The Indian society encompasses of various and diverse forms of cultures,
opinions and backgrounds. There are also different notions of what is deemed
right or morally correct and what doesn't fit in the stencil of values and
ethics which is created by the society itself. Each societal issue is viewed
through many lenses which leads to a lot of public scrutiny and moreover it is
subjected to perspectives which can be beneficial at times but not always.
though we are a democratic country where we have the liberty to profess and
practice whatever we desire to and can follow any ideology, it still comes with
a list of conditions and isn't entirely all pervasive.
It is known that the freedom to create a family is one of the most important
fundamental freedom since it has been ingrained in the society that family is at
the highest pedestal because it provides us with a plethora of benefits both
physical and emotional. Live in relationships, have paved its way from the west,
in our society and is quite a popular trend. It is known to be an alternative of
marriage and is presently being received as a marriage choice, particularly in
This type of a living isn't allowed by the Hindu marriage
act of 1955 and there's no separate law recognising or governing it as such.
Since the ambit of these relationships is obscure, and the laws are in the form
of verdicts that differ from case to case, leaving this concept hanging on a
thread since there is no legal understanding that this relationship can bank on.
The purview of Maintenance under section 125 CRPC was introduced as a method
through which the law makes sure that the women of the country are looked after
financially even after the marriage dies.
Women who live with men in
marriage-like mechanisms are not allowed to maintenance from their partners
under section 125 CRPC and their inclusivity is primarily directed at the
cognisance of their vulnerable position not just in the society but also within
the unconventional marriage like cohabitation. The degree of recognition it has
gotten does not unambiguously signify legal sanction and these new forms of
non-marital heterosexual cohabitation patterns in India need to be protected.
Right to maintenance in section 125 of criminal procedural code, 1973
The first time when live in relationships were recognised, it was by the
Protection of Women from Domestic violence (PWDVA) 2005, in calling them " an
arrangement of living under which the couples which are unmarried live together
to conduct a long-going relationship similarly as in of the nature of
Right to maintenance in section 125 of criminal procedural code
under which under which a wife, legitimate or illegimate child and parents are
entitled to get maintenance from a man[ii] and the definition of " wife"
includes a 'woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.'[iii]
This provision has failed to incorporate
and include women who are in a live in relationship bringing about one serious
flaw with this law and has failed in treating all women equally and
unconditionally. It has turned away from viewing live in relationships as a
marriage like institution and has failed to realise it where In a country like
ours a marriage is not just considered a traditional cultural heavy ordeal but
it is also still forced with conservative and regressive norms like inter caste,
social and economic and class differences which is labelled as a societal norm
of marriage but truly that isn't actually what rich heritage and culture means.
These redundant and regressive norms force women into bad marriages, and coming
out of them is another archaic issue which is again, looked down upon.
the reason why people now prefer to live together to either check if they are
compatible enough for a marriage in the future, or to just completely rule out
any chances of marriage and just continue living together in a way where both
partner have responsibilities that any other married couple would typically
have. This exempts them of family pressure, family disputes, unnecessary
traditions by the name of 'sacred marriage norms' and most importantly the
freedom it brings for the couple to lead on a life without any drama and
The National commission of Women has recommended the government to make the
required changes in the system and law to give women in live in relationships to
get maintenance from their partners if the relationship is decided to be broken
off, thereby giving women some form of protection and legal support to them
financially, just as it does to women in marriages.
Since laws on this
particular matter has been only in the form of judgements, the most iconic case
which spoke discrimination in multiple languages done to these women through
section 125, is the case of Savitaben Somabhai Bhatiya v State of Gujarat
(2005),[iv] where it was said that as per the section, 'there is no escape from
the conclusion that the expression of "wife" refers to only legally wedded wife'
and thus is not entitled to maintenance.
What's not understandable is that the
legislation deemed adding 'illegitimate child' in the provision for maintenance
but due to fogged up clarity of equality for all women and regressive mindset
with poor rationing didn't think necessary. In this judgement a multiple times '
women who unwittingly entered into wedlock cannot be expressed as wife' was
commented. The law has no right to question the intention of a relationship
which is between two individuals and assume that a women doesn't reason enough
before entering in a live in relationship with a man.
If thought reasonably, if
a women is devoting years to a relationship and contributing in more ways than
one and especially sharing her space with another entity, it's very ignorant of
the legislation to not consider that the woman in that case would naturally
think her decision through. Also what was noticed was the emphasis given to
'marriage like' arrangements and the fact that the woman has to be treated as a
'wife' and has to do duties like that of a wife, in order to prove the
authenticity and seriousness of the relationship.
Again, it is inconsequential
on whether the man is treating his partner like a wife or what the role
distribution is like in the household. It is really a subjective matter and
should be left on the couples to decide. This concept again stems out of a place
of deep rooted patriarchy which brings out the regressive ways a women is
supposed to act or behave in certain ways with respect to what is expected out
of her and whether she is doing her 'job' or fulfilling her 'responsibilities'
in order to be called and recognised as a wife.
What a wife is 'supposed' to do
is a social construct and it is assumed that only if it is abided by, would reap
benefits which otherwise also women in their organic and normal state should be
anyway entitled to without having to fit in the societal construct of a 'wife'.
