On 10-3-2021, the Punjab and Haryana High Court, in Moyna Khatun v. State of Punjab[1] dismissed the petition of Ms Moyna Khatun, aged 18 years and Mr Lab Singh, aged 19 years, seeking protection of their life and liberty at the hands of private respondents.
Live-in relationships or relationships in nature of marriage have slowly gained legal and judicial acceptance in the country. Statutorily, the Evidence Act, 1872[2] allows the court to draw a presumption of marriage under Section 114(g)[3] and Section 50[4]. In order to establish the presumption it has to be proved that the man and woman were living together for a long period as husband and wife; and that they projected themselves to the society as a married couple. There is no need to prove the factum of marriage in cases falling under Section 114. This reflects the approach of the law that it assumes in favour of marriage and against concubinage when couples have lived together as husband and wife for a long period of time.
Another statute which recognises live-in relationships is the Protection of Women from Domestic Violence Act, 2005[5] (the PWDVA, 2005), which was passed in keeping with India’s international commitments to address gender specific grievances of women. Section 2(f) of the PWDVA, 2005[6] defines a domestic relationship as a “relationship between two persons who live or have lived together in a shared household when they are related by consanguinity, marriage, adoption or through a relationship in the nature of marriage”.
The need to include relationships in nature of marriage was recognised in the Report of the Parliamentary Standing Committee on the Protection from Domestic Violence Bill, 2002[7]. The Committee acknowledged that there are many instances in India where a man and woman, though not legally married, still live together as husband and wife and have social sanction for it as well. Therefore, these relationships need to be included within the framework of the law to ensure that such women who are victims of any kind of violence that occurs within the family are protected. Relationship in nature of marriage is defined as analogous to common law marriage[8] i.e. the couple has to hold themselves out to the society as being akin to spouse; have to be of legal age to marry; have to be otherwise qualified to enter into a marriage, including being unmarried; and have to voluntarily cohabit for a significant period of time.
Landmark cases such as D. Velusamy v. D. Patchaiammal[9] and Indra Sarma v. V.K.V. Sarma[10] have recognised and given contour to the factors that need to be established for proving live-in relationships. The Courts, have also generally been sensitive towards partners of live-in relationships. For instance, in Nandakumar v. State of Kerela[11], the Supreme Court allowed an underage couple to live together. It recognised that the concept may be socially unacceptable, but in law, it could not be looked down upon. Similarly, in a Gujarat High Court decision of 2020, the Court ordered the police to extract the documents of the girl from her father so that she could subsequently solemnise marriage with her live-in partner.[12] The Punjab and Haryana High Court has also ordered police protection to live-in couples in cases like Simran Kaur v. State of Punjab[13] and Sukhbir Singh v. State of Punjab[14], Soniya v. State of Haryana[15], Priyapreet Kaur v. State of Punjab[16], Pardeep Singh v. State of Haryana[17] as also the Allahabad High Court in Kamini Devi v. State of Uttar Pradesh[18].
The case of Moyna Khatun v. State of Punjab[19] is a unique case of live-in relationships. The female partner, aged about 18 years and the male partner, aged about 19 years, entered into a live-in relationship deed, which they settled by way of mutual consent. Through the contractual live-in-relationship, both parties agreed their relationship will not be a marital relationship; that they will fully cooperate with each other without any dispute and will not claim anything against each other; and if either party backs out from the aforesaid deed, the other party will have a right to approach a competent court of law for implementation of the same. Further, the parties will be entitled and will be at liberty to terminate the deed at any time after giving one month’s notice to the other party. Additionally, on attaining marriageable age, the parties agreed to solemnise marriage. It was also submitted by the counsel for the parties that the deed was executed by the parties in Patiala.
This is the first time that a case of such nature has come before any court in India. The Hon’ble Judge dismissed the petition on the ground that the terms and conditions of the deed, especially stating that it is not a marital relationship, is nothing but the misuse of the process of law as it cannot be morally accepted in society. This brings the author of this piece to the larger question of whether deeds of live-in relationships are void ab initio, or they have some merit in the law and can be executed in certain circumstances.
