Revision as of 20:27, 30 July 2021

Child custody

Father in live-in relation can’t get child’s custody: HC

Ajay Sura, HC: Dad in live-in relation can’t get child’s custody, March 9, 2019: The Times of India

The Punjab and Haryana high court has held that if custody of a child is granted to a person in a “livein” relationship without dissolution of previous marriage, chances are the child may learn that live-in relationships are the way of life.

A division bench comprising Justice Rakesh Kumar Jain and Justice Harnaresh Singh Gill passed the order and dismissed an appeal filed by a Hisar resident challenging the decision of a family court in Hisar on child custody.

The bench also said that the HC was satisfied that the welfare of the child would not be in the company of such person.

Human Rights Commission recommendations

Enact law to curb ‘live-in relationships’/ 2019

Sep 5, 2019: The Times of India

Rajasthan State Human Rights Commission (SHRC) recommended to the state government to enact a law to curb the trend of ‘live-in relationships’ for securing the right of women to lead a dignified life in society. An SHRC bench comprising justices Prakash Tatia and Mahesh Chandra Sharma has written to state chief secretary and additional chief secretary (home department), recommending enactment of a law to this effect. The bench has also told the state government to request the Centre to do the same.

“The fundamental right to life granted by the Constitution cannot be abandoned. A life of a concubine cannot be called a dignified life for a woman. The word concubine in itself is a serious character assassination and a disgusting way to address a woman. No woman has the right to abandon a dignified life and lead a life of disrespect, life of a concubine,” the bench said in its recommendation.

The commission had invited suggestions from all stakeholders, including police and civil society, on whether a law should be enacted to provide security to women living in ‘live-in relationship’ after a few cases of discord were reported to it.

The bench said that women themselves wanting to live such a life (life of a concubine) were not able to secure their fundamental rights. So, it was the duty of the state government, government departments, commissions and human rights activists to run awareness campaigns to sensitise women about the demerits of such relationships.

Children born out of "live-in" relationships

'Children born out of live-in relationships are legitimate:' SC

SC: Kids born of live-ins legitimate

Dhananjay Mahapatra TNN

The Times of India

New Delhi: Giving an important clarification on livein relationships, the Supreme Court has said that if a man and woman “lived like husband and wife” for a long period and had children, the judiciary would presume that the two were married and the kids could not be termed illegitimate.

A bench of Justices B S Chauhan and J Chelameswar issued the clarification on a petition filed by advocate Uday Gupta, who had questioned certain sweeping observations made by the Madras high court while dealing with the issue of livein relationships.

Gupta had challenged the HC’s observation that “a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized”.

His counsel, M R Calla, sought deletion of the HC’s observations terming them as untenable in law. He apprehended that these remarks could demolish the very institution of marriage. Panel to fix norms for political ads The Supreme Court on Wednesday frowned on the advertisement blitz by ruling parties at the exchequer’s expense to project their leaders, and set up a panel to frame guidelines on publicity with state funds. There’s “need to restrain misuse of public funds for... political motives”, the SC said. P 10

Government servants

HC sets aside dismissal for extra marital live in relationship

Rajesh Kumar Pandey, July 19, 2021: The Times of India

PRAYAGRAJ: The Allahabad high court has set aside the dismissal order of a government employee who was dismissed from service on the ground that he was in a live-in relationship with another woman despite the fact that he is married and his wife is alive.

Justice Pankaj Bhatia, while passing the order on July 14, made it clear to the state authorities to pass a fresh order imposing minor penalties.

The order of dismissal was passed against the petitioner, Gore Lal Verma, solely on the ground that despite being married to one Laxmi Devi, who is alive, the petitioner maintained an extra-marital relationship with another lady named Hemlata Verma and both are staying together as husband and wife. He also has three children from the said live-in relationship.

Passing the impugned order of dismissal, the authorities had recorded that the said conduct is against the provisions of the UP Government Servant Conduct Rules, 1956, and against the provisions of Hindu Marriage Act. As such, the order of dismissal from service was passed.

