FAMILY

LAW

PROJECT
LIVE-IN

RELATIONSHIPS

PARUL SHARMA

ROLL NO 99

SECTION B
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Contents
CHAPTER I................................................................................................................................................2
1.1 INTRODUCTION.......................................................................................................................2
1.2 PURPOSE OF THE STUDY AND METHODOLOGY ADOPTED................................................................3
CHAPTER II...................................................................................................................................................4
2.1 ORIGIN AND EVOLUTION...................................................................................................................4
2.2 TYPES OF COHABITATION.................................................................................................................5
2.3 WOMEN AND COHABITATION..........................................................................................................6
CHAPTER III..................................................................................................................................................9
3.1 LAW AND LIVE – IN RELATIONSHIP: THE CONGRUENCY...................................................................9
LIVE – IN AND THE SPOUSAL STATUS : CASE ANALYSIS...........................................................................9
3.3 LIVE-IN RELATIONSHIPS, LAW AND MORALITY: THE TANGENCY POINT..........................................11
CONCEPT OF BLUE FAMILIES IN U.S. AND ITS RELEVANCE IN INDIA WITH REGARD TO COHABITATION
(NON-MARITAL, PREMARITAL, POST MARITAL)........................................................................................12
CONCLUSION.............................................................................................................................................15
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CHAPTER I

1.1 INTRODUCTION

A Live-in relationship in plain words may be described as a living arrangement in which an

unmarried couple lives together in a long-term relationship that resembles a marriage1. Live-in

relationship may also be referred to as ‘cohabitation’ or more specifically ‘unmarried

cohabitation’. This form of living arrangement involves apart from living together, an emotional

and/or sexually intimate relationship without actually marrying each other. This aspect renders

this entire concept of live-in relationship as an alternative to the institution of marriage. For

Marriage, on the other hand is often defined as a sexual, economic, and emotional partnership

between a man and a woman that is socially and legally sanctioned2. Couples may opt for this

form of living arrangement owing to variety of reasons some of them may be condensed in

following points:

i. Because the couples intend to maintain their single status for financial reasons;

ii. In case of same sex marriages (gay, lesbian), interracial or interreligious marriages or

already married individual or individuals, because the law does not permit them to

marry.

iii. In some cases the couple may want to test their compatibility or to establish financial

security before marrying.

iv. Philosophical opposition to the institution of marriage, i.e. misogamists;

1
Sourced from http://legal-dictionary.thefreedictionary.com/Live-in+relationship [last accessed 25th sept 2009]
2
Sourced from http://www.vifamily.ca/library/cft/cohabitation.html
4|Page

v. Because it entails fewer responsibilities at the legal, economic and even emotional

levels.

vi. Less institutionalized than the institution of marriage. It is perceived to be a freer

lifestyle, not bound by the norm of permanency.

1.2 PURPOSE OF THE STUDY AND METHODOLOGY ADOPTED

The specific objective behind undertaking this project is to understand the concept of

Live-in Relationship in general and as applicable in India and to an extent understand the

concept as applied in England and US and to analyse the concept in different legal systems. The

project also aims at bringing out the origin and development of this form of living arrangement.

In the particular project the researcher has mainly emphasised at Live-In relationships or

unmarital cohabitation and the dynamism that chaperons its evolution in India. The foregoing

chapters are an attempt at stating such understanding.

The methodology that has been adopted for this study is a doctrinal research, the

resources accessed to being statutes, case laws, law reports, scholarly opinion and a few previous

studies undertaken in the area.

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CHAPTER II

2.1 ORIGIN AND EVOLUTION

One of the first instances of cohabitation was among the peasantry of northern and central

Europe in the Middle Ages. Marriages then would often take place after proof of fertility was

produced through cohabitation. When socially condoned, cohabitation is variously called living

together, common-law marriage, quasi marriage, trial marriage and consensus marriage3.

Cohabitation has met with disapproval at various historical times and in different regions of the

world. Terms such as “living in sin” or “shacking up” reflect this disapproval. In the twentieth

century, unmarried cohabitation was first observed and studied in Scandinavia and in the

northern and central Europe, as well as in Canada and the United States. In the mid-1960s, only

five percent of single women lived with a man before getting married. However, since the 1970s

there has been a steady rise in unmarried cohabitation. By 1990s, about 70 percent did so.4 Thus

it is evident that the concept of Living together gained social acceptance since 1960s and have

gradually become legally recognized in western countries. Three general pattern of cohabitation

have been found in Europe:

(1) Countries where cohabitation is a relatively established phenomenon (Sweden and

Denmark);

(2) Countries where cohabitation is emerging as a significant pattern (the

Netherlands, France, Finland, Norway, Austria, Switzerland, Britain, USA,

Canada );and

International Encyclopedia of women: Global Women’s issues and Knowledge, by Cheris Kramarae, Dale Spender, Vol I, Routledge 2000.
3

4
Haskey, J., ‘Trends in marriage and cohabitation: The decline in marriage and the changing

pattern of living in partnerships’, Population Trends, Vol. 80, 1995, pp. 421-29.
6|Page

(3) Countries with very little cohabitation(Italy, Spain, Portugal, Greece, and

Ireland)5

In the first pattern, cohabitation may be seen as an alternative to marriage, whereas in the

second grouping, cohabitation is more likely to be seen as a part of courtship leading to

marriage.

