Author: Shriyanshi, II Year of B.A.,LL.B(Hons.) From Amity University Lucknow.
After getting ruled for almost a century by the Britishers, it was quite evident that the framers of the Constitution would give their country, their beloved motherland a long-written book that would contain all the laws regarding the rights and the duties and differentiating between the legislature, executive and judiciary. The most pious part, the basic structure, the Preamble, everything that would guarantee a smooth functioning of all the three parts of the administration yet they might have not foreseen the circumstances that would arise after the influence of the western winds, that is, the concept of live-in-relationship. It is often a debated topic as it has no laws or legislation surrounding it. The cohabitation is condemned across the whole country because of the social unacceptance and the narrow-minded thinking of the individuals, though there have been pronouncements by the Supreme Court in various cases still this concept is considered a taboo and a social evil. This researcher paper looks into the issues revolving around this taboo as named by the society, why it is condemned on a large scale, its legality in India and abroad, the issues that stop the society from accepting it, the pros and cons surrounding, the recent take of the apex court on this issue.
Robert H. Lawie defined marriage, “Marriage is a relatively permanent bond between permissible mates.” Marriage is a social recognition; it brings two people and families of two people together and their relationship is given approval from the society after having blessed with their particular religions’ rituals and traditions. It is considered as a universal concept, contributes to emotional and intellectual interstimulation of the partners and aims at social solidarity. It is different in different society with different culture but is recognized and considered an institution.
Marriage has been widely described by many sociologists, psychologists and other eminent people, it also has laws and regulations governing it. No doubt it is one of the most important parts of life and leads to the development of the society but when we look on the other side of the coin wherein the equation is completely different: cohabitation, “a living arrangement in which an unmarried couple lives together in a long-term relationship that ensembles marriage.”
Cohabitation is living with each other of opposite sex without any legal rights imposing on both of them. It is often seen in the western countries but has soon covered the whole of the world. It is considered an option by the woman to see if the partner is compatible and by men to see if he can give lifetime commitment, it is like living without marriage and whether they can adjust to it. There are a group of people who we see supporting this concept but many stand against it as it is against the normal flow of the life or it does not legal implication or acceptance by the society but we cannot ignore either side’s argument because it is as obvious to have both the sides of the coin because premarital cohabitation can lead to issues such as increase in divorce rates as the partner are not committed to each other. As was held by the co- director of the Centre for Marital and Family Studies at the University of Denver, Stanley that it is a relationship “inertia”.
“Men and women who moved in together used to raise eyebrows. Living together out of wedlock, once considered "shacking up" or "living in sin," has lost its stigma as cohabitation has become mainstream.”
“Cohabitation research published in the journal Population Studies in 2000 found that within five years of a live-in relationship, about half of couples married, about 40% split up and the rest continued to live together.” These findings only reveal the amount of people getting successful after cohabitation but that does not mean the live-ins should be discarded and thrown out of the community, we cannot stop others from doing what is best for their relationship just on the basis of these figures.
It is up to the individuals to decide for themselves because every country has given in its part the freedom to do take choice for oneself and the same goes for India too but since our land is considered to be the sacred, these things will take time to reach the roots, settle and normalise the stigma around seeing live-in as an evil of the society.
IS THERE A GENESIS IN HISTORY?
It is not a novice concept and dates back to ancient times. The Vedas of the Vedic Period that mention about the mantras, yajnas and hymns also provide an insight into the Gandharva type of marriage that involves the marriage of a man and a woman that mutually consent and no participation of any of the families, just a word-of- mouth commitment. Hence, the Vedas permitted live-in-relationship; what is now referred to by the western world as cohabitation, living together without the solemnization of marriage, and it always persisted in the society. The above- mentioned speaks about the Hindu mythology and its belief. Looking at the other side of the coin, Adam and Eve were the first non- married couple in the history, they were not aware that an institution of marriage also existed. Their relationship basically depended on their dependency towards each other, with nothing as a ritual, pre- marriage rituals and marriage certificate, they were driven by the Darwinian philosophy of survival of the fittest.
With the advent of the British laws in India, evil practices were banned but it cannot be said with confirmation because they were practiced in hidden way. Hence, the word might be new but it has been seen in the Vedas running through the ancient and the medieval periods and it is not a new concept to India though it is now being practiced on large scale.
WHY IS THERE AN INCREASE IN THE CONCEPT?
Not only the western countries from this concept emerged but also the other countries that were influenced by this trend view cohabitation as an option to live together before marriage to comprehend the compatibility of their relationship. Scandinavian countries have been on the forefront to start this trend, before the mid of 1990s the graph level was stable but after that period the line has been increasing with an upward curve. The couples wish to maintain their single status for financial reasons, in some cases the couples have the notion that there is no need of marriage and it is not a necessity and they hate to be divorced therefore they enter into a live-in- relationship. “For instance, in the European Values Study (EVS) of 2008, the percentage of respondents who agreed with the assertion that "Marriage is an outdated institution" was 37.5% in Luxembourg, 35.4% in France, 34.3% in Belgium, 31.2% in Spain, 30.5% in Austria, 29.2% in Germany, 27.7% in Switzerland, 27.2% in Bulgaria, 27.0% in the Netherlands, 25.0% in Slovenia.”
