CHANGING DIMENSIONS OF MARRIAGE-LIVE IN RELATIONSHIPS By- Shivani Johri

CHANGING DIMENSIONS OF MARRIAGE-LIVE IN RELATIONSHIPS

Authored By- Shivani Johri

Assistant Professor, Sharda University

ABSTRACT

From Sita’s Swayam-vara to Draupadi’s five husbands , the nature and landscape of marriages in India have long underwent a paradigm shift. Marriage is a sacred tie and last of ten sacraments in Hindu law that can never be broken. Based on smritikars even death cannot break this relationship. Also, it is not only considered as sacred but it is also a holy union. The nature of marriage under Muslim law is the same as a civil contract. It is entered into by both the parties by their free volition. In its formation it also takes the form of contract as there is offer and acceptance between the parties, giving them right as husband and wife. Christians believe that marriage is a gift from God, one that should not be taken for granted. Getting married in a church, in front of God, is very important as a marriage is a public declaration of love and commitment. The eight types of marriages- Brahma Marriage, Daiva Marriage, Arsha Marriage, Prajapatya Marriage, Gandharva Marriage, Asura Marriage, Rakshasa Marriage, Paishacha Marriage were prevalent since the vedic times. The most upcoming ones are live in relationships.

Over the past few decades, globalisation has accelerated transformation that has an impact on practically every element of our social life, including family structure, marriage, intimate relationships, and more. Marriage is a   socially and legally recognised form of a  connection . The institution of marriage is significantly more fundamental in our society since social structure and bonds are stronger. Living together without being married is exceedingly uncommon and is seen as forbidden. Yet, times are quickly changing, and unmarried couples who are not married have begun cohabitating in one home. Such a relationship could last a short while or last for a long time. Cohabitation becomes a live-in relationship if it lasts for an extended amount of time. 

Live in relationship is defined as the long continuous cohabitation between two unmarried persons.it is legal but still there are a lot of grey areas in the subject. In a country where pre marital sex is frowned upon , divorce is stigmatised , relationships other than marriage are looked down with suspicion. In India, there are no explicit laws, societal norms, or traditions governing live-in relationships. As a result, the Supreme Court has taken the initiative to enlarge on the idea through its decisions at various points in time and has released rules for handling such relationships. This research paper analyses the growing trends of live in relationships, their existing patterns and changing pedagogy. It looks at the guidelines and highlight the loop-holes in the legal statutory framework and suggest recommendations to rectify the same

LIVE IN RELATIONSHIPS – AN EXCEPTION BECOMING THE NORM

Nowadays, couples sought to experiment with different ways of life. Live-in relationships are now commonplace because people are aware that different people may perceive a situation differently. Although the idea is commonly accepted by Indian couples, the patriarchal mentality has not completely been banished from the culture. The male partner frequently treated the woman with disrespect and disregard. but had no prospect for legal recourse under Indian law. But, as instances of harassment and violence began to rise, the Supreme Court gave the victims of domestic abuse the relief made possible by the Domestic Violence Act. This statute refers to a "relationship in the type of marriage" rather than specifying marriage.

The Domestic Violence Act of 2005 was passed to protect women from various forms of violence that take place in the home. This act also covers women who live with a male partner and share a home with him, albeit they are not considered to be his wives. A man and female are considered to be in a domestic relationship when they share a home together due to a relationship such as marriage, adoption, consanguinity, or living together as family. Although the statute doesn't specifically mention live-in partnerships, the clause "relationship in the type of marriage" provides for interpretation to safeguard women's fundamental rights and prevent violence.[1]

Not all live-in relationships come under the purview of section 2(f) of domestic violence act. The Supreme Court mentioned that for a relationship to be considered as live-in relationship and to be interpreted under this section, some specifications should be followed:

• The couple must be of legal age to marry
• The couple living together in the idea of marriage or akin to spouses
• They must be qualified to enter into a legal marriage
• They must have cohabited voluntarily and have been living together for a considerable amount of time

There are cases when woman voluntarily enter into relationship with man after being well-aware that he is already legally married and have children. In such cases the women are not entitled to various relief measures under the provisions of PWDVA, 2005. But in cases of women being victimized by illegal relationships; even have children born out of such relationships, estranged without any financial support and in order to protect such women from being victimised, the Supreme Court has laid down some guidelines based on which a live-in relationship can be given the status of marriage. The guidelines are as follows:

