International Journal of Law and Legal Jurisprudence Studies

A Test Drive before use: Modernising the society or putting it in a wrong path?

A Test Drive before use: Modernising the society or putting it in a wrong path?

 

                                                                                                                                                                                                                                By:

                                                                                                                                                                                                      Author: NILESH RANJAN[1]

                                                                                                                                                                                   Co-Author 1: AMARJEET RANJAN[2]

India is still looked by the world as a country where marriage occupies a sacramental position both philosophically and practically. The phrase ‘common law wife’ was used to signify legal rights as that of a wife enjoyed by a woman living with a man without marriage. The transformation in the life styles towards western style has definitely brought the need of ‘common law wife’ in India as well. By recognizing a woman who has not entered into the wedlock with rights of wife, whether we would do some harm to society?

Live-in-relationships are not new in our society. The only difference is that now people have become open about it. Formally they were known as “maitray karars” in which people of two opposite sex would enter into a written agreement to be friends, live together and look after each other. A change is visible in our society from arranged marriages to love marriages and now to ‘live-in-relationships’. If an analysis is made of need of such relationships, avoiding responsibility would emerge as the prime reason. The lack of commitment, the disrespect of social bonds and the lack of tolerance in relationships have given rise to alternative to marriages. Joel D Block, a leading Psychologist at New York has differentiated between three kinds of relationships on the basis of assumed obligations. “Going together implies sexual exclusivity; living together adds to this an agreement to combine living routines and marriage the implication of permanence. Living arrangements are the midpoint between the least restrictive (going with someone) and the most complex (the marriage). The very nature of the closeness allows a couple to provide with feedback so that they may recognize and modify relationship-defeating behaviours. It contains an element of convenience.”
When we apply living relationships to an average class of people, we find it less prevalent as this class is scrutinised more in the society. On the contrary both the high income group and the lower income group are in a position to readily accept newer kinds of relationships. A girl from a poor family that is in need of shelter without much hesitation can consider no harm in living with a man of a slightly higher financial status without marrying him. Now-a-days even parents have slowly started giving sanctions to living arrangements for the sake of happiness of their children. The busy lives do not permit us to look into background of couple if they decide to live in a new place or city.

In most of the cases, people agree to live together so that at a later stage it may take shape of marital relationship. Still in spite of bonafide intentions of the couples taking “out way decision”, most of living arrangements do not take the shape of eternal bonding.

Someone has rightly opined that the world as God created was a kingdom of right relationships. There was right relationship between God and people. There was right relationship between people. There was right relationship between people and the rest of creation. Now relationships that lack any sanctity are even being termed as right by the policy makers, what more we can expect in God’s beautiful and pure kingdom. No relationship can ever be equated with a relationship as eternal as marriage. Hence the option of live-in-relationships may seem attractive but the real side may not be that fancy. They may be practically possible but their success in life which some day requires a life-long companion is definitely dull.


“Emerging Concept of Live-in-Relationships”

This article is on the emerging issue of live-in-relationship. The concept of ‘Mitru Sambandh’ is nothing but a concept of the ‘Live-in-relationship’ or ‘Living relationship’. The concept of “Live-in relationship” is a problem or not is debatable question. Generally speaking, in modern age increasing concept of live-in relationship means a male and female staying together as a friend without marriage. This is unstable form of family. Many people imagine that living together before marriage resembles taking a car for a test drive. Live-in-relationships are not new in our society. The only difference is that now people have become open about it. So, let us see the exact meaning of Live-in Relationship and its importance of legalizing it.

Meaning of Live-in-Relationship:

“It’s better to have a live-in relationship rather than having a divorced life!” This is common and line favouring live-in relations in the world. 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 found that Younger generation is wider to accept the live in relationships.

Mentality behind Live-in-Relationships:

We know marriage is two types “Arrange Marriage and Love Marriage”. After Marriage we don’t know, whether it is successful or not? That’s why?

When arrangement of marriage is for two persons in love then why couples are leaning towards the live-in relationships. This question can have multiple answers, but this have been found that almost all the couples perusing a live-in relation are willing to get married someday. But before that they want to spend some time with one another, for understanding each other and to figure out their compatibility. Because they believe that if they find themselves incompatible after marriage then they will have no choice other than compromising their life styles.

