Legality of Live-In Relationship in India
Introduction
This article is written by Vikranta Pradeep Barsay, a student of National Law University and Judicial Academy, Assam. This article deals with the topic of the Legality of Live-In Relationships in India.
Although the concept of live-in relationship is met either with societal perceptions of taboo and orthodox opposition or with progressive and scholarly acceptance, the understanding of the term is widely restricted to a singular concept, wherein two unmarried individuals live together under a shared accommodation.
The Cohabitation could be either permanent or temporary in character.[1] The live-in relationships were largely rare in the 1940s and 1950s. Countries like the United States of America and the United Kingdom either placed a blanket ban on live-in relationship out of wedlock or dampened the practice with strict political sanctions and steep moral standards while the Soviet Union (modern-day Russia) gave preferential treatment and privileges to the unmarried individuals that undergo the formal procedure of civil marriage.[2]
As of now, both the United States of America and the United Kingdom has decriminalized live-in relationship between heterosexual partners while Russia has experienced a renaissance of socio-sexual norms and a communal acceptance of the live-in relationship. Popular literature and research articles posit that the rationale behind live-in relationship can be narrowed down to three key reasons:
- The psychological and emotional distress associated with divorce and divorce-related legal procedures deters individuals from entering into a formal marriage. A live-in relationship provides an opportunity to gauge one’s ability to sustain a marriage while assessing one’s compatibility with one’s potential partner.
- Elisabeth Beck-Gernshiem opines that Individualization undermines a person’s attachment to others while detaching one from predominant gender-roles.[3] The act of making selfish individual choices regarding one’s socio-economic and socio-sexual happiness and achievements makes Cohabitation acceptable to an individual, who prioritizes oneself over conventional norms. The traditional institution of marriage, wherein the man is the breadwinner and the woman is tethered to compulsory household chores, is dismantled for a modern framework of live-in relationship.[4]
- Some individuals are diffident about formal marriages due to reasons outside the ambit of law, politics, religion, and societal inhibitions.
Live-in relationship traditionally has been labeled as ‘walk-in & walk-out relationships,’ wherein any one of the two partners can terminate living together and subsequently walk-away without any legal repercussions.[5] Although the concept of Cohabitation is a western one, it has gained traction in India. Marriages act as a bedrock to legalize a relationship between a man and a woman.[6]
The ‘sacred’ institution creates a social apprehension amongst individuals wanting to enter a live-in relationship. The lividity of spousal privileges and the perception of lack of legal entitlements create a communal order where live-in relationships are taken with a grain of salt.
Live-In Relationship in India: Heterosexual Perspective
The idea of a live-in relationship saw its incipient cognizance in the report of the Malimath Committee. In 2000, former Chief Justice of the state of Kerala and Karnataka, Justice V. S. Malimath was asked to head a committee at the recommendation of the then NDA government.[7]
The committee submitted 158 recommendations in 2003 to the then Deputy Prime Minister and Minister of Home Affairs, L. K. Advani,[8] to improve and re-examine the archaic criminal justice system in India. The committee believed that the incumbent system fails to provide justice to the aggrieved victims of a crime.
Section 125 of the Criminal Procedure Code, 1974 compels a man with sufficient means to provide maintenance to his neglected wife, children, and parents (father and mother) in situations where the latter are unable to maintain themselves.[9] The law upholds the obligation of a man towards his wife, children, and parents.
The committee recommended amending the law to include the second wife of an already married man under the definition of ‘wife.’ The committee took cognizance to support a woman who had been deceived into marrying a man while he was still legally married to another woman. The recommendation left no room for speculation regarding its stand on a live-in relationship, i.e. non-marital heterosexual cohabitation continued being without legal enforcement.[10]
The Protection of Women from Domestic Violence Act, 2005 truly lays the ground for a live-in relationship in India. The legislature provides protection and subsequent remedy to an aggrieved woman against physical, mental, sexual, emotional, economic, and verbal abuse from an adult male who forms a domestic relationship with the victim.[11]
Section 2, Clause F of the act includes a phrase ‘-a relationship in nature of marriage’ within the ambit of the ‘domestic relationship’ of the act. It is left to the discretion of the court of law to interpret the phrase for each suit filed under the act. The courts across India have not limited themselves to the provisions of the Protection of Women from Domestic Violence Act, 2005 to accept the heterosexual live-in relationship.