1. Duration of relationship – although there is no set duration devised by law, the couple should have been in a relationship for a reasonable period ‘at any point of time’.
2. Shared household – the couple should live together in a shared household
3. Pooling of resources and finances – In order to maintain a long-term relationship, the couple or one person should be financially supporting the other via combining bank accounts, buying immovable property, owning shares in joint names, or having separate accounts.
4. Domestic arrangement – when their domestic set-up indicates nature of marriage such as entrusting the responsibility of the household in the hands of woman to run a home and do household activities such as cooking, cleaning, maintaining the home, etc.
5. Sexual relationship – when the couple’s relationship extends to intimate, emotional wellbeing which also includes procreation of children so as to give emotional support, companionship and also material affection, caring etc.
6. Having children – the couple’s inclination to have children, their mutual support in raising them is a strong indication to having a long-term relationship.
7. Socialisation – Socialising in public as a couple and socialising with friends and relatives and others as if they are husband and wife is a strong indication that their relationship is in the nature of marriage.
8. Conduct of both parties – the intention and conduct of the parties about what their relationship is and to be, their involvement, their roles and responsibilities determines the nature of their relationship.

BRIEF HISTORY OF LIVE IN RELATIONSHIPS

ANCIENT TIMES

Manu asserts that although premarital unions existed in the Vedic era and thereafter, they were uncommon. So, the idea of living together before being married is not new in India; live-in relationships have long been there. Since the Gandharvas have a reputation for being passionate since the Vedic era, marriages that take place before the proper performance of sacred procedures are inevitably associated with them. On whether love marriages should be under the scope of recognised marriages, authorities are divided.

The Baudhayana Dharma Sutra alludes to the belief of certain philosophers that love unions should be praised because they imply reciprocal attachment with acceptance. They are regarded as ideal excellent in the Kamasutra, as was the older thinker Angiras, who was cited by Bhavabhuti in the Malati-Madhava. The Mahabharta contained the at one place, the Gandharva vivaah to be correct form of marriage.

MEDIEVAL TIMES

Concubines were used in the past to help wives who were unable to have children by producing large numbers of offspring. Concubinage, however, also enjoyed legal tolerance in mediaeval times between two unmarried individuals, much like the position of common-law marriage. Although concubinage has been a prevalent practise throughout history in many cultures, concubines' social and legal standing has changed with time, ranging from sexual servitude to common-law marriage.

These distinctions have persisted up to the present. That was the era of Muslims entering India. Concubinage of unmarried persons or their cohabitation lost the value

equivalent to common-law marriage in mediaeval Muslim society, when the phrases "sex slavery" and "concubinage" were nearly interchangeable.

MODERN TIMES

The movement to end evil practises began in modern India with the introduction of social reformers and British Indian Laws, which led to a decline in the incidence of concubinage and other evil practises in Indian society, though it is not accurate to say that these practises have completely disappeared. Even after India gained its freedom, the custom of having concubines persisted. For a very long time in Gujarat, a man and a woman might willingly engage into a friendship contract that stated that the woman would have no rights over the guy other than those of a friend.

Such written agreements between persons of two opposing sexes to be friends, live together, and take care of one another were officially referred to as maitray karaars. These partnerships are described as socially ambiguous and sexually exploitative relationships, and they are stigmatised as such. In such situations, the lady was always unmarried and also supported her parent's family while the male was always married.

MAIN ISSUES CONCERNING LIVE IN RELATIONSHIPS

• Is Indian society prepared to accept this novel kind of union?
• What effects would embracing or rejecting such partnerships have on the survival and development of society?
• Should India pass new legislation to regulate these relationships?
• What effects would the legalisation of such a relationship have on married couples?

