LEGAL PERSPECTIVE OF THE LIVE-IN RELATIONSHIP

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INTRODUCTION

India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of Live-in relationships. Many has been said and debated on the concept of Live-in relationships in India. It is important to understand the said concept from legal view point.

THE LEGALITY OF LIVE-IN RELATIONSHIP 

Live-in relationship between consenting adults is legal under the Indian law if the requisites of marriage such as legal age of getting married, consent, and soundness of mind are fulfilled. 

WOMAN IN LIVE-IN RELATIONSHIP HAS RIGHT TO COMPLAIN AGAINST DOMESTIC VIOLENCE & CLAIM MAINTENANCE AS WELL 

Live-in relationships are in the nature of marriage, as the couples are living together for a long period and presenting themselves as husband and wife. Thus, they come under the ambit of the Protection Of Women From Domestic Violence Act, 2005, and the woman in a live-in relationship can take protection under The Protection Of Women From Domestic Violence Act, 2005,  and can also claim maintenance.

The Supreme Court in Chanmuniya Vs Virendra Kumar Singh Kushwaha held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife. 

Facts in Chanmuniya Vs Virendra Kumar Singh Kushwaha case is that the Appellant, Chanmuniya was married to Ram Saran and had 2 daughters. Ram Saran died on 07.03.1992. Chanmuniya married Virendra Kumar Singh Kushwaha, the younger brother of her deceased husband, in accordance with the local custom of Katha and Sindur. They were living as husband and wife together, Virendra Kumar Singh Kushwaha started harassing and torturing Chanmuniya, she asked for maintenance but Kushwaha refused saying that she wasn’t his legally wedded wife. 

The Uttar Pradesh High Court also dismissed her petition on the ground that 125 Cr.P.C is available only to the legally wedded wife; thereafter she approached the apex court to seek justice. 

Decision: Women in Live-in relationships are also entitled to all the reliefs given in the said Act (The Protection of Women from Domestic Violence Act, 2005).

Important observations: The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. In the absence of express contracts, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. 

The Protection of Women from Domestic Violence Act, 2005 assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even ‘economic abuse’. Economic abuse includes deprivation of financial and economic resources. Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under section 125 Cr.P.C.

The Protection of Women from Domestic Violence Act, 2005 gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes Live-in relationships in the nature of marriage within the definition of ‘domestic relationship’. Therefore, women in Live-in relationship are also entitled to all the reliefs given in the said Act, they should also be allowed in proceedings under section 125 of Cr.P.C.

In Chanmuniya v. Virender Kumar Singh Kushwaha, (supra), the Supreme Court, while giving an expansive interpretation to the term “wife”, also considered the interpretation given to “domestic relationship” under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005. It noted that this interpretation had taken such a relationship outside the confines of a marital relationship so as to include live-in relationships, and therefore, reliefs available under the DV Act had also become applicable to women in such relationships. In this vein, the Supreme Court stated that such broad interpretations, as done in the DV Act, had to be considered with respect to Section 125 Cr.P.C. Accordingly, it referred to a larger Bench, inter alia, the question as to whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of valid marriage for the purpose of being entitled to maintenance under Section 125 Cr.P.C. The section of the Judgement delineating the same has been reproduced as follows:

“40. We believe that in the light of the constant change in social attitudes and values, which have been incorporated into the forward- looking Act of 2005, the same needs to be considered with respect to Section 125 Cr.P.C. and accordingly, a broad interpretation of the same should be taken.

41. We, therefore, request the Hon‟ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C.?

2.Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of the Domestic Violence Act, 2005?

3. Whether a marriage performed according to the customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

42. We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman having been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 Cr.P.C. so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.”

The questions which have been referred in the aforementioned judgement are yet to be decided by the Supreme Court. With regard to the observation of the Supreme Court that the term “wife” should include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time and that strict proof of marriage should not be a precondition for maintenance under Section 125 Cr.P.C., this principle has been routinely invoked in subsequent decisions of the Supreme Court such as Kamala and Ors. v. M.R. Mohan Kumar.

The Delhi High Court in Sunder Lal Saini vs Meena Saini decided on 9 November, 2021 held “The Chanmuniya case (supra) also envisioned a factual matrix wherein both the parties were unmarried and their cohabitation as husband and wife led to the presumption of them being legally married. However, in the instant case, despite cohabitation as husband and wife, it is not legally tenable to raise a presumption of a valid marriage because both the Petitioner as well as the Respondent are already married to their respective spouses and their marriages are subsisting. Therefore, the Respondent cannot rely upon the Chanmuniya case in order to bring herself within the definition of the term “wife” as per the Explanation (b) in Section 125 Cr.P.C. so as to avail an order for maintenance, despite the social object of this statutory provision.

24. As this is a petition under Section 125 Cr.P.C. and the term “wife” under Section 125 Cr.P.C. does not envisage a situation wherein both the parties in the alleged marriage have living spouses, this Court is of the opinion that the Respondent herein cannot seek maintenance from the Petitioner under this provision. This Court finds it unfortunate that many women, specially those belonging to the poorer strata of society, are routinely exploited in this manner, and that legal loopholes allow the offending parties to slip away unscathed. In spite of the social justice factor embedded in Section 125 Cr.P.C., the objective of the provision is defeated as it fails to arrest the exploitation which it seeks to curb. In the instant case, while the Court sympathises with the position of the Respondent, it is constrained to deny her maintenance as per the law of the land which stands as of today. However, the Respondent has the liberty to avail other remedies that may be better suited to the facts and circumstances of this case, such as seeking of compensation under Section 22 of the DV Act.”

A relationship between a women and a married man could not be termed a relationship in the nature of marriage. The Hon’ble Supreme Court in Indra Sarma Versus V.K.V. Sarma observed.

In the instant case, the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though that 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 the Domestic Violence Act does not take care of such relationships. 

Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent.

Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Office of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. After several years, the man moved out of such live-in-relationship. The appellant preferred Criminal Miscellaneous Petition under section 12 of the Domestic Violence Act before the Magistrate, Bangalore. Seeking reliefs of independent residence, monetary order, compensation and maintenance. The learned magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order directing the respondent to pay an amount of Rs. 18,000/- per month towards maintenance from the date of the petition. Subsequently the Sessions Court upheld the Trial Court Decision.

But the Karnataka High Court set aside the Trial Court order saying that live-in- relationship did not fall within the ambit of “relationship in the nature of marriage”, a cardinal principal for one to invoke Domestic Violence Act.

The Hon’ble Supreme Court held that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in- relationship in the nature of marriage. All live-in-relationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship whould not fall within the definition of “domestic relationship” under Section 2(f) of the Domestic Violence Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the Domestic Violence Act. 

The Hon’ble Court Supreme Court further held that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in-relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an international tort.


A old blog of mine on the same subject is here below:


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