Judicial interpretations have played a pivotal role in the recognition of the live-in relationship. In Revanasiddappa & Anr v. Mallikaarjun & Ors (2011) SCC 12639/09, Justice A. K. Ganguly reckoned that Indian Law cannot remain static in the face of an ever-changing socio-economic scenario, wherein the social consensus of a dominant group fades over time and the legitimacy of social faction transitions from illegitimacy to legitimacy.
He upheld the legitimacy of the relationship of the plaintiff, who married the defendant whilst the defendant was married to his first wife. However, not all cases are so direct and some require the scrutiny of the court, whereby the court must explicitly neither condone an ideology nor dismiss a practice, it must only provide justice in the backdrop of societal normalizations and constitutional legislatures without treading on social rituals of morality.
In Payal Sharma v. Superintendent, Nari Niketan Kalindri Vihar, Agra (2011) AIR 2001 ALL 254, Justice Markandey Katju and Justice R. B. Mishra of the Allahabad High Court dismissed the perceived illegality of cohabitation; they conjectured that an adult male and an adult female can cohabit without marriage even though cohabitation is considered to be immoral by society. The Judges delimited the line between Legality and Morality.
In Madan Mohan Singh & Ors v. Rajni Kant & Anr (2010) 9 SCC 209, Justice P. Sathasivam and Justice B. S. Chauhan upheld Section 114 of the Indian Evidence Act, 1872 in connection to the legality of live-in relationship, wherein the court will presume the relationship between an adult man and an adult woman to be of nature of marriage if the two individuals have lived together for a satisfactorily long time and reliable pieces of evidence support such a cohabitation.
The court held that a live-in relationship may be considered as a marriage even if the two individuals do not expressly and legally get married.
A live-in relationship creates no legal bond between two heterosexual individuals; the implied contract of cohabitation is not enforceable by law and is renewed every day by the individuals. Any one of the two parties can wilfully terminate and walk-out of the relationship at any time without the explicit consent of the other party.[12]
The lack of legal obligations in a live-in relationship creates a situation, wherein the two parties are neither bound to uphold any promises made by each other in the course of the relationship nor allowed to complain about any breach in promises (ex: fidelity). Additionally, a live-in relationship does not enjoy the same privileges akin to a marriage.[13]
The landmark judgment for a live-in relationship in India was given by Justice B. S. Chauhan in the case of S. Khushboo v. Kanniammal & Anr (2010) 5 SCC 600. Although the plaintiff asked the Supreme Court to quash the twenty-three FIRs filed against her by the defendants for defamation, obscenity, and statements causing public mischief, the court used the opportunity to welcome a broader understanding of the live-in relationship in India.
The three-judge divisional bench (including Justice K. G. Balakrishnan and Justice Deepak Verma) upheld the constitutionality of live-in relationships within the sphere of Article 21 of the Indian Constitution. The bench held that the cohabitation between a consenting adult male and a consenting adult female cannot be treated as illegal or unlawful even if the same is considered immoral in conventional society; additionally, every citizen of India is entitled to a fundamental right of life and personal liberty, which cannot be deprived in the case of cohabitation between two consenting, heterosexual adults.
The exclusive leading case in the matter of cohabitation is the Indra Sarna v. V. K. V. Sarma (2013) 15 SCC 755, wherein the two-judge divisional bench (Justice K. S. Radhakrishnan and Justice Pinaki Chandra Ghosh) held the fundamental right and subsequent lawful validity of an adult male/ adult female in entering a heterosexual cohabitation. The court refused to extend the rights and relief available to a lawfully wedded wife to a female in a live-in relationship.
