Live-in relationships and indian law
Live-in relationships have always been in debates in our country. While some High Courts giving judgments favouring other High Courts involved some serious controversies. Lately, with the Madras High Court passing a judgement on the same, the situation is all more complex. Kindly enlighten me with the current situation and also giving a brief insight about the latest case of Madras High Court and all such judgments which may have been lately passed by several High Courts.
If any unmarried couple of the right legal age “indulges in sexual gratification,” it will be considered a valid marriage and they would be termed as “husband and wife,” the Madras High Court had ruled this in a judgment that gives a new twist to the concept of premarital sex. The court said that if a bachelor has completed 21 years of age and an unmarried woman 18 years, they have acquired the freedom of choice guaranteed by the Constitution. “Consequently, if any couple choose to consummate their sexual cravings, then that act becomes a total commitment with adherence to all consequences that may follow, except on certain exceptional considerations.”
The court said marriage formalities as per various religious customs such as the tying of a mangalsutra, the exchange of garlands and rings or the registering of a marriage were only to comply with the religious customs for the satisfaction of society. “Legal rights applicable to normal wedded couples will also be applicable to couples who have had sexual relationships which are established."
The court also said if after having a sexual relationship, the couple decided to separate due to difference of opinion, the ‘husband’ could not marry without getting a decree of divorce from the ‘wife’. Justice Karnan said he was of the view that a valid marriage did not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnised. In the present case, the woman and her husband had no encumbrance or other disqualification for solemnising their wedding as per their customs.
“Without legal encumbrance or third party interference or without affecting third party rights, both the petitioner and the respondent lived together as spouses and begot two children.” Therefore, the question of an illegitimate relationship did not arise. Wedding solemnisation was only a customary right, but not a mandatory one. Hence, the judge said, he was treating the couple as spouses in normal life.
In 2010, Supreme Court Bench consisting of Justices Markandey Katju and T S Thakur held that “merely spending weekends together or a one-night stand would not make it a ‘domestic relationship”. However in 2010 another Supreme Court Bench consisting of Justices G.S. Singhvi and Asok Kumar referred the following questions relating to a live-in relationship for the consideration of a larger bench:
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 a marriage performed according to 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.?
In 2010, in the case of Velusamy v Patchaimmal, SC held that, “in our opinion a ‘relationship in the nature of marriage’’ is akin to a common law marriage. ‘’ it sets out conditions for the relationship in the nature of the marriage. The couple must hold themselves out to the society as being akin to spouses; they must be of the legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Here are some other recent cases of High Courts of Delhi, Bombay and Madras. They will be of use to you:
1. Kusum Lata Sharma vs. State and Anr. 2011 VIAD(Delhi)576
2. Alok Kumar vs. State and Anr. MANU/DE/2069/2010
3. Pratibha w/o. Bapusaheb Andhare, Age 38 years, Occu. Household, R/o. Mankeshwar, Tq. Bhoom, Dist. Osmanabad, At present Dahitana, Tq. Paranda, Dist. Osmanabad vs. : Bapusaheb s/o. Bhimrao Andhare, Age 53 years, Occu. Service, R/o. Mankeshwar, Tq. Bhoom, Dist. Osmanabad and The State of Maharashtra; 2012BomCR(Cri)605
4. M. Gagabai vs. The Principal Chief Post Master General, The Director of Postal Accounts Ethiraj Salai, The Senior Superintendent of Post Office and Manimeglai , MANU/TN/1935/2011
In a live-in relationship an unmarried couple lives together under the same roof in a way it resembles a marriage, but without getting married legally. No law at present deal with the concept of live-in-relationships and their legality The Protection of Women from Domestic Violence Act 2005 provides for the protection, maintenance and right of palimony to a live-in partner, if she complains.
Recent order passed by Justice Karnan’s in Aysha v. Ozir Hassan, popularly known as the “Madras High court pre-marital sex case” gives a new twist to the concept of premarital sex. In this case, both the petitioner and the respondent lived together, without legal encumbrance or third party interference or without affecting third party rights. The man had signed in the ‘live birth report’ of his second child and given his consent for a Caesarean section for its birth. As such, he had officially admitted that she was his wife. The Court observed that for solemnising a wedding, legal aspects should be placed on a higher scale than the customary aspects. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship.
The earliest case in which the Supreme Court of India recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Deputy Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court has held that living together is a right to life. The Court held that how can it be illegal if two adults live together cannot be illegal. The Supreme Court in the D. Velusamy v. D. Patchaiammal case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. A Bench of Justice Markandey Katju and Justice T.S. Thakur in this case, held that any relationship can be considered to be “in the nature of marriage” if it fulfills the following criteria:
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age to marry.
- They must be otherwise qualified to enter into a legal marriage, including being unmarried.
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
After Madras High Court Judgment it is would be obvious for a layman to presume that any pre-marital sex is equal to marriage. But if we read the full text of the judgment, the court has held that either party in a relationship can approach a Family court, and if the Family Court declares the relationship as marriage, all legal rights which a wedded couple has, will also be applicable to this relationship.
 AIR 1978 SC 1557
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