Marital Rape under Indian Context, Essays (university) of Criminal Law

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Maintenance Under Section 125: Status Of Live in Relationship

(Project Report)

Hidayatullah National Law University,

Post Uparwara, New Raipur – 492002 (Chhattisgarh)

Submitted To:

Dr. Mohammad Atif Khan,

Assistant Professor (Criminal Procedure Code)

Submitted by:

RAGHVENDRA SINGH

Roll No.- 117

Section: A

Semester – VII

B.A.LLB (Hons.)

Date of Submission- 30 October 2021

Abstract

(^1) Section 125 (1) of the Cr.P.C. India is a“country with a diverse set of values, traditions, rituals, and beliefs that serve as major legal sources. Marriage is a sacred bond with legal consequences and high social respect. Marriage is an important component of Indian culture and a social institution. However, as time has passed, we have begun to adopt Western culture, which is vastly different from Indian culture.”In live-in relationship two heterosexual people agree to live together without committing to a formal institution such as marriage.“ Except for the criminal procedure code, no Indian legislation defines who is a wife, "Wife includes a woman who has been divorced by, or has sought a divorce from, her husband and has not remarried,".^1 Along with above description,“in this project report I basically want ito iponder ithe isocio-legal effect iof ilive-in irelationship iin iour iIndian icustomary isociety iand iI iwill idiscuss iall the laws related this chapter and legal status of live In relationship with respect to the maintenance laws under which the women has right under this relationship.” Key Words : Live-in relationship, Legal aspect, Cohabitation, Maintenance

1. Introduction

Indian isociety ihas iobserved ia idrastic ichange iover ithe iyears. iIndia iis isteadily iopening its idoors ito iwestern iideology iand icultures, iwith ithe iconcept iof ilive-in ipartnerships being one iof ithe imost iessential iepisodes iamong ithem. Live-in irelationship iis ia imarriage-like irelationship iin iwhich iboth ipartners ihave individual ifreedom iand ilive iin ia ishared iresidence iwithout ibeing imarried ito ieach iother. It iinvolves ithe iparties iliving itogether iindefinitely iwithout iany iresponsibilities ior commitments ito ione ianother. iThere iis ino ilaw ibinding ithem itogether, ithus ieither ipartner can iend ithe ipartnership iwhenever ithey iwant. iLive-in irelationship iis ione iof ithe iareas which iis iunder icriticism iand ihighly idebated iin iIndia iregarding iits ilegality iand implication ion ithe isocietal irelationships. iLong iterm icohabitation ibetween itwo imajor man and iwoman ihas ilong ibeen iequated ito ia ivalid imarriage. In iIndia, ithere iis ino ilegislation iwhich irecognizes ia ilive-in irelationship. iThe irights iand obligations iof ithe iparties iin isuch ia irelationship iand ithe istatus iof ichildren iborn iout iof such ia irelationship iare ialso inot idefined iin iany ispecific ilaw iin iIndia. Domestic Violence Act of 2005 guarantees the protection of female partner in a live-in relationship the right to protection, maintenance, and palimony if she files a complaint. As a result, the Judicial System has provided enough protection to female live-in partners and children of live-in couples. Although live-in relationships are unethical in Indian society, there is no law prohibiting them.^2 (^2) Rahman, W., 2021. LIVE-IN-RELATIONSHIP AND STATUS OF WOMEN IN INDIA. [online] International Journal of Law and Legal Jurisprudence Studies. Available at: <http://ijlljs.in/live-relationship-status-women- india/> [Accessed 16 October 2021].

2. Literature Review

This research contribute to the present writing if it is carried out after a thorough review of what is currently being written in the field. With this broad guideline in mind, and in order to make current research more focused, the officially available material on live-in relationships will be analysed by analysts by examining the substance and perceptions of various works on the subject. The following are some of the books and research papers that are mentioned:-  Jayanta Ghosh in book ‘Live in Relationship & Hindu Marriage: A Critical Legal Analysis’ (2015) The live-in relationship is regarded as a risk-free way of life. Because it raises a ruckus in an attempt to disrupt our traditional and cultural institution of marriage. examine holistically, elaborate on every nook and cranny of the Live in Relationship & Hindu Marriage system, and conduct an empirical study to analyse the goals. To define a border between live-in relationships and Hindu marriage, each option has its own meaning.^3  Wazida Rahman in her research study on ‘Live in Relationship and status of women in India’ (201 5 ) If the husband is in a live-in relationship, it is harmful to the legally married wife and her children, as well as to the woman who is forced to live in such an unrecognised relationship.^4  Beliza Ann Furman in her book ‘Test Driving Marriage: How to Tell If Your Live In Relationship Is Headed to the Altar’ (1998) She looked at the benefits and drawbacks of an unmarried, live-in relationship, offering advice on finances and setting up space, limits, and protection, as well as depicting a variety of living situations. She also provides solutions for adjusting the nuances of a casual marriage.^5 (^3) Ghosh, J. (2015). Live in Relationship & Hindu Marriage: A Critical Legal Analysis. Germany: Lap Lambert Academic Publishing GmbH KG. (^4) Rahman, W. (2021). LIVE-IN-RELATIONSHIP AND STATUS OF WOMEN IN INDIA. Retrieved 16 October 2021, from http://ijlljs.in/live-relationship-status-women-india/ (^5) Furman, B. A. (1998). Test-driving Marriage: How to Tell If Your Live-in Relationship is Headed to the Altar. United States: Barricade Books.