The court outlined certain provisions and tests to examine if a woman in a live-in relationship should be granted the same protection as a legally wedded wife under the Protection of Women from Domestic Violence Act, 2005; the guidelines attempt to expand the provisions under the Section 2, Clause F of the act:
- The live-relationship or cohabitation must exist for a reasonable duration of time.
- The heterosexual partners must live together under a shared household.
- The cohabitation will be enriched if the partners support each other financially (ex: joint bank accounts, possession of the immovable property under joint ownership, long-term joint investments, etcetera).
- A viable domestic relationship must exist between the parties, wherein household responsibilities (ex: cleaning, cooking, etcetera) is shared between the partners.
- The cohabitation may include a sexual relationship between the partners; the purpose of the sexual act can range from the procreation of children to emotional, intimate support.
- The cohabitation may be held as a marriage if the two parties decide to raise a child. Socializing in public (including friends and family members) as partners (husband and wife) is considered to be a strong indication of a marriage-like relationship between the man and the woman.
- The two individuals must intent to form a marriage-like relationship two; additionally, the cohabitation must be between an adult male and an adult female.
The court upheld the universal right of a person to enter a marriage-like relationship with the full and explicit consent of the parties;[14] Additionally, the court rejected the notion that cohabitation is a crime. The court provided legal protection to the personal choice of the individual in a live-in relationship.
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Live-In Relationship in India: Homosexual Perspective
The Navtej Singh Johar & Ors v. Union of India & Anr (2018) 10 SCC 1 decriminalized homosexual acts under Section 377 of the Indian Penal Code, 1860. The law awarded ten years imprisonment to any individual who engaged in sexual intercourse with a partner of the same-sex. The law viewed same-sex relationships as being against the order of nature. It is worth noting that 123 out of 193 nations neither criminalized nor decriminalized the sexual acts between homosexuals.[15]
The five-judge constitutional bench (Former Chief Justice Dipak Misra, Justice A. M. Khanwilkar, Justice D. Y. Chandrachud, Justice R. F. Nariman, and Justice Indu Malhotra) upheld Article 14 (discriminatory targeting of homosexuals violates the fundamental Doctrine of Equal Protection Under Law), Article 15 (equal treatment of all citizens of India) and Article 21 (Section 377 of the Indian Penal Code, 1860 criminalizes the personal choice and liberty of homosexuals while thwarting the fundamental Right to Dignified Life) for a homosexual individual.
The verdict of the Supreme Court of India reduces a homosexual individual to merely a ‘deviant sexual act.’[16] The court failed to recognize the sanctity of non-sexual aspects of a homosexual relationship, including marriage and cohabitation; additionally, the court reduced the needs of a homosexual individual to sexual intercourse and fornication.
A review petition to extend basic civil rights (ex: marriage, adoption of children, surrogacy, etcetera) to the individuals of the LGBTQIAP+ (Lesbian, Gay, Bisexual, Transgender/ Transsexual, Queer, Inter-sexual, Asexual and Pan-Sexual) was struck down by a two-judge divisional bench (Justice Deepak Gupta and Justice Sanjiv Khanna) in 2019.[17]
Indirect discrimination (ex: the ban on homosexuality within the Indian Army, Navy and the Air Force) hurts the rights of a homosexual individual.[18] Every law and judicial verdict discussed in the aforementioned section extends the privileges of cohabitation to explicitly heterosexual couples; the repeated mentions of ‘man and woman’, ‘an adult man and an adult woman’, and ‘heterosexual couples’ reinstates the court’s polarized acceptance of the live-in relationship.
Article 16 of the Universal Declaration of Human Rights, 1948 and Article 23 of the International Covenant on Civil and Political Rights, 1966 not only uphold the equal right of an adult to marry but also place an obligation on the state and society to protect the right; however, the same treaties do not include the right to same-sex marriages and relationships in nature of marriage.
