Live in relation & Provisions relating to Maintenance

An analytical study

The first bond of society is marriage; the next, our children; then the whole family and all things in common.  [Lat., Prima societas in ipso conjugio est: proxima in liberis; deinde una domus, communia omnia.]   - Cicero (Marcus Tullius Cicero),    De Officiis (I, 17)

Individuals constitute society. Individuals influence the society. Relation between individual and society is an intimate and close one. Thomas Hobbes, in his book ‘Leviathan’ maintained that society was conceived to protect man from his irresponsible and animal as well as egoistic tendencies. According to John Locke, in nature all men were born free and equal. Individual precedes society. He has some right even outside society. Individuals made a mutual agreement and created society giving it certain rights and authority. In this way, society is an artificial creation and it has no right to dispossess the individual of his fundamental rights. Society can exercise control over the rights of the individual only to the extent to which it has been granted rights, to the extent to which authority has been vested in it.

Society is a web of social relationships. Social relationships include social processes and social interactions. In the words of Jones, ‘Social change is a term used to describe variations or modifications of any aspect of social processes, social patterns, social interactions, or social organization.’ When human behavior is in the process of modification, this is only another way of indicating that social change is occurring. Whatever apparent alteration in the mutual behavior between individuals takes place is a sign of social change [1].

The form of family, marriage, state, culture and social structure is always changing and being transformed. As a result a change occurs in the life of individual and his relations with others.

Marital relation

Ever since the male & female came in close contact of each other upon this earth, there has been mutual attraction due to certain biological and psychological causes resulting in the establishment of intimate relationship. The mutual attraction of male and female is a biological and psychological fact. Psychologically, they have so many traits which are mutually complementary. These different traits make for their mutual attraction. From the biological viewpoint the sexual intercourse between male and female is necessary for physical pleasure and satisfaction and the birth of the progeny. Therefore, whenever the male and female come near each other it leads to certain forms of activities such as talking, roaming and having entertainment together. It also leads to mutual help in times of need. It is a common fact that most of the males are spontaneously prepared to help the females in distress. The exchange of ideas further strengthens this relationship.

Marriage is a more or less permanent association of one or more male with one or more female for the purpose of giving social sanction to progeny, satisfaction of biological and social needs and fulfillment of dharma.

For centuries, jurists and legal scholars have debated about the functions of law, viz., why do we need law, and what does it do for society? More specifically, what functions does the law perform? Though there may not be unanimity amongst the scholars of law on the precise functions, it is widely recognized that the recurring theme of law includes; (i) social control, (ii) disputes settlement and (iii) social engineering. Though there are many methods of social control, law is considered one of the forms of former social control by prescribing social norms within which individuals/members of the society have to behave. Likewise, law discharges the functions of disputes settlement. Apart from these, many scholars are of the view that principal function of law in modern society is social engineering (with which we are concerned here). It refers to purposive, application and direct social change initiated, guided and supported by law.

Live in relationships does provide a remedy for a carefree life free from the hassles of responsibility and commitment which is the very prerequisite of the institution of marriage. Marriage promotes adjustment while in live in relationship the emphasis is on individual freedom. However, Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005.

At this backdrop here the author has raised some questions and facts which needs concentrated analysis of the burning issue i.e. live-in relations. Society need to be change, it is dynamic process all is accepted but the point here is that he change should not be inflated one which will disturb the functioning of the societal body. Therefore the overall development is necessary to maintain the balanced development. The present article will focus on the changing attitude of the society in accepting the extra-marital relation. However it is a genus giving rise to many socio-legal issues one among is the ‘provision relating to maintenance’. Much jurisprudential and judicial churning was taken place on the issue. Here the author has provided some prominent judicial decisions in India & abroad and analyzed them in the light of its pros and cons. The author has tried to focus more specifically on the issue of maintenance that will be available to party involved in Live-In relation with another. The author is not here to say about good, bad, reasons or effects of the Live-in relation but ‘provision relating to maintenance’ in and around.

Live-In Relationship

The chain of wedlock is so heavy that it takes two to carry it -- and sometimes three. - Alexander Dumas

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 the arrangement in which a man and a woman live together without getting married. This is nowadays being taken as an alternative to marriage especially in the metropolitan cities. Currently the law is unclear about the status of such relationship though a few rights have been granted to prevent gross misuse of the relationship by the partners.

Legalizing live in relationship means that a totally new set of laws need to be framed for governing the relations including protection in case of desertion, cheating in such relationships, maintenance, inheritance etc. Litigation would drastically increase in this case.