3. Objectives of the study

Live in relationships in“India have still not received the acceptance of the majority of people. They are still considered a taboo to the Indian society. At present there is no specific legislation that deals with concept of live in relationship and the rights of the parties and the children of the live in partners. Infect it was ambiguous concept until the Supreme Court of India took the initiative and declared that live in relationship though considered immoral but it is not illegal.” In view of all above facts, the followings are the major objectives: -

1. to define the conceptual framework and emerging dimensions Live in relationships neither a crime nor an offence a study with reference to right to marriage and privacy;
2. to identify various aspects of Live in relationships;
3. to review various law with special reference to Live in relationships neither a crime nor an offence;
4. to review the socio legal study with reference to Live in relationships;
5. to analyze observation and guidelines of the foreign courts, Apex/ Supreme Court and High Courts Judgments;
6. to analyze the available remedies of Live in relationships and their effectiveness in present day.

4. Research Questions

There are several questions that must be answered in order to render someone responsible for a live-in relationship, such as: -  What does it mean to be in a live-in relationship?  In the instance of a live-in relationship?  Under which laws the women under live in relationship is entitled to get the maintenance?  What are the grounds laid down by the court to get the maintenance under the Crpc?  What are the various remedies for those who have been victims of a live-in relationship?  What are the various remedies available under Indian law?  What does it mean to lie to the public about their marital status?

5. Reseach Methodology

The content will be written in a way that is impartial, systematic, and unbiased. To make the study competent, orderly, and methodical, all primary and secondary documentation sources shall be used. The Hypothesis will be assessed using international courts, the Apex/ Supreme Court, High Courts, and judgements relating to the Domestic Violence Act of 2005.

6. Sociological aspects of Live-in Relationship

Marriage is seen as a sacramental institution in India, so if a man and woman desire to live together, they must enter into the institution of marriage. In the 21st^ century, however, a new concept known as "living in relationship" has evolved. A live-in-relationship is a situation in which a couple live together but do not marry. This notion is very new in India, but it is rapidly gaining traction. Several Supreme Court decisions have recognised and legalised the concept of live-in relationships. It should be mentioned that live-in-relationships are not recognised in the Hindu Marriage Act, 1955 , and as a result, some individuals regard them as illegitimate. Living in a relationship, whether legal or unlawful, is highly subjective, particularly in India, where traditions are highly valued and breaking them is regarded as a sin.^6 India’s modern families are nuclear since most people relocate to cities, which has damaged India's social framework of marriage and family. The effect has grown to the point that individuals are marrying later owing to larger expectations in partnerships, and the worst part is that today's youth are less interested in marriage and are more focusing on live-in relationships, education, and livelihood. There is no doubt that the current generation is gifted and plays an important part in the country's development..^7 Living together has become more of a fad and a non-committal way of life, which has major repercussions for women's and children's position and rights, as they lack legal and social acceptance in society. The world still views India as a country where marriage holds a sacred status, both theoretically and practically. As a result, the purpose of this study is to highlight the implications of live-in relationships in India in light of recent judicial rulings.^8 (^6) Love 'live-ins' - Times of India. (2021). Retrieved 17 October 2021, from https://timesofindia.indiatimes.com/life-style/relationships/love-sex/love-live-ins/articleshow/6386392.cms? (^7) Changing Trends in Indian Marriage « Marriage. (2021). Retrieved 17 October 2021, from https://www.marriage.co.in/changing-trends-in-indian-marriage.html (^8) SC lays down conditions for women seeking maintenance in live-in relationships - The Times of India. (2021). Retrieved 17 October 2021, from https://timesofindia.indiatimes.com/india/SC-lays-down-conditions-for- women-seekingmaintenance-in-live-in-relationships/opinions/6786239.cms

