Symposium
- Live-in Relationship
- Indian court’s view on live-in relationship
- Rationale behind presuming live-in relationships as marriages
Live-in Relationships and Domestic Violence
II. Legitimacy of a child born out of live-in relationship - Conclusion
- References
LIVE IN RELATIONSHIP
A live-in relationship is where two people cohabit but are not married. The Scandinavia region of the Northern Europe is said to be the originator to live-in relationship. Eventually live-in relationships became common in the Western countries. The western countries glorify live-in relationships because of the view it helps to foresee in a relationship. According to them the concept of live-in help people in relationships to examine compatibility with their partner which help them know whether they will be able to carry out a marriage. This reduces a lot of complexities and unwelcomed problems in the future. Impliedly, it reduces the chance of divorces too.
Live-in relationships are not so common in India, rather it is considered as a social taboo. Although living in together with someone is enshrined as a right under the Article 21 of the constitution but the Indian society has not yet accepted the idea of live-in relationships. It is said that the history and customs in India has been different and live-in is a western culture. Similar is the take of Indian Court’s on the existence/recognition of these relationships. The Apex court has opined that the concept of live-in relationships is too western and India is still not ready to accept it socially because of the prevailing culture and customs.
INDIAN COURT’S VIEW ON LIVE-IN RELATIONSHIPS
Although live-in relationship is a right of an individual and enshrined as one under Article 21 (Right to life and personal liberty) under Indian Constitution, the court tends to not recognize such relationships due to the difficulties it will then face from the society. Indian societies are not used to the culture of cohabitation before/without marriage and recognizing such won’t actually affect the way they are seen in India.
The first mention of live-in relationship, impliedly, was almost 93 years ago in a matter before the Privy Council. It was the Andrahennedige Dinohamy and Ors. v. Wijetunge Liyanpar[i] , where the legitimacy of a child born out of a couple which was not married (as contended by the appellants in PC), was under question. The Privy Council while referring to the Roman Dutch Law and law of Ceylon state that when two heterosexual people live together as husband and wife, the law will presumethat they were living together in consequence of a valid marriage. Concubinage is a relationship of a couple which is not married or cannot be married. Although Live-in relationships were not directly involved in this case, but the court pointed out that a child born out of a relationship between a man and a woman (even if not marital) was not illegitimate. Rather the court will presume that the relationship between the man and the woman was of the nature of marriage.
The Indian courts do not recognize live-in as a form of relationship rather presumes such relationships as marriage under certain circumstances. The rationale behind such presumption is later discussed in this research paper. In Indra Sharma v. V.K.V Sharma, the SC described live-in relationship as a relationship in the nature of marriage and opined certain guidelines for the testing of a relationship in the nature of the marriage. The test was to take into consideration the following points –
- Duration of period of relationship
- Shared household
- Pooling of Resources and Financial Arrangements
- Domestic Arrangements
- Sexual Relationship
- Children
- Socialization in Public
- Intention and conduct of the parties[ii]
The right of presumption of marriage arise from Section 114 of the Indian Evidence Act 1872. If the court thinks that the relationship is in nature of marriage as per the above test or as per the circumstance and evidence then it presumes the relationship as a marriage and whosoever opposes such presumption has the burden of proving it.
RATIONALE BEHIND PRESUMING LIVE-IN RELATIONSHIPS AS MARRIAGE
The first question that hence rises in the mind of a person is when live-in relationships are not recognized by the courts then why is it even presumed to be a marriage? There are majorlytwo reasons behind this. They are –
- Live-in relationship is presumed as a marriage so that the rights of people in the cohabitation are protected. The chances of domestic violence cannot be ignored while the relationship is in nature of a marriage.
- In case a child is born out of such relationship, it is that child’s legitimacy which is hanging and presuming such relationship as marriage ensures that the child born is legitimate and is taken care of.
- Live-In Relationship and Domestic Violence
A relationship which is similar to that of marriage tends to attract domestic violence issues. As these relationships are not recognized and there no such laws governing it, then it would have been difficult for the justice system to find a way of providing justice to people in such relations. Therefore contemplating this Indian court has presumed such relationships as marriage. Section 2(f) of the Domestic Violence Act, 2005 defines domestic relationships and includes “a relationship in the nature of marriage”. The interpretation of relationship in the nature of marriage has been done in Indra Sharma v. V.K.V Sharma[iii] case.
- Legitimacy of a child born out of a live-in relationship
This is important as in case after a child is born out of live-in relationship and the people in such relationship decides not to stay together and live apart, then in such cases the child is the one that suffers. So the courts keeping this in mind has pronounced judgements where they have state that a child born out of live-in relationship is legitimate. The first time a child born out of live-in relationship was held to be legitimate was in the case of SPS Balasubramanyam v. Sruttayan,[iv]where the court while taking presumption under Section 114 of the IndianEvidence Act presumed live-in relationship as a marriage and hence termed the child legitimate. The court in the case of Tulsa v. Durghatiya[v] also held the same. However the court has also opined a pre-condition for not treating a child as illegitimate in the case of Madan Mohan Singh and Ors v Rajni Kant & Anr. The court opined that the condition is that the parents must have lived under one roof and co-habited for a significantly long time for society to recognize them as husband and wife and “it should not be a “walk in and walk out” relationship.[vi] The tag of legitimacy assists the child to have all the rights that a child might have when born out of a legally wedded marriage, like right to property, maintenance, custody.
CONCLUSION
The multifaceted nature of live-in relationships has been in the picture now for a long time and now is the right time to recognize such relations as in the last few years there has been an increase of existence of such relations. It is not wrong to say that the social acceptance to such relationship still might take a lot but what about the people who are adopting this method. Sometimes deriving judgements make situations complex and in order to simplify the issues arising out of live-in relationships a separate legislation is a must. It will reduce complexity among courts and make people in live-in relationships aware of their rights and duties towards each other and children, if involved.
So should courts recognize live-in relationships? The answer to this is that although there is no harm in recognizing such relations as they ultimately will be have a pre-remedial effect on marriage and divorce issues but it is not always about the benefit an approval will give, rather it sometimes depend on what effects will it have. Upon contemplating the scenario it is true that it will not be safe to promote live-in relationships in India at this moment of time.
REFERENCES
[i]AIR1927PC185
[ii]Paragraph 55, AIR2014SC309
[iii] ibid
[iv]1994 AIR 133
[v]2008 SC 1193
[vi]AIR 2010 SC 631