Some have the pretext that living together make them save money as there are high and tight budgets of today’s economy that lead them to cooperate with each other. “Researchers suggest that couples live together as a way of trying out marriage to test compatibility with their partners, while still having the option of ending the relationship without legal implications.”
Canada has seen an increase in the rates of cohabitation as one of its territories named Quebec has produced children from cohabitating partners and this surge is due to the public rebel against traditional and conservative values as it is socially controlled. The legal issues surrounding this concept is complex but the surge concludes that live-in is exercised by the public at a large scale. In the United States, this concept emerged in the 20th century, “Cohabitation was almost impossible in the United States prior to the 1960s. Laws prevented unmarried couples from registering in hotels and it was very difficult for an unmarried couple to obtain a home mortgage. From 1960 to 1998, cohabitation moved from disreputable and difficult to normal and convenient” Other countries such as the China has shown that premarital cohabitation has become a necessity and decreases the rate of divorce and thus it has gained popularity amongst the young adults. Indonesian states have criminalized the practice of cohabitation and there are always protests upon the inhumane actions of the police. In Britain, there is a conflict over the issue that whether the marriages should be imposed upon people and this has been supported by the Conservative Party or focus should be on parenting rather than a spouse and this has been supported by the Labour Party and the Liberal Democrats; in Russia, the partners are reluctant to cohabit before marriage, a civil marriage registration, afterward the marriage. Switzerland being the epitome for progress has itself been the last to introduce gender equality and has a tradition of strong conservatism, adultery got decriminalized and it was in late 20th century that Valais, the last canton ended the prohibition on cohabitation and now the data shows that births outside marriage has increased. European Union is a union of 27 members and the cohabitation has become a commonplace. “The fact that many couples choose to live together without formalizing their relation is also recognized by the European Union. A 2004 directive forbids EU members from denying entry or residence of partners with whom the Union citizen has a durable relationship, duly attested.”
In Asian countries, earlier this feature did not exist in the operating system but since now the greater number of individuals are getting educated and independent, the influence and the colours of the western culture has started showing its colour. Looking at Nepal, the acceptance of couples staying together is consented only after the marriage and they do not have any laws to protect the cohabitating partners. Same trend is followed in Bangladesh and China, where the adults now in urban areas are swayed towards the western ideas and cultures.
Speaking of India, it has been considered as a taboo and it is certainly not a dime a dozen because the Hindus and the Muslims stand against it, it can be found in urban areas but not so dominant in rural areas, where the boys and the girls are forced to marry someone and their voices go unheard because of the fear factor, their studies and also early marriage. It goes against the social norm of the society and hence it is highly condemned. The reason for condemnation is mostly the unacceptance as it breaks the norms of the society while few believe that marriages after live-in become a failure.
Judiciary has been set aside from the definition of State in Article 12 of the Constitution of India and certainly the framers of the longest written Constitution had an eagles’ eye that saw judiciary as the protector and guarantor of the people of India, they can approach the court if their fundamental rights are violated. Hence, the judiciary has always come up with its interpretation indifferent to the society’s perception and has exercised its power. The institution of marriage has social and legal recognition across society in India. The personal law is based on custom and the new emerging concept of live- in has again called in the judiciary to check upon the prevailing notion.
In the Supreme Court judgement of S. Khushboo V. Kanniammal, the apex court of India held that “there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery' as defined under Section 497 IPC.” In the present case, the court took reference of the previously decided case of Lata Singh V. State of U.P. wherein it was concluded that a girl of major age is free to marry anyone she likes or “live with anyone she likes” and that if two adults’ consent to be in live-in relationship, it does not amount to offence.
In S.P.S. Balasubramanyam V. Suruttayan, it was established that if a couple live together posing as husband and wife for a long period of time, it can be clearly presumed that there is legality of marriage between them. In other case of Tulsa & Ors. V. Durghatiya, the court guided the people through the use of Sections 50 and 114 of the Indian Evidence Act, 1872, “it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.”
“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.”
Another landmark case was that of Indra Sarma V. V.K.V. Sarma that gained limelight throughout the country as the court called for the introduction of a legislation for this so that the women and the children born out of this relationship are protected and the rights be adhered to.
Certain conditions have been put forward by the Supreme Court if a couple needs maintenance in live-in:
“The couples must hold themselves out to society as being akin to 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.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”
Section 16 of the Hindu Marriage Act, 1955 and Section 26 of the Special Marriage Act, 1954 preserve the right of the child born out of the live-in couples, it should be treated indifferently to others but such rights only extend to the property of parents and not as one inherited by the Hindu Undivided Family.
The live-in- relationships always had two coins with people in support and against it. The judiciary has always come forward to help those in need by interpreting the prevailing laws and providing protection, hence it fulfils its every duty as the protector of our rights, the stigma around this new concept has to be eradicated and this can only happen when a greater number of people look at the brighter side of the face. With evolution and education ruling our country, the youth of today wants to be independent and hence the legislature should take a stand and enact laws and bring to the podium for people who wish to break the taboo of the society.