Supreme Court’s Efforts to Mitigate the Stigma Associated With Live In Relationship
Earlier last year, the Supreme Court of India had thrown its weight behind live in relationships – a practice that is often frowned upon because of what could perhaps be called miscomprehended notion amongst a large chunk of our population about morality and ethical values.
On May 22, 2013, the apex court had observed that if a man and a woman in love decide to live together as a couple, it is well within their right to life and by no means can be deemed a “criminal offence”. Understandably the verdict must not have go down well with all Indians – especially considering how there are still many who genuinely believe that premarital relationship between a man and a woman is nothing but a sin! However, despite its inevitable failure to change such mindset amongst a sizable chunk of the population, the SC’s ruling was rather a significant one because it provided couples living in such arrangement with the much needed protection of the law of the land.
“If two people, man and woman, want to live together, who can oppose them? What is the offence they commit here? This happens because of the cultural exchange between people,” a special three-judge bench of chief justice of India K.G. Balakrishnan, justices Deepak Verma and B.S. Chauhan observed.
The court delivered this landmark judgment while hearing a petition filed by actress Khusboo to quash more than 20 FIRs filed against her by a number of Tamil forums and activist groups. Apparently, the South Indian cine star was brought amidst such legal controversies only because she uttered a few sentences in favor of live in relationships half-a-decade back.
Apparently, Khusboo commented during an interview that there was nothing wrong with “sex before marriage”, provided girls took adequate protection against uncalled for pregnancy and sexually transmitted diseases (STD).
Her detractors aggressively retorted by arguing that it was “offensive” and a source of “public nuisance” to ask males not to expect virginity from the women they would marry.
However, their argument failed to convince India’s highest judicial forum.
“If living together is an offence, then the first complaint should be filed against the Supreme Court, because we have permitted living together,” the court said in a rather stern manner.
The bench was referring to a 2006 judgment by the apex court that asked the police and administration across the country to safeguard runway couples from being harassed or intimated. The court even went a step further by directing the police to initiate action against anyone who resort to violence against such couples.
“It is part of right to life to go away with some one you love,” the bench remarked.
A rough overview of what live in relations are
Live in relation which can also be referred to as cohabitation, in essence, is an arrangement whereby two people agree to live together on a permanent or long term basis in a sexually and/or emotionally intimate relationship. However, that moniker is typically used to denote unmarried couples who live under the same roof.
Cohabitation or live in relationships have turned into a common pattern amongst people across the Western world. There are a multitude of reasons why a couple may want to live together. It may be because they want to evaluate their compatibility in a more practical way, or to establish financial security before officially tying the knot. Apart from that, it may be also due to legal constraints that would not allow them to marry – for example, if they belong to the same sex.
Certain individuals may also prefer to be in a live in relationship because in their opinion, relationships are their personal and private matters that ought not be controlled by religious, political and/or patriarchal institutions. Meanwhile, some may prefer cohabitation because such an arrangement does not legally compel them to be in the relationship for an extended period (live in relationships are often easier to establish as well as dissolve). In some jurisdiction, live in relationships are viewed legally as common law marriage – it may be applicable after the duration of a pre-specified period, or after the birth of a child, or for certain other legally defined reasons.
Live in relationships in India
In India, live in relationships have been a taboo right since the British raj. However, this is no longer entirely true amongst young couples in big cities like Bangalore, Mumbai, Delhi, etc. However, one can not deny that maintaining such relationships in most of the country’s rural areas would be nothing but to invite loads of unwanted attention, or may be even trouble.
The government, however, has been taking various measures for the past few years (especially after the intervention from the judiciary) to protect the interest of female live in partners. In one such move, the government had extended economic rights to women in live in relation under the Protection of Women from Domestic Violence Act 2005. Similarly, the Maharashtra state government in 2008 granted a proposal suggesting a woman involved in cohabitation for a “reasonable period” should be given the status of a wife.
In the same year, the Ministry of Women and Child Development was urged by the National Commission of Woman to include female live in partners in the definition of wife as described in the Section 125 of Cr PC. The objective of this recommendations was to harmonize various other sections of law with the Protection of Women from Domestic Violence Act, 2005. Justice Malimath Committee of the Supreme Court recommended that this be turn into a law by all states. The committee had observed that “if man and woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”
The Malimath Committee also recommended that the word ‘wife’ under Cr.P.C. be amended to include any “woman living with a man like his wife”.
