1. Section 40 of the Indian Penal Code, 1860 (the IPC or the Code) defines “offence“. It provides that, “except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code”. Therefore, something which is punishable by IPC is an “offence” within the meaning of Section 40 thereof.

2. This article is not concerned with exceptions of Chapters and sections mentioned in clauses 2 and 3 of Section 40.

3. Section 375 of IPC defines rape. Section 376 of IPC provides punishment for rape. Thus, rape being punishable by Code is an “offence“, within the meaning of Section 40 thereof.

4. Exception 2 to Section 375 provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Since this article is not concerned with an underage wife, one can simply state the exception 2 to Section 375 to mean that sexual intercourse or sexual acts by a man with his own wife, is NOT rape, irrespective of age issue, which has otherwise been matter of consideration by Hon’ble Supreme Court in the case of Independent Thought.

5. Thus, the thing covered by exception 2 to Section 375 is not an “offence” under Section 40.

6. Certain Writ Petitions have been filed before Delhi High Court in the lead case of RIT Foundation v. Union of India and similar Petitions challenging the aforesaid exception 2 to Section 375 as being unconstitutional and seeking a declaration to that effect.

7. An endeavour is being made in this article to demonstrate that aforesaid Petitions are neither maintainable in law nor otherwise tenable on merits. It may be stated that, though, if a Writ Petition is not maintainable, to start with, there is no occasion to go into merits of the matter. Nonetheless, merits of the matter are independently examined in this article, to see the basic merit of the matter, from an alternative point of scenario.

8. It is possible for an aggrieved party or for a public spirited individual or an organization to file a Writ Petition, challenging the validity or constitutionality of a provision. Such a Petition would be a Petition, such as the one challenging Section 377 of IPC. The underlying premise of such challenge is that certain provision of criminal law has unnecessarily criminalized something, which ought not to be a crime.

9. In such a challenge, it is open for a Constitutional Court under Article 226 of the Constitution to strike down the provision challenged or read down the same, to save it from the mounted challenge on the ground that the same is unconstitutional and hence invalid.

10. However, a question arises in the present context as to whether a Petition can be filed challenging something which is an exception to a crime and seek deletion thereof so that the excepted things becomes a crime. In other words, would a Writ Petition seeking to criminalized a thing, which is so far not a crime, is maintainable in law.

11. In the considered view of the author, such a Writ Petition by its very nature is not maintainable in law, speaking conceptually.

12. Declaration of something as a crime or an “offence” is a matter, which solely rests in the domain of legislature. It is entirely up to the legislature, whether to criminalize something or not. If the legislature chooses not to criminalize something, no writ of mandamus would lie against it to command it to criminalize something or otherwise criminalize it by way of a declaration or like.

13. For instance, begging is not a crime in India. A Writ Petition cannot be filed seeking a declaration that begging be made into a crime punishable by law. It is entirely up to the legislature whether to criminalize it or not.

14. However, once criminalized, it is open to Constitutional Court to examine whether such criminalization is good or bad in law or constitutional or unconstitutional, which is part and parcel of power of judicial review vested in the judiciary.

15. As happened in the case of begging itself, which was criminalized by a particularly legislation, which upon being challenged was struck down by Delhi High Court as in the case of Judgment of Justice Gita Mittal of Delhi High Court in this regard.

16. But is it not possible the other way around that someone get something declared as a crime by a Court of law, which otherwise is not a crime. This is not only unheard of, but also conceptually inconceivable and constitutionally impermissible.

17. Therefore, on the face of it, the Writ Petitions filed before Delhi High Court are not maintainable in law and ought to be dismissed without examining merits of the matter.

18. Assuming for the sake of arguments, while contending to the contrary, such Writ Petitions are assumed to be maintainable, nonetheless such Writ Petitions have no merits in it. This is for innumerable reasons. Some of these reasons are discussed now.

19. Firstly, Indian Penal Code is a criminal code and ought to be interpreted strictly. Even on interpretation, if possibly, two views are possible, whether an act or omission is a crime or not, that view must prevail, which holds that the act or omission complained of is not a crime. The principle of strict construction applies with much force and vigor in criminal law than in any other law. After all, criminal law affects the life and liberty of people.

20. Secondly, exception 2 to Section 375 is an exception and not an exemption. The difference between exception and exemption is a qualitative difference of nature and not quantitative difference of degree. An exception is something which is not part of the Rule. An exemption is something which is part of the Rule but excluded from the Rule for an artificial reason.

21. Thirdly, rape is primarily defined as an act of forcible intercourse by a man either against the `will’ of the woman or against her `consent’.

The moment a man and woman enters into the contract of matrimony, there is no occasion to say that any forcible intercourse thereafter, by the man is against the `will’ of the woman. In other words, the very fact that the woman has entered into matrimony with the man, converts them into wife and husband relationship borne out of wedlock. In such a relationship of matrimony, there is no question of anything happening against the `will’ of the wife in the legal sense inasmuch as by having voluntarily agreed to get married, the woman who has now become wife has given her `will’. This appears on first principle.

This in any case is also supported by Section 376B. Section 376B deals with an “offence” of sexual intercourse by a husband upon his wife during separation. Section 376B creates an “offence” only if the act complained of is, without her `consent’. Section 376B does not get triggered if it against the `will’ of the wife. In other words, law itself in the shape of Section 376B recognizes that the `will’ of the wife is present in a marital relationship and the only issue is about `consent’.

22. Insofar as the issue of act of intercourse, without `consent’ is concerned, it needs careful examination as to whether such `consent’ of wife is needed before every act of intercourse or there is something in the very marital relationship itself, which takes care of the same expressly or impliedly or otherwise.