It was argued on behalf of the petitioner that in a similar matter in case of one Aneeta Yadav, this court, after considering, set aside the dismissal order. However, an opportunity was granted to the respondents to award any minor penalty, if they so desire.

It was further argued that the said judgment was challenged in special leave to appeal and the Supreme Court refused to interfere. Consequently, the said special leave to appeal was dismissed.

After hearing the counsel, the court set aside his order of dismissal observing that considering the fact as well as the judgment of this court in the case of Aneeta Yadav, the petitioner is also entitled to the same benefit.

Consequently, the writ petition was allowed and the respondent authority was directed to reinstate the petitioner. However, the petitioner shall not be paid back wages from the date of dismissal till today, the court directed.

“It is open to the respondents to pass fresh orders for imposition of minor penalty in accordance with law, if so advised,” the court added.

Judicial verdicts

Acceptable among adults: SC'

From the archives of The Times of India 2010

Live-in relationships among adults fine: SC

TIMES NEWS NETWORK

New Delhi: A much-publicized statement of south Indian film actress Khusboo on premarital sex, virginity and live-in relationships came for some favourable comments from the Supreme Court, which said there was nothing illegal in live-in relationships between adults. When Khusboo’s counsel Pinky Anand read out a portion of her interview to a fortnightly magazine whose translated version in a Tamil newspaper created pandemonium and led to filing of 23 complaint cases against her all over the country, the court wanted to know from the complainants as to what was so abhorrent in her view.

According to an agency report, the court drew on the mythology of Radha and Krishna living together to substantiate its point.

When they argued that it was virtually inducing others to commit an illegality, a bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan shot back saying in that case they should also sue the apex court, which has held livein relationship between adults as legal. Referring to the development of law with the dynamics of social behaviour, the bench also referred to the recent judgment of Delhi high court legalizing consensual sexual relation between adults falling in the category of lesbian, gay, bisexual and transgender (LGBT) group. After a day-long hearing, the bench reserved its verdict on Khusboo’s appeal.

With the actress sitting in the front row and appearing to be immersed in the interesting arguments and exchange of views, her counsel Anand said her client’s comments in 2005 to a news magazine was in response to a survey on premarital sex in big cities in India and was a bona fide opinion.

‘Courts cannot order couples’ separation on habeas corpus petitions’

June 2, 2018: The Times of India

Courts have to respect the right of people who have attained majority to have a live-in relationship and cannot order their separation on a habeas corpus petition, the Kerala HC has held.

A division bench of Justices V Chitambaresh and K P Jyothindranath observed in the judgment in a case involving a Muslim teenaged couple that live-in relationships have become rampant in society. “The constitutional court is bound to respect the unfettered right of a major to have a live-in relationship even though the same may not be palatable to the orthodox section(s),” it said.

The court gave the order on a habeas corpus petition filed by Muhammed Riyad of Alappuzha, alleging that his 19-year-old daughter Rifana was under illegal custody of 18-year-old Hanize Harris of Thrikkunnapuzha, Alappuzha. Hanize and Rifana had submitted in court that they were in love since school days. They also said that they were practically living as husband and wife though not legally wedded. Rifana’s father had earlier approached Alappuzha judicial first class magistrate and got a favourable order but she had gone back to Hanize. He contended in the high court that Hanize has not completed 21 years of age and falls under the definition of ‘child’ as per Section 2 (a) of the Prohibition of Child Marriage Act (PCMA), 2006.

HC said Rifana has attained puberty and can marry both under Mohammedan law and the provisions of

PCMA. However, the marriage of Hanize who has not completed 21 years is voidable at his instance under Section 3 of the PCMA, it said.

Rifana has every right to live with Hanize even outside her wedlock since live-in relationship has been statutorily recognised by the legislature itself, the court said. It referred to the Supreme Court decision this year in the Nandakumar vs State of Kerala case to state that livein relationship is recognised under provisions of the Protection of Women from Domestic Violence Act, 2005.

Long live-in relationship a presumed marriage: SC

The Supreme Court bench went through the judgment and said the high court’s observations would be confined to the case in which these were made.

