No doubt exists as to that the people in India have lived together beyond and outside marriage even in the past. But the present scenario is different in two aspects – firstly the relationships in earlier days were kept secret and mostly involved an already married person. So those relationships cannot be brought within the modern day “live-in arrangements”. Now, unmarried couples stay together openly, enjoying a married life, just lacking the formal ceremonial nature of marriage. The Apex Court soon realized that the people who decide for such relationships may face legal issues as in cases of marriage. It is not only the question of monetary claims or maintenance, protection from all forms abuse but above all a right to live a dignified life as secured by Article 21 of the Constitution. The fundamental right to live with dignity and respect exists so far as married couples are concerned as well as those who opt for live-in relationships.
Section 125 of Cr PC, 1973 and The Protection of Women from Domestic Violence Act, 2005 are the two important pieces of legislation in India, which impliedly recognize it. Both of them seek to achieve the social purpose of endowing the women with certain basic rights such as maintenance, protection against various forms of abuse and violence, and so on. Section 16 of the Hindu Marriage Act, 1955 and Section 114 of the Evidence Act, 1872 accord legitimate status to the children born out of such relationship.
All the provisions under different legislations and their liberal interpretation basically emerge from Article 21 of the Constitution of India. The old precedent of 1978 reminds us of sensible and aware judiciary where the Supreme Court in Badri Prasad v. Dy. Director Of Consolidation opined that a strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Since then, in a number of instances, the Hon’ble Court has time and again taken a stand to uphold the rights of women who though not married formally or fail to prove it with evidence.
The latest instance of the Apex Court taking an advanced step can be noticed in its judgment relating to a property dispute (decided on 13th April, 2015 by Division Bench of Justices M.Y. Eqbal and Amitava Roy) where it accorded property rights to a woman living without lawful marriage with the deceased for 20 years (in the joint family). It was ruled that a couple living together for a number of years would rightfully lead them to presume that the couple was, for all intents and purposes, married. The Court illustrated a responsive attitude by holding that the woman in the relationship would be eligible to inherit the property after the death of her partner. It reiterated that it is well-settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin.
With regard to The Protection of Women from Domestic Violence Act, 2005, the cases where benefit of the legislation has been given to women considering them as wives are –
- D. Velusamy v. D. Patchaiammal, (decided on 21st, October 2010 by Division Bench of Justices Markandey Katju and T.S.Thakur) and then in
- Indra Sarma v. V.K.V.Sarma (decided on 26th, November, 2013 by Division Bench of Justices K.S. Radhakrishnan & Pinaki Chandra Ghose).
The Court has also given a wide interpretation to Section 125 of Cr PC, 1973. It has reiterated that destitution can be prevented only by a beneficial interpretation such as in Chanmuniya v. Chanmuniya Virendra Kumar (decided on 7th, October 2010 by Division Bench of Justices G.S. Singhvi & Asok Kumar Ganguly) by granting maintenance to a female, being a live-in partner. The Bench observed that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C, so as to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125. Such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely- social justice and upholding the dignity of the individual.
The active vibrant outlook of the Supreme Court has also been reflected while granting the children a legitimate status even without formal marriage of their parents. In Madan Mohan Singh v. Rajni Kant (decided on 13th, August 2010 by Division Bench of Justices P. Sathasivam & B.S. Chauhan) legitimate status was conferred by the Supreme Court upon the child born out of live-in-relationship (Section 114, Evidence Act, 1872). The Court further observed that the live-in- relationship if continued for such a long time, cannot be termed in as “walk in and walk out” relationship and there is a presumption of marriage between them which the appellants failed to rebut. Again in Uday Gupta v. Aysha, (decided on 21st, April 2014 by Division Bench of Justices B.S. Chauhan & Chelameswar) the Apex Court repeated that social status of legitimacy is conferred on a group of children born to a man and woman living together for a long time as husband and wife. The higher judiciary thus has been responding to the transforming social patterns in the most rightful manner.
The woman who has a relationship with a married male would still be entitled to relief under The Protection of Women from Domestic Violence Act, 2005 . The children of such relationship too have legitimate status. As in Indra Sarma v. V.K.V.Sarma, the Supreme Court denied the maintenance relief to the woman having a relationship with a married male so as to protect the rights of legally wedded wife ; and in Savitaben Somabhai Bhatiya v. State Of Gujarat And Ors (decided on 10th March, 2005 by Division Bench of Justices Arijit Pasayat and S.H. Kapadia) where The Apex Court declined to confer benefit of maintenance to a female with a married male but ordered maintenance to the child born out of such relationship.
The mere conferment of legal benefits such as protection from abuse, grant of maintenance and grant of legitimate status to their children is not sufficient unless the society too treats all women at par. The passionate, reformist and reactive stance taken by the judiciary, must commensurate with equally dynamic social mindset.
The post first appeared in LawZ , May,2015.
Image from here