7. Legality of Live in Relationship

In India, there is no specific legislation governing live-in relationships. There is no legislation that specifies the rights and obligations of parties in a live-in relationship, as well as the legal status of children born to such couples.“Because there is no legal definition of a live-in relationship, the legal status of such relationships is also unknown. The parties in live-in relationships in India have no rights or obligations under Indian law. Various judicial decisions, however, have clarified the concept of a” live-in relationship.^9 Though the law is still uncertain about the legality of such partnerships, a few rights have been granted by interpreting and altering existing legislations in order to prohibit partners from misusing such connections. Various laws are discussed below: - 7.1. Domestic Violence Act, 2005 According to the 2( f Section) of the Domestic Violence Act, 2005 , “ ‘ domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.^10 7.2. Criminal Procedure Code, 1973 Section 125 of the Cr.P.C. was enacted to protect a wife, minor children, or elderly parents from vagrancy and destitution, and it has now been extended to live-in partners by judicial interpretation.^11 In 2003 when the Malimath Committee submitted its report, it made several recommendations under the head “offences against women”.^12 One of its recommendations was to change the definition of " wife " in Section 125 of the Criminal Procedure Code. A correction was made as a result of this change, and now the term " wife " refers to women who were previously in a live-in relationship and whose partner has abandoned her at his will, allowing a woman in a live-in relationship to gain the status of a wife.^13 (^9) Saxena, A. (2021). Live-In Relationship And Indian Judiciary | SCC Blog. Retrieved 17 October 2021, from https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/ (^10) Section 2(f) of the Domestic Violence Act, 2005 (^11) Ajay Bhardwaj v. Jyotsna , 2016 SCC OnLine P&H 9707. (^12) Justice V.S. Malimath Committee Report, available at https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf, pp. 181-194. (^13) Chanmuniya v. Virendra Kumar Singh Kushwaha , (2011) 1 SCC 141.

7.3. Evidence Act, 1872 In the circumstances of the case, the court has the jurisdiction to presume the occurrence of any fact that it believes is likely to have occurred, taking into account the regular course of natural events, human behaviour, and public and private business. As a result, there is a presumption of marriage where a man and a woman live together for an extended period of time.^14

8. Rights of Women under Live-in Relationship

The tradition of couple living together without being in a formal married connection has been around for a long time. Men having live-in relationships with women outside of their marriage were not regarded "immoral." There are two types of live-in relationships: 'by choice' and 'by circumstance.' People who live together freely and by permission fall into the category of 'by choice.' However, when people live together as husband and wife by accident or deception, they fall into the category of "by circumstance." Live-in-relationships by choice have no legal issues because they do not require legal recognition, while live-in-relationships by circumstance have a number of issues due to misunderstandings about the legal status of marriage.^15 Live-in relationships may have been frowned upon in Indian society in the past. However, the increasing number of such couples suggests a level of acceptance. Women, on the other hand, continue to be the losers. In comparison to marriage, a live-in relationship does not confer husband and wife status. Couples who live together are referred to as partners solely. They cannot claim rights such as marital rights, right to divorce, right to support, property rights, religious rights, societal rights, and so on unless they have a legal standing. The Justice Malimath Committee (2003)^16 suggested to the Law Commission of India that a woman might claim alimony under Section 125 of the Criminal Procedure Code if she has been in a live-in relationship for a long time. (^14) Section 114 of the Evidence Act, 1872. (^15) Rahman, W. (2021). LIVE-IN-RELATIONSHIP AND STATUS OF WOMEN IN INDIA. Retrieved 16 October 2021, from http://ijlljs.in/live-relationship-status-women-india/ (^16) Justice Malimath Committee Report (2003)

9. Judicial Approach regarding the Live-in-relationship

Article 21 of the Indian Constitution guarantees all citizens the “ right to life and personal liberty ,” which means that they are free to live their lives as they like. Although in the views of orthodox Indian society, live-in relationships are unethical, they are not “ illegal ” in the eyes of the law. In rare circumstances, courts have granted limited recognition to such relationships. The Indian judiciary's goal is to provide justice to the participants in live-in relationships who were previously unprotected by any statute when they were subjected to abuse as a result of such partnerships. The judiciary is neither explicitly supporting nor banning such relationships. However, it is just concerned that there be no miscarriages of justice. There are certain relevant landmark cases decided by the several courts to understand the judicial approach on live-in-relationship: -  Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy^17 The Privy Council took a stand that, “where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage”.  Badri Prasad vs. Dy. Director of Consolidation^18 The Supreme Court of India recognised a live-in relationship and considered it as a legal marriage in this case. In this instance, the court upheld the legality of a couple's 50-year relationship. Justice Krishna Iyer ruled that “where the couples have lived together as husband and wife for a long time, there is a strong presumption in favour of marriage. Although the presumption can be refuted, the person who wants to deprive the connection of its legal origin bears a significant burden”.  Tulsa & Ors vs. Durghatiya & Ors^19 (^17) AIR 1927 PC 185 (^18) AIR 1978 SC 1557 (^19) AIR 2008 SC 1193

