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SHRADHA WALKAKR MURDER: NEED TO REVISIT SAFEGUARDS IN LIVE-IN RELATIONS By - Dr. Bhavana Sharma

 

SHRADHA WALKAKR MURDER: NEED TO REVISIT SAFEGUARDS IN LIVE-IN RELATIONS

 

Authored By - Dr. Bhavana Sharma

 

Abstract:

It has rightly been said in Manusamriti that “Yatra naryastu pujramante tatra Devata, Yatraitaastu na pujyante sarvaastatrafalaah kriyaah”

Meaning; where women are honoured, divinity blossoms there, and wherever women are dishonoured, all action no matter how noble it may be remains unfruitful.

But the gruesome murder of Shradha Walker has stunned the whole nation and question has been raised where our ancient values are going. Even the Apex Court has from time to time tried to protect women and provide safeguards under different laws for the protection of women with the changing needs of the society as the issue of live-in relations which has not been legalised by the Supreme Court of India but different laws has been extended to protect women.

In this Paper, the researcher has tried to analyse the different aspects of live-in relations and whether they should be legalised or not?

 

Keywords: women, laws, justice, live-in, relations.

 

Introduction:

 While others were shocked, how brutally Shradha was murdered by her live-in partner of three years, Aftab Amin Poonawala, many including the Union Minister of India blamed live-in relation for this brutal murder. And this incident once again raised the controversy over the unaddressed issue of intimate partner violence.

In this case, murder of Shradha Walkar came into light after six months and was brutally murdered by her live-in partner. Her parents were against the marriage because her partner was from different religion and after fight with her family she chose to live with him without tying the knots of marriage.   

Live-in relationships are becoming common among the youth. As per a survey conducted in 2018, 26 percent of the country's 18- to 35-year-olds prefer a life-long relationship rather than marriage. 80 percent of the youth in the country believe that living in a relationship is not recognised in society. While the youth is embracing the live-in culture, there is a section that believes that live-in relationship plays a vital role in Shraddha's murder. They believe that girls or boys in live-in relationships have no rights because there is no law regarding live-in relationships in the country[1].

The gruesome of murder of Shradha once again has brought the very crucial question on surface, should pre-marital cohabitation be legalised, should relationships such as live-in be totally banned. It was really tough for live-in partners to get respect in the society, now this case has gave a fresh excuse to the orthodox society to vilify live-in couples and totally ignoring that domestic violence in itself is a major issue in our society.

Now, the question arises if the live-in relationships are so derogatory and against the set norms of the society then why the young ones are fascinated towards these relations. Surprisingly, not many are aware that the live-in relationships are recoganised by the Constitution of India. And the following are the reasons for young ones to choose these relations over marriage:

  1. Live-in relationships offer liberty to couples.
  2. Couples are not bound to all the set traditions that have to be followed after marriage.
  3. Need of the modern world.
  4. More peaceful environment and space to working women.
  5. No pressure to have issues.

These are few of the benefits of live-in relationships.

 

Concept of Live-in relationship:

 The legal definition of live in relationship is "an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage"[2].
Live-in relationship is one such connection in which a boy and girl have some relation before their marriage and if they are satisfied with their partner they get married or be like that for years. This kind of act though seems different; it is one, which is being implemented today. Live-in relationship handles matter of premarital sex, but those couples who are maintaining relations don't mind such things. Overall, this relation builds up harmony between the couples, but spoils their social influence[3].
Live in relation i.e. Cohabitation is an arrangement whereby two people decide to live together on a long term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married[4].

 

Live in relationship are not new for western countries but these days the concept is adjusting its roots in east also. The word live in is controversial in many terms in eastern countries.
The legal definition of live in relationship is “an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage.”
In some parts of world these types of relationships are valid but some countries are highly strict for accepting the concept it has been round that Younger generation is wider to accept the live in relationships[5].

 

Difference between Live-in Relationship and Marriage:

A marriage is governed by a separate set of laws in all countries which safeguards the interests of both parties who enter into the union. Live-in relationships on the other hand have received due recognition in a few countries such as France and Philippines. In India, presently there is no law defining the maxims of a live-in relationship. The Supreme Court however, has observed in a current ruling that a woman who has lived in a live-in relationship for a long period of time should enjoy the same rights that a married woman is entitled to.


Live-in relationships do guarantee immense financial freedom for both parties involved. In a marriage however, it is generally accepted that the married couple share their earnings and enter into joint financial venture. However, these rules are not carved in stone. In today's day and age even married couples tend to keep their financial matters separate and many live-in couple decide to share their individual earnings.