23. The very idea of the marriage is to consume it. Failure to consume the marriage can lead to dissolution of marriage.

24. It is to be noted that either of the parties to a marriage can upon desertion by the other party apply for restitution of conjugal rights. The very idea of restitution of conjugal rights as a legal right, coupled with a remedy enforceable at law, is premised, irrespective of the consent of the parties. So long as there is a right, there is a remedy. So long as that right is there, remedy can be enforced, without consent of the other party. This would demonstrate that consent is not material for restitution of conjugal rights in matrimonial relationship.

25. Further, marriage as a relationship is based on the give and take relationship of the parties. Traditionally speaking, in a marital relationship, man provides for the needs of woman in terms of resources for food, clothing and shelter and woman in turn provides for man’s need for companionship. This relationship of give and take is not based upon consent of either party. There is no one to one co-relationship between one party providing for something in order to get something in return from another party. By its very nature the relationship is strong yet subtle, continuing yet renewing, contractual yet unlike any other contract.

26. Even though, the traditional basis of marital relationship has undergone a sea change, the underlying foundation or premise remains the same. It is something like, more the things changes, more they remain the same. Even though, there may have been cases of tectonic shift to the extent that the woman becomes bread earner and man takes care of the home, nonetheless, the fundamental premise remain the same i.e. civil union of opposite sexes. In any case, predominantly the traditional method, manner of marriage remains the same, be it as urban phenomena or as a rural pastime.

27. Therefore, it appears that the relationship is such that there is no requirement of `consent’ before every act of intercourse, though it may be utopian in an imaginary evolved society, which will never exist.

28. Even assuming that something is forcible and without consent (in the non-legal sense), it may be anything but rape. The very idea of marital rape is misnomer in itself. There is either a marriage or a rape. It cannot be both, as the law stands. It cannot also be both theologically or philosophically, even if the law is to be altered.

29. In fact, take a hypothetical situation that there is a separate non-descript “offence” created by legislature dealing with the act of forcible intercourse between married parties and the aforesaid exception 2 to Section 375 is absent from the statute book, it would still be open for an aggrieved party (husband) to challenge the same, seeking decriminalization of the same on any of the aforesaid grounds or on host of other grounds and such challenge may be successful, both logically and legally.

30. At this stage, the judgment of Hon’ble Supreme Court in the case of Independent Thought v. Union of India and Others – (2017) 10 SCC 800 is required to be referred to. The said judgment deals with Exception 2 to Section 376, insofar as it deals with sexual intercourse by a man with his own wife, aged between 15 and 18 years. The said judgment struck down aforesaid Exception 2 to Section 376, insofar as aforesaid age bracket is concerned.

31. Certain important things about above judgment are, firstly, the judgment makes it very clear that it is not dealing with the issue of marital rape of a woman, who is 18 years of age and above, since that issue was not before the Supreme Court. The judgment explicitly clarifies that the issue of marital rape is not even touched collaterally (Para 2 of Reported Judgment, also see Para 114 and Para 196). Secondly, the judgment confirms that Courts cannot create an offence (Para 190 of the Reported Judgment). Thirdly, the Court clearly holds that it is not creating any new offence (Para 191 to 194 of the Reported Judgment). Fourthly, at the cost of repetition, the Court observes that it is not commenting upon the issue of marital rape, one way or the other (Para 199 of the Reported Judgment). Fifthly, the judgment recognizes that historically speaking, even under English law, in spite of there being no statutory exception like Exception 2 to Section 376, nonetheless by a principle known as Hale’s principle named after Chief Justice of England, Sir Mathew Hale, recognized that a husband cannot be said to be guilty of raping his own wife, by laying down as below:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract”

The aforesaid principle was followed in England for many years for more than two centuries. This was based on the proposition that the wife gives up her body to her husband at the time of marriage. It was also presumed that upon marriage, a woman had given her irrevocable consent to have sexual intercourse with her husband.

32. At first blush, it appears as if there is no difference between the issue before the Supreme Court in Independent Thought and in the challenge to marital rape. The difference between the two is also obvious in one sense i.e. that Independent Thought itself recognizes the same. However, on a proper and deeper analysis, it would be revealed that there is a qualitative difference between the two, which though subtle is yet perceptible and of course logical.

33. Insofar as the right of privacy claimed by the Petitioner’s before the Delhi High Court is concerned, the said right, which is held to be fundamental right, as part of Article 21, is a right against the State. The said right, in no manner is against the husband. It goes without saying that State is not husband and equally, husband is not State. Therefore, question of claiming any fundamental right of privacy against the husband does not arise.

34. Fundamentally speaking, there is no compulsion to marry, whether statutorily or contractually. It is a voluntary union of opposite sexes. In the absence of any compulsion, question of claiming any right arising out of such voluntary union against the other partner in the relationship does not arise.

35. Matter can also be looked at from another angle i.e. what about husband’s right of privacy. Right of privacy is certainly not gender biased. If right of privacy is gender neutral, would not a husband have a fundamental right to privacy in his marital relationship? Can the husband not claim that State has no business to enter into his bedroom armed with a penal stick in its hand, more so, when the relationship between him and his wife is, contractual, mutual and voluntary. The very nature of the relationship speaks for itself.

36. In fine, without questioning the institution of marriage, criminalizing so called marital rape, is nothing but stark illegality, absurdity apart and in any case unconstitutional.

“From the beginning the objective of establishing family courts was to provide speedy disposal of cases involving problems faced by women who were traumatized by marriages that had turned bitter.”