In the Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others trial (2002), the Allahabad High Court ruled that “ a lady of about 21 years of age being a major, has right to go any where and that anyone-man and woman even without getting married can live together if they wish.” Similarly, in Patel and others case of 2006, the apex court had observed that cohabitation between an adult male and an adult woman without formal marriage should not be considered as an offence. In another case just two years later, Supreme Court ruled that if an unmaried couple of opposite sexes live together for a prolonged period of time, they can be considered as man and wife. Also, their child, if any, would be legitimate.
Scotland: The Family Law Act, 2006 for the first time officially identified and legalized cohabitation in Scotland. According to estimates. at the time when the law was passed, almost 150000 people across the country were involved in live in relationships. In case of such a relationship breaks, a cohabitant enjoys the rights to apply for financial support under section 28. In the event one of the partners die, the survivor has the right to seek financial support from the deceased’s estate.
France: Cohabitation is governed by the Civil Solidarity Pact of ‘pacte civil de solidarite” which was passed by the French National Assembly in October, 1999. According to the law, cohabitation in France is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as couple.”
The United States: Live in relationships used to be illegal in all states before 1970. However, soon after, it was accepted as a common law subject to certain basic requirements.
Canada: In Canada, cohabitation is officially recognized as “common law marriage”. In a lot of cases, the federal law of the country grants common law couples the same rights as married couples. All common law live in couples enjoy legal sanctity if they have lived together for a minimum of 12 consecutive months, or they give birth to/adopt a child.
United Kingdom: A man and a woman living together in a stable and consensual sexual relationship is often called “common law spouses”. According to the UK laws, live in couples owe one another more than that is worthy of the moniker. In the even the couple decides to separate, the courts do not have the legal power to override that decision.
Australia: The Family Law Act of Australia suggests that any “de facto relationship” can exist between two people of the same of different sex and also that a person can be in a de facto relationship even when legally in a de facto relationship with (or married to) another person.
Ireland: Even though living together is legally recognized in Ireland, public opinions are strictly against a new legislation that aims to facilitate legal rights for “separated” cohabitating couples to demand maintenance and/or share their property with the financially dependent partners. The legislation is applicable to same sex unmarried couples as well as couples from opposite sexes, provided they have been conhabitating for at least 3 years (or 2 years if they have children). The government, with this new legislation, plans to fetch financial and legal protection for financially dependent and vulnerable cohabitants in the event of break up or death.
Slowly and gradually, live in relationships are becoming popular in India – especially across all major cities. Unlike a few years back, when social norms was strictly against such relationships even in the urban areas, a lot of young couples these days are living together without marriage. The primary reasons behind cohabitation between unmarried couples in India, include:
● Young couples in love try it to know each other better
● Many try it to test their compatibility as a couple
● College students or young professionals also cohabit to limit their expenses (for example, house rent)
However, in the Indian society which more often than not misinterpret its traditions and customs, there are several disadvantages of live in relationships such as:
● It can be mistaken for a high tech adultery
● Because of lesser commitment, women in such relationships are often vulnerable to future sufferings
● A child resulting from such relationship may be subject to social stigma – especially if the father refuses to officially marry the mother.
● There are no legal provision for securing the future of children born from live in relationships.
● Rights, obligations and responsibilities of both parties are not clearly defined
● It is not clearly defined how long a live in couple must wait before being considered husband and wife.
● Live in relationships are often based on short term objectives, and therefore can dissolve at any moment. Hence, it can prove to be a failure in building a safe and secure society.
Cohabitation or live in relationship often tends to be a human rightist and individualistic approach. Despite being highly prevalent in majority of the western countries, the reality with regard to the social fabric of India is drastically different. This can be comprehend from the fact that in India, marriage continues to be the institution that is preferred to any other form of union. But that does not mean that adult unmarried couples who wish to live together under the same roof, should be prohibited or frowned upon for any reason whatsoever. The judiciary’s efforts to protect the interests of people living in such arrangements is definitely a welcome step for the greater benefits of the society.