The world is changing at a rapid pace. Let it be technology, culture, education, religion and even marriage. The trend of liv-ins is probably new to our country and thus various questions and challenges are bound to obstacle this phenomenon. Marriage is a sacred event in the life of both Hindus and Muslims who are a major chunk of the population of India. Due to the fast paced life more and more people primarily in metro cities are shifting towards liv-in relations where a couple starts residing in the same house and carries on activities of a married couple, just that they dont marry. It might be practical as the couple are not compulsarily bound to each other and further it might reduce the occurence of domestic violence and eliminate vices like dowry but on the whole it has given India a Big Cultural Shock.
The Bombay High Court, recently on 16.09.2009 in Abhijit Bhikaseth Auti v. State of Maharashtra and Anr., held that it was not necessary for the woman to strictly establish the marriage to claim maintenance under Section 125, CrPC. This progressive judgement by Justice Abhay Oka is yet another strive towards securing legal recognition to live-in relationships at par with marital relationships.
A Global View
The boundaries between marriage and cohabitation are being debated intensely across the globe. Since 1999, unwed couples have received legal recognition in France. In Scandinavian countries, being unmarried is increasingly the norm. In Italy, a law for the first time grants some legal recognition to such couples. Article 147, of the Family Code, Philippines provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
Prevalent Norms
India, however, is known for its moral and traditional values. According to age old Indian ethics, man and woman are not allowed to live together unless they are married. Indian culture still perceives live-in relationship sacrilegious. For decades, laws in India have displayed an unwillingness to enter the private space between men and women. Not surprisingly, Indian laws are hardly ready to address this issue. The entire gamut of laws, the personal laws like Hindu Marriage and Adoption Act, besides some other harassment laws—nothing recognises live-in relationships
The attitude of the court had also been negative. Various High Courts across the country have opined that a presumption of marriage in law arises only when the factum of marriage is proved or some evidence has been established to prove the fact of performance of a marriage function. Some of these are: Narayanamma v. Suryapandurangappa, (1969) Deivanai Achi v. Chidambaram Chettiar, (1954), Yamunabai v. Anantrao,(1988), Sumitra Devi v. Bhikan Choudhary, (1985) .
In Gokul Chand v. Parvin Kumari, (1952), the Apex Court held that a petition under S.125, Cr.P.C. is maintainable at the instance of the wife only when she establishes that she is the wife. A concubine is not entitled to file a petition under S125, Cr.P.C. of maintenance against her paramour.
Modern societies face modern challenges
Live-in relationship, in its present form, is new to India. Some claim that the culture has reached India from Western shores. Some cities like Delhi, Mumbai, Pune and Bangalore already have a huge population of youngsters in live-in relationships. Besides these big cities, the trend has caught on at other places, as well. These young men and women who are away from home without any family or local guardians fall back on such arrangements due to circumstances. Apart from emotional support, they get to pool up finances for accommodation. There will also be some savings as the expenses are shared between the two people. Besides, help is always available in case of any distress. The far and wide bridge that existed between Indian marriage system and western world until recently is slowly dwindling. Such arrangement seems to be the growing need of the day.
A Quick Reminiscence
Gujarat for a long time had Maitri Karaar or a ‘friendship contract’ entered into voluntarily between a man and a woman, which decreed that the woman would exercise no claim on the man during or after the relationship beyond ‘friendship’. The man in such relationships was always married while the woman was single and most often responsible for the upkeep of her parental family. As she knew that she could never marry, she and her family willingly consented to such a contract because this was the only way she could enjoy a physical relationship with a man. It offered the married man a convenient plea to take on a mistress without the responsibilities incumbent upon a husband. The signed contract specified the period of liaison and had sub-clauses like neither of them having any claim to the other’s property. Children were not usually a part of this relationship. But at the end of the day, it was the woman who bore the brunt when the man went back to his legally sanctioned family. In many cases, he kept his links with both, his Maitri Karaar ’friend’ and his legally wedded wife.
The Domestic Violence Act covers Live-in relationships
No law, presently, deal specifically with the concept of live-in-relationships and their legality. Still, under The Protection of Women from Domestic Violence Act, 2005, all benefits are bestowed on woman living in such kind of arrangement by reason of being covered within the term “domestic relationship” under Section 2(f). The Domestic Violence Act provides protection to women at the hands of their husbands as well as live-in partners, and his relatives. When the law came into force in October 2006, it did not distinguish between the woman who is married and the woman who is in a live-in relationship.
It is the only Central act, which goes beyond traditional relationships under which a live-in partner has equal rights as a wife and can claim shared residence, maintenance and compensation, protection against abuse. The Act is very wide in its scope and includes economic abuse as well. If any economic assistance that is entitled to the aggrieved is denied, that also constitutes domestic violence. In fact, the Act also includes emotional abuse. But the Domestic violence Act just provides protection it does not give social and legal legitimacy to a live-in partner.
Changing views: Recommendations & Proposals
The Malimath Committee was formed by the Centre to suggest reforms in the Cr.P.C. Justice Malimath Committee’s recommendation to the Law Commission of India in 2003 states that if a woman has been in a ‘live in’ relationship for a reasonable period, she should enjoy the legal rights of the wife.
