Saturday, September 10, 2011

Live -in Relationship-Legality

Live-in Relationship-Legality :
There is no legal bar in India for women and men staying together,as it is matter of two consenting adults and live -in relationship is not socially accepted in India and still considered as taboo and sin.No one will prefer to have unmarried couple as tenants, unless they are convinced that couple is legally married or unless they mislead the house owners that they are married.

The author of this article is neither criticizing nor supporting the concept of Live-in Relationship.This is only critical examination of the issue.

The Supreme Court : Law and morality 
 The Supreme Court of India ; bench consisting of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan in actress kushboo case said "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,"The court opined according to Indian Mythology even Krishna and Radha lived together."[1] “Please tell us what the offence is and which section of law applies?”The apex court also cited Article 21 of the part -III of the Constitution of India,which expressly guaranteed the right to life with dignity, liberty and respect, and court also stressed that the perceived immorality by a few protagonists of morality cannot be branded as offence.."The major girl is free to marry any one and she can live with any one ",The live-in relationship between two consenting adults does not amount any offence ,which is heterosexual in nature [which is contrary to Adultery ,which is offence under Indian Penal code 1872][2],The Kusbhoo case will be known for upholding of freedom of expression ,free speech ,individual rights ,she has right to express her views on any subject within parameters of law.The supreme court did not any fault with her views,opined she has right to express her opinion.
Later ,Justice Balakrishnan criticized media for making the issue of his remarks about Radha-Krishna relationship,when Hindus opined Krishna was just 10 yrs,when he left virdavan , how can child can have sexual relation at such young age,more over it wrong comparison,devoid of merits,but said observation about per-marital sex,sparked intense debate ,whether Supreme Court is endorsing Pre-marital sex and relationship out of wedlock.Whether it is legalizing bigamy and extra -marital relations?

In 2001 ,Payal Sharma Vs Superintendent, Nari Niketan and others case,the Allahabad High Court , the bench consisting of Justice Markandeya Katju & Justice R B Mishra held that ’In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”

Traditional &Customary view point :

The most hardcore moralist and traditional Hindus criticized the said observation ,there were of view that it will damage the institution of marriage and encourage extra-marital relationship and casual sexual relationship ,out of wedlock ,which will dilute the concept of holy marriage or scared union .which will cause damage to the age old -family values practiced by Hindus since time immemorial.They are of view that losing virginity is sin as per customary law ,in Mythology Kunti abounded Karna ,because he was born out of wedlock.The Rama is ideal husband and Sita is ideal wife.Many are of view that if live-in relationship is encouraged ,it will increase Teenage&child pregnancy,HIV,children born out of wedlock may be not properly brought,which will lead to juvenile delinquency.It will have adverse impact on the society.The fact is that Hindu Marriage laws are no more religious law or customary law ,it has assumed secular character after codification in 1956.The Hindu marriage act 1956 is also applicable to Sikhs,Buddhist and jains.

Liberal view point :

Most liberal thinkers opined that ,it is progressive pronouncement by the apex court ,at last the court in-deed ,accepted the concept of dating ,which is prevailing in cities and towns and it is reality that most young dating couples are entering into live-in relationship to test their compatibility to each other ,the cohabitation will allow them to understand each other well ,which will help them to take decision for permanent commitment through legal marriage and legalize relationship by entering into legally valid marriage.It is better opt for live-in relationship than going for divorce,this is basic logic of live-in relationship in western countries.This purely western concept of relationship based individualism ,primary motive is more freedom,monetary independence ,non-interference of their personal affairs and career.
Many are of view that If the live -in relationship is recognised by the courts , they can get alimony[maintenance] and other benefits like legal accepted marriage "it will give protection to dating couples like maintenance[alimony],domestic violence [PHYSICAL, MENTAL , SEXUAL ABUSE &ECONOMIC] as progressive legislation like The Protection of Women from Domestic violence Act , 2005 had , in fact , recognised the concept of live-in relationship and aggrieved women of such relationship is entitled for relief on par with legally wedded wife.
What is Definition of Live -in Relationship :

What is live -in relationship, whether mutual cohabitation,whether one night -stand of ,one weekend or one month or one year cohabitation amounts to live -in relationship , in a given case ,if man and women cohabit for a week for dating purpose ,then they parted ways after a week ,if women files case for maintenance ,whether women is entitled for maintenance or not,in such cases, courts were of opinion that it does not recognize "walk in -walk out" type of live-in relationship,said relationship should be for a long period of time marriage like commitment only such relationship are legally recognize for awarding relief under law.