Justices Chauhan and Chelameswar said, “In fact, what the HC wanted to say is that if a man and woman are living together for a long time as husband and wife, though never married, there would a presumption of marriage and their children could not be called illegitimate,” said the verdict.

In 2010, the SC had said, “The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.”

The same year, in another judgment it hinted at the legitimacy of children born out of such relations. “It is evident that Section 16 of the Hindu Marriage Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.”

 Raj HC: Live-in relationship amounts to marriage

Ashish Mehta, May 6, 2019: The Times of India

A live-in relationship amounts to marriage, ruled the Rajasthan high court while restraining a man from entering into wedlock on May 7, following a petition by his live-in partner.

The 27-year-old woman submitted that Balram Jakhar (30) had wrongfully coerced her into a relationship and cohabitation on the false promise of marriage.

The couple met in 2014 while teaching at a private school in Rajasthan’s Jhunjhunu district and fell in love. While still living with her, Balram was all set to marry another woman on May 7. Upon learning of this, the petitioner moved the court seeking a restraining order against Balram to prevent him from entering into wedlock with another woman.

While directing Balram against marrying another person, the single-member bench comprising Justice Sanjeev Prakash Sharma observed, “Live-in relationship in the Indian society amounts to marriage and the society recognises it only as a marriage and not in any other form. Therefore, Balram cannot be allowed to enter into a second marriage as it is going to spoil the future of the petitioner.”

Married woman can’t claim legal sanctity for affair: HC

Rajesh Kumar Pandey, January 21, 2021: The Times of India

‘Live-in affair’ of married woman can’t have legal sanctity: HC

Prayag raj:

The Allahabad high court has ruled that a married woman moving in with another man without divorcing her spouse cannot claim to be in a live-in relationship and seek legal sanctity later.

Dismissing a writ petition filed by one Asha Devi and Suraj Kumar, the division bench of Justices Surya Prakash Kesarwani and Dr Yogendra Kumar Srivastava held that any such couple isn’t entitled to protection from the court simply on the ground that they are consenting adults living with each other.

The petitioners had argued that although not legally married, they had been living together as husband and wife, and thus nobody should have the right to interfere in their relationship.

During the court proceedings, the petition was opposed by the state counsel on the ground that Asha Devi started living in with Suraj Kumar even as she was legally married to his client, Mahesh Chandra. This constitutes an offence under sections 494 (marrying again during lifetime of husband or wife) and 495 (concealment of former marriage from person with whom subsequent marriage is contracted) of the IPC, the counsel said.

After hearing both sides, the court said: “Such a relationship does not fall within the phrase ‘live-in relationship’ or ‘relationship in the nature of marriage’...The writ petition has been filed by the petitioners for protection from interference by others in their living as husband and wife. If protection, as prayed for, is granted, it may amount to granting protection against commission of offences under sections 494/ 495 of the IPC.”

According to the court, a writ of mandamus (judicial remedy in the form of an order) could not be issued contrary to law or to defeat a statutory provision, including the penal code. “The petitioners do not have a legally protected and judicially enforceable subsisting right to ask for mandamus,” the court ruled on December 1.

‘Mistress can’t invoke protection law’: SC

SC: If Married Man Walks Out Of Relation, Live-In Partner Not Entitled To Relief

Dhananjay Mahapatra TNN

The Times of India

New Delhi: Check the man’s marital status before going in for a live-in partnership was the loud signal from the Supreme Court which ruled that the Domestic Violence Act could not be invoked by a woman in a live-in relationship with a married man, especially if she knew his marital status.

A relationship between a woman and a married man could not be termed a ‘relationship in the nature of marriage’, the basic requirement for an aggrieved woman in a live-in relationship to take recourse to the Domestic Violence Act for action against her ‘erring’ partner, the court said.

After giving this interpretation to live-in relationship between a married man and an unmarried woman, a bench of Justices K S Radhakrishnan and Pinaki Chandra Ghose said if the married man walked out of such a relationship, the woman was not entitled to seek maintenance under Domestic Violence Act from him.