In this case the Supreme Court held that “Children born from a live-in relationship now have legal status, according to the Supreme Court. One of the crucial pre-conditions for a child born from a live-in relationship not being treated as illegitimate is that the parents must have lived under one roof and co-habited for a significant period of time for society to recognise them as husband and wife, and that the relationship cannot be “ walk in and walk out ”. As a result, the court gave a kid born out of a live-in relationship the right to property”.  D.Velusamy vs. D.Patchaiammal^20 The judgement determined Certain criteria must be fulfilled in order for a live-in relationship to be declared legal. It states that a couple must present themselves to society as spouses and must be of legal marriage age or qualified to engage into a legal marriage, even if they are unmarried. Here, the court relied“on the concept of ‘palimony’ which was used in the USA for grant of maintenance in live in relationships. The concept of palimony was derived in the case of Marvin vs. Marvin , a landmark judgment of the”California Superior Court.  Indra Sarma vs. V.K.V.Sarma^21 In this“landmark judgment, a bench headed by Justice K. S.Radhakrishnan framed guidelines to take along the live in relationship within the expression “relationship in the nature of marriage” for the protection of women from” Domestic Violence Act 2005. The guidelines are as follows: -

1. A domestic relationship between an unmarried adult male and adult female. It's the most basic type partnership.
2. If the Couple entered in to the relationship voluntarily.
3. Intentionally entered domestic connection between an adult unmarried man and a married lady. Adultery can be prosecuted under the Indian Penal Code if such a relationship exists.
4. An unknowingly entered domestic partnership between an unmarried adult female and a married male.
5. A domestic connection between spouses of the same sex (gay or lesbian). (^20) Criminal Appeal NOS. 2028-2029 OF 2010 (^21) (2013) 15 SCC 755.

10. Conclusion

The decision to marry or not to marry, as well as the decision to be in a heterosexual relationship, is a private and personal one. Domestic Violence Act 2005 will also apply to their partnership. As a result, it is evident that a live-in relationship is not the same as a marriage. However, since there's no distinct laws in India fora live-in-relationship, Although the concept of a live-in relationship is morally questionable in India, it is not against the law. The Supreme Court ruled that it is not illegal for two major persons to live together because it is their right to life. Under the Protection of Women from Domestic Violence Act, 2005, the court has defined live-in relationships as "relationships in the nature of marriage" in order to protect women and children born out of them. In a landmark case, Indra Sarma vs KVK Sarma^22 , Honourable Supreme Court of India, held that “a live-in relationship requires effective and adequate protection, especially the female partner and the children born out of such relationships, as it may sustain for a long time and can result into vulnerability and dependency”.  Suggestions Need of Legislations on Live in Relationship The Indian Court's decisions are conscientious, as in some cases, the Courts have remarked that the live-in relationship should have no bondage between the men and women, whereas in other cases, the Court has taken the opposite stance, holding that if a relationship continues for a satisfactory and reasonably long time, the couples should be considered married. There should be a distinct statute dealing with this current situation to protect the rights of living partners, children born out of such relationships, and anybody else who may be harmed by such a relationship. Only those live-in partnerships that meet certain minimum conditions should be granted legal status. At the same time, live-in partners should be aware of the legal implications of their living arrangement. (^22) (2013) 15 SCC 755.

11. References

 Acts

1. Indian Penal Code, 1860

2. Protection of Women from Domestic Violence Act, 2005

3. Code of Criminal Procedure, 1973

4. Indian Evidence Act, 1872

5. Hindu Marriage Act, 1955

 Books

1. Ghosh, J. (2015). Live in Relationship & Hindu Marriage: A Critical Legal Analysis. Germany: Lap Lambert Academic Publishing GmbH KG.
2. Furman, B. A. (1998). Test-driving Marriage: How to Tell If Your Live-in Relationship is Headed to the Altar. United States: Barricade Books.  Articles
3. Lesley Gordon, Jenny Nobbs, “Cohabitation: the new legal landscape”.
4. Chetan Tripathy, “Live in Relationship- Review and Analysis”.
5. Wazida Rahman, “Live-in-relationship and the status of women in India”.  Websites
6. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian- judiciary/
7. 2016 SCC OnLine P&H 9707.
8. https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf
9. https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf
10. https://www.legalserviceindia.com/legal/article- 4855 - concept-of-live-in-relationship- and-maintenance.html