-National Commission for Women

The 1980s were a period of great upheaval in the womens movement in India. The infamous Mathura rape case led to a consolidation of womens groups at the national level, with Parliament eventually enacting the Criminal Law (Amendment) Act, 1983 in response to the outcry. The issue of womens rights stayed very much at the forefront through the decade, with movements around Sati (subsequent to Roop Kanwars immolation), environmental concerns, and the issue of dowry inter alia. The Family Courts Act, 1984 [“1984 Act”] was enacted in this context, and was in keeping with the spirit of the times. The idea was to recognize the difference in the nature of family disputes and ordinary civil suits, and facilitate resolution of the former accordingly. In Abdul Jaleel v. Shahida, 2003 (3) SCR 498, [“Abdul Jaleel”]. the apex court expounded on the underlying principles based on which the 1984 Act was drafted. It opined that the Act brought in an approach which was “radically different from that adopted in ordinary civil proceedings”.^[1] Further, it observed that the statute was enacted subsequent to insertion of Order 32A in the Civil Procedure Code, 1908 as the Order was unable to bring about palpable change.

The primary positive change brought about by the 1984 Act is the introduction of conciliation in resolution of family disputes. When both parties come before the family court for the first time, they are usually referred to a counselor whose role is to carry out conciliation. In this manner, a non-adversarial procedure has been institutionalized through the 1984 Act. The report of the counselor is granted such importance, that in Perry Kansagara v. Smriti Madan Kansagara, Civil Appeal No. 1694 of 2019, decided on 15th February, 2019. the Supreme Court held that counselors report with respect to interaction with the child can be relied upon to determine custody issues. The counselor attached to the court functions on the basis of rules by the relevant state government of High Court. However, as noted by the National Commission for Women, there is no uniformity in the rules formulated by various states, thus giving rise to the potential of ad hocism.^[2]

S. 9, 1984 Act also enjoins upon Family Courts the duty to make efforts for settlement and assist the parties in this regard. In R Durga Prasad v. Union of India, 1998 DMC 45, [“R Durga Prasad”]. it was observed by the Jharkhand High Court that this is a mandatory duty that is cast upon courts and case should only be posted for further steps if it is concluded that such settlement is impossible. Further, in K Srinivas Rao v. DA Deepa, AIR 2013 SC 2176, [“K Srinivas Rao”], the apex court dictated that under S. 9, mediation can be referred to (with parties consent) even if a failure report is submitted in the conciliation process. The above provision and its judicial interpretation aptly illustrate the renewed spirit that the 1984 Act has brought in the resolution of family disputes.”

It must be noted that rather than being a new substantive law, the 1984 Act is a new procedural approach for application of pre-existing substantive laws. Apart from the above procedural flexibilities, Family Courts have also been provided flexibility vis-a-vis evidentiary provisions. Further, civil and criminal jurisidiction have both been vested in such courts to enable resolution of all connected matters in a family dispute. Apart from purely legal aspects, Family courts also represent a step forward in accounting for the human angle in family disputes. For instance, the Childrens Complex set up in the Mumbai Family Court provides a comfortable environment for the child and the non-custodial parent to carry out meetings. This is unlike the traditional setup wherein parents are forced to meet their children for a brief duration in hostile courtrooms.

A significant innovation is the inclusion of suits with respect to property between parties to a marriage, as provided in Expl (c), S. 7, 1984 Act. This ensures an expeditious method for resolution of property disputes which arise in the context of marriage.

The relevance of Family Courts has now increased in light of an increased divorce rate in Indian society. A Family Court can be set up in any city or town whose population exceeds one million. As urbanization and an increased population have led to growth in residents of towns and cities, the potential areas for establishment of Family Courts have increased manifold. The state of Haryana recently decided to set up Family Courts in seven more districts, a reflection of the increasing importance of such courts.

In light of the above situation, there are certain emerging issues vis-a-vis Family Courts which require a closer analysis.

Firstly, the issue of privacy is a pressing one. Right to privacy is now included within the ambit of Article 21, as per the judgment in Justice K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, [“Puttaswamy”]. This right could potentially be in conflict with the evidence presented in family courts, as it is often of a sensitive and private nature. For instance, subsequent to Puttaswamy, a family court in Delhi held that a recording of a private telephonic conversation is admissible in a Family Court even though it was collected by planting a recorder in the bedroom i.e. in clear breach of the right to privacy. The honorable Judge observed that consequences of violation on inadmissibility of evidence have not been discussed in Puttaswamy, thus enabling him to permit admissal of such evidence. Also relevant here are the 2015 guidelines with respect to privacy in family matters issued by the Delhi High Court.^[3] Herein, the court gave directions to ensure protection of information of a private nature even prior to the holding in Puttaswamy. This issue is being given conflicting interpretations by courts across the country and deserves dedicated attention of our higher judiciary.”

Secondly, there is the issue of inclusion of Domestic Violence proceedings in the jurisdiction of Family Courts. The jurisdiction clause i.e. S. 7 of the 1984 Act does not include proceedings under Protection of Women from Domestic Violence Act, 2005 [“DV Act”]. However, S. 26 of the DV Act enables parties to seek relief before a Family Court. In light of the above, the Bombay High Court in Ambreen Akhoon v. Aditya Paudwal, 2017 (3) RCR (Civil) 645, [“Ambreen Akhoon”]. held that even relatives of the husband can be made party to proceedings before Family Courts if they are under S. 26, DV Act even though they are not parties to the marriage. This beneficial interpretation seeks to widen the ambit of jurisdiction of Family Courts and must form a model for legislative inclusion of domestic violence under the 1984 Act.

It has been seen that Family Courts have been an innovative addition to the Indian judicial system. However, emerging grey areas must be resolved to ensure their continued efficacy.

[1] Para 13, supra note 1.

