Live-In Relationships - A Socio-Legal Commentary
Author: LawSphereX
Category: Family & Personal Law
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LIVE-IN RELATIONSHIPS: A SOCIO-LEGAL
COMMENTARY
Saumya, National Law School of India University, Bengaluru
ABSTRACT
This article delves into the contemporary landscape of live-in relationships in India, focusing on the evolving legal framework surrounding this form of cohabitation. In the absence of specific legislation, regulations, or customs governing live-in relationships, Indian courts have taken the route of common law interpretive reasoning on a case-by-case to establish principles that protect the interests of those involved. The paper critically evaluates the jurisprudence on live-in relationships, analysing court rulings and judicial commentary to uncover the prevailing attitudes and legal principles in this area. Additionally, the article addresses the inherent subjectivity in these judicial interpretations and considers their implications for contemporary family law and the right to family, emphasising the intersection with human rights and social justice issues.
INTRODUCTION
A live-in relationship usually connotes a voluntary cohabitation between two adults for a period
of time without marriage. There is no requirement of formalisation of the union and when it breaks, a divorce need not be filed. Marriage is a socially and legally sanctioned cohabitation and familial arrangement, but live-in relationships occupy a place of taboo in society and receive barely any legal recognition either. Yet, for a number of reasons, they are becoming more and more popular. The last several decades have seen a rapid acceleration of changes due to globalisation, which has had an impact on nearly every facet of our daily life, including marriage, family structure, and conjugal relationships.1 With time, live-in relationships are becoming more prevalent, not only for men and women but also for queer couples whose marriages are not legally recognised in India.2
LEGAL MOVES
Two legal moves — the Malimath Committee 2003 guidelines and the Protection of Women from Domestic Violence Act (PWDVA) 2005 — have acknowledged non-marital cohabitation. The Malimath Committee suggested extending the definition of “wife” under Section 125 of the Criminal Procedure Code (CRPC) to include “a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage. ”3 It becomes clear that this provision was referring to relationships outside the marital union between a married man and another woman, where the second woman cannot claim benefits under Section 125 for no fault of hers. This was, however, the first time non-marital unions were formally acknowledged. The PWDVA 2005 (DV Act)4 was the first legal act to recognise non-marital unions.
Section 2(a) of the Act defines an "aggrieved person" as any woman alleging domestic violence within a domestic relationship, as outlined in Section 2(f), encompassing cohabitation and familial ties. Judicial interpretation of the term "wife" in Section 125 of the Criminal Procedure Code5
1 C.L. Narayan, M. Narayan & Deepanshu M., Live-In Relationships in India—Legal and Psychological
Implications, 3 J. Psychosexual Health 18 (2021). 2 Sangeeta Chatterjee, Legal Recognition of Live-in Relationship: An Emerging Trend of Social Transformation in India, 11 Indian J.L. & Just. 1 (2020).
3 Anuja Agrawal, Law and “Live-in” Relationships in India, 47 Econ. & Pol. Wkly. 50 (2012).
http://www.jstor.org/stable/41720191.
4 Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code.
5 The Code of Criminal Procedure, Act No. 2 of 1974, India Code.
led to divergent opinions, prompting a referral to a larger bench. The DV Act broadly interprets "domestic abuse" and "domestic relationships," extending protection to various familial and marital connections. However, it does not cover all forms of domestic interactions, such as cohabitation between employers and domestic helpers. Despite limitations, the Act acknowledges the existence of non-marital relationships and advocates for the protection of women within them.
Neither the CRPC, IPC, nor any of the family law codes, namely the Hindu Marriage Act, 1955, Muslim Personal Law, Parsi Marriage and Divorce Act, and Christian Marriage and Divorce Act recognise live-in relationships, so courts have used various interpretations of “marriage like relationships” to decide cases involving live-in relationship partners, like those involving maintenance, rights of the children, protection against intimate partner violence, etc. Schauer’s concept of analogical reasoning in common law is applicable here because in the absence of legal codification, judges are applying common law reasoning in deciding cases. 6 They are referring to precedents with similarities and “making the law” as they go. An analysis of some cases involving maintenance rights in live-in relationships will help formulate a better understanding of this.