In June, 2008 in response to recommendations made by the Ministry of Women and Child Development, the National Commission for Women (NCW) sought a change in the definition of ‘wife’ as described in Section 125 of the Criminal Procedure Code (Cr.P.C), which deals with maintenance. The NCW recommended that women in live-in relationships should be entitled to maintenance if the man deserts her.
On 8th October, 2008 the recommendation of the Malimath Committee was accepted by the Maharashtra government. Taking forward its decision to give some sanctity to live-in relationships and ensure that women in such relationships are not taken for a ride, the Maharashtra government proposed to amend Section125, Criminal Procedure Code (Cr.P.C) and expand the definition of the word ‘wife’ to include a woman living with a man like his wife for a ‘reasonably long’ period.
If the government walk the talk, it would allow the woman in such a relationship to be entitled to alimony if the relationship breaks down as it legalises a live-in arrangement. Of course, it would need the Centre’s stamp of approval before it can become a law. Since the CrPC is in the concurrent list, the state cabinet proposal has been sent to the Centre for obtaining the President’s assent.
However, Debate in the Lok Sabha On 15th December, 2008 in the question hour, Mr.H.R.Bhardwaj, Union Law Minister (as he then was) while answering to the question related to live-in-relationships said that if live-in- relationships are acceptable by society, then the government can make laws. Laws are made keeping in view societal trends. It is hypothetical to ask a question whether we are contemplating a law to govern live-in relationships. Less than one percent of the people are in such relationships. If a law is enacted, it will only be misused.
Judicial Trend
As early as 1927 in Dinohamy v. WL Blahamy the Privy Council, laid down that where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
The Council made significant additions to the 1927 ruling in 1929 in Mohabhat Ali Vs Mohammad Ibrahim Khan. It said: “The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years.” For a live-in couple to be considered validly married, the court wanted evidence of cohabitation for a number of years, without specifying the minimum number of years.
In Badri Prasad v. Dy. Director of Consolidation and Ors. (1978), the Supreme Court recognised a live-in relationship as a valid marriage, accusing the authorities of questioning a relationship 50 years after the couple had begun living together, and were treated as a married couple even by their relatives.
In a path-breaking judgement of Payal Sharma Vs Superintendent, Nari Niketan, and others, in which a court stated in 2001 that a live-in relationship was not illegal. The Allahabad High Court on 4th March 2002 came up with a bold judgment by stating that anyone, man or woman, could live together even without getting married if they wished.
In Koppisetti Subbharao Subramaniam Vs. State of A.P., the Supreme Court extended the protection against dowry under Section 498 A of the Indian Penal Code to women living in such relationships. It said that ‘the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship’. Drawing parallels with the law which recognises the legitimacy of children born of void and voidable marriages, it explained its stand asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise?” This judgment seems to go a long way in saying that men can’t dodge either responsibility or liability to women they live with by simply not getting married to them.
In January 2008, the Supreme Court validated long-term live-in relationships as marriages. A Supreme Court bench headed by Justice Arijit Pasayat with P Satasivan declared that children born out of such a relationship will no longer be called illegitimate.
The recent ruling in Abhijit Bhikaseth Auti v. State of Maharashtra and Anr. is only the latest in a series of recommendations by various bodies seeking equal rights for the married woman and live-in female partner.
Conclusion
On one hand when the judiciary is redoing its liberal face with the recent ruling of Justice Oka of Bombay High Court and Delhi High Court’s decision in Naz Foundation v. Government of NCT and Ors., (2009) to recognise same sex relationships, the need for a legal provision is felt to secure the future of a child born from a relationship which has not taken the shape of marriage. The Hindu Marriage Act, 1955 gives the status of a legitimate child to every child whether result of void, voidable or valid marriage. However, a legal provision is required to grant property and maintenance rights. The child is entitled to get a share in the property of both the father as well as the mother who may decide to move out of the live-in arrangement.
The recognition of the live-in relationship would allow a ‘mistress’ to get the status of a legally married wife in all matters, including share in property, inheritance, maintenance. Nevertheless, this essentially goes contrary to the Hindu Marriage Act, 1955, which has no provision for a second wife among Hindus. Moreover, once live-in couples invoke the proposed amended law, it would mean an admission on their part that there is a ‘second wife’ - which is again not permitted as per the Hindu Marriage Act, 1955.
Further, the judiciary, the Malimath Committee Report and the Maharashtra government’s proposal are all fuzzy on the duration of cohabitation. Since the term “reasonably long” period of live-in relationship in the proposed law has not been quantified, it is left open to varied interpretation.
The very idea of cohabitation is that the partners don’t want commitments and responsibilities that come with marriage. In that case, we cannot expect social and legal bond to a relationship that by definition can be terminated at will. Any decision to bring change in Section 125, CrPC with regard to live - in - relationship invites amendments in other laws as well including law of evidence, succession, adoption, bigamy, marriage etc. Therefore, if even inspite of no relationship in the eyes of law (marriage), one has to be made liable to pay maintenance after a reasonable time period.
No comments:
Post a Comment