Live-In Relation & conflict with Law

The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. In case of Kushboo [3], the south Indian actress who endorsed pre- marital sex and live in relationship, 22 criminal appeals were filed against her which the Supreme Court quashed saying that how can it be illegal if two adults live together, in their words “living together cannot be illegal.”

The status of the female partner remains vulnerable in a live in relationship given the fact she is exploited emotionally and physically during the relationship. The Domestic Violence Act provides protection to the woman if the relationship is “in the nature of marriage”. The Supreme Court in the case of D. Velusamy v. D. Patchaiammal [4] held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that 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’.

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 CrPC. This view was supported by the judgment in Abhijit Bhikaseth  Auti v. State Of Maharashtra and Others . The positive opinion in favour of live in relationship was also seconded by Maharashtra Government in October, 2008 when it accepted the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been married i.e. the case of live in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC.

First time by Protection of Women from Domestic Violence Act, the legislator has accepted live in relationship by giving those female who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or a female in a live in relationship.

In the Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship. This new relationship is still rare in our country, and is sometimes found in big urban cities in India, but it is very common in North America and Europe. It has been commented upon by Supreme Court in  S. Khushboo vs. Kanniammal & Anr.[5]

Maintenance-? for Live-In? Some judicial views-

Coming to the rescue of a 30-year-old maid, who claimed to be in a live-in relationship with her 65-year-old widower employer, the Delhi High Court has directed him to pay Rs 3,000 a month to her as maintenance [6]

On the one hand, aggrieved persons other than wife or a female living in a relationship in the nature of marriage, viz., sister, mother, daughter or sister-in-law as aggrieved person can file application against adult male person only. But on the other hand, wife or female living in a relationship in the nature of marriage is given right to file complaint not only against husband or male partner, but also against his relatives.[7]

Section 125 Cr.P.C. provides for giving maintenance to the wife and some other relatives. The word `wife' has been defined in Explanation (b) to Section 125(1) of the Cr.P.C. as follows; Wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

In Vimala (K) vs. Veeraswamy (K)[8]  a three- Judge Bench of this Court held that Section 125 of Cr.P.C. is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word `wife' the Court held: the object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term `wife' in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term `wife' consistent with the objective. However, under the law a second wife whose marriage is void on account of the survival of the first marriage is not a legally wedded wife, and is, therefore, not entitled to maintenance under this provision.

In a subsequent decision of this Court in Savitaben Somabhat Bhatiya vs. State of Gujarat and others [9], this Court held that however desirable it may be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of `wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.

A divorced wife is treated as a wife for the purpose of Section 125 Cr.P.C. but if a person has not even been married obviously that person could not be divorced. Hence the respondent herein cannot claim to be the wife of the appellant herein, unless it is established that the appellant was not married to Lakshmi[10].

Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, the court pointed out that the “expression `domestic relationship' includes not only the relationship of marriage but also a relationship `in the nature of marriage'. The question, therefore, arises as to what is the meaning of the expression `a relationship in the nature of marriage'. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required. In our opinion Parliament by the aforesaid Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage, and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.”

At International Plane

When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called alimony. However, earlier there was no law providing for maintenance to a woman who was having a live-in relationship with a man without being married to him and was then deserted by him.

In USA the expression `palimony' was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. The first decision on palimony was the well known decision of the California Superior Court in Marvin vs. Marvin[11]. This 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 by him and she claimed palimony. Subsequently in many decisions of the Courts in USA, the concept of palimony has been considered and developed. The US Supreme Court has not given any decision on whether there is a legal right to palimony, but there are several decisions of the Courts in various States in USA. These Courts in USA have taken divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions. Hence in USA the law is still in a state of evolution on the right to palimony.

Although there is no statutory basis for grant of palimony in USA, the Courts there which have granted it have granted it on a contractual basis. Some Courts in USA have held that there must be a written or oral agreement between the man and woman that if they separate the man will give palimony to the woman, while other Courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation.

In Taylor vs. Fields [12]  the facts were that the plaintiff Taylor had a relationship with a married man Leo. After Leo died Taylor sued his widow alleging breach of an implied agreement to take care of Taylor financially and she claimed maintenance from the estate of Leo. The Court of Appeals in California held that the relationship alleged by Taylor was nothing more than that of a married man and his mistress. It was held that the alleged contract rested on meretricious consideration and hence was invalid and unenforceable.

However, the New Jersey Supreme Court in Devaney vs. L' Esperance[13] held that cohabitation is not necessary to claim palimony, rather it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony, A law has now been passed in 2010 by the State legislature of New Jersey that there must be a written agreement between the parties to claim palimony.