Further, some couples believe that going for a weeding is just a waste of money, because they think their love doesn’t need any paper certification or social drama. The reasons can be numerous depending upon different mental set-ups.

Need of Modern Perspective:

We people moves towards ‘Modernization. Today many traditional communities are heading up in the world who opposes live-in relationships; they found it against their religious concerns and social foundations. But it has to be understood that the emotional bindings and relationships can never be pressed by power. Live-in concept is not a problem, it is just thinking. And it has to be entertained rationally. If youth is getting more influenced with the concept, then ethical and legal communities of world must take some necessary steps to keep the concept original and rational. In spite of threatening people about live-in relationships, the need says to support and help the couples who are living together, so that one day they go for some healthier and more social relationship.

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.

Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.

Legal status of live in relationship:

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, the south Indian actress who endorsed pre- marital sex and live in relationship, 22 criminal appeals were filed against her whom the Supreme Court quashed saying that how can it be illegal if two adults live together, in their words “living together cannot be illegal.”

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

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 held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the following criteria:

(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, 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’. 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 judgement 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.

Provision with regard to live-in-relationship:

  1. Position outside India:

The European countries are worst affected by ‘Live-in –relationship’. In most places, it is legal for unmarried people to live together. The law introduced in 1999 in France makes provisions for “civil solidarity pacts” allowing couples (even of same sex) to enter into a union and be entitled to the same rights as married couples in such areas as income tax, inheritance, housing and social welfare. Couples, who want to enter into such a relationship may sign up before a court clerk and can revoke the contract unilaterally or by bilaterally with a simple declaration, made in writing.

Article 147, of the Family Code, Philippines provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

  1. Position within India:

India a country of cultural values and ritual ceremonies cannot afford to plunge into western society. But since growing economy and people getting more and more aware, India finally has to step ahead and walk with the rest of the world by legalizing Live-in relationship. A country like India would allow its citizens to do that, but its fact. Further pre-marital sex and live-in partners, the Supreme Court today opined that a man and woman living together without marriage cannot be construed as an offence.

With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
“When two adult people want to live together what is the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan observed. The court said even Lord ‘Krishna and Radha’ lived together according to mythology. The apex court said there is no law which prohibits live-in-relationship or pre marital sex.

The apex court made the observation while reserving its judgement on a special leave petition filed by noted south Indian actress Khusboo[3] seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.The judges grilled the counsel for some of the complainants in the case and repeatedly stressed that the perceived immoral activities cannot be branded as offence. The argument of the counsel was that her comments allegedly endorsing pre-marital sex would adversely affect the minds of young people leading to decay in moral values and country’s ethos. “Please tell us what is the offence and under which section. Living together is a right to life,” the apex court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right. The apex court further said the views expressed by Khusboo were personal. “How does it concern you? We are not bothered. At the most it is a personal view. How is it an offence? Under which provision of the law?” the bench asked the council. The apex court further asked the complainants to produce evidence to show if any girls eloped from their homes after the said interview.

How many homes have been affected can you tell us,” the bench asked while enquiring whether the complainants had daughters. When the response was in the negative, they shot back?”

“Then how are you adversely effected?”

Khusboo had approached the apex court after the Madras High Court in 2008 dismissed her plea for quashing the criminal cases filed against her throughout Tamil Nadu.

In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005. The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.

The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to

Live-in-Relationship: Law-in-perspective in India:

The news spread like jungle fire in national media which is the decision of the Supreme Court in D. Velusamy v. D. Patchaiammal[4] reflecting upon live-in relationships becoming frequent in India, the Court has pointed out that no legal entitlements occur by such relationship. While Additional Solicitor General Indira Jaising has strongly objected to the gender insensitive terminology employed in the decision, since the decision is here to stay, it is clear that no maintenance is available to a concubine under law in India.

The Supreme Court also commented on such relationships described as common-law marriages and the popularity of live-in marriages as a social phenomenon and even recognised by the parliament in terms of Domestic Violence Act, 2005.

