Cohabitation Law in Need of Change: Should Cohabitants be Equalled to Married Couples?

Introduction:

Today, more couples prefer cohabitation, also known as a live-in relationship rather than actually getting married. The taboo that had been haunting couples opting to enter into a live-in relationship slowly seems to fade away. With the acceptance and adoption of various western practices, the younger generation of India has decided to accept the practice of live-in relationships. A number of factors have contributed to the society’s slow start towards the acceptance of such cohabitation. These factors include:

1. Education and awareness.
2. Introduction of globalisation.
3. The right to freedom and privacy.

The Hon’ble Supreme has taken the opportunity to define the nature and extent of relationships in numerous cases. The accepted legal definition accepted by the Indian Court defines Live-in relationships as an arrangement where an unmarried couple lives together to be in a long-lasting relationship, one that resembles marriage. In other words, a live-in Relationship refers to a way of living where an unmarried man and an unmarried woman cohabit without marriage.

A Live-in relationship or Cohabitation is usually considered to be an alternative to marriages to couples. This practice is more common and more accepted in metropolitan cities. The concept of Live-in relationships being significantly new to the people of India, there are no laws specifically governing cohabitation, though recently, certain legislations and Law committees have taken the practice into consideration while suggesting reforms in the existing laws to lay down the rights of persons involved in such a relationship resembling marriage and hence, ensure their protection.[1]

Current Status of Cohabitation in India

There exists no one particular law to govern cohabitation in India. Though there is a lack of legislation dealing with cohabitation, the provisions of the Protection of Women from Domestic Violence Act, 2005 safeguarding all women in domestic relationships, thus including women cohabitating with their partners is indeed commendable.

Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 defines the term domestic relationship as a relationship where two people lived or are living together or shared a household under a variety of circumstances such as marriage, consanguinity, relationship resembling marriage, etc. The inclusion of relationships resembling marriage or in the nature of marriage paves the way for women cohabitating or in a live-in relationship with their partners to seek relief under the Protection of Women from Domestic Violence Act, 2005. Women in such relationships are particularly more exposed and exploited both physically and mentally.

To ensure the safety of couples entering cohabitation, it is essential for the lawmakers of the country to enact separate legislation to govern these relationships by laying down the rights, duties, and remedies available to the partners. But again, this would violate one of the main reasons why the younger generation prefers cohabitation or live-in relationships over marriage. The reason being the absence of any legal or societal formalities or obligations.

Couples in cohabitation are allowed to begin or leave as and when they deem fit and there are no obligations to be fulfilled during either of the processes. Thus, the enactment of a legislation would not only guarantee rights but also levy obligations on the couples.[2] Though there seems to be an enormous deficit in the legislations on cohabitation, the Indian Courts through their judgments have shown solidarity to the new concept bypassing numerous judgments that elusively determine the rights of people that are cohabitating.

Not all live-in relationships are legally considered to be relationships resembling marriage and certain factors have to be fulfilled for cohabitation to be a relationship in the nature of marriage. The Hon’ble Supreme Court in D. Velusamy v. D. Patchaiammal[3] held that for a relationship to be in the nature of marriage as per Section 2(f) of the Protection of Women from Domestic Violence Act, 2005, it needs to satisfy some basic criteria. To constitute a domestic relationship, partners must reside together and not just spend weekends together or indulge in a one-night stand. The apex court also held that relationship based only on financial support and sexual purposes or as help will not constitute as a domestic relationship.

In another instance, the Hon’ble Supreme Court laid down the criteria for a relationship to qualify as a relationship in the nature of marriage. In the case Velusamy v. D. Patchiammal,[4] the Hon’ble Supreme Court laid down the factors determining if a relationship resembles marriage:

1. The couple must pose as husband and wife in front of the society.
2. They must be eligible for marriage.
3. The cohabitation must necessarily be voluntary and the partners must present themselves as a married couple to the society.
4. The couple must be competent to enter into a valid marriage.

About the children born out of such arrangements, the apex court in Revana Siddappa v. Mallikarjun[5] held that if a couple resides in the same household and have been doing so for a considerable amount of years, a child born out of such an arrangement will be treated as a legitimate child as the partners will be presumed to be married as per Section 114 of the Indian Evidence Act, 1872.