In countries such as the United Kingdom and the United States of America, live-in partners can enter into cohabitation contracts. These contracts are primarily used to protect the rights of the cohabiting partners upon dissolution of the relationship, either by death or dissolution. These generally include, but are not limited to, disclosure of each partner’s assets and liabilities. With respect to property of the partners, the agreement must specify how the parties intend to deal with property owned before the relationship as well as that acquired afterwards. Matters other than property that can form part of such an agreement are support, custody or visitation rights for children born during the relationship and payment of debts before and during the relationship. Inclusion of such clauses will make the agreement holistic and truly lead to protection of the rights of live-in partners.
When cohabitation contracts, or live-in relationship deeds are so framed, the next point of enquiry becomes whether such deeds are opposed to public policy. Not only in India, but in USA and UK as well, cohabitation contracts have been challenged on the ground of violating public policy. There are two public policy aspects implicit in the proposition of legally accepting the validity of cohabitation contracts – the execution of such contracts can lead to dissolution of the institution of marriage, and an increase in cohabitation; and, these contracts may be based on meretricious agreements. The latter was discussed in the landmark case of Marvin v. Marvin[20]:
Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services so long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreements.[21]
On the question of whether cohabitation agreements discourage marriage, the enquiry will lie in determining whether encouraging marriage is a matter of public policy, or, does it fall within the realm of private lives of people? Historically, marriage has been said to hold a place of extreme significance, both for the individuals as well as for the State. It was considered as the basic unit of society, a constituent element in determining the political theory, and consequently the functioning of the State.[22] It creates strong ties of identity, kinship, mutual interdependence and responsibility[23] and … brings with it a psycho-physical intimacy[24]. Marriage also serves as the backbone for the principle of legitimacy, since human children require a long duration of caring and it is in their benefit that they can associate to an identifiable mother and father as nurturers.[25]
Over the years, marriage has taken an institutional form, acceptable both in society and in religion. This is evident from the sacrosanct status to marriage given under the Hindu Law, wherein it has been considered to be a samskara. Similarly, in Islam, marriage is considered to partake elements of both ibadat i.e. worship and muamlat i.e. daily affairs of men. In Christianity as well, marriages have to be officially validated by a priest and clandestine living together or informal marriages are not accepted.[26]
The social significance placed upon marriage by legitimising it through religious and ceremonial practices reflects the notion of “marriage as a status”. Gradually, however, as with the movement of all States from “status” to “contract”, marital relationships have also moved from “status” to “contract”.[27] As a result of this, people have found the legal space to exercise their option of entering into non-marital unions. Live-in relationships are a form of intimate partner living.
A live-in relationship or cohabitation does not require proof of the couple being akin to spouses. It is thus, an alternate form of living together and founding a family. These relationships find their basis in the will theory of contract.[28] The prime reasons for the growth of live-in relationships have been the freedom associated with this living arrangement, test of emotional and physical compatibility and rejection of restrictions and inequalities that have come about in the institution of marriage.[29] At the same time, cohabitation relationships often involve incidents of marriage such as emotional and physical exclusivity of partners; expectations of a permanent relationship; stability and similar phenomena. Some partners may even comingle their assets, incomes, financial burdens and have children.[30] The main criticism against acceptance of cohabitation relationships is its duration and often impermanence. However, with increasing divorce rates, this argument may not hold tight. In India, the number of divorces has doubled over the past two decades. Though only 1.1 per cent of women are divorced, those in urban areas make up the largest proportion.[31]