[2] National Commission for Women, Report on Working of Family Courts and Model Family Courts, (Mar. 2002), available at http://ncw.nic.in/sites/default/files/Working%20of%20Family%20courts%20in%20India.pdf (last visited on February 26, 2019).

[3] Order on June 11, 2016 in Mat. App. (F.C.) 78 of 2015 & CM APP No. 11008 of 2015, Del HC.

Note: kindly note the dates of enforcement of various acts which are mentioned in this article.

Despite heavy protest by the president of India. The Hindu Marriage Act, 1955 was enforced on 18th May 1955. Section 5 of this act defines “various conditions for solemnizing marriage between any two Hindu”. Sub section 1 of this section lays down a very major condition that “neither of the party has a spouse leaving at the time of the marriage”.

Section 11 of this act defines the Void marriage, which reads as “any marriage solemnised after the commencement of this act shall be null and void and may on a petition presented by either party there to against the other party be so declared by a degree of nullity if it contravenes any one of the conditions specified in clause (1), (4) or (5) of section 5”.

According to section 5 and section 11 of Hindu marriage act, a married person cannot perform second marriage in the lifetime of his first spouse and if he or she do so, then under section 11 of this act, the second marriage shall be declared null and void by any civil competent court.

The Hindu succession act, 1956 was enforced on 17th June 1956 in this country. Section 10 of this act defines a “distribution of properties among heirs among the clause first of the schedule.” The property of an intestate shall be divided among the heirs in the clause 1st of the schedule in accordance with the following rules. Rule 1– the intestates, or if there are more widows than one, all the widows together shall take one share.

On the other hand, Hindu adoption and maintenance act, 1956 was enforced on 21st December, 1956. According to explanation of section 7 of this act which defines the “capacity of a male Hindu to taken in adoption”. If a person has more than one wife leaving at the time of adoption the consent of all the wifes is necessary unless the consent of any one of them is unnecessary or any of the reason specified in the preceding proviso.

According to a judgement mentioned in 2009(4) RCR CIVIL on pg.401, “when there are two special acts dealing with the same subject matter, the legislation which has been enacted subsequently should prevail.”

In this article, as I have mentioned above that the Hindu marriage act,1955 was enforced on 18th May 1955, Hindu succession act enforced on 17th June 1956 and Hindu adoption and maintenance act was enforced on 21st December 1956.

So, as Hindu Succession and Hindu adoption and maintenance act, were passed subsequent to Hindu marriage act, and both these acts supersede Hindu marriage act. Therefore, any male married Hindu can perform number of marriage in the lifetime of his first wife after enforcement of Hindu Marriage Act.

If all these above-mentioned acts exist as it exists before, then one prostitute lady will get her share in succession of disease husband and similarly according to section 16 of Hindu marriage act, ille-gitimate children born out of void and voidable marriage will get their share in succession from the property of their disease father.

Conclusion

According to my own opinion, if we go with the history of India there was no codify law regarding Hindu marriage, adoption and succession act etc prior to Independence. Therefore, at that point of time Raja Maharajas and Zamindars and higher-class body and ruling class body of married male section usually perform more than one marriage. India became Independent state on 15th August 1947. At that point of time, such type of problem was persisting as customary Hindu law, gave permission to such type of marriage. To face this situation Hindu Succession Act, 1956 and Hindu adoption and maintenance act, 1956 covered the issue of more than one wife of legally wedded male Hindu or it may be seeming to be a flow in draftsmen ship of both the abovementioned act. Lastly, I would say that both the mistake as I discussed above should be amended. So, such type of problem comes to end and therefore, one Hindu can tell with proud that uniform civil code still exists in India. Otherwise, both Hindu and Muslim make a serious allegation upon male member of any community that he can perform number of marriage with no of lady of their community.

All over the Hindu and Christian worlds, marriage began as a sacrament. Marriage began as a sacrament implied a permanent and indissoluble union. It was a union not merely in this life but also in all lives to come-an eternal union. The sanctity of marriage is still deeply guarded by the society but that is not to say that people don’t adopt alternative forms of living arrangements. A live in relationship is just such an alternative arrangement which is gathering momentum and acceptance today. Earlier mahahrajas, nawabs, zamindars and other rich men of status in the society used to have several live-in women in their zenanas, apart from their legally wedded wives. Such live-in relationships were in addition to marriage and it was not considered immoral for men to indulge in this practice[1]. Sometimes an additional household was maintained by men for live-in women away from their families. Now such relationships are generally in place of marriage instead of being additional to marriage. Young men and women, who do not want to undertake the commitment and responsibilities of a marriage, start living together with the freedom to walk away any time. In metropolitan cities, this practice is encouraged to some extent by high cost of accommodation and reduced societal control.

The Hindu Marriage Act 1955 does not recognize ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act. The year 2010 was a significant year in the legal sphere related to live-in relationships, with the judiciary in both the Supreme Court and the High Courts delivering numerous decisions on the legal status of live-in relationships. In S. Khushboo v. Kanniammal (2010) 5 SCC 600 (vide para 31), the Supreme Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P. AIR 2006 SC 2522, held that a live-in relationship is permissible only in unmarried major persons of heterogeneous sex and is not a criminal offence under any law.

Though there have been a few recent judgements regarding live-In relationships as discussed above, there are few issues which have not been addressed or not adequately addressed.

