Introduction – Historical aspect of live-in and marriages.
In recent times there have been many debates about marriage and live-in relationships. In order to reach a conclusion about both and to precisely contrast the both we need to first analyse the historical aspects of these two concepts. Since the earliest times marriages are considered to be the sacred everlasting union full of love and desire. This alliance was made with the aim of social and economic stability. Although the understanding of marriage contrasted greatly from culture to culture, its basic purpose continued to be the same. The main aim of the institution of marriage was to bind a woman to a man and to make sure that a man’s children were his true biological successor. Then, later on, with the increased importance of the catholic church the religion also started to become involved in the institution of marriage. Live-in relationships although, widely understood to be a new term but the concept of live-in relationships is ancient. Out of the eight types of marriages mentioned in the Vedas, one type known as the Gandharva Marriage would refer to a marriage for which a man and a woman mutually consented. Such marriages did not involve the families or any particular ritual to be solemnized but still, the responsibilities and commitments were similar to those flowing from a traditional marriage. Thus, both marriage and live-in are quite ancient institutions and neither of them has emerged recently.
Position of Live-In Relationship and Marriage in the world[1]
Over the years marriage has become quite a common institution across the world but live-in relationships are still often seen as a taboo and need to be normalized completely. Talking about the United States, prenuptial agreements have become quite common in America and the country gives the couples practising live-in relationships the same rights and obligations as a married couple. The same practice is followed in Denmark and Sweden as well. Canada recognizes live-in relationships as common-law marriages and all such couples get legal sanctity if they live together for twelve months consecutively or if they adopt or give birth to a child[2]. France allows live-in relationships in the form of PACS, a form of a contract drawn between two people which is stamped and registered by the clerk of the court[3]. Similarly, in UK, unmarried couples can formalize their status by signing a contract that provides the rights and obligations of the people towards each other. Even in China, no legal procedure is needed to end a live-in relationship but the rights of the children are the same as the rights of the children born out of wedlock. Thus, a lot of progress has been made in this regard but still, we have a long way to go in normalizing live-in relationships the way we see the institution of marriage.
The legal status of Live-in and Marital relationships in India
When placing live-in and marital relationships in a beam balance of legal status and determining as to which side is heavier in the 21st century keeping in mind the legal recognition given to both kinds of relationships, it is often noticed that the courts see live-in relationships with a pair of coloured glasses and, marriages as a well-established institution with negligible flaws.
The following are the basic components of marriage:
- the partners’ legal capacity
- mutual agreement
- a legally obligatory marriage contract
There is no one legal framework in India that governs the institution of marriage, especially to maintain the ideals of religious freedom and safeguard the basic traditions of the country’s many faiths and beliefs. The nuptial tie of two individuals is legitimised only after it has been sanctioned by the country’s existing laws, which are commonly referred to as matrimonial or marriage laws.
The vitality and diversity of India’s current marriage law, in keeping with the country’s diverse population, is a distinguishing trait. Based on religion, marriage regulations can be divided into different categories such as – The Hindu Marriage Act, 1955 which governs the marriage of a Hindu couple. The Muslim Marriages Registration Act, 1981 oversees the registration of Muslim marriages in India. Sikhs demand separate legislation that is unique to their religion after persecution by Hindus. The Special Marriage Act (hereinafter referred to as the Act) includes provisions for both the solemnisation and registration of marriages between two consenting adults. Section 4 of the Act, which is equivalent to Section 5 of the Hindu Marriage Act, 1955, specifies the requirements that must be satisfied for a marriage to be considered legally legitimate.
Live-in has become an active choice nowadays. Today, nearly every other couple in a serious long-term relationship cohabitates. Some people then decide to marry. A live-in relationship has the partners always living together with no obligations or commitments to each other. No rule binds them together. The Hindu Marriage Act, 1955, or any other law does not recognise a live-in relationship. In the absence of any statute, the court has taken the position that if a man and a woman live together as a couple for an extended length of time, the law will presume that they were lawfully married unless proven otherwise.
- Couples in a live-in relationship have the following legal rights:
- In several situations, the Supreme Court ruled that a couple living together for a set amount of time had the same legal rights as a married couple.
- Under the Domestic Violence Act of 2005, the Court has also granted a right to maintenance. Especially for the women and children involved in a live-in relationship.
- The Court has also held under Section 2 (f) of the Protection of Women Against Domestic Violence Act, 2005 that a live-in relationship falls under the phrase ‘relationship in the form of marriage.’
Marriage and Live-in relationships in the context of Indian society
Marriage, particularly in India, is an alliance between families, whereas a live-in relationship is primarily between two people. According to Indian society, commitment is a significant distinction in both partnerships. In its 2010 decision in Alok Kumar v. State & Anr[4], the Delhi High Court defined a live-in relationship as a “walk-in and walk-out connection.” “It is a contract of living together that is renewed every day by the parties and may be dissolved by any party without the permission of the other party, and one party can walk out at any time,” the court stated in its judgement[5] Raising children is an important part of Indian households. There are specific rules to control the rights of children in marriage partnerships, but there are currently no clear regulations governing the rights of children born to couples in a live-in relationship in India.
However, based on the precedent established in Supreme Court[6] and High Court[7] rulings, such children do have legitimate, support, property, and custody rights, as long as the cohabiting spouses satisfy specific conditions. Such precedents, however, can be contested in court and a new decision obtained. Bringing a child into a live-in relationship may be a complex affair if things between you and your spouse go wrong. A child’s rights, on the other hand, are fully protected in a marriage. However, if a marriage fails, custody disputes are frequently a source of contention in divorce procedures.
Therefore, due to all these factors, the level of acceptance given to live-in relationships in the present era is relatively less. However, the youth are actively choosing live-in relationships but the friction between the perspective of the society and the outlook of the upcoming generation somewhere or the other gives marriages an advantageous position as compared to live-in relationships.
Conclusion
India is known for its culture and values. Although, people have slowly started moving towards live-in relationships but still due to rigid societal perspectives the advent of such relationships is steady. Marital relationships have been an established institution but due to the increasing crime rate, many flaws in such relationships have surfaced thus giving way for the growth of other forms of cohabitation. Legal recognition plays a vital role in the establishment of any institution and such validation seems missing in the case of live-in relationships. Thus, still, there is a long way to go in order to bring both of them on an equal pedestal.
Author(s) Name: Geetanjali Anand (Nirma University, Ahmedabad)
References:
[1] Shreya Shrivastava, ‘An Analysis of the Legality of Deeds of Living Together’ (SCC Online, May 31, 2021) <https://www.scconline.com/blog/post/tag/Live-in-relationships/>
[2] Family Law Act of Canada 2005, s 29
[3] PACS Act of France, 1999
[4] Paragraph 6 Alok Kumar vs State & Anr. on 9 August, 2010. [online] Available at: <https://indiankanoon.org/doc/79779528/> [Accessed 16 September 2021].
[5] Paragraph 6 Alok Kumar vs State & Anr. on 9 August, 2010. [online] Available at: <https://indiankanoon.org/doc/79779528/> [Accessed 16 September 2021].
[6] Vidyadhari v. Sukhrana Bai-(2008) 2 SCC 238
[7] [ XXXXXXXXXX v. the State of Kerala, 2021 SCC Online Ker 1709, decided on 09-04-2021]