On the contrary, it warned, the deserted woman ran a risk of being sued for damages by the man’s wife and children for alienating them from the love and care of their husband/father.

But the bench was aware of the social reality of married men walking out of livein relationships. Finding that in such cases, poor and illiterate women suffered the most, the SC appealed to Parliament to take remedial measures through appropriate laws.

One Indra Sarma had a live-in relationship with V K V Sarma, already married with two children. The man moved in with her, started a business enterprise with her and after several years, went back to his family. After the live-in relationship ended, Indra moved a Bangalore court demanding from him a house, a monthly maintenance of Rs 25,000, reimbursement of her medical bills and Rs 3.50 lakh in damages.

The trial court found that the two lived together for 18 years. Finding the woman aggrieved, the magistrate directed the man to pay Rs 18,000 per month towards her maintenance under Domestic Violence Act. The sessions court upheld the trial court decision.

But the Karnataka high court set aside the trial court order saying the live-in relationship did not fall within the ambit of “relationship in the nature of marriage”, a cardinal principle for one to invoke DV Act. Upholding the HC order, Justices Radhakrishnan and Ghose said, “We are of the view that the appellant (Indra Sarma) having been fully aware of the fact that respondent (V K V Sarma) was a married person, could not have entered into a live-in relationship in the nature of marriage.”

But the bench noticed the deficiency in law to address such ties in which women, especially poor and illiterate, suffer the most when their partners — already married men — just walk out.

'Neither a crime nor a sin': SC

Live-in or marriage-like relationship neither a crime nor a sin: Supreme Court

PTI [1]| Nov 28, 2013

NEW DELHI: Live-in relationship is neither a crime nor a sin, the Supreme Court has held while asking Parliament to frame law for protection of women in such relationship and children born out of it.

The apex court said, unfortunately, there is no express statutory provision to regulate live-in relationships upon termination as these relationships are not in the nature of marriage and not recognised in law.

In the landmark judgement, a bench headed by Justice K S Radhakrishnan framed guidelines for bringing live-in relationship within the expression 'relationship in the nature of marriage' for protection of women from Domestic Violence Act.

"Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage," the bench said.

"Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal," the bench said, adding that various countries have started recognising such relationship.

The apex court said a legislation is required as it is the woman who invariably suffer because of breakdown of such relationship.

"We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer," it said, noting "Live-in relationship is a relationship which has not been socially accepted in India, unlike many other countries".

The bench, however, said that legislature cannot promote pre-marital sex and people may express their opinion, for and against.

"Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against," it said.

The bench, however, said that maintaining an adulterous relation would not come within the ambit of live-in relationship which is to be protected by law.

"Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one's husband or wife, cannot be said to be a relationship in the nature of marriage," it said.

Note of caution

Live-in relations gain traction

Courts Progressive, But Careful While Defining Relationships

Smriti Singh TNN 2013/07/03

The Times of India

A live-in relationship is an arrangement of living where the couples which are unmarried live together to conduct a long-going relationship similarly to marriage. In 2010, the SC in its landmark judgment had opined that a man and woman living together without marriage cannot be construed as an offence. “When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chuhan said in S Khushboo’s case.

Legal experts say the meaning of a live-in relationship should be understood with due caution. “The courts have been careful whenever they have interpreted live-in relationships. They do not talk about short-term arrangements but a longstanding commitment where the man and woman stay and share the same framework as that of marriage. The courts have time and again given clarity on that, and that for me is a fair amount of progressive view,” said senior lawyer Pinky Anand.

When a live-in relationship becomes a domestic relationship: SC

From the archives of The Times of India 2007, 2009

SC lays down conditions for women seeking maintenance in live-in relationships

PTI, Oct 21, 2010

A woman in a live-in relationship is not entitled to maintenance unless she fulfils certain parameters, the Supreme Court held today while observing that merely spending weekends together or a one night stand would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a woman, even if not married, has to fulfil the following four requirements:

(1) The couple must hold themselves out to society as being akin to spouses

(2) They must be of legal age to marry

(3) They must be otherwise qualified to enter into a legal marriage including being unmarried

(4) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

"In our opinion, not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005 (Protection of Women from Domestic Violence Act). To get such benefits the conditions mentioned by us above must be satisfied and this has to be proved by evidence.