The explicit exclusion of homosexual cohabitation from landmark judicial judgments supports the continued indirect discrimination against homosexuals. Although in the case of National Legal Services Authority v. Union of India (2014) SC 1863, the two-judge divisional bench (Justice K. Radhakrishnan and Justice A. K. Sikri) upheld the legality of the ‘third-gender,’ wherein the court demarcated between sex and gender.
Sex is a biological construct while Gender is an intimate perception of oneself in either binary or non-binary genders. The court upheld the right of a person to self-identify one’s gender, to lead a dignified life under Article 21 of the Indian Constitution. Similarly, the right to self-expression of a transgender and transsexual through words, clothing, behavior, and action was upheld within Article 19, Section 1, Clause A (Freedom of Expression) of the Indian Constitution.
Article 15 and Article 16 of the Indian Constitution prohibit discrimination on the grounds of ‘sex.’ The court expounded on the meaning of ‘sex’ to include not only the biological and sexual attributes (genitalia, body structure) but also the gender identity of an individual.[19] Although Article 15 and Article 16 of the Indian Constitution bars discrimination on the grounds of sex, indirect discrimination on the grounds of sex and sexual orientation in binary legislatures and judicial judgments continue to exist.[20]
The case of Chinmayee Jena v. State of Orissa & Ors (2020) Writ Petition No. 57 truly champions the crux of this article. The plaintiff is biologically a female (her) who identified as a male(him/ he/ his). The plaintiff and a female named Rashmi lived together in a live-in relationship in the house of the plaintiff, wherein the two fell in love in 2011 and began a consensual relationship in 2017.
On April 9, 2020, the mother and uncle of Rashmi arrived at the plaintiff’s house and took Rashmi with them against her will. The plaintiff filed a Habeas Corpus application with the Orissa High Court.[21]
The two-judge divisional bench (Justice S. K. Mishra and Justice Savitri Rao) upheld not only the right of the plaintiff to be identified as a male but also the right to cohabitation. Justice S. K. Mishra reminded Rashmi’s mother that the consensual sexual conduct between two adults of the same sex and the right to sexual preferences was upheld in the verdict of Navtej Singh Johar & Ors v. Union of India & Anr (2018) 10 SCC 1.
The court upheld the cohabitation between the plaintiff and Rashmi. Additionally, the court championed the right of an individual to live-in relationship and the right of an individual to choose a life partner.
In France, consensual Cohabitation (a stable and continuous relationship) can exist between two adults of either the same sex or the different sexes under the contractual obligations of the Civil Solidarity Pact, 1999.[22] The law recognizes live-in relationship outside the sphere of marriage. Canada recognizes same-sex cohabitation under the Common-Law Relationship, which awards the same rights to a live-in relationship as a matrimonial relationship[23] if any one of the following conditions is met:
- The partners have lived together for at least twelve continuous months.
- The partners are parents to a child (either by birth or by adoption).
- One of the partners holds the custody of a child and the child is dependent on the said partner for support (financial and emotional).
Although it would be superfluous to compare the demographics of India with the demographics of other nations; it is worth noting that the societal acceptance of live-in relationship in nations like France and Canada was not an overnight phenomenon.
The legislative and the Judiciary must meander through the laws together to benefit all classes of the socio-economic strata of the Indian society while upholding the fundamental human rights to all individuals, irrespective of sex, gender, and sexual preference/ orientation.
Conclusion
The binary approach of not only the judiciary but also the law-makers in India impedes the extension of the fundamental right to cohabitation under Article 21 of the Indian Constitution to every person irrespective of sex and gender identity.
Although isolated cases of judicial interpretations do exist, it cannot be held that the country as whole champions the right to live-in relationship for all individuals, irrespective of sex and gender identity. The lack of consistent usage of the terminology- ’sex’, ‘gender’, and ‘sexual orientation’ across courts of India hampers a universal approach to cohabitation.