One of the main concerns which remain unclear is what length of time of cohabitation will enable the person to be qualified as domestic partner. While a casual “walk-in walk-out” relationship cannot qualify a partner for succession rights, long time-period of continuous cohabitation has been accepted as a marker for grant of successful succession or maintenance rights. It is necessary to statutorily make a fixed time or make differentiation between a “walk-in walk-out live-in relationship” and a live-in relationship which will make a person qualify for a succession rights. Another intertwined issue is the question of “proof of continuous cohabitation like married couple”. It is essential that the party represents themselves like married couples to the society and there has been social recognition to that effect. The Courts have specifically mentioned any negative evidence regarding the period of continuous cohabitation can weaken the case.

While it threatens the very notion of husband and wife and the cognition of marriage that enjoys high level of sanctity when it comes to India, it also tends to prop up adultery, as there is no such proscription that live in partners should be unmarried. Thus, a person might be married and be living with someone else under the garb of live in relationship.

Another question which is under debate is that live-in relationship promotes bigamy. The Court have addressed that a person needs to be unmarried to be granted maintenance rights.

Contrastingly, the Court has also held that in live-in relationship, there can be no complain of infidelity or immorality Alok Kumar v. State. Crl. M.C. No. 299/2009 MANU DE/2069/2010. (Del. H.C. Aug. 9, 2010). However, it is not clear, if bigamy is allowed under the person’s religion whether such claims can be sustained. Another contrasting problem, is that person who is deserted remains helpless in such cases where the persons lived into a bigamous relationship and the courts considers unmarried status to be one of the condition for granting maintenance. In such cases, the deserters go scot free, due to the loop-holes present in the law. According to the author, in case of long period of cohabitation, where the couples represent themselves as a married couple, there can be an exception in providing maintenance rights and grounds of the person to be unmarried will be considered as an exception. It is necessary to take a proper stand and differentiation should be made between the rights and liabilities that are in bigamous live-in relationships.

The law on live in relationship need to demonstrate a clear cut picture keeping in mind the present social context along with the basic structure of tradition and culture that characterises Indian society. Live-in-Relation would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners. It would have an adverse impact on the youths and result in the spread of HIV/Aids. Therefore awareness amongst youth in most important.

Hence, as we observed many questions with respect to live in relationship remains unanswered. On the one hand it faces speculation from society and secondly legal status of live in relationship evinces contingency. The more clear approach and attitude of law and the changing time and stance of society will determine the future of live in relationship. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.

Introduction

All over the Hindu and Christian worlds, marriage began as a sacrament. Marriage began as a sacrament implied a permanent and indissoluble union. It was a union not merely in this life but also in all lives to come-an eternal union. The Shanskarars ordained that once is a maiden given in marriage, and the injunction was: “A true wife must preserve her chastity as much after as before her husband’s death”[5]. Indian society has been in a state of transition from the old world to the new, altering old customs and traditions in light of the cultural changes and the influence of the west. The sanctity of marriage is still deeply guarded by the society but that is not to say that people don’t adopt alternative forms of living arrangements. A live in relationship is just such an alternative arrangement which is gathering momentum and acceptance today. Earlier mahahrajas, nawabs, zamindars and other rich men of status in the society used to have several live-in women in their zenanas, apart from their legally wedded wives. Such live-in relationships were in addition to marriage and it was not considered immoral for men to indulge in this practice[6]. Sometimes an additional household was maintained by men for live-in women away from their families. Now such relationships are generally in place of marriage instead of being additional to marriage. Young men and women, who do not want to undertake the commitment and responsibilities of a marriage, start living together with the freedom to walk away any time. In metropolitan cities, this practice is encouraged to some extent by high cost of accommodation and reduced societal control.

6. Dr.Sukhdarshan Singh Khehra, Legal Recognition of Live-in Relationship: Role of Judiciary, in “Growth of Law in India Role of Judiciary” 274(2008).

The concept of ‘Mitru Sambandh’ is nothing but a concept of the ‘Live-in-relationship’ or ‘Living relationship’. Generally speaking, in modern age increasing concept of live-in relationship means a male and female staying together as a friend without marriage. This is unstable form of family. Many people imagine that living together before marriage resembles taking a car for a test drive. Live-in-relationships are not new in our society. The only difference is that now people have become open about it. A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.
The Supreme Court in D Veluswamy v. D Patchaiammal, AIR 2011 SC 479 has explained the definition of Live- in Relationships with reference to Domestic Violence Act. The Court in its judgement in the mentioned rule:

Section 2(f) states:

“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”;

Having noted the relevant provisions in The Protection of Women from Domestic Violence Act, 2005, court pointed out that the expression ‘domestic relationship’ includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’. The question, therefore, arises as to what is the meaning of the expression ‘a relationship in the nature of marriage’. Unfortunately this expression has not been defined in the Act. Since there is no direct decision of this Court on the interpretation of this expression we think it necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an authoritative decision is required.

In the words of Dhingra J., “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa”
Live in Relationship is contractual relationship. There is offer and acceptance between parties to live in relationship so such relationship should be framed within ambit of law. We need special legal rules to deal with consequences of such relationship. In spite of no clear and specific legal sanction, there has been a huge societal change in the attitude towards live-in relationships, the multinational companies providing health insurance benefits to domestic partner of the employees[8].

Recognition to Live-in relationship in India

No law at present deal with the concept of live-in-relationships and their legality. Still even in the absence of a specific legislation on the subject, it is praise-worthy that 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). If we propose to enact a law to regulate live-in-relationships, though it would grant rights to parties to it but at the same time it would also impose obligation on them. Female live-in partners have economic rights under Protection of Women from Domestic Violence Act 2005
The Hindu Marriage Act 1955 does not recognize ‘live-in-relationship’. Nor does the Criminal Procedure Code 1973. The Protection of Women from Domestic Violence Act 2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to women says that an aggrieved live-in partner may be granted alimony under the Act.

The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law.

