predeceased son, so long as she remains unmarried, shall be maintained as dependants by his or her father or the estate of his or her deceased father.7 But children from live-in relationships do not enjoy this right under the Hindu Adoptions and Maintenance Act 1956, whereas Section 125 of the Code of Criminal Procedure provides maintenance to children whether legitimate or illegitimate while they are minors and after they attain majority where such child is unable to maintain himself. However, the right to maintenance of children born from a live-in relationship was upheld in 2007, in Dimple Gupta v. Rajiv Gupta.8 In Hindu law, after the marriage of a man to a girl who is a legal minor, the husband is the legal guardian of his wife as a minor and is entitled to her custody. The mere fact that she is a minor will not

7 8

Section 21, The Hindu Adoptions and Maintenance Act, 1956 (2007) 10 SCC 30: (2008) 1 SCC (Cri) 567

disentitle her from claiming such custody to the exclusion of her parents.9 Where the father and the mother are not married to each other and a child is born to such parents, the mother and not the father has the parental responsibility for the child.10 Section 6(a) of the Hindu Minority and Guardianship Act 1956 provides the father as the natural guardian of his minor legitimate children and the mother becomes the natural guardian in his absence i.e. where he is incapable of acting as the guardian.11 Section 6(b) of the Hindu Minority and Guardianship Act 1956 provides the mother as the natural guardian over any illegitimate children she has. While deciding a matter on custody, the court takes into account the welfare, age, sex and the wishes of the child as well as the wishes of his parents; the welfare of the child shall be the paramount consideration.12 This applies even in custody cases involving children from live-in relationships. Inheritance rights of children Under Hindu law, an illegitimate child inherits the property of his mother only and not putative father. If children from a live-in relationship were to still be considered illegitimate,86 inheritance from the father's estate would be barred. In fact, where the live-in relationship has not subsisted for a reasonable period of time, the courts would not consider a child from such relationship to be legitimate, thereby barring his inheritance. However, where the live-in satisfies this condition, a child being legitimate can inherit from both the parents. In Revanasiddappav. Mallikarjun,87 the Supreme Court granted the inheritance to the four children born from the woman with whom the man shared a live-in relationship, calling them his legal heirs. The Court has thus ensured that no child born from a live-in relationship of a reasonable period may be denied their inheritance.8813

4) What is the status of women in live in relationship with respect to maintenance, marriage and divorce?
Status of women with respect to marriage: The Supreme Court in Lata Singh v. State of U.P14 held that the live-in relationship is permissible only in unmarried persons of heterosexual sex of the age of majority. The brothers of Lata Singh had alleged that she was mentally unfit when they had protested her marriage. However this was held to be untrue when she was examined by doctors. The live-in relationship if continued for such a long time, cannot be termed as a walk in and walk out relationship; there has to be a presumption of marriage between

Prof. Vijender Kumar, Live-In Relationship : Impact on Marriage and Family Institutions, (2012) 4 SCC J-19 at p. J-19 10 Natural guardians of a Hindu minor, Section 6, The Hindu Minority and Guardianship Act, 1956 11 Githa Hariharan v. RBI, (1999) 2 SCC 228 12 Section 13, The Hindu Minority and Guardianship Act, 1956
13 14

http://www.westminsterlawreview.org/wlr19.php

(2006) 5 SCC 475 : (2006) 2 SCC (Cri) 478

them.15 In Gokal Chand v.Parvin Kumari16 the court cautioned that the couple would not get legitimacy, if the evidence of them living together was rebuttable. These decisions only served to recognize marriages which were doubted, on the basis that a long-term live-in relationship existed. However the courts did not recognize live-in relationships as independent of the institution of marriage, that is the presumption of marriage was a key element. In S.P.S. Balasubramanyam v. Suruttayan17 the Supreme Court held that if a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 11418 of the Indian Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.19This decision suggested that the law treats long live-in relationships as good as marriages. The courts could subsequently interpret live-in relations to mean living together as husband and wife20to exclude those who enter into a live-in relationship by choice without intending to be married, as that is still a matter of doubt and debate.21 Maintenance: The Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav22 held that where a man having a living lawfully wedded wife marries another woman, his second wife had no claim to maintenance under Section 125 of the Code of Criminal Procedure, 197323 , even though she might be unaware of his earlier marriage. The Court refused to give any recognition to the fact that they had lived together even if their marriage was void. The man was allowed to take advantage of this, although he had failed to disclose his earlier marriage. The Supreme Court held that it would not grant any rights to the woman in such a live-in relationship of circumstance.24 In Malti v. State of U.P25, the Allahabad High Court held that a woman living with a man could not be equated as his wife. In this case, the woman was a cook in the man's house and she stayed with him and shared an intimate relationship. The