The case of Chinmayee Jena v. State of Orissa & Ors (2020) Writ Petition No. 57 is one such instance, wherein the court appreciated the concurrent change in the law with the ever-changing social norms and social values. The case can become a bedrock on whom future judicial verdicts of a similar nature can be based. The law should reflect the volatility of societal norms and the courts must mold the law to better reflect the changing societal ideology.
– Edited by Aaditi Rohilla
(Editor)
[1] Patrick Heuveline & Jeffrey M. Timberlake, The Role of Cohabitation in Family Formation: The United States in Comparative Perspective, JOURNAL OF MARRIAGE AND FAMILY, Dec. 01, 2004, at 1214.
[2] Anish Bargad, Live-In Relationship in Various Countries, LEGAL SERVICE INDIA., http://www.legalserviceindia.com/legal/article-4058-live-in-relationship-in-various -countries.html (last visited Feb. 06, 2021).
[3] Lea Waller, The Impact of Individualization on Families and Personal Relationships, GRIN (Nov. 12, 2013), https://www.grin.com/document/264577.
[4] Id.
[5] Astha Saxena, Live-In Relationship And Indian Judiciary, SCC ONLINE (Jan. 23, 2019), https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary.
[6] Legality of Live In Relationship in India, TRIPAKSHA LITIGATION. (Apr. 14, 2020), https://tripakshalitigation.com/legality-of-live-in-relationship-in-india.
[7] Deepalakshmi K., The Malimath Committee’s recommendations on reforms in the criminal justice system in 20 points, THE HINDU, Jan. 17, 2018, https://www.thehindu.com/news/national/the- malimath-committees-recommendations-on-reforms-in-the-criminal-justice-system-in-20-points/article22457589.ece.
[8] Id.
[9] Criminal Procedure Code, 1973, No. 125, Acts of Parliament, 1973 (India).
[10] Anuja Agarwal, Law and ‘Live-in’ Relationships in India, 47 ECON. POLIT. WKLY. 50, 50-52 (2012).
[11] The Protection of Women from Domestic Violence Act, 2005, No. 3, Acts of Parliament, 2005 (India).
[12] Rajendrakumar Hittanagi, Live-in- Relationship and Indian Judiciary, LEGAL SERVICES INDIA., http://www.legalservicesindia.com/article/1408/Live-in-Relationship- and-Indian-Judiciary.html (last visited Feb. 06, 2021).
[13] Shalini Tyagi, Live-In Relationship, LAWZ MAGAZINE (Jul. 18, 2016), https://lawzmag.com/ 2016/07/18/ live-in-relationship.
[14] United Nations General Assembly, Universal Declaration of Human Rights,1948, 217 A(III), available at https://www.refworld.org/docid/3ae6b3712c.html (accessed 6 February 2021).
[15] Constitutionality of Section 377 IPC, SUPREME COURT OBSERVER. (Sep. 06, 2018), https://www.scobserver.in/court-case/section-377-case.
[16] Sarthak Wadhwa, The ‘Right’ to be in a Live-In Relationship, LAW SCHOOL POLICY REVIEW (Oct. 30, 2020), https://lawschoolpolicyreview.com/2020/10/30/the-right-to-be-in-a-live-in- relationship.
[17] Press Trust of India, Supreme Court dismisses petition seeking civil rights for homosexuals, BUSINESS STANDARD (Apr. 15, 2019), https://www.business-standard.com/article/pti-stories/sc -dismisses-plea-seeking-civil-rights-for-homosexuals-119041500965_1.html.
[18] Id.
[19] National Legal Services Authority v. Union of India, AIR 2014 SC 1863 (2014) (India).
[20] supra note 16.
[21] Tarun Mehra, Chinmayee Jena @ Sonu Krishna Jena v. State of Odisha, VIDHI (Sep. 16, 2020), https://vidhi.org/chinmayee-jena-sonu-krishna-jena-v-state-of-odisha.
[22] supra note 1.
[23] Id.