Section 114, Indian Evidence Act, 1872, lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be a valid marriage by continuous cohabitation between the parties unless the contrary is proved.

Judicial Approach

However, living together has been long considered to be presumption of marriage until some facts prove it to be otherwise under Section 114 of Indian Evidence Act, 1872. In, A. Dinohamy v. W.L. Blahamy, AIR 1927 P.C. 185, the Privy Council laid down the general proposition that; “where a man and woman are proved to have lived together as 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.”Long cohabitation by a man and a woman has all along, directly or indirectly, been recognised by the judiciary in India. Even in the nineteenth century, courts enforced some agreements where the consideration was past cohabitation. According to Section 23 of the Indian Contract Act, 1872 if court regards the consideration of an agreement immoral, it is unlawful and consequently the agreement is void. Where a man and a woman live and cohabit together, although not lawfully married to each other and the man in consideration of the past cohabitation agrees to transfer property to the women or to make provision for her maintenance, the question often arises as to the enforceability of such an agreement.

In Dhiraj Kaur v. Bikramjit Singh, (1881) ILR 3 All 787, the Allahabad High Court allowed a woman to recover arrears of allowance promised to her for past cohabitation. The Patna High Court, in Godfrey v. Parbati, AIR 1938 Pat 502, held that a contact to compensate a woman for what she had lost on account of past cohabitation with the promise was not immoral and hence enforceable. However, if cohabitation amounts to adultery under the Indian Penal Code, such agreements are void for consideration being forbidden by law. The Madhya Pradesh High Court also enforces an agreement in Subhashchandra v. Smt. Narbadabai, AIR 1982 MP 236 where the consideration was apparently past cohabitation. In this case, Narbadabai has been living in exclusive keeping of one Seth Kishanlal, a married man for the past about fifty years and was entitled to claim maintenance (as mentioned in the agreement) during her lifetime from the estate of Kishanlal. The cohibtation was not shown to be adulterous. It was held by the high Court that agreement embodied a valid contract and was enforceable.

In D. Nagaratnamba v. Kunuku Ramayya, AIR 1968 SC 253, Justice Bachawat of the Supreme Court of India recognised past cohabitation as a good consideration. These cases were concerning enforceability of agreements where the consideration was past cohabitation without marriage and upholding lawfulness of consideration in such cases amounted to legal recognition of live-in relationship by the judiciary.

In Mohabhat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135, the Privy Council, which was the highest court of appeal for Indian cases prior to Supreme Court, held that, “the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.”

The Supreme Court stated in Badri Prasad v. Dy. Director of Consolidation, AIR 1978 SC 1557 a case where a man and a woman lived together for around 50 years that, there would be strong presumption in favour of wedlock. The Court however added that, “the presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.”

The Supreme Court in Gokal Chand v. Parvin Kumari, AIR 1952 SC 231 observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them[17].

In the judgements before 2000 there is hardly any case where the Courts have used the word “live-in relationship” to clarify the legal status of a domestic partner or in any other such connections. In 2001, the Allahabad High Court held in Payal Sharma v. Superintendent, Nari Niketan, Agra, AIR 2001 All 254, that a major man and woman can stay together without getting married if they want and this is not illegal.

The Supreme Court in the case of Vidyadhari v. Sukhrana Bai, 2008 (2)SCC 238, issued a Succession Certificate to the live-in partner, who was nominated by the deceased. In, Abhijit Bhikaseth Auti v. State of Maharashtra, Crl. W.P. No. 2218/2007 MANU/MH 1432/2008 (Bom. H.C. Sept. 16. 2009), the Bombay High Court observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C. In, Koppisetti Subbharao Subramaniam v. State of A.P., Crl. Appl. No. 867/2009 MANU/SC/0689/2009 (S.C. September 24. 2009), the Supreme Court extended the protection against dowry under Section 498 A of the Indian Penal Code so as to “to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband” and resort to cruelty or torture to the women. This case has extended the protection of women from dowry even when they are in a live-in relationship. In Tulsa v. Durghatiya, 2008 (4) SCC 520, the Supreme Court re-recognised the rule that there would be a presumption of marriage when there has been long cohabitation.

The year 2010 was a significant year in the legal sphere related to live-in relationships, with the judiciary in both the Supreme Court and the High Courts delivering numerous decisions on the legal status of live-in relationships. In S. Khushboo v. Kanniammal, (2010) 5 SCC 600 (vide para 31), the Supreme Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P., AIR 2006 SC 2522, held that a live-in relationship is permissible only in unmarried major persons of heterogeneous sex and is not a criminal offence under any law. The court said even Lord Krishna and Radha lived together according to mythology. The apex court said there was no law which prohibits live-in relationship or pre-marital sex. The apex court made the observation while reserving its judgement on a special leave petition filed by noted south Indian actress Khusboo. Living together is a right to life, “the apex court said apparently referring to Article 21 which granted right to life and liberty as a Fundamental Right. “It’s better to have a live-in relationship rather than having a divorced life!” This is common and quite rational line favouring live-in relations in the world. Live in relationship are not new for western countries but these days the concept is adjusting its roots in east also.

In Narayan Jagluji Thool & others v. Mala Chandan Wani, AIR 2015 Bombay 36, Section 2(f) of Protection of Women from Domestic Violence Act,2005 does not require that a women should be a wife and it is enough that she is living with a man in relationship, which is similar to that of a marriage. But there is a rider to it. She should be unmarried and be otherwise qualified to marry. In the instant case respondent is a married woman, whose marriage with her husband is still subsisting and this being the position, her relationship with another man outside marriage cannot be termed as domestic relationship under Section 2(f) of the Act, 2005. Therefore, she cannot seek protection under Act and if the proceeding are allowed to be continued, it would be nothing but abuse of the process of law.