ANALYSIS OF CASES
In Malti v State of UP7, Justice S.K. Agarwal said, “If a man and a woman choose to live together and indulge into sex no such married status can be conferred automatically by their so living upon such a woman. No legal status of a wife she is entitled to in the eyes of law and society. Both law and society treat such women either a concubine or a mistress of that person with whom she is so living. The two may also agree to live together to satisfy their animal needs.” He termed such a union as adultery and called it an “illicit relationship”. He pointed to marriages providing a “sense of security” and guarantee to the wife, which such “illicit” unions cannot provide. The judgement ruled against providing maintenance to the domestic help. Through these comments, Justice Agarwal created a moralistic hierarchy between marital and
6 Frederick Schauer, Thinking Like a Lawyer (Harvard Univ. Press 2009).
7 Malti v. State of U.P., (2000) Crim. L.J. 4170 (All. H.C.) (India).
non-marital cohabitations. The manner in which terms like “illicit” and “concubine” are used is proof of that. This 2000 case is from the pre-DV era, and in the absence of any legal code, the rights of the woman in this non-marital cohabitation were considered negligible. The court held that women in such a relationship would have no rights that a wife would enjoy over maintenance. This has somewhat changed post-DV, as seen in the 2008 case — Narindar Paul Kaur Chawla v. Manjit Singh Chawla8 the Delhi High Court awarded maintenance to the second wife under the Hindu Adoptions and Maintenance Act 1956. Here the husband had hidden his marriage from the appellant, with whom he had been married for 14 years.
This was clearly a bigamous marriage which is illegal under the Hindu Marriage Act 1955 and not a live-in relationship, but the court delved into non-marital unions and awarded maintenance. The court stated that not providing maintenance to the second wife would be unfairly punishing the appellant. The Supreme Court ruled in the 1985 case — Soumitra Devi v Bikan Choudhary9 — that there is an “assumption of marriage” for maintenance purposes if a man and woman have been living together for a long time and are regarded and presumed to be husband and wife by society. Nevertheless, this approach has not been applied by the courts to ostensible live-in partners. The assumption of marriage is a value laden and subjective approach. In the absence of clearly laid down guidelines or tests, discretion lies entirely with the judge.
Indra Sarma v VKV Sarma10 is a landmark case where some tests for live-in relationships were sought to be laid down. Justice K. S. Radhakrishnan highlighted that live-in relationships are not sinful or a crime, though they might be socially unacceptable. He held that the decision to marry or not marry or whether to be/not be in a heterosexual relationship is a personal choice. This judgement marked leaps in the discourse on autonomy and choice when it comes to one’s sexuality in India. The tests laid down were:
1. Duration of Relationship: Section 2(f) of the DV Act denotes a flexible timeframe
denoted by the phrase "at any point of time," which necessitates a contextual analysis to discern the viability and longevity of a relationship.
8 Narindar Paul Kaur Chawla v. Manjit Singh Chawla, (2008) 7 AIR (Delhi).
9 Soumitra Devi v. Bikan Choudhary, (1985) SCC (Cri) 145 (India).
10 Indra Sarma v. VKV Sarma, (2013) 15 SCC 755.
2. Shared Household: As defined under Section 2(s) of the DV Act.
3. Pooling of Resources and Financial Arrangements: Financial interdependence,
including joint bank accounts, co-owned properties, and shared investments, serves as indicative markers of a durable relationship akin to marriage.
4. Domestic Arrangements: The delegation of household responsibilities, particularly
to the woman, underscores the nature of the relationship as akin to marriage.
5. Sexual Relationship: A marriage-like relationship entails not only physical intimacy
but also emotional support and a shared vision of family and progeny.
6. Children: having children signifies a commitment to a long-term relationship, with
shared responsibilities for the upbringing and welfare of offspring being significant indicators.
7. Socialisation in Public: Presenting oneself as a couple in social settings and
engaging in public interactions akin to a married couple reinforces the perception of the relationship as akin to marriage.
8. Intention and Conduct of Parties: The mutual understanding and conduct of the
parties regarding their roles, responsibilities, and the nature of their relationship fundamentally shape its characterisation. These broad tests were laid down after examination of several international covenants, like the Interpretation Act, 1984 (Australia)11 and Domestic and Family Violence Protection Act, 2012 (Queensland), and Indian cases, like Lata Singh v State of U.P.12 where it was observed that a live-in relationship may be considered immoral by society but it is not illegal. These tests, however, do not signify a legal standard and are broad and vague, which is why judges have exercised discretion and made contradictory and value laden remarks in later cases. For instance, in Alok Kumar v State & Anr.,13 Justice Shiv Narayan Dhingra said that an “educated” woman should be capable of understanding the consequences of a live-in
11 Interpretation Act 1984, No. 12 of 1984, Western Australia.
12 Lata Singh v. State of U.P., (2006) AIR SC 2522.
13 Alok Kumar v State & Another, (2009) Crl.M.C. No. 299.
relationship. He referred to live-in relationships as “walk-in and walk-out,” which denotes a tone of admonishment as the learned judge also referred to marriages as providing security and social respect. The onus of being “wise” enough to not enter into such a relationship was placed on the woman here. The woman had been in the relationship for five years, but the court disregarded this fact and went on to say that a live-in relationship does not carry any obligations. Contrary to the ruling, a five-year partnership is most definitely not a “walk-in and walk-out relationship. ” Rather, this case upholds the idea that a man is free to leave a live-in relationship and only the woman must deal with the consequences. Women suffer from a social and legal consequences as a result of the construction of live-in relationships as immoral.