In India marriage is the dominant form of intimate partner relationship. Living together, though socially unacceptable is legally acceptable. However, not every relationship qualifies as a live-in relationship, and the strict interpretation laid down by the courts has to be complied with in order to get the protection of the law. Presently, the law provides only limited rights to partners who live together. Maintenance is one such right that has been secured for the female partner, through a catena of judgments. Upon dissolution of the relationship due to separation or death of a partner, the law is silent on property rights, or even the matters of custody of children who are born during the relationship. If live-in deeds provide for the management of property, they will indeed secure rights of both parties, especially when this cannot be achieved by the succession laws of the country. It will ensure that the partner with lower earnings has an income to rely on upon dissolution; and, the higher earning partner is not exploited eventually. Providing for child custody will also reduce unnecessary litigation and provide a harmonious environment for the upbringing of the child. The arrangement can however, be challenged in the court if it is found to not be in the best interest of the child. Mere mentioning of the relationship as a live-in relationship should also not be considered as a ground for rejecting the contractual arrangement if it can be established by the parties that their relationship is equivalent to a de facto marriage. It is here that the tests laid down by the Supreme Court will be useful. It will also exclude the possibility of the relationship being a meretricious one, as was cautioned in Marvin v. Marvin.[32]
Public policy is an unruly horse, but must change with the changing times. The same can even be said about immorality as a ground for not executing a contract. The aim of public policy is to preserve public welfare, wherein, individual freedom is restricted to ensure the general good of the society. Immorality too aims to protect the larger societal good. In light of this, it is imperative to note that the Parliamentary Standing Committee itself recognised the existence of live-in relationships in India. The author submits that merely mentioning that a relationship is a live-in relationship and not a marital relationship should not be considered immoral. Further, when the live-in relationship deed provides for protection of property, financial and custody and guardianship rights, it must be executed, subject to the principles of property and guardianship laws.
*Assistant Professor of Law, Institute of Law, Nirma University. Author can be reached at shreya.srivastava@nirmauni.ac.in
[4] Ibid, Section 50.
[5] Protection of Women from Domestic Violence Act, 2005.
[6] Ibid, Section 2(f).
[7] Department-Related Parliamentary Standing Committee on Human Resource Development on the Protection from Domestic Violence Bill, 2002 (Report No. 124).
[8] D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.
[9] Ibid.
[12] Bhakhodiya Ashokbhai Rameshbhai v. State of Gujarat, 2020 SCC OnLine Guj 2984
[13] 2017 SCC OnLine P&H 5409.
[14] 2015 SCC OnLine P&H 20771.
[15] CRWP No.4533 of 2021, decided on 18-5-2021.
[16] 2020 SCC OnLine P&H 2340.
[18] Writ C No. 11108 of 2020, decided on 23-11-2020.
[20] (1976) 18 Cal 3d 660.
[21] Ibid.
[22] Elizabeth Brake, Marriage and Domestic Partnership, Stanford Encylopaedia of Philosophy (12-3-2021, 10:00 a.m.) <https://plato.stanford.edu/entries/marriage/#:~:text=The%20state%20arises%20from%20component,theory%20(Politics%2C%201264b)>.
[23] Marriage and the Public Good: Ten Principles (Princeton, New Jersey, 2006), [Philosophy (12-3-2021, 10:30 a.m.)] < http://www.laikos.org/PublicGood.pdf>.
[24] E.O. James, Marriage and Society, (Hutchinson University Press, London, 1952)
[25] Kris Franklin, A Family Like any Other Family: Alternative Methods of Defining Family in Law, 18 NYU Rev. L. & Soc. Change 1027, 1033 (1990).
[26] Lord Hardwicke’s Marriage Act of 1753 declared that all marriage ceremonies must be conducted by a Minister in a Parish, Church or Chapel of the Church of England to be legally binding.
[27] Janet Halley, What is Family Law?: A Genealogy Part I, 23 Yale JL & Human, 52, 56 (2011)
[28] Ibid.
[29] State v. Manu Gopal, SC No. 456/2017, decided on 5-1-2019 (Delhi District Court).
[30] See Newcomb, Cohabitation in America: An Assessment of Consequences 43 (3) J. Mar & Fam. (1979); Glick & Norton, Marrying, Divorcing, and Living Together in the US Today, 32(5) Population Bulletin 32 (1977).
[31] UN Women Report on Progress of the World’s Women 2019-2020: Families in a Changing World, United Nations in India, <https://in.one.un.org/un-press-release/progress-worlds-women-report-2019-2020/> (13-3-2021, 9:30 p.m. )
[32] (1976) 18 Cal 3d 660.
