Author Name:   inb1989

This Article discusses the judgments of the Honourable Supreme Court of India whereby it has been mandated that a presumption in favour of marriage can be raised when the relationship is in existence since a long time and how the raising of such presumption would result into obliteration of burden of proof and raising of a presumption contrary to the basic and settled principles required to raise a presumption under Section 114 of the Evidence Act...

A Misinterpretation & Un-Called Construction Of Section 114 Of Evidence Act Vis-À-Vis Live-In-Relationship

Prelude
India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of live-in relationships. We can witnesses the number of unmarried partners living together is scaling high. Just a generation or two ago it was scandalous from an unmarried man and woman to live together. Today, most couples, who marry, live together first has gone mainstream. But that change happens so quickly. It is no wonder things are inconsistent.

Live-in-relationship in lay-mans language can be said to be a living arrangement in which unmarried couples live together for an indefinite duration of time i.e. it is might be short or long. Discussing the term ‘live-in-relationship’, the Honourable High Court of Delhi has said that 'Live-in relationship' is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who choose to have 'live-in relationship' cannot complain of infidelity or immorality as live-in relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man.

Judicial Elucidation
Thus now it is clear that the people who do not want to marry but still want to live together prefer the option of the live-in-relationships. However the Supreme Court of India has held that by virtue of Section 114 of the Evidence Act, the Courts can raise a presumption that the partners in a live-a-relationship are married to each other. The decisions of the Honourable Supreme Court of India with the relevant paragraphs which have laid down this guiding principle to make presumptions are:

ØIn the case of Madan Mohan Singh and Ors. V. Rajni Kant and Anr., the Court at para 21, has relied upon a decision reported in AIR 1992 SC 756 where it was held that if man and woman are living under the same roof and cohabiting for 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. And thereby concluding at para 22 has held that that the live-in-relationship if continued for such a long time, cannot be termed in as ‘walk-in’ and ‘walk-out’ relationship and there is a presumption of marriage between them which the appellants failed to rebut.

Ø In the case of Chanmuniya v. Chanmuniya Virendra Kumar Singh Khushwaha and Anr. at para 46, has laid down that We are of the opinion that a broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125.

Thus what the above decisions have done is that the relationship into which the parties had entered into has been presumed to be a marriage which would result into not only conferring rights and obligations which the parties never intended to have arisen from the form of relationship but most importantly the conferment of status of husband and wife that the parties never proposed to have from their relationship.

Obliteration Of Burden Of Proof
As the Honorable Supreme Court has taken the support of Section 114 of the Evidence Act, therefore it is important to analyse the scope and legislative intent of Section 114. It can be said that the Section 114 helps the Court in deciding, on whom the burden of proof, in certain situations is. A presumption of facts is to be raised to assist the Court for determining as to the burden of proof in a set of circumstances. As the Court can draw certain inferences either on basis of cumulative conclusion of circumstances or on a single circumstance, it would be in a position to fix up the responsibility on one or other party in case with the burden to reverse such inferred presumptions. It is needed to be noted here that precaution has to be taken that the presumption under this section may not be so stretched as to permit suspicion taking place of proof. However, in case of live-in-relationship the raising of a presumption that the existence of long relationship is equivalent to marriage or rather is marriage is very dangerous and destructive of the evidentiary jurisprudence as the presumption in favour of the person who is contending the existence of a relationship when under the Evidence Act under Chapter VII vide Section 102,103 and 104 provides that the burden of proof lies on the person who either asserts a fact or wants an order or judgment in his favour. Now, therefore if presumptions are raised then just because the conduct in some aspects (like living together) is similar to the human conduct after marriage, on basis of that impression, the entire form of relationship would also be considered to be a marriage and this would be in violation the principles of burden of proof as under the principles of burden of proof, as the burden of proof lies on the party who asserts a fact, failing or wants the judgment or order in his favour on the basis of which the Court would pass the order against the other party. However, if such presumptions are taken then the theory of burden of proof is utterly trampled and on basis of mere contemplation that the partners might be married to each other the Court would be presuming a marriage , instead of requiring the party asserting a fact to fulfill his obligation under law and prove that fact.

