Authored By: Ananya Singh
Manipal University Jaipur
ABSTRACT
Cohabitation or live-in relationship is a new socio- legal relationship in India, which has challenged the traditional marriage and family formations. This paper shall articulate the shifting degree of court tolerance of cohabitation and how it has changed the family law with respect to the pluralistic cultural and legal setting in India. The process of modernisation of the community has come along with a reserve pool of inventions of ideas and values. With the love between the two building up and the decision of marriage finally being given upon all the possibilities of a healthy marriage, nowadays children have the faith of cohabiting and experimenting on compatibility which is known as live-in relationships. However, the modernisation process is also supported by the conventional idea of our culture and people attitude to such practices. Aware of the legal overtones of the so-called live-in relationship and the dilemma the children are going through in the contemporary days, respective paper will resolve around the discussion of the legal provisions that governs the practice in India.
INTRODUCTION
In the world where the social standards are rapidly evolving and the urbanisation is rapidly taking place the live-in relationships (better known as cohabitation) have become very rampant in India. When a couple is living together and they are not married legally but are normally affected by the factors such as career goals, self-sufficiency and need to be out of the problems involved in the matrimonial laws the term is referred as cohabitation. However, history has been very doubtful about such arrangement in a society that is very religious and cultural inclined in the terms of marriage. Live-in relationship is a phrase that is used to refer to an agreement of living together as a couple in a house long enough without necessarily getting married, they almost follow the marriage process without getting married. The concept of a personal freedom is what the live-in relationship is founded on. Live-in relationship is a concept which is used widely around the globe. This relationship is an arrangement in which two people can cohabit and it is not considered as marriage but it is also not considered as a crime. This is not a new concept but are being developed with the human civilisation.
The Indian culture considers marriage as a sacrament. Besides the two individuals are united, two families are united with various norms. Marriage is therefore the ideal status institution in the society. The supreme court on numerous occasions made it clear once again that it was included in the right of the individual to live and to live with each other in the event they are in love.
The commission had suggested to ministry of women and child development that the definition of a wife is stipulated in section 144 of Bharatiya Nagarik Suraksha Sanhita,2023 should be expanded to include cohabiting women. The recommendation was to bring equality between a live-in relationship couple to be treated as lawfully recognised marriage and harmonize the provisions of the law to safeguard the women against domestic violence. As a result of this, the supreme court established the so-called justice Malimath Committee1based on which in the event man and woman spend a given period of time as a husband and wife, the male will be taken to have married the woman. The committee recommended the interpretation of a wife as contained in BNSS2ought to be varied and that such interpretation encompasses women in a live-in relationship so that the women could access alimony against domestic abuse. The maintenance demand has a right to the women who are in live-in relationships.
RESEARCH METHODOLOGY
This paper is based on a doctrinal and analytical approach and uses both primary and secondary sources such as statues, case laws and constitutional provisions and scholarly articles and reports respectively. The information is collected by searching the judicial databases such as SCC Online and Manupatra and government-based sites of BNS AND BNSS and family law journals.
LEGAL FRAMEWORK OF LIVE-IN RELATIONSHIP
The Indian family law is working based on the principle of pluralistic system in which the personal laws are enforced in marriage and issues related to marriage that are within the jurisdiction of other religions. According to Hindu Marriage Act, 19553and Special Marriage Act, 19544, marriage is a contract and must be registered and ceremonies must take place. The same though does not feature in these and is generally treated as a relationship falling on the same plane as marriage in the Protection of Women against Domestic Violence Act, 2005 (PWDVA)5 which provides protection to women in live-in relationships provide they procure a household and a domestic set up.
The right to life and individual liberty, privacy and including relationship choices also referred to as the Article 21of the constitution in a post-puttaswamy reading. Section 497 of IPC6– it is the old law which had criminalised adultery which was struck down by Supreme Court in 2018. After this decision adultery can be a ground for civil action like divorce and Maintenance, etc. The new Law BNS does not include a section or a provision on adultery. The new BNSS which replaces the CrPC, 1973 makes it easy to deal with complaints when facing domestic violence and in that respect, the cohabiting couples can apply under section 12 of PWDVA without proving to be married but there are some weak points, cohabitation is not hereditary, it is neither given nor tax saving as a marriage. The punishment is not equal to the cohabiting as the Maintenance and Welfare of Parents and Senior citizens act 20077and Hindu succession act 19568do not specifically apply to them.