"If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and or as a servant, it would not in our opinion be a relationship in the nature of marriage," the court said.

"No doubt the view we are taking would exclude many women who have had a live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act) but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

The apex court passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy.

Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.

Interpreting section 125 of CrPC relating to maintenance, the apex court said besides a legally-wedded wife, dependent parents and children alone are entitled to maintenance from a man.

But the Domestic Violence Act expanded the scope of maintenance by using the expression 'domestic relationship' which includes not only the relationship of marriage but also a relationship 'in the nature of marriage'.

"Unfortunately this expression has not been defined in the Act. Since there is no direct discussion of this court on the interpretation of this expression, we think it necessary to interpret because a large number of cases will be coming up before the court in our country on this point and hence an authoritative decision is required," the bench said.

According to the apex court, the legislation was enacted in view of the new social phenomenon in the country in the form of live-in relationship.

"In feudal society, sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror as depicted in Leo Tolstoy's novel 'Anna Karenina', Gustave Flaubert's novel 'Madame Bobary' and the novels of the great Bengali writer Sarat Chandra Chattopadhyay.

"However, Indian society is changing and this change has been reflected and recognised by Parliament by enacting the Protection of Woman from Domestic Violence Act, 2005," the bench said.

The apex court discussed at length the various US courts' rulings on grant of maintenance under the doctrine of 'Palimony'(pals) under which divergent rulings were passed vis-a-vis maintenance to a woman in a live-in relationship.

The bench recalled the California superior court's ruling in Marvin versus Marvin (1976) case wherein maintenance was awarded to the woman in live-in relationship.

The case related to the famous film actor Lee Marvin with whom a lady Michelle lived for many years without marrying him and was then deserted following which she claimed p alimony.

In the present case, the apex court said that since the two lower courts had been given an opportunity to Velusamy's first wife Laxmi to be heard, the directions passed by it was erroneous hence it remanded the matter back to the matrimonial court to examine whether Laxmi was the legally wedded wife of Velusamy.

Prevalence

Jharkhand’s Dhukua/ 2019

Debjani Chakraborty, No feast, no marriage: Tribals forced into live-ins, January 15, 2019: The Times of India

NGO Gets 132 Couples Married In Jharkhand

Raju Mahli and Manki Devi of Charkatnagar village in Gumla district of Jharkhand have been living together for more than 20 years, but not out of choice. Neck deep in poverty, they couldn’t organise a wedding feast, a must in the community if a marriage is to be recognised. On Monday, the 40-year-olds finally got married at a mass wedding for 132 other like them, all too impoverished to feed friends and relatives as part of the wedding ritual.

The tradition of living-in among couples without marriage is common among Oraon, Munda and Ho tribes of Jharkhand, where a couple unable to pay for a wedding simply moves in together and starts a family. They are called ‘Dhukua’ in local parlance. The female partner gets the society’s approval to live with her chosen male partner, but instead of being a wife, she is branded with the title of ‘Dhukni’ — a woman who has entered a household without marriage. The weddings, says the NGO organising it, are an attempt at redressing this.

“I cultivate a small plot of land and never had enough to marry my partner. We have a teenage son and a daughter. When the NGO Nimitt told us about the mass wedding, I readily agreed,” Mahli said.

“Though Dhukua women are as much a part of the family of the man as a wife, they and their children have no rights or official documents to show. We organised mass weddings of 21such couples in 2016 and 43 in 2017. This year, the numbers have increased to 132 couples,” said Nimitt secretary Nikita Sinha on Saturday.

“In our village, children of Dhukua couples cannot participate in religious rituals or get married. Though the female partner is every bit like a wife, she is like a second-class citizen with her children treated as social outcasts,” said Rahil Tete.

