Author Name:   shrivastav.vera

relationship in the nature of marriage" under the Domestic Violence Act, 2005 accords status to some live in relationships. The existing laws in India do not recognise live in relationships. Is there a need to accord protection to such relationships? does the sanctity of marriage remain,as is?

Socio - Legal Aspect of Live In Relationships

Need for revamping the existing Legal Framework to accord protection to Live-in relationships: A Comparative Study

In India, according to traditional Hindu Law, marriage is a sacrament and not a civil contract. It is a ‘sanskara’ or purificatory ceremony obligatory for every Hindu. Marriage in India is a holy performance of religious rites.The union is sacred and indissoluble in life and continues even after the death of the husband. The parents are morally obliged to find mates for their children, and the children to accept the parental choice. As such, in Hindu marriage there is no room for romantic love as the basis of marital selection.

Edward Westermark, defined marriage as the “more or less durable connection between male and female, lasting, beyond the mere act of propagation till after the birth of the offspring.” According to Horton and Hunt, “marriage is the approved social pattern whereby two or more persons establish a family”. H. T. Mazumdar defines marriage as “a socially sanctioned union of male and female, or as a secondary institution devised by society to sanction the union and mating of male and female, for purposes of a) establishing a household, b) entering into sexual relations, c) procreating, and, d) providing care for the offspring.”

Indian society has been in a state of transition from the old world to the new, altering old customs and traditions in light of the cultural changes and the influence of the west. The sanctity of marriage is still deeply guarded by the society but that is not to say that people don’t adopt alternative forms of living arrangements. A live in relationship is just such an alternative arrangement which is gathering momentum and acceptance today. It would be incorrect to state that live in relations are new to our society. Formerly, there was prevalent the concept of “ Maitray Karars” in which two people of the opposite sex would enter into a written agreement to live together and look after each other.

Generally speaking, a live in relationship is defined as a living arrangement in which an unmarried couple lives together in a long term relationship that resembles a marriage.
The word ‘Marriage’ has nowhere been defined under Indian Laws. However, the concept of marriage stands well understood. Marriage is an institution which admits men and women to family life. It can be understood to be a relatively permanent commitment between two people who make a conscious effort to live harmoniously and companionably and in which they are socially permitted to have children implying the right to sexual relations. It is seen as necessary to maintain the stability of a family life which is the basic societal unit.

People do not marry because it is their social duty to perpetuate the institution of marriage or because the scriptures recommend it or because they have fallen in love with each other but because they lived in a family as children and cannot get over the feeling that being in a family is the only proper way to live in society. In almost all societies one or the other form of marriage exists. According to sociologists John Levy and Ruth Munroe people get married because of the feeling that being in a family is the only proper, indeed the only possible, way to live.

A family life requires commitment and it is precisely the lack of this aspect that either attracts or repels individuals from cohabiting. Cohabitation differs from marriage in various ways. A couple cohabiting cannot arrogate to themselves the rights and privileges that the law reserves for married persons.

International Scenario:
Philippines:
Through the Executive Order of 209, the Family Code of Philippines has tried to give certain rights to persons in a live-in relationship. It mainly concerns itself with properties acquired through their actual joint contribution, which could be money, property or industry owned by them in common. The Family Code expressly governs the property of persons cohabiting without the benefit of marriage. It is required, however, that both must be capacitated, or have no legal impediment, to marry each other.

Thus, couples in a “live-in” relationship will not be covered under this provision if one or both have a prior existing marriage. In this situation, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is presumed to have been obtained through their joint efforts. As to the homemaker, or the one who cared for and maintained the family household, he/she is still considered to have jointly contributed to the acquisition of a property, even if he/she did not directly participate in the property’s acquisition.

United States of America:
When cohabiting couples separate, division of assets often becomes a contentious issue. In the past, courts refused to enforce agreements between unmarried couples to share income or assets, holding that such agreements were against public policy. In 1976, the California Supreme Court decided Marvin v. Marvin, holding that agreements between cohabiting couples to share income received during the time they live together can be legally binding and enforceable.