LEGAL ASPECCTS

• 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) [2]that the right to life and personal liberty includes the right to cohabit without interruption.[3]
• Live-in relationships are not officially addressed by law, but the Indian judiciary has over the years created jurisprudence through a number of judgments. Live-in relationships are allowed in India, subject to restrictions like age of marriage, consent, and soundness of mind, according to the SC ruling in Badri Prasad v. Dy. Director of Consolidation (1978).
• In the case of Payal Katara vs. Superintendent, Nari Niketan,[4] and others ii, the Allahabad High Court once more acknowledged the idea of a live-in relationship and determined that it is not unlawful. According to the Court, a man and a woman are free to cohabitate as long as that is what they want to do. Even if it may be immoral for society, it is not criminal, it continued. The Supreme Court has once more ruled in the case of Patel and Others iii that a live-in relationship between two adults who are not married cannot be considered a crime. It further asserted that there is no law that forbids relationships between people who are living together. The idea of a live-in relationship was once more acknowledged in.
• In Velusamy v. Patchaiammal,[5] the court provided a negative response. The parties must demonstrate that they meet the requirements listed above and currently live in or have lived in a "shared household" as defined in Section 2(s) of the Act in order for their relationship to qualify as a "relationship in the nature of marriage" under the Act. In this case, the Supreme Court decided that simply keeping the household financially afloat and satisfying sexual urges do not constitute a marriage-like union. So, simply hanging out on the weekends or having a brief liaison do not qualify as a domestic partnership.
• In June, 2008, The National Commission for Women recommended to Ministry of Women and Child Development made suggestion to include live in female partners for the right of maintenance under Section 125 of Code of Criminal Procedure.[6] This view was supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others.[7]
• In August 2010, the Supreme Court held that a live-in relationship that has existed for a long time will be considered a marriage and that the children born to such a couple will not be illegitimate. Justice P Sathasivam and Justice BS Chauhan of the Supreme Court passed this judgment and it will have strong legal implications on disputes relating to the legitimacy of children who are born to live-in partners.[8]

On the other side, pre-marital sex is taboo in Indian culture. Living together prior to marriage is so generally seen as culturally inappropriate, unethical, and contrary to social norms. Three main categories can be used to classify live-in relationships. This classification aids in figuring out whether these categories are within the broad definition of the phrase "relationship in the nature of marriage."

Domestic cohabitation between two single heterosexual individuals is the first option. Adulterous live-in partnerships are the second. Then there are same-sex couples' home relationships.

• • In the case of S.P.S. Balasubramanyam v. Suruttayan, legal legitimacy was accorded to children born into live-in partnerships (1993). According to the Supreme Court, Section 114 of the Indian Evidence Act, 1872 creates a presumption of marriage if a man and a woman live together and cohabit for a long amount of time. Their offspring will be accepted as genuine and qualified to inherit a piece of the family inheritance as a result.
• The Supreme Court granted a portion of the property to children born from live-in partnerships in Bharatha Matha v. Vijaya Renganathan (2010).[9] The Court decided that if a live-in relationship lasts long enough, any children born to it are not necessarily illegal.

SOCIO POLITICAL DIMENSION

In recent years, our country has witnessed drastic changes in the matter of relationships between opposite sex. The present generation perceives such relationships in a way different from what was perceived earlier. In the context of our sociocultural values, it was considered to be taboo for men and women to live together under the same roof without being legally married to each other. Similarly, the idea of having premarital sex was considered to be highly immoral. But these beliefs and taboos are gradually fading away and the society is opening up about the idea of premarital sex and live-in relationships. Freedom, privacy, profession, education, globalization, and other factors are responsible for this change in mindset. Points put in favor of such relationships are that such relationships are a way to understand the partners in a better way and to check if the partners are compatible to each other. Present generation, unlike their predecessors, considers it necessary for them to understand each other in a fairly reasonable way before entering into a formal wedlock. Once someone enters into a formal wedlock, the break up becomes very cumbersome, lengthy, complicated, and troublesome to all concerned if the partner finds that they are not at all compatible to each other. But living together for some time without entering into a legal marriage provides for an easy break up without the need of taking recourse to cumbersome legal procedures. But such relationship without any duties and obligations attached has its disadvantage as well. Such relationships are not binding upon the partners, whereas in a typical marriage, the partners are provided certain rights and bestowed with obligations and duties to be performed by both of them. The woman is often in a disadvantageous position in live-in relationships. A bench of Rajasthan State Human Rights Commission, in September 2019, even termed such relationship against the dignity of woman and made a recommendation to enact a Law against it. But the decision received widespread protest and criticism from human rights activists.[10]

