The need for legislation on live-in relationships

In India, marriage is considered to be a sacrament. Once live-in relationships were conferred legal status, many groups of the society protested, claiming that it would harm the culture of our country.

The take of the judiciary on live-in relationships, in most cases, has been quite the contrary. The stand of the legislature is not very authoritative, given the lack of guidelines and legal framework. With the voluminous rise in live-in relationships in our country, more and more cases questioning their legality are coming up before the courts. Through this article, I will analyze the contemporary jurisprudence regarding the same and will also try to list out some recommendations that have been made.

In 2008, the National Commission for Women proposed to the Union Ministry of Women and Child Development that the definition of "wife" under Section 125 of the Criminal Procedure Code (CrPC) be expanded to include women who live with men in a live-in relationship. The primary goal of this suggestion was to protect such women from domestic abuse and to raise the legal threshold for couples in live-in relationships to that of marriage. The Supreme Court took this jurisprudence a step further by forming a committee led by Justice Malimath to provide recommendations on the above-mentioned proposal.

The Committee issued its report in 2009, recommending that the definition under Section 125 CrPC be changed to allow women to receive alimony/maintenance. As a result, the Supreme Court said in a case that a woman does not need to technically demonstrate marriage to claim maintenance under Section 125 CRPC, implying that a woman in a live-in relationship is equally entitled to maintenance. This judgement signals the liberal and modern stand of our judiciary.

‘Live-in relationship’ is an extra-legal concept that has secured its stand in society through various rulings passed by the courts.

The jurisprudence on live-in relationships dates back to 1929, when the Supreme Court in the case of Mohabhat Ali v. Mohammed Ibrahim Khan had stated that long co-habitation between a couple is a sufficient ground to presume marriage. This rationale was adopted by courts in various judgments to safeguard the rights of women who were left deserted after such breakdowns.

Finally, in 2010, it was observed by the Supreme Court that a man and woman living together without marrying cannot be construed as an offence. There is no law prohibiting live-in relationships or pre-marital sex. Living together constitutes under Right to Life under Article 21of the Indian Constitution, the Court further held. It said that it was the right of individuals to choose the type of relationship in which they want to be.

The Court also laid down certain parameters which can be used to ascertain the status of the relationship:

1. The pair must act as though they are a couple in society.

2. They must be of legal marriageable age.

3. They must be legally capable of entering into a marriage.

4. They must have cohabitated voluntarily.

These guidelines helped various courts in deciding matters relating to live-in relationships as they are objective in nature and can be applied as a test for determination of the nature of the relationship.

In 2013, in Indira Sharma v. VKV Sharma, the apex court stated that all live-in relationships cannot come under the ambit of marriages. If a person is already married, he cannot enter into a live-in relationship with any other woman as it would amount to adultery. The Court clearly said that it was for the legislature to ponder upon this issue and devise a framework. Such relationships may take a permanent form and hence lead to vulnerability and dependency. Therefore, adequate guidelines are required for the protection of both women and children involved in this system. Hence, the judiciary here clearly established that it was for the legislature to take action and devise a structure to govern such relationships.

To safeguard the rights of children born out of these relationships, the Supreme Court stated that even an illegitimate child was entitled to maintenance when he/she is a minor and after he/she has turned major and is unable to maintain himself/herself. The Court settled that children born out of live-in relationships are to be considered legitimate and shall have the same rights as children born out of valid marriages. Children born out of such relationships were also granted inheritance rights.

As recently as on July 3 this year, the Rajasthan High Court in a case held that "the society cannot determine how individuals live their lives, especially when they are major, irrespective of the fact that the relation between two major individuals may be termed as a socially unacceptable. Thus, life and personal liberty of the individual has to be protected except according to procedure the service by law, as mandated by article 21 of the Constitution of India."

Therefore, through these rulings, the Supreme Court and High Courts have tried to bring in a uniform setup to govern live-in relationships in our country. It has tried to encompass the rights of both women and children to safeguard their interests.

The legal history of America has had several consensual sex legislations, which have paved the way for couples to live together without marrying. The concept of ‘Pre-nuptial Agreements' institutionalized cohabitation in America, thereby giving them the same rights as a married couple. This is similar to countries like Denmark and Sweden.

In Canada, live-in relationships are recognized as 'Common Law Marriages'. These couples have the same rights as married couples under federal law. The former gets legal sanctity if the couple has been living in a conjugal relationship for 12 continuous months.

From the above points, we can infer that the laws regarding live-in relationships are quite flexible and structured in western countries. This has helped them in formulating a more uniform framework, thereby making it easier for all the stakeholders to ascertain their rights and duties.

It is time that our country too realizes that a union of two people should not necessarily be in the form of marriage. Adults in contemporary times demand more freedom to choose their partners. For this, they opt for a live-in relationship before entering into a sacrament, which is very practical and rational in order to avoid separation and divorce later. A clear set of rules and framework aid in characterizing the nature of the relationship and in providing relief to the victims.

From the judicial precedents cited above, it is clear that live-in relationships in our country are legal. However, the legislature of our country has not taken any active step in this direction. Even after the recommendations of several committees, we do not have any set of guidelines or legal framework to protect couples in a live-in relationship.

As stated above, various countries in the world have acknowledged live-in relationships and have granted rights to both partners. It is important that our law-making bodies realize the changing needs of society and become more liberal in their approach. Lack of attention and importance given to this topic has led to a number of cases filed before courts. The basic structure of our tradition and the contemporary needs of our society both should be weighed equally before framing laws regarding this matter.

Hence, our legislature needs to understand that live-in relationships are now a common phenomenon in our society. Various stakeholders in these relationships need to be safeguarded to prevent exploitation from taking place. And this can be done only when there is a set of rules and guidelines protecting and governing the same.

Prithav Bang is a third-year law student at Kirit P Mehta School of Law, NMIMS University, Mumbai.