The highly publicized suit between actor Lee Marvin and his live-in companion, Michelle Triola Marvin, was the first of a series of "palimony" suits that have become more numerous since the 1980s. The plaintiff in a palimony suit must prove that the agreement of financial support is not a meretricious agreement, that is, one made in exchange for a promise of sexual relations. Courts refuse to enforce meretricious contracts because of their similarity to contracts for prostitution.

In Trimble v. Gordon, the court held that a signed statement establishing paternity of a child born out of wedlock is adequate protection of the child's inheritance rights.

In Braschi v. Stahl Associates, New York State's highest court found the term family should be construed broadly and should encompass contemporary realities, including unmarried adult partners in a long-term, committed relationship that shows mutual sharing of the mundane tasks of everyday life.

Since the 1980s, a growing number of states and municipalities have passed laws allowing unmarried couples, both heterosexual and homosexual, to register as domestic partners. Some cities have established a domestic partner registry, while others extend certain benefits to domestic partners even if the city does not provide a registry.

Cohabiting couples can avoid certain conflicts by executing a written cohabitation agreement, similar to a Premarital Agreement. The contract should outline how the couple will divide expenses and own property, whether they will maintain joint or separate bank accounts, and how their assets will be distributed if one partner dies or leaves the relationship.

Many states have adopted the Uniform Premarital Agreement Act (UPAA), a set of laws on premarital agreements approved by the Commissioners on Uniform State Laws. The UPAA provides a list of property-related items on which couples may agree. It also includes a provision allowing couples to agree on any matter, including their personal rights and obligations.

France:
In France, a pacte civil de solidarité or a civil pact of solidarity commonly known as a PACS, is a form of civil union between two adults (same-sex or opposite-sex) for organising their joint life. It brings rights and responsibilities, but less so than marriage. From a legal standpoint, a PACS is a contract drawn up between the two individuals, which is stamped and registered by the clerk of the court. Since 2006, individuals who have registered a PACS are no longer considered single in terms of their marital status. Their birth records will be amended to show their status as pacsé (in a PACS) as well.

United Kingdom:
In the United Kingdom, an unmarried couple can formalise aspects of their status by drawing up a cohabitation contract or living together agreement, which outlines the rights and obligations of the partners toward each other. The Lesbian, Gay, Bisexual and Transgender (LGBT) community which doesn't have marriage rights can enter into a civil partnership. Every child born to a married woman is assumed to be her husband’s child and both have parental responsibility whereas in the case of a live in relationship, the unmarried mother or father has responsibility of a child but can enter into a parental responsibility agreement with the partner for shared responsibility. Both married and cohabitating couples can apply to adopt a child jointly.

With regard to inheritance, even if there is no will, the child of unmarried or married parents has a legal right to inherit form both parents and families of both parents. If either married partner dies without making a will, the other will inherit all or some of the estate whereas in case of cohabitating couples if one partner dies without leaving a will, the surviving partner will not automatically inherit anything unless the couple owned property jointly. If one inherits money or property from an unmarried partner, they are not exempt from paying inheritance tax, as married couples are. Thus, we see that the concept of a live in relationship has been acknowledged and dealt with in the UK.

Socio-Legal Analysis of Live-in relations in the Indian context:
At present there is no existing legal framework which regulates the concept of live in relationships in India. The Hindu Marriage Act, 1955 does not recognise live in relations and nor does the Code of Criminal Procedure of India. The only act which has implied the existence of live in relationships is the Protection of Women from Domestic Violence Act, 2005 (PWDV). For the purpose of protection and maintenance to women, an aggrieved live in partner may be granted alimony under the act.

A bare reading of this act reveals to us the following:

Section 2(f) of the act defines a ‘domestic relationship’ to mean “a relationship between two persons who live, or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”#

The phrase ‘in the nature of marriage’ covers in its ambit live in relations or cohabiting. Unfortunately, it has not been defined in the act but left to the courts for interpretation.