It seems to us that in the aforesaid Act of 2005 Parliament have 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 this court in S. Khushboo vs. Kanniammal & Anr.

In Taylor vs. Fields (1986) 224 Cal. Rpr. 186 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. The Court of Appeals relied on the fact that Taylor did not live together with Leo but only occasionally spent weekends with him. There was no sign of a stable and significant cohabitation between the two.

Supreme Court of India clarifies on Live-in Relationship:

Live-in relationships are living arrangement in which a man and a woman who are unmarried live together like a husband and wife without the legal sanction called marriage. This is a concept that has not gained social acceptance in India. When live-in relationships first came into the open, it created a public outrage as it was considered violative of Indian culture and moral values. Recent court judgments on live in relationships triggered public awareness and clarity about this social issue.

Domestic Violence Act Applicable to Live-in Relationships:

Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the afore mentioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment. Further, the new law also protects Indian women who are trapped in fraudulent or invalid marriages.

Final Legal Take Away Tip:

A woman who is subject to any form of violence in a live-in relationship as well as a marital relationship can file a complaint under section 498 A, IPC. She can also seek relief through protection orders, compensation and interim orders citing sections 18 to 23 of the Domestic Violence Act, 2005.

The second proposal, to make maintenance necessary for a woman abandoned after a steady live-in relationship, has been mulled over for some time now and is more controversial. Last year women in live-in relationships were legally protected under the domestic violence act and in January 2008, the Supreme Court validated long-term live-in relationships as “marriages”. I am not sure what that is supposed to mean, but I think it means that the Supreme Court is taking a moral stand as bigamy is illegal in India (except for Muslims) and there is certainly no proposal to make bigamy legal.

Since then the National Commission for Women (NCW) has “sought a change in the definition of ‘wife’ which deals with maintenance” and has recommended that women in live-in relationships “be entitled to maintenance if the man deserts her”.

And now, in Maharashtra at least, the state cabinet has given “its green signal to protect the pecuniary interests of the other woman. If the Centre Okays this proposal, this will become law. There is bound to be a cascading effect on other states.

There has been outrage against this proposal as it is thought to be inimical to women, although the intention is just the opposite. Some believe that it will encourage people to go in for such relationships as there will be a legal sanction. The CWC (Child & Women’s Welfare) on the other hand feels that it will protect the financial interests of abandoned women.

About the protests against this new proposed law, I am not sure what the protesters are against…live-in relationships from the moral point of view or live-in relationships from the angle of financial damage caused to the legal wife. I suspect the outrage is against both, although I think it is important to make a distinction between the two.

Today more and more couples from the upper classes are choosing to live without marriage. Usually such couples are both single, working, and are financially independent. The fact that they are choosing to live without marriage usually means that they have chosen to defy society and if a relationship like this breaks up it is unlikely that the woman will be in dire straits. I do not think that an educated, financially independent woman needs financial protection in case she is ditched, although she certainly needs acceptance from society, during and after such a relationship. But if the protesters feel that the proposed law will encourage these relationships and are outraged, well, I don’t have much sympathy with this point of view.

The second type of live-in relationship is when a man keeps two or more “wives”. This was a common practice in ancient times but today these relationships have gone underground. In many such cases all the “wives” are financially dependent on the man. It is one thing for a financially independent woman to go in for a live-in relationship (whether as a second woman or first), and quite another for a financially dependent woman to do so. I feel sorry for any woman who has got into a second “marriage” or live-in relationship thinking that it could well be a permanent arrangement…but when it comes to bestowing on her financial rights I am not comfortable with it.

I would prefer it if the court decides these incidents of abandonment on a case-to-case basis because some women deserve maintenance if they are thrown out after living with a man for years. There have been cases where the courts have ruled in favour of the other woman when it comes to maintenance and I have no discomfort with that. To make a blanket law is another matter.

There are arguments that this proposed law could be misused. Law experts have said that such a law “would enable the ‘mistress’ to get the status of a legally married wife in all matters, including share in property, inheritance, maintenance”. This is certainly not the intention of the law and in fact it the proposed law has a good intention – to help thousands of financially dependent abandoned women.

