Live in relationship and protection of women from domestic violence act,2005

1. INTRODUCTION

India is a country which is slowly opening its doors for western ideas and life styles and one of the most crucial episode amongst it is the concept of live in relationships.[1]A relationship of a man with a woman in legal parlance is legitimate if is based on proper marriage and illegitimate if not. To be or not to be in a live in relationship is again a debated question. The Supreme Court in Indra Sarma v V.K.V.Sarma[2] held that, “Live in 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 same observation has been made by the apex court in various other judgments.

‘Traditionally speaking live in relationship were alien to our nation till late. Even today it is a fad which is visible only in urban areas. The Hon’ble Supreme Court in 2010 in  a very famous case,[3]gave a legal cover to this infamous ‘western’ cultural product and our parliament also accorded some degree of protection by including live in relationship within the definition of ‘domestic relationship’ in Sec.2(f) of Protection of Women From Domestic Violence Act,2005. Despite all these developments granting a level of legal legitimacy to live in relationship is still largely perceived to be an immoral activity in our society.’[4] –Additional Session Judge Delhi.

2. LIVE IN RELATIONSHIP AND MARRIAGE

Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Marriage as an institution has great legal significance and various obligations and duties flow out of this marital relationship e.g. succession etc.

Live-in relation on the other hand 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 cohabit together but are not married.

3. RECOGNITION OF LIVE IN RELATIONSHIP IN INDIA

In India, there have been two major developments that have brought non-marital heterosexual relations into limelight, over the period of almost a decade.

In 2008 the government of Maharashtra made an attempt to amend Section 125 of the Criminal Procedure Code to broaden the definition of the term “wife” to include a woman who was living with a man “like his wife” for a reasonably long period in the definition. This move was followed the recommendations of the Malimath Committee in 2003 to broaden the scope of the word “wife”

There are instances in which the courts have interpreted the definition of wife in light of the recommendations made by Malimath committee

In Chanmuniya vs. Virendra Kumar Singh Kushwaha and another (SC 7 October 2010), Justices G S Singhvi and A K Ganguly cite a part of recommendation of the Malimath Committee to support their case for a broad interpretation of the term wife. For them the above recommendation of the Malimath Committee suggests that the “evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties”.[5]Therefore, for these judges, the committee recommended that the word “wife” in Section 125 should be amended to include a woman who was living with the man like his wife for a reasonably long period.

2. The Protection of Women from Domestic Violence Act (PWDVA) 2005,which is considered to be the first piece of legislation that, in having covered relations “in the nature of marriage”, has provided a legal recognition to relations outside marriage.

The Protection of Women from Domestic Violence Act, 2005 and ‘Relations in the Nature of Marriage’

The PWDVA 2005, has been widely hailed as the first legal Act to recognise the existence of non-marital adult heterosexual relations.[6] This Act defines an “aggrieved person” as “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any Act of domestic violence by the respondent” {Section 2(a)}. Further the Act defines a domestic relationship as “a 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’ {Section 2(f)}.

From this it is evident that to the broad range of domestic relationships between a woman and her husband, father, brother, and other male and even female kin related through consanguinity or marriage, the PWDVA has added the category of “relations in the nature of marriage”. This does not imply that the Act deals with all forms of domestic relationships in a comprehensive manner. Hence, it excludes the domestic relationship between a male employer and a domestic worker. The Act also clearly has no space for adult same-sex relationships. In having used the idea of “relations in the nature of marriage”, the Act seems to have widened the scope of legally recognizing domestic relationships between a men and women.

In a commentary to a case arising out of the question in debate, the report Staying Alive 2009 (Lawyers Collective and ICRW 2009) suggests

Whilst this provision has invited much criticism and controversy, it is important to note that it does not make an invalid marriage valid or provide legal recognition to bigamous marriages… This provision merely seeks to denounce domestic violence in any quarter. It is not a judgment call on the morality of the choice to cohabit outside of marriage .It can therefore be argued that it would be mistaken to see the Act as conferring some sort of a legal status upon non marital relations. What it undoubtedly does is to acknowledge the existence of such relationships and the right of women in such relations to protection from violence.

In the case of Aruna Parmod Shah v. UOI[7], the petitioner challenged, the constitutionality of the Act on the grounds that,

First, it discriminates against men and

Second, the definition of “domestic relationship” contained in Section 2(f) of the Act is objectionable.

Arguing the matter, the petitioner stated that placing “relationships in the nature of marriage” at par with “marriage” leads to the derogation of the rights of the legally-wedded wife. The Delhi High Court rejected both these contentions regarding the constitutional status of the Act. With regard to the second contention, which is of concern to us, the court said that “there is no reason why equal treatment should not be accorded to a wife as well as a woman who has been living with a man as his “common law” wife or even as a mistress” . In this case the judges interpreted “a relation in the nature of marriage” as covering both a “common law marriage” and a relation with a “mistress” without clarifying the legal and social connotations of these terms.