Further by raising such presumptions under Section 114, it can noticed that there is a conflict with the provisions of burden of proof which results into violation of the principles harmonious construction, which is the thumb rule to interpretation of any statute. An interpretation which makes the enactment a consistent whole should be the aim of the Courts and a construction which avoids inconsistency or repugnancy between the various sections or parts of the statute should be adopted. The Courts should avoid “a head on clash”, in the words of the Apex Court , between the different parts of an enactment and conflict between the various provisions should be sought to be harmonised. It is a settled rule that an interpretation which results in hardship, injustice, inconvenience or anomaly should be avoided and that which supports the sense of justice should be adopted. The Court leans in favour of an interpretation which conforms to justice and fair play and prevents injustice.

Divergence From Realism
Another important aspect that needs to be paid attention to is that notwithstanding the clear intention of the parties, that they never wanted to have relationship of married couple by virtue of marriage and therefore only they have preferred such a relationship, which is in contradistinction to marriage , a presumption is raised that there is a marriage between them just because of the long cohabitation between. In this context it is important to note that the Honourable Supreme Court has held in case of Kishorilal v. Chattibai that when once facts are ascertained, presumption arising from conduct cannot establish a right which the facts themselves disprove.

In the case of live-in-relationship one fact is very clear that the partners in the relationship are not married to each other but they are only cohabiting with each other. It can be even said further that in fact the partners in order to avoid marriage are into the live-in-relationship. Therefore it can be said if such a presumption is raised which presumes a relationship not intended by the parties to be a marriage, in fact to be a marriage, it would not only be against the settled principles and tenets of law but also contradictory to rational thinking as the partners to the relationship are granted the status, to avoid which the partners of the relationship have preferred the live-in- relationship. It is likewise totally illegal to confer upon the parties the status which they have impliedly denied by the express acts, omissions and conduct which have in their nature and form constituted the live-in-relationship and not marriage. Thus following the guiding principle that once facts are known there is no scope for presumption, a presumption should not be raised in favour of marriage as that presumption would itself be against the facts which clearly and cogently show that the parties are in relationship of marriage or rather they never intended to be in a relationship of marriage

Further raising presumption of existing long live-in-relationship being marriage is also not acceptable as before such a presumption is raised, it is necessary that the conditions of a valid marriage stood satisfied in the sense such a marriage was not prohibited under law. Under Hindu Law when a marriage is not solemnized in accordance with the customary rites and ceremonies it is not valid while in regards to Muslim Law, the Privy Council said that Nikah (marriage) in Muslim Law is a religious ceremony. Now the live-in-relationship does not fulfill these requirements of performance of the ceremonies which is necessary under personal laws to effectuate a marriage and as the it is settled principle of law that the non-performance leads to a marriage being void i.e. no marriage, it can be said that the live-in-relationship is no marriage as the same is not able to meet with the prerequisites of a marriage and therefore a presumption totally contrary which is not in compliance with the conditions of marriage cannot be raised.

An apt reason for not raising a presumption of marriage is found in the judgment of the Honourable Supreme Court in the matter of Gokal Chand v. Pravin Kumari where it was held that continuous cohabitation of a man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that probability the court cannot ignore them. It can be said that the above referred authority fortifies the proposition that why such a presumption should not be caused. Now, when a presumption under the present section is to taken, a caution is put forth that if there are any circumstances which weaken or destroy then the presumption must not be taken. If this is read in context to live-in-relationship then it can be said that the presumption of the long live-in-relationship being a marriage, should not be taken as every feature of the relationship is different from the features of a marriage and therefore all of these would features render circumstances which weaken or rather destroy the probabilities which because of certain similar elements arise and therefore raising such presumption would result into presuming something which the majority of the circumstances and facts surrounding the situation disapprove.

Effects Of Expansive Interpretation
Further due to the raising of such presumption and thereby according the status of husband and wife to the partners in the live-in-relationship, the effect of the same is causing difficulties as the partners in the live-in-relationship on the basis of the status accorded due to the presumption raised are claiming certain rights and privileges which are granted to the legally married couple.

The Honourable Supreme Court in an judgment as referred to above (Chanmuniya v. Chanmuniya Virendra Kumar Singh Khushwaha and Anr.) has expressed the view that the partner in the live-in-relationship should be included in the definition of the term wife for the claim of maintenance under Section 125 of Code of Criminal Procedure because of the presumption which would arise in favour of their marriage due to their long cohabitation together. However the Honourable Supreme Court itself in the case of Sadhu Singh v. Gurudwara Saheb Narike has held that “wife or widow” in the context of marriage, succession or maintenance enactments are of restrictive legal character imply relationships that result from a recognized legal mode of marriage and would not include a relationship which is not recognized by law.