 


Despite the fact that there are scores of couples who are opting for live-in relationships, the society still attaches a taboo to such relationships. The majority looks at live-in relationship as a dilution of morals and more importantly tradition. Marriage on the other is still venerated by most despite the alarming rise in the number of divorces and problems in relationship. Therefore, the primary difference between live-in relationships and marriage is that marriage has received the societal stamp of approval and live-in relationships are yet to do so[6].

 

Thus, Live-in relation means cohabitation. It is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and sexually intimate relationship. The legal definition of a live-in relationship is: an arrangement of living under which the couple, that is unmarried, lives together to conduct a long-term relationship which is similar to marriage,  But it is informal in nature. In fact, this form of relationship does not force the typical responsibilities of married life on the couple living together. People generally choose to enter into such consensual arrangements either to test compatibility before marriage, or if they are unable to legally marry, or because it does not involve the difficulties of formal marriage[7].

Criteria for the legality of live-in relationships

  1. The couple must present themselves to the public as being comparable to spouses.
  2. To get married, they must be of legal age.
  3. They must also meet all other requirements to get married legally, including being single.
  4. They had to have lived together freely and presented themselves to others as being close to spouses for a considerable amount of time[8].

Legal Rights of individuals cohabiting together

  1. It is not illegal for unmarried couples to jointly rent or purchase a home. Unmarried couples are permitted to cohabitate, purchase or rent property, and hold joint ownership titles.
  2. According to Section 125 of the Criminal Procedure Code, a woman who has lived with someone for a reasonable amount of time should be entitled to the same rights and privileges as a married spouse and be able to request maintenance (alimony).
  3. If a live-in couple has resided under the same roof for some years, then any child born to them will not be illegitimate. The Apex Court has stated that if a man and woman lived together consensually for an extended amount of time and had children, the children cannot be denied inheritance rights[9].

Rules to determine relationship in the nature of marriage: In the case of Indra Sarma v. VKV Sarma (2013), the Supreme Court established the following rules to decide whether or not a relationship is ‘in the nature of marriage’[10]:

Time period of the relationship: Section 2(f) of the Domestic Violence Act uses the phrase “at any point in time,” which indicates a significant period of time to establish and maintain such a relationship, which might differ from situation to situation depending on the circumstances[11].

Shared household: The term ‘shared household’ has been specified in Section 2(s) of the Domestic Violence Act and hence does not require additional explanation.

Providing funds: Financially supporting one another, or any of them, having shared bank accounts, obtaining immovable properties in joint names or in the name of the woman, long-term funding in companies, shares in joint ownership, in order to have a strong connection, could be a guiding factor[12].

Intentions and behaviours of the parties: The partners’ common aim toward their relationships, such as their individual duties and obligations, essentially defines the nature of that relationship[13].

Domestic agreement: Delegating responsibility, particularly to women, to manage the home and handle household chores is evidence of a marriage-like relationship.

Public socialisation: Hanging out in society and interacting with friends, relatives, and others as if they really are a married couple is a significant situation to retain the relationship in the nature of marriage[14].

Legality of Live-in relationship: There is no explicit law or custom in India that governs live-in relationships. Thus, via decisions, the Supreme Court has expanded the notion of live-in partnerships and established rules for dealing with such relationships[15]. Though the law is still ambiguous regarding the legality of such partnerships, a few rights have been provided by analysing and altering the laws so that the parties can avoid misusing such relationships. Several pieces of legislation are addressed below.

Article 21 of the Indian Constitution: Article 21 of the Indian Constitution safeguards the basic right to life and personal liberty, and it has been decided by various Supreme Court judgements like S. Khushboo v. Kanniammal and Anr (2010) that the right to life and personal liberty includes the right to cohabit without interruption.

The Protection of Women from Domestic Violence Act, 2005: A domestic relationship is defined in Section 2(f) of the Domestic Violence Act, 2005 as a relationship ‘in the nature of marriage’ between two people residing in a shared home. A domestic relationship is defined as a relationship between two individuals who reside or have resided together in a shared household at any period of time and are connected by consanguinity, wedding, or a relationship in the nature of marriage, adoption, or are friends and family living together as a family group. 

Live-in relationships have the characteristics of marriage because the partners live together for a long period of time and represent themselves as husband and wife. As a result, they fall under the purview of the Domestic Violence Act, 2005, and therefore, a woman in a live-in relationship can seek protection and maintenance under this Act. As a result, this Act legalises relationships other than marriage[16].