15

Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209:(2010) 3 SCC (Civ) 655; A. Dinohamyv. W.L. Balahamy, AIR 1927 PC 185 : (1928) 1 MLJ 388 16 AIR 1952 SC 231 17 1992 Supp (2) SCC 304 18 Court may presume existence of certain facts, Indian Evidence Act, 1872 19 Tulsa v. Durghatiya, [(2008) 4 SCC 520 20 S Khushboo v. Kanniammal & Anr, AIR 2010 SC 3196 21 Prof. Vijender Kumar, Live-In Relationship : Impact on Marriage and Family Institutions, (2012) 4 SCC J-19 at p. J-19 22 (1988) 1 SCC 530 : 1988 SCC (Cri) 182 23 Order for maintenance of wives, children and parents, Code of Criminal Procedure, 1973 24 Prof. Vijender Kumar, Live-In Relationship : Impact on Marriage and Family Institutions, (2012) 4 SCC J-19 at p. J-19 25 2000 Cri LJ 4170 (All)

Court however refused to extend the meaning of the word wife as denoted in Section 125 of the Code of Criminal Procedure26 to include such a live-in partner's maintenance claims. In Savitaben Somabhai Bhatiya v. State of Gujarat,27 the Supreme Court went further to the extent of observing that the fact that the respondent was treating the appellant as his wife is really inconsequential because it is the intention of the legislature which is relevant and not the attitude of the party. Even the plea that the appellant was not informed about the respondent's earlier marriage, when she married him, is of no avail, because the principle of estoppels cannot be pressed into service to defeat the provisions of Section 125 of the Code of Criminal Procedure.44 Thus, as per the present provisions of Section 12545 , there is no escape from the conclusion that the expression wife refers only to the legally wedded wife. Hence, the Court granted maintenance to the child and not to the second wife. Under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.46 In Narinder Pal Kaur Chawla v. Manjeet Singh Chawla,47 the Court took a liberal view and stated that the second wife has a right to claim maintenance under the Hindu Adoptions and Maintenance Act, 1956.48 In this case the husband had not disclosed the facts of his first marriage and married the appellant and maintained a relationship with her for 14 years as husband and wife. The Court also took support from the provisions of the Protection of Women from Domestic Violence Act, 2005,49 and held that if we do not give maintenance to the second wife it would amount to giving premium to the respondent for defrauding the appellant.50 The Supreme Court in Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga51 tried to distinguish between the legality and morality of relationships. Where the Supreme Court observed that keeping into consideration the present state of statutory law, a bigamous marriage52 may be declared illegal because it contravenes the provisions of the Hindu Marriage Act, 1955 but it cannot be said to be immoral so as to deny even the right of alimony or maintenance to spouse.53 The increasing incidents of live-in relationships, especially those which occur by circumstance, however ensured that the need for reforms was recognized. In 2003, the Malimath Committee Report on Reforms in the Criminal Justice System suggested an amendment of the word wife in Section 125 of the Code of Criminal Procedure to include a woman who is living in with a man for a reasonable period.54 Ironically, back in 1985, the Supreme Court in Sumitra Devi v. Bhikan Choudhary55 had held that where a man and woman were cohabiting for a long time and were treated by society as husband and wife, marriage is to be presumed for awarding maintenance. However, the courts have not extended this principle to include purported live-in partners. Significantly, the Protection of Women from Domestic Violence Act 2005 became the first statute to give live-in partners the same recognition

26 27

Order for maintenance of wives, children and parents, Code of Criminal Procedure, 1973 [(2005) 3 SCC 636; 2005 SCC (Cri) 787

as married couples. The protection under this Act does not qualify live-in partners to get the same benefit under personal law.56 In M. Palani v. Meenakshi57 the respondent had filed a claim for maintenance of Rs 10,000 for food, clothes, shelter and other basic necessities from the plaintiff, who had been in a live-in relationship with her. The said application was filed under Section 2058 read with Section 26.59 The petitioner contended that the respondent was not entitled to any maintenance since they had not lived together at any point of time. They had only indulged in consensual sexual intercourse sometimes as friends, without any thought of marriage. He hence contended that mere proximity at some time for the sake of mutual pleasure (as in their case) could not be called a domestic relationship60 to invite the application of the Protection of Women from Domestic Violence Act, 2005. The Madras High Court looked into the definition of domestic relationship as given in Section 2(f) of the Protection of Women from Domestic Violence Act, 200561 which did not specify that the couple should have lived together for a particular period for the relationship to be a domestic relationship. The Court held that at least at the time of having sex by them, they shared household and lived together. 62 The Court further held that the provisions of the Act would apply even in such a case; hence, a maintenance claim under the Act was upheld. Thus the provisions of the Act would apply even in those cases where man and woman share a frequent sexual relationship, even if there is no express intention to a long-term commitment from either party. While some may see this as a weapon which may be used by a woman to seek vengeance on a man, if he walks out of a soured live-in relationship, a larger issue of protecting the rights and vulnerability of the other woman has been partially addressed by allowing such claims.63 Partners in a live-in relationship do not enjoy an automatic right of inheritance to the property of their partner. The Hindu Succession Act 1956 does not specify succession rights to even a mistress living with a male Hindu. However, the Supreme Court in Vidhyadhari v. Sukhrana Bai64 created a hope for persons living together as husband and wife by providing that those who have been in a live-in relationship for a reasonably long period of time can receive property in inheritance from a live-in partner. In this case property of a Hindu male, upon his death (intestate), was given to a woman with whom he enjoyed a live-in relationship, even though he had a legally wedded wife alive.65 Divorce: Women in live-in relationships are not recognized by their husband's surname, for any legal or financial matters including opening a bank account, submission of income tax return, applying for loans, etc.66 They retain their identity as an individual and are not recognized as a wife67 or a domestic partner.68Consequently live-in couples can separate informally without any formal divorce69 or the intervention of a court.70 In case of live-in relationship, it is not possible to have a formal divorce in law among partners. The careful scrutiny of the existing matrimonial laws indicates that unless this kind of relationship is not recognized in law the partners cannot be allowed to separate formally. It looks like it is easy to get into live-in relationship whether by choice or by circumstance but difficult to get out