The Supreme Court on 13 August, 2010 in the case of Madan Mohan Singh v. Rajni Kant, (2010) INSC 631 has once again entered the debate on legality of the live-in relationship as well as legitimacy of a child born out of such relationship. The Court while dismissing the appeal in the property dispute held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship. In the case of Bharata Matha v. R. Vijaya Renganathan, 2010 (6) SCALE 53 dealing with the legitimacy of child born out of a live-in relationship and his succession of property rights, the Supreme Court held that such a child may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenary property.

However, in another case, Revanasiddappa v. Mallikarjun, 2011 (2) UJ 1342(SC), the Supreme Court observed that taking into consideration the current social circumstances, it is necessary that the amended Section 16 (3) of the Hindu Marriage Act must be interpreted to give right of inheritance to an illegitimate child to the ancestry property.

The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v. State, Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. August 9, 2010) while dealing with the validity of live-in relationship observed that, “‘Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.” Further, the persons entering into such relationships are debarred from complaining of infidelity or immorality of the other partner.

In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141, the Supreme Court observed that “in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.” Court also wanted to interpret the meaning of “wife” broadly under Section 125 of Cr.P.C. for claim of maintenance, so that even women in live-in relationship can claim maintenance. The Court further declared that a woman in a live-in relationship in entitled to claim any relief mentioned under Protection of Women from Domestic Violence Act, 2005.

The Supreme Court in the case of D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479 held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the following criteria:

(a) The couple must hold themselves out to society as if they are spouses,

(b) They must be of legal age to marry,

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried and

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act.

The Court further clarified that, “merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.” It also held that “if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a ‘relationship in the nature of marriage’.

The executive is not far away from taking reformative stance. The Malimath Committee Report[32] suggested that the meaning of “wife” within Section 125 of the Cr.P.C. need to be amended “so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.” Later, in October 2008, the Government of Maharashtra accepted the proposal of Malimath Committee Report.

In a landmark judgement that can reduce the stigma of living in a live-in-relationship, the Supreme Court on Monday, April 13, 2015 ruled out that couples living in live-in-relationships will be presumed legally married. The apex court also said that in case if the man dies, then his property will be inherited by his partner.  Children born of live-in relationship are legitimate Bharata Matha & Others v. R. Vijay Rengiinaihan & Others, ILC-2015-SC-MAT. The historic verdict was given by the bench consisting of Justice MY Eqbal and Justice Amitava Roy. On November 28, 2013, the Supreme Court had held that live-in relationship is neither a crime nor a sin, while asking Parliament to frame law for protection of women in such relationship and children born out of it. Live in relationship not a crime Indra Sarma v. V.K.V. Sarma, SLP (Crl) No. 4895 of 2012.

Live-in Relationship and Legal Issues

Though there have been a few recent judgements regarding live-In relationships as discussed above, there are few issues which have not been addressed or not adequately addressed.

One of the main concerns which remain unclear is what length of time of cohabitation will enable the person to be qualified as domestic partner. While a casual “walk-in walk-out” relationship cannot qualify a partner for succession rights, long time-period of continuous cohabitation has been accepted as a marker for grant of successful succession or maintenance rights. It is necessary to statutorily make a fixed time or make differentiation between a “walk-in walk-out live-in relationship” and a live-in relationship which will make a person qualify for a succession rights. Another intertwined issue is the question of “proof of continuous cohabitation like married couple”. It is essential that the party represents themselves like married couples to the society and there has been social recognition to that effect. The Courts have specifically mentioned any negative evidence regarding the period of continuous cohabitation can weaken the case.

While it threatens the very notion of husband and wife and the cognition of marriage that enjoys high level of sanctity when it comes to India, it also tends to prop up adultery, as there is no such proscription that live in partners should be unmarried. Thus, a person might be married and be living with someone else under the garb of live in relationship.

Another question which is under debate is that live-in relationship promotes bigamy. The Court have addressed that a person needs to be unmarried to be granted maintenance rights.

Contrastingly, the Court has also held that in live-in relationship, there can be no complain of infidelity or immorality Alok Kumar v. State. Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. August 9, 2010). However, it is not clear, if bigamy is allowed under the person’s religion whether such claims can be sustained. Another contrasting problem, is that person who is deserted remains helpless in such cases where the persons lived into a bigamous relationship and the courts considers unmarried status to be one of the condition for granting maintenance. In such cases, the deserters go scot free, due to the loop-holes present in the law. According to the author, in case of long period of cohabitation, where the couples represent themselves as a married couple, there can be an exception in providing maintenance rights and grounds of the person to be unmarried will be considered as an exception. It is necessary to take a proper stand and differentiation should be made between the rights and liabilities that are in bigamous live-in relationships.

Even if rights of maintenance etc are provided to the live in female partner, there is no guarantee that she can actually avail those rights. Marriages grant social recognition, but there is no proof of live in relationship; a person can easily deny the fact of live in relationship to evade liability. In sum and substance the rights of woman remains precarious.

The Bombay High Court on 3rd December 2012, stayed till December 17 the proceedings in a case of domestic violence against family members of Rajesh Khanna by a woman claiming to have been in a live-in relationship with the late superstar[36].

The proceedings in a Metropolitan Magistrate’s Court at suburban Bandra were stayed by Justice K U Chandiwal, who issued notice to Anita Advani, the lady who claimed to have looked after the actor in the last few years of his life as a wife would do. The court was hearing a petition filed by Khanna’s actress wife Dimple and actor son-in-law Akshay Kumar challenging the processes started by the magistrate against them and other family members. Twinkle and Rinki, Khanna’s daughters, are also in the process of filing similar petitions.