Such relationships lead to multiple social as well as logistic problems in day-to-day living. They face legal hurdles of multiple types like opening a joint bank account, visas, insurance, visitation to hospitals, and so on. Children born out of the wedlock are exposed to mental trauma and have problems of smooth inheritance in property of the parents. As stated above, they have the rights of inheritance in their parents’ properties, but they do not have coparcenary share in the HUF property. Two instances are described here to illustrate the difficulties faced by couples in live-in relationship without being legally wed. International chess player Anuradha Beniwal was peacefully living in with her partner in a live-in relationship without any objection from the family members, though the response of the society was like some sort of silent disapproval. Sometime later, her partner received a job offer at London and she decided to move along with him. Visa problem was anticipated as they were not married to each other in a legally acceptable way. To avoid these troubles, they had to get married in a rush. A couple in Kerala remained in live-in relationship for 40 years. They were against the social institution of marriage, holding the views that love did not need approval by the society and the sanctity of marriage. They had made the decision to live together forever and did it precisely for 4 decades of their life. But after such a long stint of live-in relationship, they decided to legalize their relationship, not out of personal compulsion but only to avoid legal and administrative problems faced by their grandchildren.[11]

ANALYSING THE ROLE OF JUDICIARY

CONCLUSION

The Judiciary has created a kind of social acceptance for the live in relationships but still it is bereft of a piecemeal legislation. In the era of declining emotions live in relationships can wreak havocs as in the case of Shradha Walker. Marriage still provides legal protection and prevents destitution. However, live in relationship is devoid of a legal framework.

Its concept of no strings attached can be used for its destruction ie walk in -walk or used to check temperamental and other compatibilities. It does provide freedom in selecting a mate and even marriages do fall, still live in relationships are very much part of the social arena and many youngsters have their freedom and right to cohabit within the ambit of article 21 of the constitution.

There are no personal laws that apply to these interactions. Yet, the Supreme Court and Indian Law are working to improve things. Also, this foreign concept's legal standing is expanding. Living together is defined broadly in India.

Having a live-in relationship is preferable to a life of divorce. This is a well-known and logical argument in favour of live-in relationships everywhere. It should not be disputed that our culture needs a legislative body to control relationships, which are likely to increase in number as people's ideologies change. The moment has come to make an effort to create a legislation with clear guidelines about the duration needed to grant status to a relationship, registration requirements, and parties' and offspring's rights. The parliament should enact laws, and it should monitor the practise of avoiding bonds.

Although the idea is commonly accepted by Indian couples, the patriarchal mentality has not completely been banished from the culture. The male partner frequently treated the woman with disrespect and disregard. but had no prospect for legal recourse under Indian law. But, as instances of harassment and violence began to rise, the Supreme Court gave the victims of domestic abuse the relief made possible by the Domestic Violence Act. This statute refers to a "relationship in the type of marriage" rather than specifying marriage.

Children that are born from such a connection often experience mental anguish. As the child becomes older, there can be custody or maintenance issues. Such offspring have been deemed legitimate by the courts. All indicators point to a gradual expansion of the idea and legal acceptance of live-in relationships in our nation, with numerous decisions by the Hon. Supreme Court and the High Courts playing a crucial role. In the public eye, marriage is regarded as a spiritual union that is both recognised and highly valued. The courts have acted as a gatekeeper to break down social taboos and enable couples to continue coexisting happily and with mutual respect in their community.

Thus, it is imperative that a legislation be made for the same. 

[1] Rights of women in live-in relationship, AL tacit Global, Attorney at law , an ISO 9001 certified and CRISIL rated law firm

[2]  CRIMINAL APPEAL NO. 913 of 2010

       [Arising out of SLP (Crl.) No. 4010 of 2008]

[3] Are live-in relationships legal in India,Shraddha Jain, I pleaders blog, https://blog.ipleaders.in/are-live-in-relationships-legal-in-india/ (last visited on 20 February, 2023)

[4] AIR 2001 All 254.

[5] CRIMINAL APPEAL NOS. 2028-2029__OF 2010

[Arising out of Special Leave Petition (Crl.) Nos.2273-2274/2010]

[6] Varsha Kapoor vs UOI & Ors, 146 (2008) DLT 445 (DB).

[7] CRIMINAL WRIT PETITION NO.2218 OF 2007

[8] Court Judgments: Live in Relationships and Related Disputes,.

[9] AIR 2010 SC 2685,

[10] Narayan CL, Narayan M, Deepanshu M. Live-In Relationships in India—Legal and Psychological Implications. Journal of Psychosexual Health. 2021;3(1):18-23.

[11] Anand A. The complete guide to live-in relationship in India. Quartz India. https://qz.com/india/303608/the-complete-guide-to-live-in-relationships-in-india/. 2014. Accessed January31, 2021.