The Supreme Court in D. Veluswamy v. D. Patchaiammal has opined that the Parliament has drawn a distinction between the relationship of marriage and the relationship in the nature of marriage, and has provided that in either case the person is entitled to benefits under the PWDV Act, 2005. It would appear that the Parliament has taken notice of a social phenomenon which has emerged in our country (particularly urban areas), better known as live in relationships.

Some countries in the world recognise common law marriages. A common law marriage, sometimes called de facto marriage or informal marriage is recognised even though no legally recognised marriage ceremony is performed or civil contract entered into or the marriage registered in a civil registry.

In Indian Marriage law, there is no statutory provision which recognises common law marriages. However, we may refer to the landmark case of D. Veluswamy v. D. Patchaiammal where it is the opinion of the Hon’ble Supreme Court that a relationship in the nature of marriage is akin to a common law marriage.

The essentials of a common law marriage have been laid down by the Judiciary in the following manner:
a. The couple must hold themselves out to society as being akin to spouses
b. They must be of legal age to marry.
c. They must otherwise be qualified to enter into a legal marriage, including being unmarried.
d. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.#

For the purpose of interpretation, all the four points must be satisfied for it to constitute a common law marriage. In addition, the parties must have lived together in a shared household as is defined in section 2(s) of the PWDV Act, 2005.

The definition ‘domestic violence’ also includes ‘economic abuse’ as a bare reading of the act shows. The expression economic abuse includes in its ambit the right to maintenance.

An aggrieved person under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12(2). Under Section 20(1)(d) the Magistrate can grant maintenance while disposing of the application under Section 12(1). Section 26(1) provides that the relief mentioned in section 20 may also be sought before a family, civil or criminal court. Thus, a woman who can prove that she has been in a relationship in the nature of marriage with a man as explained above can claim maintenance under the act.

However, a point to be noted is that the words ‘significant period of time’ have not been allotted a prescribed time or a minimum ceiling. In Canada, in order to avail the benefits of a common law marriage, the couple should be living in a conjugal relationship for at least 12 continuous months. In Ontario, the Ontario Family Law Act, 1990 specifically recognises common law spouses, the requirements of living together for no less than 3 years. In British Columbia, a person who has lived and cohabited with another person for a period of at least 2 years is considered a common law spouse.

With the inclusion of relationships of the nature of marriage being akin to common law marriages in the India Legal Framework, it should be recommended to prescribe a minimum time period for couples to avail of the benefit under the laws.

Justices Markandey Katju and TS Thakur also ruled that not all live in relationships will amount to a relationship in the nature of marriage. This clearly demarcates the two. The benefits available under the Act are only for the ones that resemble a marriage and not otherwise.

Sir James Fitz Stephen, who piloted the Code of Criminal Procedure, 1872, described the object of Section 125 of the code as a mode of preventing vagrancy or at least preventing the consequences. On that inspiration, a three judge bench of the Supreme Court in Vimla v. Veeraswamy, held that Section 125 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’, the court held: “ ...the term ‘wife’ in Section 125 of the Code of Criminal Procedure , includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective...”

It appears obvious that the Supreme Court wants the scope of the provision for maintenance under Section 125 of the code to be expanded, so that women in such relationships do not face economic deprivation after living in a domestic set up for a long and significant period of time. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. In the USA the expression ‘palimony’ was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him and is then deserted by him. Indian law should imbibe that aspect of maintenance.

Justice Malimath Committee as well as the Law Commission of India states that if a woman has been in a ‘live in’ relationship for a reasonable period, she should enjoy the legal rights of the wife. On 8th October, this recommendation was accepted by the Maharashtra government. Any decision to bring change in Section 125, CrPC with regard to such relationships invites amendments in other laws as well including law of evidence, succession, adoption, bigamy, marriage etc.