In a 2010 judgment as well, the judges made a strong argument in favour of presumption of marriage in any case where a man and woman have been living together for a reasonably long period of time and cite a long legal history of judgments which have favoured a presumption of marriage over that of “concubinage”.[8]

This is further evident from the judgment delivered by the Apex Court in the famous case involving the south Indian actress Khushboo (S Khushboo v Kanniammal & Anr,(2010)5SCC600) wherein, apart from other prominent  issues such as freedom of speech, etc, judges Deepak Verma and B S Chauhan clarified the scope of criminality in consensual adult relationships when they reiterated that: While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC. It is thus obvious that non-marital relations have not had a criminal or “illegal” status in India insofar as they are not covered by the adultery law and insofar as the principle of presumption of marriage prevails.

The judgment further observes that: It seems to us that in the aforesaid 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. After making this statement which equates “relation in the nature of marriage” with “live-in” relations prevalent in the west, the judges state that in their opinion a “relationship in the nature of marriage” is akin to a common law marriage. According to the judgment, common law marriages require that although not being formally married,

(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.

Interestingly and controversially, this definition of common law marriage has been taken from “Wikipedia on Google” as duly acknowledged by the judges in the text of the judgment.

The judges go on to state that: 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. To get such benefit the conditions mentioned 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.

While some may dismiss the term cohabitee as a western or urban phenomenon, this term can now be invoked to protect the rights of thousands of women, both urban and rural, who were earlier scoffed at as mistresses or keeps in the judicial discourse.

But the above fragment from the SC judgment belies the hopes for such a transformation.

The judges further state that: 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, 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’. In saying this, the judges appear to be implying that the scope of the term “live-in relationship” is much broader than that of “relationship in the nature of marriage”. Indirectly, however, the judgment also equates what it treats as a “new social phenomena” with the idea of “relationship in the nature of marriage”, subject to the definition of common law marriage as taken from Wikipedia.

In the UK and USA the live in relationship already gained acceptance in society and there are progressive laws covering the right of women. In USA the expression palimony was coined which means grant of maintenance. The first decision of the California superior courts in Marbin v Marbin,[9]  related to the famous film actor Le Marbin with whom a lady Michelle lived for many years without marrying him, and then was deserted by him and she went to court to claim palimony.

In U.K. through the Civil Partnership Act, 2004, the rights of even the same-sex couple have been recognized. Family Law Act, 1996, through the Chapter IV, titled ‘Family Homes and Domestic Violence’, cohabitants can seek reliefs if there is domestic violence. Canada has also enacted the Domestic Violence Intervention Act, 2001.

Live in relationship as such as already indicated is a relationship which has not been socially accepted in India.

In a recent Judgment of D Patchaiammal v D Velusamy,[10] the Supreme Court held that not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. The Women in such relationships are not entitled for any maintenance unless the following conditions are fulfilled such as:

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. Here again the questions arise, what is a significant period of time? What is the gauge to measure the proximity of a live in relationship with that of marriage? These conditions make it more difficult to a woman favoring the man.

We may, on the basis of above discussion cull out some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.

1) Duration of period of relationship: Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared household: The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.

(4) Domestic Arrangements: Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship: Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc. (6) Children. Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.

(7) Socialization in Public: Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and conduct of the parties: Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.

Long standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.

Sometimes partners see live in relationship as a way to lead a liberal life because it lacks dedication and responsibility that marriage demands. Walking out of a live in relationship is much easier than going out of a marriage. Today's metro life and modern lifestyle also support these relationships. The individuals engaged in this kind of arrangements feel more freedom in their relationships. Living with a partner to whom you are not married in a live in relationship involves less risk as the level of commitment is not at its full potential. Live in relationship has always been the focus of debates and discussions as it is challenging our fundamental societal system. To encourage marriages, Government has reserved many rights for the married people. Although live in relationship is not considered as an offense but there is no law till date that prohibits this kind of relationship. Courts often refused to make any kind of obligatory agreements between these unmarried couples as this could go against the public policy. We are bounded by numerous traditional norms; however, our social assumption is somehow changing now.

A judgment of Supreme Court depicts this. In D Patchaiammal v D Velusamy, Supreme Court ruled out that if a man and woman are having a live in relationship for an extensive period, they will be taken as a married couple in the society. Moreover, the child born out of this relation would be called legitimate. Some recent changes in law also promise protection to the woman involved in live in relationship. But this doesn't mean that court is encouraging such a kind of relationships. This judgment is in favour of a woman not the live in relationship. Law never prescribes how one should live, in fact, our culture; ethics, teaches us the way we should live. It should not be denied that our culture does need a legislature to regulate relationships which are likely to grow in number with changes in the ideology of people. The right time has come that efforts should be made to enact a law having clear provisions with regard to the time span required to give status to the relationship, registration and rights of parties and children born out of it.[11]

In Lata Singh v State of U.P. and Another, the Court itself notices that what law sees as no crime may still be immoral. It has said that two consenting adults engaging in sex is not an offence in law “even though it may be perceived as immoral”. Of course, such protective sanctions may potentially lead to complications that could otherwise be avoided. But simply raising the hammer may not be the best route to taming the bold and the brave.