Legal definition of Live-in Relationship:
 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 fulfill 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 jewelry 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.

Disadvantages of Live- in Relationship:
  1. Not a legally recognised relationship.
  2. Faces social problems.
  3. No support from family& bound to get isolated in social circles.
  4. Children born out of live-in relationship faces problems.
  5. Insecurity &Threat of breaking, bound to haunt couples.
  6. Tussle between legal wife&her children and live -in spouse &her children born out of live -relationship,disputes of inheritance of property and money may end up in courts.More scope for legal problems due to non- acceptance of live -in relationship by existing legally wedded wife ,especially in bigamous relationship.
Live in Relationship &Social acceptance :
 Many opined that there are many successful living examples of live- in relationship,moreover, we can say successful long term commitment to each other is important ,which are prevalent in higher classes in urban educated class society and such relationship does not harm the institution of marriage ,even there are examples of unsuccessful arranged marriage with excellent horoscopic match,which are leading to divorce.The Live-in relationship will co-exists with legal marriages.The India ,being plural society will accept live-in relationship ,if they are accepting gay relationship.There is demand to decriminalize 377 IPC and the Delhi High Court in Naaz foundation ,opined that time has come to decriminalize 377 IPC,social deviant gay relationship,this issue is pending with Supreme Court of India.The Courts do not exists for Moral policing :It is a illusion say that supreme Court has given green signal to pre-marital sex or sex out of wedlock ,it has only accepted fact,this trend is widely prevalent among higher class and upper middle class youngsters in the urban society and second marriage /relationship out of wed lock is prevalent in urban and rural societies ,they should be legally recognise for giving relief in case of abuse of said relationship,because in these cases ,the women will be at receiving end ,needs legal protection against abuse.The Supreme Court recently held that children born to second wife are not only entitle for maintenance ,but also share in the ancestral property,whether we can construe that said judgment will encourage the bigamy.It is only accepting the fact that second marriage is widely prevalent and exits in society and court have to render them equitable justice,on par with legal marital relationship .It will be grave injustice to victims of illicit relationship and children ,if supreme Court refuses to accept the cases of maintenance,alimony , inheritance merely because ,the second marriage [with living spouse &earlier marriage not legally dissolved] is criminal offence under the provision of Indian Penal Code,1872.

Conclusion :

The courts do not exists for any moral policing or imposes its choice on people ,it up to people to chose between live -n relationship and customary marriages [legal] relationship to save their own self interest.The court 's duty is to render justice to the aggrieved person.The people are matured in -enough to make choice between marriage and live -in relationship.Many traditionalist believe that youngsters are losing values ,progressive people view it has pragmatism ,as we have entered into information age.Even live-relationship is not morally accepted in the society and still considered sin.But relationship has become a reality and emerging trend in the urban areas among educated and higher classes even though it is by-product of western,consumerist and materialistic culture ,needs to be recognise for the purpose of according legal protection from the abuse.The society can not deprive their rights on the ground of protecting social morality and the issue of remedy for violation of their rights should be accorded at- most importance.The Hindu marriage Act 1956 is secular act,bound to change ,according to needs of the society.The various judgements of the courts speaks that the law needs to change,according to changing circumstances and societal perceptions.
References :

  1. S. Khushboo .V Kanniammal ,CRIMINAL APPEAL NO. 913 of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008] (2010) 5 SCC 600 Supreme Court quashed all 22 cases filed against her under section 499 ,504 ,505 IPC for her remarks about pre-marital sex.
  2. Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522
  3. Velusamy v D. Patchaiammal (2011 Crl. L.J. 320)

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