JUDICIAL INTERPRETATION
The courts have generated acceptance of cohabitation in the form of historic case law and suggests a stage of condemnation to an acceptance. In Indra Sarma v. V.K.V. Sama (2002)9case in this case the Supreme Court held that live-in relations were not of an illegal nature, yet they could not be promoted as they had the potential of subverting the marriage institution. This case has created a precedent that categorises the walk-in and walk-out relationships and relationships that are close to marriage. These breakouts included the case of Velusamy v. D. Patchaiammal (2010)10 in which the live-in relationship case was deemed as a legal marriage as they met the basic ceremonies and this afforded them the hereditary rights. In coming up with the decision, the court used the fact that the right to this type of children born in such unions would not be granted because the Article 14 (equality) and Article 2111 were not met. This was later complemented by case law. In Shakti Vahini v. Union of India12, The Court further ruled to support cohabitation and statutory protection of women in live-in relationships and request the states to prevent honour killings against them (UNION OF INDIA, 2018). Much later in puttaswamy (2017), the right to privacy was met in a much more oblique way in support of the existence of consensual cohabitation. The 2023 courts are in line with the tendency towards BNS decriminalization. In Kavita Bhabhi v. The high court of Gujarat13 ruled in favour of live in relationship in the State of Gujarat (2023), by providing interpretation of the provisions in BNS that eliminated adultery. In other cases, the supreme court was also seen to have observed the same in John Vallamattom v. The issue of consent and equality is brought to the fore by the case of union of India (2003) and the cases which are still being conducted. Critical analysis would show gaps: the courts would rather demand the proving of the relationship in the type of marriage so as to receive the benefits which is subjective interpretation. This strategy is liberal though it imposes a strain on the claimants particularly women and children.
CRITICAL ANALYSIS
The problem of cohabitation is a massive challenge regardless of the legal advancements. The weak areas and gaps are that unification of their recognition is not standard, the Muslim personal law does not directly refer to cohabitation and this may act against the couples. The property rights are also ambiguous in the PWDVA, shared property is the one that is secured, however in the event of a divorce there is no remarriage and the property is also divided in accordance with the general laws that are largely in the favour of the women. As a matter of fact, the stigma in the society and patriarchal prejudices disrupt enforcement. The domestic violence as regards to cohabiting involves is also underreported and BNSS procedure is even postponed at times because of the overwhelming load of evidence. India is a long way behind other countries and the US has common-law marriages in a few of its states, to pattern match reforms, compared to the situation in the UK where the Civil Partnership Act,200414 has enabled legal equality to the same sex marriages. These can be addressed through the current reforms such as BNS and BNSS that emphasize more on harm than on morale but they do not offer cohabitation marital status. The problems such as child custody where the court favours the child due to no set of rules and inequality of tax where the cohabiting partners are not taxed as a married couple are some problems.
RECENT DEVELOPMENTS
The post 2023 BNS, and BNSS have introduced the topic with the controversies of cohabitation as well. Section 63 of BNS is a non-consensual act of criminality, which implicitly comprises a relationship of consent with the use of consensual relationship despite the fact that section 28 of the BNSS redresses the domestic violence in a fast track. Cohabitation however is not a concern of any particular law but reform is proposed by Law Commission of India yet is done at a slow pace. The urban elites respond differently as they believe that it is a progressive society and the conservative quarters as they scowl over it as a breakdown of family values. The media relay cases of increase like the one of 2023, in the case XYZ v. Delhi High Court15, allowing right to live-in state. The government protectionist policy, which is not completely legalized, is the Ministry of Women and child Development. The fact that the Parliament is constantly debating shows that changes will be introduced to Special Marriage Act allowing cohabitation registration despite the fact nothing is done yet.
