Authored By: Meera Giri
Mumbai University
Introduction
In 2010, the Supreme Court of India was faced with a situation in which it had to consider the legality of cohabitation by unmarried couples residing together in various parts of India. In the case of S. Khushboo v. Kanniammal, the Court observed that a live-in relationship between two consenting adults does not amount to an offence, even though it may be perceived as immoral.[1] This single observation encapsulates the conflict that still persists in this field of law, where social attitudes have not moved far from being highly critical of such relationships, while the legal position has been slowly evolving to accommodate them.
Cohabitation is no longer an aberration in society; it is a phenomenon seen especially in metropolitan areas. It has become common owing to factors such as migration, delayed marriage, the economic independence of women, and changing views about companionship. There is no specific legislation in India dealing with cohabitation. Cohabiting partners have instead been afforded protection against domestic violence by the judiciary, through its interpretation of the Protection of Women from Domestic Violence Act, 2005,[2] and through constitutional interpretation in the light of personal liberty. The present article claims that this judicial improvisation, though a great advance on the erstwhile status of non-recognition in law, is still structurally deficient because it relies on the terminology and requirements of marriage rather than on a sui generis social relationship.
This article is divided into three sections: the first discusses the current legal regime and the basis on which it has been formed through judicial opinions; the second analyses the gap in the doctrine, namely the “marriage-like” criteria created by the courts; and the third, by way of conclusion, calls for statutory reform.
The Legal Framework
The most obvious source of the law regarding live-in relationships is Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.[3] Under that provision, a “domestic relationship” includes a relationship between two persons who live, or have at any point of time lived, together in a shared household and who are related “through a relationship in the nature of marriage.” The Act does not, however, define that expression, and it has accordingly become the object of judicial interpretation over the past decade and a half.
The Supreme Court has made an effort to give meaning to the expression in D. Velusamy v. D. Patchaiammal.[4] The Court held that a relationship in the nature of marriage entails holding oneself out as husband and wife to the world, having reached the legal age of marriage, and being eligible to enter into a legal marriage by virtue of being unmarried. All of this must be combined with voluntary cohabitation for a considerable length of time. This four-point criterion was, however, relaxed by the Court in Indra Sarma v. V.K.V. Sarma.[5]
In addition to the 2005 Act, the Supreme Court has extended protection to cohabiting couples on the basis of Article 21 of the Constitution. For instance, in Lata Singh v. State of U.P.,[6] the Court ruled that the choice of a partner by an adult individual, even a live-in partner, comes within the ambit of the constitutional right to personal liberty and cannot be interfered with by the family or the community. In the more recent case of Nandakumar v. State of Kerala,[7] the Court stated that live-in relationships are now recognized by the legislature and hence cannot be declared illegal simply because there has been no marriage between the partners.
The Marriage-Resemblance Problem
The problem with this framework from a doctrinal perspective is that it does not recognize cohabitation in itself, but only cohabitation that bears sufficient similarity to marriage. The Velusamy criteria demand an element of recognition of the relationship as that of spouses, which would exclude those couples who cohabit out of a desire not to be recognized as spouses in society and in law. Academics have pointed out that, in Indian family law, rights have traditionally been extended through the analogy of marriage.[8]
This presents an apparent paradox with definite sociological implications. Those couples who cohabit in secret and who do not portray themselves as a couple before society are the ones more prone to being exploited, and the ones who would find it difficult to seek family assistance in case of a breakdown of their relationship.[9] However, they are also the ones who will fall short of the requirements of Velusamy. This problem was even identified by the Law Commission of India in 2009, when it proposed an amendment to the definition of “wife” in Section 125 of the Code of Criminal Procedure so that such women do not become destitute after the breakdown of their relationships.[10]
A sociological study of cohabitation in India has found that many couples prefer living together because it offers an intentional choice away from the kind of surveillance by caste, community, and family that comes with marriage, especially when the relationship is across caste or religious lines.[11] The test applied under the statute, which gives more protection to a couple for their marriage-like appearance in the public domain, ends up offering less protection to the couples who most need to opt for living together instead of marriage. It leaves the socially disadvantaged, that is, the couples living together in order to avoid backlash from family or community, outside the statutory definition.
Conclusion
The Indian judicial system has moved from a position in which cohabitation was tinged with an air of criminality to one in which it is accepted as a constitutionally guaranteed freedom. This is indeed an achievement, as can be seen in Khushboo, Lata Singh, and Nandakumar. However, the statutory mechanisms that make such acceptance effective continue to depend on a marriage-like model that was not designed to cater to the diversity it now serves.
In this way, the Velusamy approach has been shown to under-protect those cohabiting relationships most in need of legal recognition, precisely by restricting that recognition to cases where there was a public display of a spousal relationship. It does not follow that courts should attempt to fine-tune the definition of marriage-like cohabitation, since this is really the wrong answer to a wrong question. Rather, the proper approach would be to create an entirely new category of registered cohabitation, with its own rights to maintenance and protection from domestic abuse, regardless of how the relationship appeared to the neighbors. Until this happens, the law will protect only cohabitation that looks like marriage.
References
[1] S. Khushboo v. Kanniammal, (2010) 5 SCC 600 (India).
[2] Protection of Women from Domestic Violence Act, No. 43 of 2005, INDIA CODE (2005).
[3] Id. § 2(f).
[4] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 (India).
[5] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 (India).
[6] Lata Singh v. State of U.P., (2006) 5 SCC 475 (India).
[7] Nandakumar v. State of Kerala, (2018) 16 SCC 602 (India).
[8] Flavia Agnes, Family Law Vol. 1: Family Laws and Constitutional Claims 214–19 (2d ed. 2011).
[9] Kavita Krishnan, Fearless Freedom 45–52 (2020).
[10] Law Comm’n of India, Report No. 228, Need to Amend the Definition of “Wife” as in Section 125 of the Cr.P.C. 5–9 (2009).
[11] Perveez Mody, The Intimate State: Love-Marriage and the Law in Delhi 88–94 (2008).