To ensure the safety and protection of women cohabitating with their partners, the Hon’ble Supreme Court in Virendra Chanmuniya v. Chanmuniya Kumar[6] held that unmarried women cohabitating with their partners or in a coa relationship also had the same rights and remedies that were previously available only to married women.

But the above-mentioned recognition is not adequate to resolve the issues that arise in live-in relationships. The Hon’ble Supreme Court granted legal status to live relationships but this status does not answer questions relating to the legitimacy of children born out of such relationships, the right to maintenance, alimony, inheritance, etc.

Until recently, maintenance was provided only to a lawfully wedded wife. But in the case, Sumitra Devi v. Bhikan Choudhary[7] it was held that marriage could be presumed for the purpose of granting maintenance between a man and a woman who have been cohabitating for a significant amount of time. This decision by the Supreme Court was not applicable to all live-in relationships. The Domestic Violence Act, 2005 aimed to provide protection to individuals in a live-in relationship. But the protection provided under this act does allow such couples to seek protection under the personal laws of the country.

Couples in a Live-in relationship are not automatically granted inheritance rights to the property of their partners under Personal Laws. But it was held by the Hon’ble Supreme Court that persons who have been cohabitating for a reasonably long period of time are entitled to receive property in the form of inheritance from their partner.[8] The judgment though vague, sets an example for future cases relating to inheritance among partners in a live-in relationship.

Another aspect of cohabitation is the prevention of domestic violence between partners. Here, partners cohabitating and lawfully married couples are treated alike. This equal status was granted to all persons in domestic relationships by the Domestic Violence Act, 2005 in 2006. The act provides equal protection to women in domestic relationships which is defined under Section 2(f) of the act as a relationship where two people lived or are living together or shared a household under a variety of circumstances such as marriage, consanguinity, relationship resembling marriage, etc.[9] The Act aims at providing remedies available to wives, to women in a live-in relationship as they also share the household.

There is no formal way of breaking up a live-in relationship. The law provides for the conditions of entering into cohabitation by “choice or circumstance” but there is still ambiguity in the case of leaving a live-in relationship.

Another aspect of live-in relationships concerns the legitimacy of a child born under these circumstances. Section 112 of the Evidence Act states that only a child born in a valid marriage is considered to be a legitimate child and rendered children born in live-in relationships to be illegitimate. But the supreme court held that children born out of live-in relationships will no longer be considered illegitimate in the eyes of law in Tulsa v. Durghatiya.[10]

Conclusion

So far, it is evident that the laws and rules pertaining to live-in relationships are ambiguous and unclear. This requires immediate reforms in laws relating to cohabitation in India. Though in a few situations, cohabitation is treated equal to marriage, but in other cases, partners who choose to cohabit with one another do not enjoy the benefits provided to married couples. Reforms must not only be brought in the laws of the country but also in the society as a whole.

A large proportion of the population of the country still considers live-in relationships as immoral and inappropriate. It is also evident that though there are no special laws dealing with live-in relationships, the courts of the country through their judgments have shown support for such relationships and have laid down rules to govern them. But, as stated before, these judgments and rules are not adequate for partners in a live-in relationship to form a strong case in a court of law and go to extreme lengths to prove cohabitation to the court.

Formulating a string law governing live-in relationships in the need of the hour to protect not only the persons involved in the relationship but also the children born out of the relationship who will be the future citizens of the country. Stringent rules need to be set up to determine the rights and duties of both parties that are cohabitating. It is impossible to treat cohabitation and marriage as the same and grant both the relationships the same legal status but a cohabitation, being in the nature of marriage, must be treated in a similar way to marriages given the similarities in the nature of both the relationships. Partners who aren’t married but cohabit and exist as though they are married must be given the same legal status as a married couple.

Though cohabitation is easy to enter into because of the independence and freedom that comes with it, there are also certain limitations and disadvantages and there needs to be a law to address these discrepancies.

---

References:

[1]https://shodhganga.inflibnet.ac.in/bitstream/10603/214286/12/chapter%20iv_issues%20and%20challenges%20involved%20in%20live-in%20relationships%20in%20india.pdf

[2] Ibid.

[3] 2010 AIR SCW 6731.

[4] (2010) 10 SCC 469.

[5] Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1.

[6] Virendra Chanmuniya v. Chanmuniya Kumar, (2011) SCC 141

[7] (1985) 1 SCC 637

[8] Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238.

[9] Section 2(f), Protection of Women from domestic Violence Act, 2005.

[10] (2008) 4 SCC 520