4. NEED OF LEGISLATION ON LIVE IN RELATIONSHIP

The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in relationship should have no bondage between the couples because the sole criteria for entering into such agreements is based on the fact that there lies no obligation to be followed by the couples whereas in some instances the Court has shown opposite views holding that if a relationship cum cohabitation continues for a sufficiently and reasonably long time, the couple should be construed as a married couple infusing all the rights and liabilities as guaranteed under a marital relationship.

It also appears strange if the concept of live-in is brought within the ambit of section 125 of the Cr.P.C., where the husband is bound to pay maintenance and succession as the ground of getting into live-in relationship is to escape all liabilities arising out of marital relations. If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there would arise a conflict between the interests of the wife and the live-in partner. Apart from lacking legal sanction the social existence of such relationships is only confined to the metros, however, when we look at the masses that define India, there exists no co-relation between live-in relationships and its acceptance by the Indian society.[12] It receives no legal assistance and at the same time the society also evicts such relationships.

The Parliament should try and enact a separate branch rather than trying to bring live-in within the ambit of the existing laws as such futile approach would further adversely complicate the judicial mechanism.

The Indian Legal system should devise new strategies in order to counter the present existing problems of live-in relationships.[13] The live-in relationships should be presumed as permanent after a specific period of time. Furthermore, the children born through such relationships irrespective of the parents religion should be guaranteed the rights of inheritance, succession etc. The female partner’s role to prove the burden of such relationship should be relaxed. Persons who enter into a live-in relationship with a living spouse should be convicted for bigamy. A separate legislation should only be competent enough to grant assistance to the female partners aggrieved by such relationships. At last, the sooner our society accepts live-in relationships, the better chances the Indian Judiciary has for passing judgments which are in the righteous spirit of law and in the interest of justice, equity and good conscience.[14]

5. CONCLUSION

Society is formed with traditions and customs which are the foundational pillars of any society. India, a country of cultural values cannot afford to fall into western ways but since growing economy and people are getting more and more aware, India finally has to step ahead and walk with the rest of the world by legalising live in relationship. A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when the number of live in couples is increasing tremendously.

In my opinion, live in relationships is not a question of moral fight. Even jurisprudential theories states that a law has to be distinguished from morality. Living with a partner without performing requisite ceremonies is one’s own choice. Article 21 of the Constitution of India enshrines Right to Life. From time to time the judiciary has interpreted Right to Privacy as an inherent right that come incidental to Right to Life. All citizens, including women have the freedom of speech and expression and most importantly have right to live life with dignity. This does not mean that the author promotes bigamy or adultery or Live in relationships. But the Author strongly feels that living together without ceremonies being performed is one’s own choice and not just because she have chosen to stay with a man without marriage, the basic fundamental rights be denied to her.

Author concludes this paper with a question left open to be answered by you

Do the ceremonies performed in a marriage make a relationship successful?

And if yes, why is divorce rate so high?

• [1] Retrieved from www.lifestyle.indianetzone.com/relationship/1/live-in-relationships.htm 

• [2] 2014 (I)RCR (Crminal)p179

• [3] S. Khushboo v Kanniammal and another, on live-in relationships, a special three-Judge Bench constituting then Chief Justice of India, K.G. Balakrishnan and Justices  Deepak Verma and B.S. Chauhan observed that a man and a woman living together without marriage cannot be construed as an offence. “When two people want to live together, what is the offence? Does it amount to an offence?”The Supreme Court said that there was no law prohibiting live-in relationships or pre-marital sex. “Living together is a right to live”, apparently referring to Article 21 of the Constitution of India which guarantees right to life and personal liberty as a fundamental right.

• [4] State v Zarzoliani,Tis Hazari Court,FIR No.174/2008 SC NO.32/2010

• [5] http://www.academia.edu/3793906/Law_and_Live_in_Relationships_in_India(last 

• [6] Ibid

• [7] Decided on 7 April2008, High Court of Delhi

• [8] https://www.academia.edu/3793906/Law_and_Live_in_Relationships_in_India(last )

• [9] Retrieved from http://online.ceb.com/calcases/C3/18C3d660.htm

• [10] AIR2011SC479

• [11] Retrieved from http://www.indiatvnews.com/news/india/historic-supreme-court-approves-live-in-relationships-asks-par-30912.html(last 

• [12] Retrieved from http://www.epw.in/special-articles/law-and-live-relationships-india.htm(last 

• [13] Retrieved from
  http://www.thehindu.com/opinion/letters/livein-relationships/article5411360.ece(last )

• [14] Retrieved from http://articles.timesofindia.indiatimes.com/2013-11-28/india/44545883_1_live-in-relationship-domestic-violence-act-apex-court(last