It also must be noted that an adulterous relationship is different from a live-in relationship, even though most cases in the courts involve both. Validating a live in relationship does not imply validation of adultery.
COMMENTARY ON JUDICIAL BIAS
This binary construction of bad woman-good woman has its roots in the Freudian Madonna- Whore complex. 14 Psychoanalytical studies describe it as the complex where men view women as either saintly madonnas or debased whores. Judges, through their usage of terms like “illicit,” “educated,” “modern,” “concubine,” etc. , seem to depict this complex. In a society which shames sexual relationships outside or without marriage, it is not surprising to see such views prevailing. Even in cases where the judgement has granted maintenance and other rights to women, the bias is evident in the usage of value laden and holier-than-thou terminology. The moral construction of women in society frequently denies them access to the most fundamental rights and impedes the creation and enforcement of stronger legislation to end violence against women.
15 Leading women’s rights lawyer, Indira Jaising, pointed out in the 4th Monitoring & Evaluation Report16 of the DV Act that the term “keep” implies equivalence of women to chattel. She also highlighted that “... what we have is a moral judgment being pronounced on women who do not marry but live with men in long-term relationships. ” The burden of judgement is on the woman entering a live-in relationship as she does not qualify for the position of the lawfully wedded 14 Sigmund Freud, Drei Abhandlungen zur Sexualtheorie [Three Essays on the Theory of Sexuality] (Berlin: Leipzig und Wien, 1905).
15 Supriya Yadav, Live-in Relationships in India, 2 Warwick Student L. Rev. 54 (2012).
16 Lawyers Collective, Staying Alive: Fourth Monitoring & Evaluation Report on the Protection of Women from Domestic Violence Act, 2005, (2010).
wife. The subjectivity and uncertainty arising due to judges’ discretion in the absence of any legal codes protecting these relationships is a cause for concern as it leads to patriarchal bias. IS CODIFICATION A GOOD IDEA?
This leads one to wonder whether codification should be the next step in securing rights for partners in live-in relationships. Codification becomes difficult in live-in relationships owing to their variable and irregular nature. In Western countries, the economic rights of women are a major concern when live-in relationships break down, and cohabitants' rights are specifically protected by laws. Live-in relationship is already accepted in some western countries, and women's rights are protected by progressive laws, like the Netherlands (Law on Registered Partnership, 1997) and France (Pacte Civil de Solidarité or pacs, 1999). The Indian Supreme Court has also referred to some US judgements on the matter. One can say that a step toward granting women access to justice could be the establishment of the numerous laws and rules.
In line with this, the Uttarakhand Assembly has recently passed a Uniform Civil Code Act17 which mandates compulsory registration with the state while starting or ending a live-in relationship for heterosexual couples — a record of which will be kept in a police station. This is mandatory for providing for maintenance to the woman when “deserted” by her partner and there is a prescription for jail term of up to six months for not producing a “certificate” of the relationship. This mandatory nature of the Act and the provision on criminalisation for noncompliance will confer disproportionate power on the state government in matters of personal autonomy and choice, which can prove to be dangerous.
While codification might have proven useful in the West, conferring powers to regulate and criminalise for non-compliance can set a dangerous precedent in Indian society where social acceptance is still quite low. To grant live-in relationships greater legal recognition and access to rights akin to those granted in marriage, legislators could consider implementing mandatory cohabitation contracts to regulate financial matters. 18 Such measures would provide legal clarity for couples, delineating their rights and responsibilities. Additionally, these contracts could contribute to broader societal acceptance of cohabitation as a legitimate domestic arrangement, thus recognising and respecting diverse family structures within the legal framework.
17 The Uniform Civil Code of Uttarakhand Act, No. 01 of 2024.
18 Shambhavi Goswami, A Research Study On Live-In Relationships In India, Centre For Socio-Legal Research, September (2022).
CONCLUSION
The question remains — if courts recognise long-term live-in relationships as equivalent to marriage, will the legal rights traditionally conferred upon a wife, such as those related to separation and maintenance, be extended to the female partner? What constitutes “proof of continuous cohabitation as a married couple? ” An analysis of judicial opinions reveals a lack of uniformity, with judges making decisions on a case-by-case basis. To ensure that long-term unmarried couples receive social benefits, such as inheritance rights, it is essential to expand existing laws to include live-in partners. Regardless of romantic or sexual involvement, unmarried individuals cohabiting with a partner should be granted legal recognition. Cohabitation contracts can be one way to allow room for negotiation without giving overarching powers to the state, as seen in the Uttarakhand UCC Act.
The Domestic Violence Act represents a progressive step in this regard. However, the persistence of patriarchal biases within the judiciary must be addressed, as the current legal landscape places the rights of women in live-in relationships at the mercy of judicial discretion. This issue intersects with broader themes of human rights, the right to family, and contemporary family law, underscoring the need for legal reforms that protect the rights and dignity of all individuals in diverse family structures.