The Domestic Violence Act has called a live in relationship as a marriage like
set up and the Hindu marriage act legalised them in 1955, disregarding all of
that, in the case of Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav
(1988),[v]the jurisdiction held that section 125 cannot apply to de facto wives
and women who are not lawfully married cannot be entitled to maintenance in
section 125 of CRPC.
If the law is not going to do justice, then these failed
attempts of legalising and recognising live in relationship is extremely
pointless and does no good to women who actually suffer and need to be cushioned
for protection and safety. Like it was mentioned previously about questioning
the ' seriousness' of the relationship, another detailed instance of this was
given out in Alok Kumar vs. State
(2010),[vi] where the Delhi High Court called
live in relationships as 'walk in and walk out' relationships with no 'strings
attached' to it.
It is true that live in relationships do not create any form of
legal bonding and these relationships can be terminated or broken off without
any consent as stated in this judgement. Now, this is exactly what is contested,
a legal implication or an obligation that gives some form rights to the couple,
like for example adoption too which isn't allowed for these couples to do since
there is no marriage.
But the call for maintenance is actually a provision which
makes the relationship safer for the women who aren't able to financially
support themselves so that they could also lead a reasonably of a quality life.
For instance how earlier when triple talaq was lawful in the country, the
situation was similar on this front in a way if not completely. In those
relationships also the husband could just 'walk out' and the relationship would
be 'terminated' but there was still maintenance given to those women.
uncertainty in Muslim marriages was quite similar to live in relationships in
respect with how the relationship can conveniently be called off with obviously
the biggest difference being the application of force and domination on the part
of the man on his partner in Muslim marriages and a lot of relationships in
India too have the same case if not as many in number, but as a response to the Alok judgement, the reason of live in relationships being uncertain isn't a
valid justification. This in turn gives the legislation all the more reason to
alter this provision and form laws in this regard, because since such
relationships can be terminated easily.
Whether it's a mutually broken off
relationship, through force of the male partner or even if the female decides to
walk out, whatever reason maybe healthy or unhealthy, toxic or not , the
requirement for legal backing and laws is all the more necessary here since a
women is proved to be on a flaky ground with no support leading to massive level
exploitation, vulnerability, inequality and discrimination.
Coming to how children born out of live in relationships are treated in a
society where one can create a family only through marriage and children born
out of live in relationships isn't considered correct sexual discipline to start
a family has brought about a lot of debates over freedom of sexuality and has
caught the attention of the Indian legislature.
These children continue to be
treated as unequal's in the society because of the stigma related with sexual
relationship before marriage but over the years the legislation has legitimised
out of marriage born children under the section 114 of the Evidence Act in the
landmark judgement of Vidyadhari v. Sukhrana Bai
(2008)[vii]. Following to the
judgement, a year prior, in the case of Dimple Gupta(Minor) v. Rajiv Gupta
(2007),[viii] maintenance for children born in illicit relationships was taken
into consideration under section 125 of CRPC. Although these children don't have
right over inheritance or ancestral property of their parents.
In the Uday U
Lalit and Aniruddha Bose (1957)[ix] case, the bench blatantly held that the
children born out of marriages could not place on an equal pedestal as
legitimate children, making it unfortunate to believe the brutality of the
legislation to enforce its archaic thinking on children too.
Live in relationships have somehow always been looked at as a threat to the
society and a curse to the 'highly rich' culture of the Indian society. Even
though courts through various judgements have tried to paint a picture on the
legal status, but there is still a lot of uncertainty and section 125 CRPC
failed at providing justice by staying silent about the status of women in live
The only rationale behind why the legislation has refrained
from taking positive steps in this regard is because it doesn't want to risk the
societal disagreement it would bring along. Justice will only be served to live
in relationship and women who have been at the receiving end of inequality, if a
well thought of legal regime is legislated holistically.
It is high time that
the law accommodates with the dynamics of the society that nobody has control
over and basing injustice and inequality on traditions and redundant regressive
norms is atrociously incorrect and unethical on the part of the legislation. The
legislation has to be at par with the changing trends of the society and what
cannot be legally justified or reasonably explained keeping aside all bias
shouldn't be acceptable justifications to make laws.
If the laws firstly aren't
in place, it's almost too difficult if not impossible to have a society which
doesn't discriminate people based on past conservative traditions which is a
deep rooted issue in our country's society and would not change or improve until
law takes a step to eradicate the issue from its core and articulate an organic
legal mechanism where people of the country are allowed to freely exercise their
rights on sexuality, relationships, family and reproduction with no fear of
societal judgement and inequality.
- Aggrieved Women And Live-In Relationships: Judicial Discourse, P-67 Docs.manupatra.in, http://docs.manupatra.in/newsline/articles/Upload/0F9385C7-DDF2-41EB-A7DB-FA111C39BFD8.pdf
(last visited May 26, 2020)
- Section 125 in The Code Of Criminal Procedure, 1973
- Section 125 in The Code Of Criminal Procedure, 1973
- Savitaben Somabhai Bhatiya v State of Gujarat And Ors,
- Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav
- Alok Kumar vs State & Anr.
- Vidyadhari & Ors vs Sukhrana Bai & Ors
- Dimple Gupta(Minor) v. Rajiv Gupta
- Uday U Lalit and Aniruddha Bose