The Code of Criminal Procedure, 1973: Section 125 of the Criminal Procedure Code allows a wife to seek maintenance from her spouse if he refuses to support her. If a woman is able to form a marriage-like connection, she is eligible to receive maintenance from that man because the court can make the assumption that such a relationship is a marriage and the woman is considered to be a wife. The primary goals of including live-in relationships under the purview of Section 125 are to safeguard women from domestic violence and to increase the legal threshold for partners in live-in relationships to the level of marriage. The Supreme Court expanded on this precedent from the guidelines of the Malimath committee appointed by the Home Ministry. The committee was chaired by Justice Malimath to make recommendations on the aforementioned proposition.

The Committee submitted its findings in 2009, proposing that the definition of alimony/maintenance under Section 125 be modified to enable women to obtain it. As a result, the Supreme Court ruled in the case of Abhijit Bhikaseth Auti v. State of Maharashtra and Anr (2009), that a woman is not required to prove marriage to seek maintenance under Section 125 of the CrPC, meaning that a woman in a live-in relationship is also entitled to maintenance. This decision demonstrates our judiciary’s liberal and contemporary stance[17].

Role of Judiciary: The courts have legalised live-in relationships through their judgements and a jurisprudence has developed on the subject over the years. However, there remain several unaddressed questions that leave room for discussions. n the absence of explicit laid-down laws and provisions, the courts lean heavily on precedents and interpretations of existing laws to decide cases in front of them. There is no law specifically addressing live-in relationships, but the Indian judiciary has developed jurisprudence over the years through a series of judgements. According to the SC judgment in Badri Prasad Vs Dy. Director of Consolidation (1978) live-in relationships in India are legal but subject to caveats like age of marriage, consent and soundness of mind[18].

The question of the legality – or legitimacy – of live-in relationships was relatively simple for the courts to settle as fundamental freedoms are mostly elastic and courts have interpreted them broadly. However, several laws in different aspects pertaining to live-in relationships continue to be too rigid for the courts to extend or interpret them for the benefit of live-in partners[19].

 

Case Laws legalizing live-in relationships: There are some important judgments of the Supreme Court on live-in relationships, which are as follows:
Badri Prasad V. Dy. Director of Consolidation, 1978

it was the first case in which the Supreme Court recognized live-in relationship in India and interpreted it as a valid marriage. In this case, the court gave legal validity to a 50-year live-in relationship of a couple.

Tulsa V. Durghatiya, 2008; In this case, Supreme Court provided legal status to the children born from live-in relationship.

D. Velusamy V. D. Patchaiammal, 2010; The judgment determined certain prerequisites for a live-in relationship to be considered as valid. It was stated that the live-in relationship partners must have voluntarily cohabited and held themselves out to the world as being akin to the couple for a significant period of time.


S. Khushboo V. Kanniammal and Anr, 2010; In this case, the court stated that living together is a right to life and therefore is not 'illegal'. The court held that living together is not illegal in the eyes of the law even if it is considered immoral in the eyes of the conservative Indian society.


Indra Sarma V. V.K. V. Sarma, 2013; Supreme Court explained the live-in relationship in the following categories in its recent judgments; Domestic relationship between an adult male and female.

  1. Domestic relationship between a married man and an adult unmarried woman entered knowingly.
  2. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. It can lead to a conviction under IPC for the crime of adultery.
  3. Domestic relationship between the same-sex partners (gay or lesbian).

The court stated that the expression; relationship in the nature of marriage,  under Section 2 (f) of the protection of women against Domestic Violence Act, 2005, provided guidelines for such relationships[20].

Recent High Court judgements: These are as:

Gulza Kumari v. State of Punjab

Justice H.S Madaan stated in Gulza Kumari v. State of Punjab (2021) that the non-marital relationship is not culturally or morally justifiable. As a result, the petition was rejected. The Supreme Court has affirmed the legitimacy of live-in relationships in several cases, but in Gulza Kumari, the Court failed to consider the precedent, which is the rule of the court as it was provided by the top court of the nation. For the proper reasons, the Gulza Kumari v. State of Punjab (2021) ruling has garnered a lot of criticism. Within weeks following this verdict, the High Court of Punjab and Haryana announced another decision, but with a totally opposite result.

Pushpa Devi v. State of Punjab

In Pushpa Devi v. State of Punjab (2021), the petitioners, a female around the age of 21 and a boy around the age of 19, requested the court’s protection to safeguard their live-in relationship from their families, who have been willing to kill them just for family reputation. They were unable to marry because one of the applicants, a boy, had not reached the legal marriage age of 21.