of this relationship formally. Whereas the consequences of this relationship are left unanswered in law, for example, there is no law in place which deals with the division and protection of their separate or joint property on separation.28

CONCLUSION
With the emergence of increase in trends of live in relationship there has been many debates whether to amend the existing laws or not. There requirement of legalizing live in relationship has faced many criticisms and any laws to protect women and children from such live in relationship must carefully expressed by the courts. Personal laws differ for various communities on different matters and to fit in live-ins into each of these aspects would be a difficult and complex exercise. As seen from the analysis above through research it is clear that live in relationship are not equivalent to marriage. Live-ins may thus entirely fit into personal laws only if they were given an equivalent status as married spouses. The trend of Indian judiciary is not consistent with regard to recognition of such relationships. But in so far as the protection of the claims of women in such relations is concerned, the Indian judiciary is firm in its stand to render justice to the vulnerable section of the society. On understanding the judgment given by different courts it is clear that 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. It has long been understood that law has to change with the times and reflect the dynamism of social realities for it to be workable and fair. Legislation and legal principles have to be objective while protecting the fundamental rights of a person as envisaged under the Constitution of India. Lastly, as

28

http://www.westminsterlawreview.org/wlr19.php

Flavia Agnes, a feminist activist stated, in light of the rights granted to same-sex couples29 and recognition of property rights of illegitimate children, there hardly seems to be any rationale behind subjecting women in live-in relationships to unnecessary hardships. Whatever the stance on the moral debate may be, it cannot outweigh basic human rights and the fundamental rights of women.30 While women in a matrimonial relationship have legal recourse available to them, women in live-in relationships do not have many options. It is not difficult to see that the rights of the woman in a matrimonial relationship have come from the approval society has granted to marriage as an institution. On the other hand, the rights of women in live-in relationships are still considered revolutionary in the Indian society.

Suggestion
Live-in relationship is neither a crime nor a sin though socially unacceptable in this country. Longstanding relationship as a concubine, though not a relationship in the nature of a marriage may deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and Exhaustive. The Supreme Court in a number of cases has stated that where there is cohabitation for a reasonable period of time, the couple shall be presumed to be leading a married life and shall enjoy such rights. However, the Court has not defined how much time should be considered to confer the marital status on such relationships. It needs the immediate attention of the lawmakers to make it clear through suitable legislation otherwise different couples may be subjected to different yardsticks when they seek their rights. An amendment to Section 125 of the Code of Criminal Procedure could be one such example that would bring a uniform law, which would outline the rights, duties and responsibilities of such couples. Such a law could define those couples that to whom it applied (in terms of length of cohabitation), recognize the two kinds of live-in relationships and provide remedies accordingly, in the same manner as the Protection of Women from Domestic Violence Act, 2005.31 Merely spending weekends together or one-night stand would not make it a domestic relationship, because parliament has used the expression

29 30 31

Naz Foundation v. Delhi, WP(C) No.7455/2001

2 Warwick Student L. Rev. 54 2012 Deepak Lal, India: Population Change and Its Consequences, Population and Development Review, The Political Economy of GlobalPopulation Change, Vol. 32, 1950-2050 (2006) at p.173

relationship in the nature of marriage it is necessary to understand society with its changing colours and provide laws which are practicable and enforceable to tackle these complex issues.32 Live-in-Relation would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners. It would have an adverse impact on the youths and result in the spread of HIV/Aids. Therefore, awareness amongst youth is most important.

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Prof. Vijender Kumar, Live-In Relationship : Impact on Marriage and Family Institutions, (2012) 4 SCC J-19 at p. J-19

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