The apex court in D. Velusamy [14] held that, “not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned below must be satisfied, and this has to be proved by evidence.

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

(b) They must be of legal age to marry.

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

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

The court also stated that a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.

The Court also observed that, no doubt because of the view taken by the Court, it would exclude many women who have had a live in relationship from the benefit of the 2005 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 grab of interpretation cannot change the language of the statute.

Delhi High Court in Alok Kumar [15] stated that 'Live-in relationship' is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have 'live-in relationship' cannot complain of infidelity or immorality as live-in relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man.

CONCLUDING REMARKS

Parties enter in live-in relation knowing thoroughly their act and its repercussions in other words they are aware about their illicit relationship from its inception ab initio. Both the parties enters in to such relation voluntarily, knowing all the possibilities of such entry.

In the light of above study one can come to conclusion that no where the Supreme Court or The High Courts have given its clear mandate for granting maintenance to party of live-in relationship. In D. Velusamy, where the apex court discussed the causes, effects and other related factors of live-in in length; the court has kept its view very vague and uncertain. Conditions are laid down in the case among which the condition (C)-i.e. They must be otherwise qualified to enter into a legal marriage, including being unmarried is very ambiguous and susceptible to multiple meanings.

In USA, Australia and other countries no such statutory provision or judiciary interpretation which gives clear mandate for granting alimony to parties involved in Live-in relation.

In India we cannot afford to grant such alimony otherwise it will decay the family system in general and civil culture in particular. The same will give rise to many issues connected therewith such as maintenance, custody, right of inheritance, legitimacy succession etc. Hence the author is of the view that the maintenance should not be granted to female or male involved in Live-in Relationship. One should not get undue advantage of his/her own wrong.

PWDV Act provides for protection to all women but it has no clear view about the ‘live-in relation’. The question is not confined to ‘maintenance’ but issues connected and related with it. Such questions need to be answered in the light of judicial and statutory intelligence vis-a-vis the family system in India.

Now the problem is not just limited to the legality of the relationship but now people are coming up about the rights of the live in partners and the status of children born out of such wedlock. The Hindu Marriage Act 1955 gives the status of legitimacy to every child, irrespective of birth out of a void, voidable or valid marriage. However, they don’t have property and maintenance rights. In case the couple break up then who would maintain the child in case none wants to take responsibility remains a big problem.

BIBLIOGRAPHY

Bhatnagar’s Manual of Marriage and Divorce, 3rd Edn., Unique Law Publishers, 2001

Manual on Maintenance, A. B. Puranik, Hind Law House, 1992 Edn.

Ish Kumar Magoo, Law of Maintenance & Child Custody (Grant & Refusal), Capital Law House, 2005

Principles of Sociology, Dr. Kumar, L N Agarwal Educational Publ. 7th Edn , 2003

WEBLIOGRAPHY

http://www.giga-usa.com/quotes/topics/matrimony_t005.htm

http://www.mightylaws.in/705/liveinrelationship-problem-solution

http://www.indianexpress.com/news/hc-awards-maintenance-to-maid-in-livein-rel/778785/

www.indiankanoon.org

[1] Principles of Sociology, Dr. Kumar, L N Agarwal Educational Publ. 7th Edn , 2003

[2] http://www.mightylaws.in/705/liveinrelationship-problem-solution

[3]  S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600

[4]Supreme Court of India in D. Velusamy vs D. Patchaiammal on 21 October, 2010

[5](2010) 5 SCC 600 (vide para 31).

[6]http://www.indianexpress.com/news/hc-awards-maintenance-to-maid-in-livein-rel/778785/, Read more at: http://www.ndtv.com/article/cities/court-awards-maintenance-to-domestic-help-in-live-in-relation-with-employer-100150&cp, HC awards maintenance to maid in live-in relation with master

[7]Delhi High Court inVarsha Kapoor vs Uoi & Ors. on 3 June, 2010

[8] [(1991) 2 SCC 375]

[9]AIR 2005 SC 1809

[10]Supreme Court of India in D. Velusamy vs D. Patchaiammal on 21 October, 2010

[11](1976) 18 C3d660.

[12] (1986) 224 Cal. Rpr. 186

[13]195 N.J., 247 (2008)

[14]Supreme Court of India in D.Velusamy vs D.Patchaiammal

[15]Alok Kumar vs State & Anr. on 9 August, 2010

By Mr. Mahendra Subhash Khairnar

Asst. Prof., Bharati Vidyapeeth’s Yashwantrao Chavan Law College, Karad

Email: advmahendra1388@gmail.com