The latest mass wedding had people from various religions — 76 couples followed the traditional tribal religion of Sarna, 36 were Hindu and 20 Christian — from different blocks of Khunti and Gumla districts. Each couple was allowed to bring 10 guests.

Budhishwar Gope, a resident of Basia who officially wed his partner of four years Urmila Devi, said, “Be it a plain feast of rice and meat or of hadiya (rice beer), the village elders don’t bless a wedding until a feast is held. They are not very happy with us coming here and getting married like this.”

Sangain Manjhain, who wed her partner of 12 years said, “My partner is disabled and we have no money. But the village won’t let us get married unless we invite them to a feast. My second child has been taken into protection by the authorities a year ago.”

However, many said such mass weddings do not really solve the problem for couples. Vasvi Kiro, tribal rights and social activist, told TOI, “Dhukua couples are accepted in tribal society. The concept of live-in relationships is allowed because not everyone can afford a grand wedding. They do it in their own time and it is rare that couples end up never solemnising their marriage.”

Anil Kumar, Khunti coordinator for Nimitt, said there’s still a long way to go before more couple are brought in. “Several villages refused to participate saying a wedding needs to be celebrated amidst family and friends,” he said.

Kerala: widespread

The Times of India, Nov 13 2015

Live-ins widespread in Godless country Kerala

Malayalis cutting across political affiliations lashed out on social media at an article that appeared in a recent issue of a weekly "Organiser" that was notable as much for the writer's ignorance about Kerala as for the venom he spewed.

The article `Kerala: God's own country or Godless country', which can be read on the Organiser website, identifies the author as Surendra Nathan, a Mumbai-based lawyer.The article begins as an “analysis“ of food preference of Keralites and credits the popularity of beef in the state to a communist conspiracy mooted by none other than the late CPM patriarch EMS Namboothiripad. According to the article, EMS apparently went around Dalit houses gorging on cow meat and soon hotels in the state “run by Christians and Muslims“ started to serve beef.

The author's ingenuity however might not have had the effect he intended. “So it is the communists who intro duced beef to Kerala? I was never their fan but if this is true, then they are great,“ posted Kiran Joy from Brisbane in a Facebook comment.

The article also states that Kerala “has the highest number of youths of opposite sex living together without marriage“ and alleges that former additional solicitor general Indira Jaising “a militant feminist and Bharat's foremost communist ideologue“ is responsible for the “widespread“ live-in relationships in the state.

Nathan also goes on to say that Malappuram district is “a miniature of the Kingdom of Saudi Arabia“ where one can find “cow slaughter houses at every nook and corner“.

Protection for couples

2021: Punjab and Haryana  HC

Ajay Sura , May 21, 2021: The Times of India

A bench of the Punjab and Haryana high court has ruled that societal sanction for a live-in relationship shouldn’t matter in deciding whether any such couple seeking state protection from family members opposed to their union is entitled to it or not. The order passed by Justice Sudhir Mittal contradicts two recent judgments by separate benches of the same court, both rejecting protection pleas filed by live-in couples on the ground that the law can’t stand up for relationships that aren’t socially acceptable.

Stating that the Constitution grants every citizen the right to choose one’s life partner, Justice Mittal said it was an individual choice to formalise that relationship or go for a live-in arrangement. He said a live-in couple has the same right to protection as a married couple.

The May 18 order came in response to a petition filed by a live-in couple allegedly facing intimidation by the girl's family. The petitioners had first approached the police after being threatened with “bodily harm” for choosing to go ahead with their relationship.

On May 11, the singlejudge bench of Justice H S Madaan had dismissed a petition filed by a live-in couple from Tarn Taran, saying that granting protection to a relationship that was “morally or socially not acceptable” could lead to trouble.