The Court, through Justice Arun Kumar, awarded the petitioners the right to life and personal liberty on the grounds that both applicants have reached the age of majority and have the freedom to choose. This case appears to emphasise the significance of reaching the age of majority and how it alters the manner in which legal protection is conferred.

Rohit Kumar v. State of U.T. Chandigarh

In Rohit Kumar v. State of U.T. Chandigarh (2022) and others, the Punjab and Haryana High Court has urged the Union Government to outline its plan for dealing with live-in relationships. Noticing that no Act controls these relationships and that once an individual has achieved majority in terms of the Majority Act, 1875 (i.e., 18 years of age), it would be challenging for a court to refuse the validity of a live-in relationship, the Bench of Justice Amol Rattan Singh tried to seek a response from the centre by stating, “…what is recommended is to make sure that too many youngsters with developing minds (not properly matured though they otherwise, theoretically, are of the majority age in terms of the aforementioned Act) would not start living together and end up regretting such choices in life, causing major trauma to their parents and loved ones.”

Abhishek Chouhan v. State of Madhya Pradesh

In the case of Abhishek Chouhan v. Madhya Pradesh State (2022), the Madhya Pradesh High Court described live-in relationships as a by-product of the constitutional provision guaranteed under Article 21 of the Constitution, observing that such relationships foster sexual activity and lascivious behaviour, giving rise to sexual crimes.

The Court concluded that, with some exclusions, India has a conservative culture that has not yet achieved such a advanced level of civilization where unmarried girls, irrespective of their religion, participate in lascivious activities with boys only for the entertainment, unless supported by certain future promise of marriage, and that, to confirm her point, a victim should not be required to rely on committing suicide as in the current case[21].

Rights of partners in live-in relationships: In 2013, the Supreme Court ruled that women are protected under the PWDV Act, 2005 as live-in relationships fall under Section 2(f) of the law which defines a domestic relationship. It defines domestic relationship as “relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.

The SC ruled that live-in relationships fall under "a relationship in the nature of marriage" mentioned in the sub-section.

In 2010, the Supreme Court in Velusamy Vs D Patchaimal[22] laid down criteria for live-in relationships to be legal, which is the closest to the 'codification' of the question of live-in relationship, in the absence of any specific law on the subjects.

The Supreme Court laid down the following criteria:

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

They must be of legal age to marry

They must be otherwise qualified to enter into a legal marriage, including being unmarried

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

Therefore, certain live-in relationships, where two married persons or one married and another unmarried person are staying together, do not have legal basis.

Women are also eligible for alimonies in live-in relationships, according to the 2016 Punjab High Court judgement in Ajay Bhardwaj Vs Jyotsana case (2016)[23].

Main issues with live-in relationships: There are several issues regarding live-in relationships. These are as follows:

  • Is Indian culture ready to embrace such a new type of relationship?
  • What are the consequences of adopting or refusing such relationships for the continuation and advancement of society?
  • Should new legislation be enacted in India to govern such relationships?
  • What are the implications of legalising such a relationship for married couples?
  • Should current rules governing the maintenance, guardianship, succession, and inheritance be changed to accommodate such relationships?
  • What role does the Indian judiciary play in the development of such relationships?

So far, the Indian judiciary has been the most constant in recognising such relationships. However, in terms of protecting women’s claims in such relationships, the Indian judiciary stands ready to provide justice to the most vulnerable members of society[24].

Live-in Relationships as a threat to Women: According to the Supreme Court, Sector 2 of the Protection of Women from Domestic Violence Act (2005), a woman in a live-in relationship with a male partner can be treated as an aggrieved person. Two parties involved in a live-in relationship must present themselves as spouses to society. They must be of legal age and qualified to enter into a legal marriage. A couple must have voluntarily cohabited and presented themselves to society as spouses for a significant period. They must have resided together in a shared household as contemplated by this section[25].

Conclusion: The traditional Indian society has not approved such live-in relationships till now, for many reasons:

  1. Society worshiped the institution of marriage.
  2. Also, if the woman was not financially independent, the instability of such a relationship created a low status for the woman.

