In January 2008, the Supreme Court validated long-term live-in relationships as marriages. A Supreme Court bench headed by Justice Arijit Pasayat with P Satasivan declared that children born out of such a relationship will no longer be called illegitimate. "Law inclines in the interest of legitimacy and thumbs down 'whoreson' or 'fruit of adultery'," the court added.
The apex court judgement was followed by similar suggestions from the National Commission for Women (NCW). In June this year, in response to recommendations made by the Ministry of Women and Child Development, the NCW sought a change in the definition of 'wife' as described in Section 125 of the Criminal Procedure Code (CrPC), which deals with maintenance. The NCW recommended that women in live-in relationships should be entitled to maintenance if the man deserts her.
Emphasising the need for broadening the definition of wife in the CrPC section, NCW officials said there had been cases where the man led the woman to believe that he was unmarried or was divorced or widowed and went ahead with the formalities required by marriage laws or the custom governing him. As a way of countering this, NCW chairperson Girija Vyas suggested that even if a marriage was not registered, a woman's claim would stand if she provided enough proof of a long-term relationship. This underscored the Supreme Court's stand that a man and woman, having lived together for long, would be presumed to have been married, unless it was rebutted by convincing evidence.
The recent ruling is only the latest in a series of recommendations by various bodies seeking equal rights for the married woman and live-in female partner. A recommendation by the Justice Malinath Committee to the Law Commission of India (2003) stated that if a woman has been in a live-in relationship for a reasonable time, she should enjoy the legal rights of a wife. The Protection of Women from Domestic Violence Act (2005) provides protection to women at the hands of their husbands as well as live-in partners, and his relatives. When the law came into force in October 2006, it did not distinguish between the woman who is married and the woman who is in a live-in relationship.
Gujarat for a long time had Maitri Karaar or a 'friendship contract' entered into voluntarily between a man and a woman, which decreed that the woman would exercise no claim on the man during or after the relationship beyond 'friendship'. The man in such relationships was always married while the woman was single and most often responsible for the upkeep of her parental family. As she knew that she could never marry, she and her family willingly consented to such a contract because this was the only way she could enjoy a physical relationship with a man.
When the story of Maitri Karaar came up in the media some years ago, it was declared illegal. It offered the married man a convenient plea to take on a mistress without the responsibilities incumbent upon a husband. The signed contract specified the period of liaison and had sub-clauses like neither of them having any claim to the other's property. Children were not usually a part of this relationship. But at the end of the day, it was the woman who bore the brunt when the man went back to his legally sanctioned family. In many cases, he kept his links with both, his Maitri Karaar 'friend' and his legally wedded wife.
The SC ruling in itself has its precedent in a 1927 judgement made by the Privy Council, the Supreme Court's predecessor in pre-independent India. In A Dinohamy v. WL Blahamy, the Council laid down a general principle: "Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage."
The Council made significant additions to the 1927 ruling in 1929 in Mohabhat Ali Vs Mohammad Ibrahim Khan. It said: "The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years." For a live-in couple to be considered validly married, the court wanted evidence of cohabitation for a number of years, without specifying the minimum number of years.
In Gokal Chand and Pravin Kumari (1952), the Supreme Court reiterated the 1929 principle. However, it added that though the presumption for a valid marriage between a live-in couple could be drawn from their long cohabitation, it wasn't enough to earn them legitimacy if the evidence of their living together was rebuttable. In this judgment, the apex court refused to recognise a live-in relationship, though the couple had lived together for some years before the pregnant woman decided to live alone with her child born out of a live-in relationship with the man. The rebuttal of a presumption in favour of a valid marriage, in this case, came from the child, who said she did not remember her father ever visiting her or her mother.
In Badri Prasad (1978), the Supreme Court recognised a live-in relationship as a valid marriage, accusing the authorities of questioning a relationship 50 years after the couple had begun living together, and were treated as a married couple even by their relatives.