Where other countries stand

The Times of India

SCOTLAND

Live-in relationships are legally recognized as cohabitation. The law takes into account not only the length and nature of a couple’s relationship but also their financial arrangements. If the relationship breaks down, either partner has the right to seek financial support from the other

CANADA

A live-in couple has the option to enter into a legal agreement concerning the ownership and division of property, obligations regarding financially supporting each other, and the education and moral training of their children, but not the custody of children

AUSTRALIA

The family law act recognizes a live-in arrangement as a “de facto” relationship when the two parties are not married or related by family but have been living together as a couple on a “genuine domestic basis”

FRANCE

A civil solidarity pact, commonly known as a PACS, is a form of between two adults (same-sex or oppositesex) for organizing their joint life. It brings rights and responsibilities, but less so than

Woman 'living in' with married men

The Times of India, Jul 24 2015

Madhu Mehra

Despite a liberal law, courts have come down heavily on a woman living with a married man while absolving him of all responsibility The discourse on women's rights within marriage has been generally lim ited to lawful `wives', with little attention to women in non-marital conjugal relationships. This changed with the Protection of Women from Domestic Violence Act 2005, which extended protection against physical, psychological and economic abuse to women in relationships `in the nature of marriage'. Sadly, judicial responses to this radical law have been inconsistent in their reasoning, often judging claimants rather than advancing justice. The act is in keeping with the UN Convention on Elimination of all Forms of Discrimination Against Women, which not only affirms comprehensive rights to women in legally valid marriages but also calls for extending basic legal protection to women in conjugal relationships unrecognized by the law. Such relationships in India include contemporary polyandry in Punjab and Haryana, the Nata Pratha in Rajasthan and Maitri Karar in Gujarat. Many of these practices, whether traditional or not, involve male bigamy . A study by Partners for Law in Development shows that factors like education, demographic patterns, livelihoods and relationship with land determine the nature of these conjugalities. While some practices may be exploitative of women (as arguably some marriages are), public policy goals and justice are not served by denying these women legal redress.

Moral hierarchies

Disregarding such concerns, the Supreme Court has intermittently invoked moral hierarchies to limit the scope of `relationships in the nature of marriage'. In considering claims of the second woman, judicial reasoning has in some instances favoured the `innocent' one, who was unaware of the man's preexisting marriage, while being disparaging of those who knowingly do so. In Velusamy vs Patchaiammal (2010), the apex court set aside an order of maintenance as the man had questioned the legal status of the respondent on account of his subsisting prior marriage. He was spared the burden of paying maintenance even after he had in effect admitted the woman's claim that they had a customary wedding celebration followed by two to three years of cohabitation and that he had regularly visited her thereafter and participated in her family events.The Supreme Court went on to ex pound that `second wives' or `keeps' would have no remedy within the scope of `relationships in the nature of marriage' under the domestic violence law, interpreting this phrase to mean only those unions where the parties had no other spouse and voluntarily cohabited.

Immunity for men

Going by the Velusamy interpretation, lower courts rejected women's claims for right to residence. In one case, although it was admitted that the partner introduced the woman to his neighbours as his wife, the court rejected her claim stating that her use of the phrase `forced cohabitation' (a euphemism for forced sex) indicated she did not voluntarily cohabit as was necessary . In another case, there was no dispute about a sexual relationship, or that the couple was considered married.Yet, the court held, “The question is not whether the society has recognized the parties as spouses, but rather if the parties had held themselves out to the society as spouses.The vital question involved in the present case is if the respondent number 1 has shown any indication that he intended to treat the complainant as if she was his wife.“ The court appears to view its role as that of affirming the man's perspective of the relationship, granting him immunity from the domestic violence law. In 2013, the Supreme Court judg ment in Indra Sarma vs VKV Sarma seemed to take a fresh approach by laying down eight indicators of relationships akin to marriage.These involve duration of relationship, sharing of household, finances, housework, sexual intimacy, children, and relating to society as spouses. Yet, in the same case, the court rejected the claim arising from 18 years of cohabitation, “since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage.“ Both Velusamy and Indra Sarma illustrate how interpretations can pervert the potential of a radical law. The otherwise objective criteria in Indra Sarma is set aside on the reasoning that women in relationship with a married man are morally tainted and merit no legal protection in their private life. By the same token, such women also stand disentitled from legal protection against physical abuse. In essence, this places the responsibility for such relationships entirely on women, granting immunity to men in relation to their partner -even for domestic violence. The acceptance of the first-wife argument by the courts to shield him from assuming minimal responsibility rebels against the spirit of the law.