In regards the claim of maintenance under Section 125 of Code of Criminal Procedure, it has been held in the matter of Savitaben Somabhat Bhatiya v. State of Gujarat and Ors that the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife' It is the intention of the legislature which is relevant and not the attitude of the party. However desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of 'wife'.

It is further important to mention that a woman in a live-in-relationship does not have the rights and privileges of a wife as she does not have the status of a wife. The status of a wife necessarily comes from a valid marriage which a very important pre-condition. The concept of live-in-relationship necessarily infers the absence of marriage between the couple cohabiting together and therefore the granting of the status of wife to the partner in the live-in-relationship as a result of the guiding principle laid down by a 2 judge bench of the Honourable Supreme Court would be in complete derogation of the judgment 3 judge bench of the Honourable Supreme Court in the matter of B.S. Lokhande and Anr. v. State of Maharashtra and Anr, which mandates that merely because the couple lives together as husband and wife, the status of wife is not conferred on the woman in such a relationship.

Thus the expansive interpretation of Section 114 is causing departure from the established principles of interpretation of statutes and thereby resulting into uncalled and impermissible interpretation in regards to other statutes which deal with the right and privileges that arise out of the marriage. However the expansive interpretation even if is made is causing serious conflict between the results of expansive interpretation and settled position of law by virtue of enacted legislations and judicial decisions of the Honorable Supreme Court as can be seen from the contradictory decisions mentioned above.

Conclusion
It is of great importance that the fundamental difference between the live-in-relationship and marriage be recognized by the Courts be appreciated and considered by the Courts, so that the presumptions which have been raised in the past are not raised any further, as the same are in violation of the basic tenets and settled position of law in reference to the provisions extending the scope of which they are raised. Even though the Supreme Court has raised presumptions in favour of marriage under Section 114 in the past, the Honourable Supreme Court in D. Veluswamy v. D.Patchiamal, has appreciated the difference between the marriage and live-in-relationship and therefore has placed the live-in-relationship in the ambit of the words ‘relationship in the nature of marriage’ and not marriage when the question arose as to the type of domestic relationship, it was under the Domestic Violence Act.. This seems to be the correct approach towards the new phenomenon that has entered the society as the new phenomenon has evolved in order to avoid the relationship of marriage.

However, as law is a social science it would not also be correct to leave the live-in-relationship in the dark and not protect the right and liabilities arising out of the live-in-relationship. It has to be noted that the relationship has created a new branch in the tree of relationship and this relationship as per the universal practice needs to be regulated as per the terms of the agreement between the parties, however the outer boundaries of the terms of agreement should be defined by a comprehensive legislation not only so that the concept of live-in-relationship is not made equivalent to the marriage as the basic foundations of both the relationship are different but also because all rights and obligations which arise from out of them would be different and would not be the same as that arise from marriage.
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# Live-in-Relationship: Recent Developments in Indian Context by Swapan Deb Varma
# Alok Kumar v. State and Another,( Cri.M.C.No. 299/2009)Honourable High Court of Delhi
# 2010 (9) SCC 209
# 2011 (1) SCC 141
# Net Raj Singh v. State of M.P. 1997 (3) SCC 525
# Ganesh Lal v. State of Rajasthan 2002 (1) SCC 731
# Union of India v. B.S.Aggarwal AIR 1998 SC 1537
# AIR 1959 SC 504
# R.Venkitramah v. Central Road Traffic Board AIR 1953 TC 392.
# Virendra Singh Pal v. Kashibai AIR 1998 MP 324
# Rabindra Kumar Bhattacharjee v. Smt Prativa Bhattacharjee AIR 1970 Tri 30.
# Shobharat Singh v. Jafari Begum
# AIR 1952 SC 231 followed in Balasubramanyam v. Surruttayan AIR 1992 SC 756; Sobha Hymavathi Devi v. Setti Gangadhara Swamy AIR 2005 SC 800
# AIR 2006 SC 3282.
# MANU/SC/0193/2005 : AIR 2005 SC 1809
# MANU/SC/0068/1965: 1965CriLJ544; Surjit Kaur v. Garja Singh AIR 1994 SC 135
# MANU/SC/0872/2010

The  author can be reached at: inbhatt@legalserviceindia.com

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