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Live-in relationships: judicial 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.

Where others countries stand

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

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.

'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.

‘Mistress can’t invoke protection law’

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.

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 .

When a live-in relationship becomes a domestic relationship

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

NEW DELHI: 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.

'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

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.”

See also

Age of consent Live-in relationships Premarital sex Rapes in India