We must bear in mind that the concept of a live in relationship differs strongly from marriage. People enter into such relations to avoid commitment, responsibility and other obligations and lead a carefree life without getting involved into the humdrum of a family life. It is possible that some expressions of love and living arrangements do not need the law to regulate it at a microscopic level. A marriage is love, affection, mutual respect, regard, sacrifice and a permanent commitment to each other. A relationship in the nature of marriage, where the couple live akin to spouses will hold the same ideals. And it is precisely these relationships that are accorded protection under the PWDV Act. These are the values that hold high esteem and command in society today and laws are made keeping in view the societal trend.

A live in relationship, which is not in the nature of marriage and where the couple do not act as spouses are completely outside the purview of legislations today. Indeed, if a legal framework were established to regulate all live in relationships it would defeat the purpose of both live in relationships and marriage. If the same rights and obligations are accorded to both kind of relationships, what is to stop people from just living together and not getting married? If that were to happen, the sanctity of marriage would begin to break down and that would tear the cultural fabric of our society.

Another reason not to enact a statute regulating live in relationships on the lines of provisions in other countries is that their relationships are granted sanction primarily to legalise relationships of the LGBT community or the third gender. In India, the LGBT community is not accepted as a part of society, even though efforts are being made by activists. In light of this we certainly do not need a law to regulate such relationships and the law enacted by countries cannot act as a guiding force.

It is a general principle of law that the things that are not prohibited by law are allowed. Therefore, even a statute dealing with live in relationships will have ample scope to be misused. Even if rights were given to the minority LGBT community under such a statute , which would grant sanction to legalise their live in status and give them rights under it, it would destroy the opportunity for them to legalise marriage as society would be content with letting them have a live in relationship.

Marriage, as a concept, involves a deep bond and a sense of commitment and an emotional and economic support. It also teaches one to be tolerant and provides the stability one requires for a family life involving children. Whereas, in a live in relationship the option of walking out anytime impacts the psyche of a person negatively. The sense of insecurity, albeit unconscious to some people, prevails in the mind. This cannot be healthy for a couple, especially one who wants children.

A living arrangement which is not a marriage or in the nature of a marriage, must be left alone without rights as well as the corresponding obligations and responsibilities. The couples that want to fulfil obligations and benefit always have the option of getting married.

The PWDV Act is silent about the status of children resulting from such living arrangements. However, the Supreme Court has accorded a legitimate status for such children. The child born of an unmarried couple will be treated as legitimate.

Conclusion:
It bodes well for the nation that it has decided to take measures to protect women living in a shared household, even though not married, instead of ignoring the issue at hand.
Given the social and cultural scenario in India, it would not be wise to enact a law to regulate live in relationships. A majority of the people opt for this alternative in order to avoid the responsibility and obligations resulting from a permanent commitment.

In case of disagreement to continue the relationship, a partner is free to walk in and out of the relationship as he pleases without the tediousness and messiness of divorce procedures. Some people prefer it that way. It is not the role of law to regulate and monitor individual lives and choices at such a microscopic level. It is the liberty of an individual to get married or enter into a live in relationship. I am of the view that we should take note of the current system in the United Kingdom and other countries. Couples should be allowed to enter into Cohabitation contracts which outlines their rights and duties, if they so require. The rights and duties, even then, will be given of a lesser degree as compared to the ones accorded in marriage. Another interesting point to be noted is that the ‘man’ in a live in relationship is accorded no rights whatsoever, even under the purview of the Domestic Violence Act, 2005. This aspect of the Indian Legislation has also to be looked into.

The existing marriage laws in India need to incorporate and provide for common law marriages or relationships in the nature of marriage. Wherever the need is felt to amend the law in order to provide rights and duties for such a relationship it should be done so. There is a need to revamp the legal system to accommodate the changes that take place in society, but at the same time there is no need to enact a new and separate legislation to deal with the same.

The  author can be reached at: shrivastav.vera@legalserviceindia.com

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