SUGGESTIONS / WAY FORWARD
There should be legislative reforms to seal gaps. First, proper Special marriage act and allow optional cohabitation registration, so that they can get similar right to property succession and maintenance to marriage. Second, inculcate cohabitation in individual laws therefore making them similar in religions. Thirdly, the education of the judges should be enhanced because prejudices when interpreting the relations in the character of marriage may be reduced. Perhaps normative principles should be looked at on the part of judiciary, in which it might base their judgement on rules that will be applied to claims to respect to abode. The legislature should ensure that a full-fledged Cohabitation Act is prepared that set forth international guidelines on the same to provide the clear picture on the rights and interests. The awareness campaign against stigmatization can be spearheaded by the civil society like the NGOs like the lawyers collective. Finally, the policymakers should also use the information contained in the reports of BNSS to monitor the implementation to ensure that the reforms do not infringe the provisions of the constitution.
CONCLUSION
Altogether, the increasing judicial recognition of cohabitation is an extreme restructuring of the India family law, which is driven by the constitutional interpretation and present-day reforms, including the BNS and BNSS. The courts have turned to non-abiding rejection through striking the balance between tradition and personal rights. But what legal frameworks and practical considerations underscore is the fact that there is a need to bring about holistic reforms in order to cushion cohabiting couples in a fair manner. The transformation is critical in a multi
cultural democracy like India whereby the family set ups are changing to global world. Will the law be in line with the society or will it continue with the traditions? A visionary reform of the family law would be able to redefine the inclusion, as well as the fairness of all forms of relationships.
REFERENCE(S): / BIBLIOGRAPHY
Case Laws
Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India).
Velusamy v. D. Patchaiammal, (2010) 10 S.C.C. 469 (India).
Shakti Vahini v. Union of India, (2018) 7 S.C.C. 192 (India).
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1 (India). Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
Joseph Shine v. Union of India, (2019) 3 S.C.C. 39 (India).
John Vallamattom v. Union of India, (2003) 6 S.C.C. 611 (India).
Badri Prasad v. Deputy Director of Consolidation, (1978) 3 S.C.C. 527 (India).
Kavita Bhabhi v. State of Gujarat, 2023 S.C.C. Online (India).
X v. State (NCT of Delhi), 2023 S.C.C. Online (India).
Statutes
The Constitution of India, arts. 14, 21.
The Hindu Marriage Act, No. 25 of 1955, India Code (1955).
The Special Marriage Act, No. 43 of 1954, India Code (1954).
The Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2005). The Indian Penal Code, No. 45 of 1860, § 497 (India) (struck down).
The Bharatiya Nyaya Sanhita, No. 45 of 2023, India Code (2023).
The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, India Code (2023). The Hindu Succession Act, No. 30 of 1956, India Code (1956).
The Maintenance and Welfare of Parents and Senior Citizens Act, No. 56 of 2007, India Code (2007).
1 Committee on Reforms of Criminal Justice System, Report of the Malimath Committee (Gov’t of India 2003).
2 The Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, India Code (2023).
3 The Hindu Marriage Act, No. 25 of 1955, India Code (1955).
4 The Special Marriage Act, No. 43 of 1954, India Code (1954).
5 The Protection of Women from Domestic Violence Act, No. 43 of 2005, India Code (2005).
6 The Indian Penal Code, No. 45 of 1860, § 497 (India) (struck down).
7 The Maintenance and Welfare of Parents and Senior Citizens Act, No. 56 of 2007, India Code (2007).
8 The Hindu Succession Act, No. 30 of 1956, India Code (1956).
9 Indra Sarma v. V.K.V. Sarma, (2013) 15 S.C.C. 755 (India).
10 Velusamy v. D. Patchaiammal, (2010) 10 S.C.C. 469 (India).
11 The Constitution of India, arts. 14, 21.
12 Shakti Vahini v. Union of India, (2018) 7 S.C.C. 192 (India).
13 Kavita Bhabhi v. State of Gujarat, 2023.
14 Civil Partnership Act 2004, c. 33 (U.K.).
15 X v. State (NCT of Delhi), 2023 (India).