Advani, in her complaint against Dimple and others, has claimed she was driven out of Khanna’s Bandra bungalow ‘Ashirwad’ after his death and sought maintenance from the actor’s estate.On the other hand, Dimple contended that she was the legally wedded wife of Khanna and as such no other woman can claim share in the wealth left behind by her husband.
The Magistrate, Dimple argued, should not have entertained the complaint which has made “baseless” charges.She contended that it was “unreasonable” for the Magistrate to even suggest that she and her family go in for a compromise with the complainant in which case he would refer the matter for mediation.

The Magistrate, while hearing Advani’s complaint, had earlier last week issued summonses to Dimple, her daughters Twinkle Kumar and Rinki Saran and son-in-law Akshay Kumar asking them to appear in person before the court to answer the allegations, which besides domestic violence includes forging Khanna’s will.Akshay Kumar supported Dimple’s contention that Advani had no right to claim any share from Khanna’s properties which is said to be to the tune of Rs 500 crores.

Kapadia’s counsel Gupta had argued that a womam in a live-in relationship with a married man cannot claim relief under the .He argued that Khanna and Advani’s relation can be at the most described as “adulterous”[37].

The law of succession depends on the religion of the deceased person. However, there may be confusion regarding the rights of children born out of inter-religious live-in relationships. These concerns need to be addressed by a proper mechanism.

An interesting issue regarding the caste of a child born to live-in partners, where male and female partners belonged to different castes, came before the Supreme Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC 800, Sobha’s mother Simhachalam, who belonged to Bagatha scheduled tribe in Andhra Pradesh, had a live-in relationship with Marahari Rao, an upper caste man and Sobha was born out of this relationship. Later on, the relationship had ended and Sobha was brought up by her mother and married to a person from Bagatha community. Sobha Hymavathi Devi was elected to the Andhra Pradesh Legislative Assembly in 1999 on a Telugu Desam ticket from Sringavarapukota constituency reserved for scheduled tribes. Sobha’s election was challenged by the defeated candidate on the ground that she did not belong to Bagatha community, which had been notified as a scheduled tribe community, because her father was an upper caste man. Sobha’s plea was that her father was not married to her mother and therefore, she should be treated as member of the community of her mother. She had further stressed that she was brought up as a part of Bagatha tribe and married to a man belonging to that tribe only. The Andhra Pradesh High Court drew a presumption of marriage between the father and the mother of Sobha because of long cohabitation in a live-in relationship. The high court held that she did not belong to Bagatha community and set aside her election from the reserved constituency. In her appeal challenging the high court judgement before the Supreme Court she had stated that her community would be determined by that of her mother and not father as there was no marriage between two. But the Supreme Court agreed with the view expressed by high court and observed, “We must say that on the evidence here, including the documentary evidence relied on by the high court, the presumption arising from long cohabitation of Marahari Rao and Simhachalam of a valid marriage between them, gets strengthened and there is no material circumstance which can be said to rebut such presumption arising from long cohabitation.”

Conclusion

The law on live in relationship need to demonstrate a clear cut picture keeping in mind the present social context along with the basic structure of tradition and culture that characterises Indian society. While the court in few cases granted the status of married couple to live in couple, in some cases court held that live in relationship does not cast any obligation on the couple, as the whole idea of live in relationship is to evade such bondage, evincing a penchant towards an obligation less, free society.

Nonetheless, another thought that seek attention is that if the law lobs same kind of obligation with respect to maintenance and succession as exist in the institution of marriage, then why will a couple prefer to get into a live in relationship, when the basis of getting into live in relationship is to evade all bondages and entanglement. A different point to be observed is that, if the rights under live in relationships and marriage are equated, it will bring in conflict the rights of wife if the person who is in relationship is already married and the rights of live in partner, secondly this will make the circumventing of liability much easier and matters more complicated by shuffling between the rights and liability under marriage- live in relationship and will lead to entanglement in judicial meanders if judicial discourse is taken.

Outside the legal arena, live in relationship also faces the social speculation; the tenor of live in relationship is the characteristic motif of metropolitan area, however, when we look at the masses that define India, live in relationship does not find consensus of majority and is accused of tampering with the Indian culture of values and morality.

Live-in-Relation would give rise to child pregnancy and has far reaching ramifications, adding despite its aim to restrict multiple partners. It would have an adverse impact on the youths and result in the spread of HIV/Aids. Therefore awareness amongst youth in most important.

Hence, as we observed many questions with respect to live in relationship remains unanswered. On the one hand it faces speculation from society and secondly legal status of live in relationship evinces contingency. The more clear approach and attitude of law and the changing time and stance of society will determine the future of live in relationship. Laws should be made by the parliament, which should keep a check on the practice of evading bondages.

Live in relationships should be granted legal status after specific period of its existence, providing the partners as well as the child born out of such relationship with all the legal rights of maintenance, succession, inheritance as available to a married couple and their legitimate offspring, also securing their rights after the dissolution of such relationship due to break up or death of one of the partner. The guidelines given in D. Veluswami v. D. Patchaimmal, AIR 2011 SC 479 is worth noting in this context and should be followed. Since, proving de facto live in relationship is difficult, the burden of proof should be relaxed, so that the rights that are conferred upon partners, specifically female live in partner can be availed. However, if the person in live in relationship is already married, then live in relationship should be considered as the second marriage, hence an offence of bigamy. This will ensure the rights and privileges in live in relationship without possessing any threat to the institution of marriage. A good legal system always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when the number of live in couples is increasing tremendously. The rights of live in couples should be legally recognised while ensuring that it does not impede upon the system of marriage.