Courting confusion

Perhaps one reason for this trend s that despite the 2005 law, the courts still read the term `relationships in the nature of marriage' rom the perspective of the longstanding provision for maintenance, Section 125 of the Criminal Procedure Code. The latter is focused on `wives' and infused with he spirit of social order and wel are rather than rights to resist discrimination in private life. It led he courts to dwell upon the worthiness of the claimant to justify ex ending relief to women other than awful wives. Recognizing the need o settle this confusion, the Supreme Court in Chanmuniya vs VKS Kushwaha (2010), allowed maintenance to a widow from Gazipur who entered into customary marriage with her brother-in aw, only to be abandoned later by him. It also called for a larger bench o revisit the definition of `wife' under Section 125, to align it with hat of the domestic violence law.Five years down, this referral remains to be heard.

The references to concubines and keeps and the classification of all non-marital conjugalities as ive-in relationships reflect moral opprobrium and anxieties about sexuality outside of marriage. Regardless of how sections of society might view premarital sex or live n relationships, this is a facet of ndividual liberty and life, guaran eed by the Constitution. In all hese cases, the legal system must be guided by constitutional moral ty, even if it runs contrary to popular morality .

Woman’s rights

Legal rights, as in 2019

Dec 9, 2019 Times of India

The relationship is not bound by legality of marriage, but the woman and her kids can claim their rights under law, says Riju Mehta

In a marriage that goes sour and ends in a split, it’s often the woman who gets the short end of the stick. Typically ill-informed about her rights, she cedes them to the partner and invites financial insecurity for herself and her children. It’s easy to assume then that her situation would be worse in a live-in relationship. However, over the years, Indian courts have stood up for the rights, financial and otherwise, of a woman who is in a live-in relationship.

Woman’s rights in a marriage: There are six basic rights that a married woman can lay claim to for her financial, physical and emotional security. These include the right to maintenance for herself and her children, to matrimonial home, to streedhan, to living with dignity and respect, to a committed relationship and parental property. The right to maintenance is covered under Section 125 of the Criminal Procedure Code. After divorce, maintenance is covered by the Hindu Marriage Act, 1955 (2) and the Hindu Adoption and Maintenance Act, 1956. The Protection of Women from Domestic Violence Act, 2005, covers all forms of physical, mental, emotional and economic abuse and neglect.

Maintenance rights in a live-in relationship: After the recommendations of the Malimath Committee in 2003, Section 125 was incorporated in the Criminal Procedure Code to alter the meaning of ‘wife’ and expand it to include women who were in a live-in relationship. This ensured that her financial needs were taken care of by the partner if she was unable to maintain herself or if the relatioship became estranged. Similarly, protection against all forms of abuse is covered under the Domestic Violence Act, 2005, as it is for married women.

Right to property: The woman’s right to parental property is covered by the Hindu Succession Act, 1956, after it was amended in 2005. This gives her the same rights as a son to ancestral and self-acquired property, irrespective of her marital status. So, whether she is married, unmarried or in a live-in relationship, the right to ancestral property will accrue to her by birth, while the self-acquired property will be distributed as per the will.

Children’s inheritance rights: In 2014, the Supreme Court said that if a man and woman lived like husband and wife for a long period and had children, they would be considered legitimate. While personal laws don’t offer maintenance to kids born in live-in relationships, they are given protection under Section 125 of the Criminal Procedure Code. As for property rights, Section 16 of the Hindu Marriage Act provides legitimacy to children born out of marriage. This means that these kids are legal heirs to both ancestral and self-acquired properties.

See also

Age of consent in India

Live-in relationships: India

Premarital sex

Rapes in India: annual statistics

Rapes in India: Compensation and help for survivors

Rapes in India: court verdicts

Rapes in India: the legal position after 2013