There exists no law to deal with the concept of live-in relationships and their legality in India. No law like Hindu Marriage Act, 1955, the Special Marriage Act, 1954 or the Indian Succession Act, 1925 recognized live-in relationship directly.
Under Section 17 of the Hindu Marriage Act, children born out of such relationships are considered to be legitimate and have been granted the right to succession.[26]

Pros And Cons Of Live-In Relationships The Supreme Court’s controversial observation okaying live-in relationships and pre-marital sex has generated fierce debate across the country. The historic observation has made to upset many orthodox groups fearing that it would destroy the sanctity of marriage. A fragment of the society including noted social activists and prominent dignitaries have stepped ahead and shared their precious views on this. Social scientists have already identified grave social problems like young age pregnancy of adolescent girls, drug abuse, violence and juvenile delinquencies and in the wake of the controversial ruling, the erstwhile objectionable social behaviour gets legalized, many felt. This way, the new generation will be more spoilt. They will prefer live-in relationships to marriages arranged by their parents. There is no guarantee that the male in such relationship will turn out to be a loyal partner in the long run or would not leave the woman with their issues and run away without prior notice. On the other hand, the section advocating freedom of choosing live-in relationship has hailed it as a pragmatic move. The recent observations, as they see, should be welcomed because it lays down emphasis on individual freedom. It opens frontiers to understand the personality traits of their partner well. Since there are no legal complications in a live-in relationship, walking out of such a relationship would be much easier than walking out of a marriage. Metro life that throws floodgates of challenges also supports this kind of an arrangement. The individuals should be free to live as they think best, subject only to the limitation that their actions and choices should not cause harm to others. It is a very radical attitude. Some people are of the view that women should be given the liberty to choose their life partners and should not be forced into marriages if they are not ready.
This is not the first time live-in relationship is in the ambit of debates and discussions. There has been a long-standing controversy whether a relationship between a man and a woman living together without marriage can be recognized by law. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships. This, however, cannot be construed that law promotes such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.[27] But the Shradha murder has once again raised the issue relating to legalisation of live-in relationships and how the women should be protected against violence in such relations and what safeguards should be provided to women,

 

 


[1] Is live-in relationship the reason for Shraddha Walkar's murder?, https://www.dnaindia.com/analysis/report-shraddha-walker-dna-special-sharddha-walker-murder-live-in-relationship-shraddha-walker-murder-court-ruli-3002256 (browsed on 09.01.2023).

[2] http://www.thegeminigeek.com/what-is-live-in-relationship (browsed on 09.01.2023).

[3] http://www.rishabhkullar.com (browsed on 09.01.2023).

[4] http://airwebworld.com/articles/index.php?article=1266, https://www.advocatekhoj.com/blogs/index.php?bid=4294fe94c613c9ad072931429&bcmd=VIEW(browsed on 09.01.2023).

[5] Shashi Stapathan, Emerging concept of Live‑in relationship, https://www.legalservicesindia.com/article/1013/Emerging-Concept-of-Live-in-Relationships.html

[6]  http://www.onlymyhealth.com/difference-between-live-in-relationship-marriage, https://www.advocatekhoj.com/blogs/index.php?bid=4294fe94c613c9ad072931429&bcmd=VIEW

[7] Mohd. Aqib Aslam, Concept of live in relationship and maintenance, https://www.legalserviceindia.com/legal/article-4855-concept-of-live-in-relationship-and-maintenance.html

[8] Anusha Shah, Live in Relationships: Is It Legal In India Or Not?, https://youthincmag.com/live-in-relationships-is-it-legal-in-india-or-not(browsed on 09.01.2023).

[9] Supranote 9.

[10] Shradha Jain, Are live-in relationships legal in India, https://blog.ipleaders.in/are-live-in-relationships-legal-in-india/(browsed on 09.01.2023).

[11] Ibid.

[12] Id.

[13]  Supranote 11.

[14] Shradha Jain, Are live-in relationships legal in India, https://blog.ipleaders.in/are-live-in-relationships-legal-in-india/(browsed on 09.01.2023).

[15] Ssupranote 15.

[16] Supranote 11.

[17] Supranote 11.

[18] Live-In Relationships In India: Legal But Do They Have Enough Safeguards?, https://www.outlookindia.com/national/live-in-relationships-in-india-legal-but-do-they-have-enough-safeguards--news-238838(browsed on 09.01.2023).

[19] Ibid.

 

[20] Supranote 8.

[21] Supranote 11.

[22] 2010

[23] Supranote 11.

[24] Supranote 11.

[25] Krati Purwar, Shraddha Walker Murder: Live-In Relationships Stigmatised, Expert Weighs In, https://www.herzindagi.com/society-culture/shraddha-walker-murder-live-in-relationships-stigmatised-expert-weighs-in-article-214283(browsed on 09.01.2023).

[26] Supranote 8.

[27] Gopal Swathy, Live‑in Relationships, https://www.legalservicesindia.com/article/211/Live‑in‑relationships.html(browsed on 09.01.2023).

 

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