So while this law may be “revolutionary” and attempts to get live-in relationships out of the closet, it could cause harm to the legal wife. I have not heard of any other country in the world which makes bigamy illegal but allows for maintenance of a live in partner.

There is another criticism of this proposal – that it will encourage men to stray and will overall encourage live-in relationships as it gives a legal stamp of approval to the whole thing. Well, I think the only worry would be in those cases where men go in for a second “wife.” Will the law affect a man’s behaviour when it comes to mistresses? Well, men have been keeping them from the beginning of time and will continue to do so, regardless of the law.

But I wonder if such a law could make a man think twice about living with a woman as his wife because now he would have to pay for her upkeep even after they break up? Just as men might hesitate to jump into marriage knowing the financial commitment involved, they might think twice before committing themselves to a long-term “live-in” relationship if they have to support the woman (and children). So while I am against such a law, I cannot help but wonder if such a law will discourage men from keeping mistresses or getting into long term live-in relationships? If it is so, it is certainly good for the first wife if there is one, but it is hard to decide whether indeed there will be such an effect. Therefore the author recommends using a new feature on word press to ask general peoples view views. It’s a poll.

Recommendations:

“Married in haste, we repent at leisure”

The above line by William Congreve truly defines the mentality of the live in couples. The hectic lives of the metros don’t leave time for nurturing a family in its true sense. Now a day’s people are becoming more and more individualistic and career oriented. They spend less time at home and more time in offices. With more and more women going out for work, the nurturer of the family is not giving enough time for family and children. So actually why is there the need to go into marital bonding and forsake one’s liberty? Everyone likes a life free of tensions and responsibility. After working for a night shift who wants to get up early the next days to prepare children’s Tiffin and make ready them for school? Moreover, the divorce laws are too cumbersome in India. If one has to get a divorce then it takes years to finally get it done and trauma suffered by the partners during these years is too much. This is also one of the biggest reasons for live in relations. There are too many legalities involved with the institution of marriage  which one can easily escape in the case of live in relationships. It’s a much popular analogy of live in relationship that it’s like “taking a car for a test drive as the couple can easily walk in and walk out of the relationship without any legal bondage. It’s better to know the person beforehand than marrying in haste and getting oneself in a legal mess.

The Supreme Court said in Patchalammal case, not all live- in relationship is recognized, relationship in nature of marriage are only recognized. The court opined that merely spending few weekend or one night stand would not make domestic relationship, while disposing case filed under protection of women from Domestic violence Act 2005.

There four key requirement to fulfil the criteria of live-in relationship

  1. Legal age to marry,
  2. Qualify to enter legal marriage
  3. Must be unmarried
  4. Voluntary cohabitation should be for considerable period of time

Advantages of Live-in Relationship

  1. Freedom, convenience, and no restrictions or no commitment on each other, based on concept of protecting individuality ,western concept of individualism, no domination on each other, non interference in their personal activities and career.
  2. Easy to enter into relationship ,without any formalities or unlike customary rites like sapthapadi or kanya- dhan or mangalsutra dharan,no dowry or jewellery for traditional marriage.
  3. No need to spend huge money on engagement and marriage ceremony
  4. Easy to break with no legal hassles.
  5. Easy to enter another relationship, unlike in normal marriages, couple has to face arduous and protracted litigation to get divorce and wait for notice, then re-marry.

Conclusion:

We are a modern bunch of youths who want to experiment with new things in life instead of just lingering onto the old customary traditions levied on us by our forefathers. 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. For me such a relationship is a way of escapism. No relationship can get stronger and meaningful if there is an escape route available. 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. Moreover the psychological impact on children born out of this relationship would be very bad leading to mental diseases and criminal tendencies. All this would give rise to an unstable society. The most important fact that why do people get in live in relationships? If we would make so many laws regarding it then what will happen to the whole idea of liberty that is attached to such live in relationship. Now it is upon us to weigh the pros and cons of this and then accordingly take a decision for ourselves.

[1]Student 3rd year, 6th semester, BBA LLB. (Hons.), ICFAI University, Dehradun

[2]Student 2nd year, 4th semester, BBA LLB. (Hons.), ICFAI University, Dehradun

[3] S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 (vide para 31)

[4] AIR 2011 SC 479

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