The view from the courts
A Madhya Pradesh High Court judgement in 1985 dealt with the case of Loli, who had lived for several years with Radhika Singh. Together they had five daughters and a son. The trial court dismissed the case made by Singh's sister-in-law that Loli should not have property rights as she was just a mistress. The sister-in-law had sought her rights over the property, and contended that Loli had started living with Singh even when her first husband was alive, and therefore, there could not be a presumption of valid marriage. But the appellate court set aside the trial court's order, a stand the Madhya Pradesh High Court also agreed with.
This brings us to Payal Sharma Vs Superintendent, Nari Niketan, and others, in which a court stated in 2001 that a live-in relationship was not illegal. Sharma had moved the Allahabad High Court to be left to do her own bidding after being forced to live in a Nari Niketan at Agra, following her arrest, along with Ramendra Singh, with whom she had a live-in relationship. The Agra police arrested her and Singh on the basis of an FIR lodged by her father, accusing Singh, an already married man, of kidnapping Sharma.
A resident of Kannauj district in Uttar Pradesh, Sharma produced documentary evidence, including her high school certificate, to prove that she was 21 years old. On the basis of this evidence, the court directed the authorities to set her free. Justice M Katju and Justice RB Mishra stated, "Petitioner Smt. Payal Sharma appeared before us and stated that she is above 21 years of age, which is borne out from the high school certificate which shows that her date of birth is 10.7.1980. Hence she is a major and has the right to go anywhere and live with anyone. In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality."
Thus, a uniform view appears to emerge from the courts, when one looks at the history of cases on the question of live-in relationships. It appears that, by and large, legal sanction for live-in relationships is based on the assumption that they are not between equals, and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.
Shades of grey
But such protective sanction raises other questions, notably about the institution of marriage itself, for which there are no easy answers. Supposing a live-in relationship is between a man who is already married with children, and a single woman? In Payal Sharma, Ramendra Singh was a married man with children. Which woman's 'interest' should the courts and law protect, and in doing so, can the apparent equality between married and unmarried couples be maintained?
Legal sanction is based on the assumption that live-in relationships are not equal and that the patriarchal power that defines marriage covers such relationships too.
Live-in relationships also raise questions about legal stance towards bigamy. In spirit and essence, the Allahabad High Court judgement contradicts the law against bigamy for Hindus, both for men and women, which makes it mandatory for a husband or wife to get a divorce before they can marry again. When bigamy is illegal - except for Muslims - in what sense can a live-in relationship be equal to a marriage, if either the man or the woman is already married? And how is it that a division bench of a High Court is able to pronounce a judgement that openly violates the social, legal and filial implications that bind the husband in a Hindu marriage, which includes living with the wife and children under the same roof?
There's also the question of 'marriage-like' protection for a woman who enters a relationship with someone she isn't married to, by choice or circumstance. Does a female partner need the protection of legal standing equivalent to that of a wife, in a non-married relationship she entered into by choice or circumstance?
To marry, or not to marry?
Live-in relationships among urban, educated, upper-middle class young people began as a declaration of independence, as a way of keeping away from the 'shackles' of institutionalised marriages. In fact, it's a wilful rejection of the institution of marriage, of the stereotypes it engenders, and of the restrictions and inequalities it has come to stand for. But, legal sanction granted to a live-in relationship may put it back in the trap that live-in partners sought to evade in the first place. This legal sanction implies that live-in relationships are bound by the same rules of fidelity, commitment and economic stability that marriage is structured in.
Social geographer Soma Das says that people who opt for live-in relationships do so because they do not believe in marriage. "If live-in relationships are treated on par with marriage, many young men and women may not really like to get into such open relationships. At the other end, ensuring maintenance and giving legal sanction to live-in relationships will not make the position of the female partner equal to that of the wife because social acceptance in Indian society will take a very long time. It still does not have a mindset that accepts the estranged female partner of a live-in relationship."
Psychologist Shenaz B Ilavia believes that live-in relationships are still confined to a marginal segment of society which she calls the elite, upper middle class. "Theoretically, it may sound like a better proposition than marriage, but very few people actually opt for it. A live-in relationship is not a substitute for marriage," she says.