Nonwestern and less industrialized countries, especially with strong religious sanctions,

fall into the third category, likening cohabitation with adultery. In India cohabitation had been a

taboo since the British rule. However, it is no longer true in big cities, but is still found in rural

areas with more conservative values. In Indonesia, an Islamic penal code proposed in 2005

would have made cohabitation punishable by up to two years in prison.6

2.2 TYPES OF COHABITATION

Cohabitation has moved from being a “deviant” or “alternative” lifestyle choice to one that is

normative.7 However, we know very little about relationship transitions and the way in which

they occur for cohabiting unions. Live-in Relationships or Cohabitation without or before

marriage stands as a rebellion against traditional ritualistic norms, customs. It strikes a blow for

freedom and independence. Cohabitation is far from a single type of relationship or arrangement;

it may vary according to the underlying reasons and circumstances which lead to acceptance of

this arrangement. It may vary depending on whether it is a ‘conscious choice’, ‘drift into’ or ‘the

best way out’ or it is due to other financial concerns. Macklin identified five types:

5
Cohabiting Mother: changing marriage and motherhood?, by McRae, Susan, London: Policy Studies Institute, 1993.

6
Sourced from http://news.bbc.co.uk/1/low/world/asia-pacific/4239177.html
7
Currently Cohabiting: Relationship Expectations and Outcomes in the British Household Panel Survey. [ Sourced from
http://eprints.lse.ac.uk/23986/]
7|Page

i. Temporary casual convenience;

ii. Affectionate dating/going together;

iii. Trial marriage;

iv. Temporary alternative to marriage;

v. Permanent alternative to marriage (misogamists).8

2.3 WOMEN AND COHABITATION

The population of cohabiting couples has exploded since the 1970s, and the number of

unmarried women and men living together show no sign of leveling off9. Cohabitation is

ingrained today as a distinct lifestyle choice and, for many, part of the process and structure of

intimate relationships. One of the most significant forces behind the persistence of this new

lifestyle includes the feminist movements. Today women are changing from being dependent on

husband/father, to becoming bread earners as a result of resurgence of these feminist movements.

This is especially the case with urban women. Talking about the Indian society specifically,

traditional and hierarchical perceptions and functions of women are slowly giving way to more

democratic ones. The rapid increase in the percentage of women opting for ‘living in’ is another

manifestation of it. The major historical change in family values, shifting it from a collective

view of the family to one of individualisational sentiment, the concept of ‘living-in’ is an

instance of the same. Unmarried cohabitation was always popular among the young and the

highly educated as they wanted to break away from the routinised and sequenced pattern of

events in their course congruent with the prevalent social norms10. Cohabitation is often viewed

8
Family studies: An introduction, by Jon Bernardes, pp.136, Routledge 1997 1980,p.290
9

10
Higher education and the reproductive life course: A cross cultural study, by Sarbani Banerjee, pp.134, Rozenbeg publishes.
8|Page

as a ‘new relationship’ in which partners will establish ‘new’ patterns of equality and sharing.

Shelton and John (1993) discuss that cohabiting women do less housework than married women

whilst men do much the same. This suggests that it is not merely the presence of a man that

raises the female housework, but rather that a husband increases the amount of housework

undertaken by a woman.11

Reemergence of feminism during the 1960’s (Presser,1997) which resulted in the re-

orientation of life priorities, particularly amongst the higher educated women. Criticism of

traditional gender roles diminished the acceptance of a traditional division of labor and led

women to give more priority to their own careers. However, feminism has not only had an

impact on preferences. It has also influenced the opportunity structures within which young

women operate. Although there were several reasons for governments to implement policy

measures aimed at improving the compatibility of work and motherhood, the feminist criticism

were certainly among the more prominent. ‘Live in’ not only served as a temporary alternative to

marriage but also a permanent alternative to marriage, for many feminist thinkers seeked the end

of formal marriage:

“the institution of marriage is the chief vehicle for the perpetuation of the oppression of women;

it is through the role of wife that the subjugation of women is maintained.”12

Feminist thinkers like Sheila Cronan argue that "Freedom for women cannot be won without the

abolition of marriage."13, and point to historical, legal and social inequalities of wedding, family

life, and divorce.

11
Family studies: An introduction, by Jon Bernardes, pp.136, Routledge 1997
12
Marlene Dixon, "Why Women's Liberation? Racism and Male Supremacy," at Articles%20Semester%202/8%20Dixon.html
13
Sheila Cronan, "Marriage," in Koedt, Levine, and Rapone, eds., Radical Feminism, p. 219
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CHAPTER III

3.1 LAW AND LIVE – IN RELATIONSHIP: THE CONGRUENCY

There has been perpetual reluctance in recognizing and more importantly sanction living

together or unmarried cohabitation as a distinct social institution. However, in case of India, with

the recommendation of Malimath Committee Report, as to the amendment of Sec 125 of Code of

Criminal Procedure (CrPC) an initiation in this regard as been made. Therefore it is

recommended in the committee report that the definition of the word ‘wife’ in Section 125 of the

Code be so amended to include a woman who was living with the man like his wife for

reasonable long period. And Section 494 of the I.P.C be suitably amended to the effect that if the

man and woman were living together as husband and wife for a reasonable long period the man

shall be deemed to have married the woman according to the customary rites of either party.

Amendment of Sec 125 of the Code of Criminal Procedure by the State Cabinet of Maharashtra,

we can witness the initiation of its recognition.

LIVE – IN AND THE SPOUSAL STATUS : CASE ANALYSIS

The legal recognition through the Committee Report and the subsequent amendment by the State

of Maharashtra is not that surprising as the cohabitants in the Live-in Relationship are often in

the same circumstances as legally married spouses though there has been perpetual reluctance to

equate the two relationships fully in law. Though with instances like the one mentioned above

the disparity between the legal status of the married and cohabiting couples is gradually

shrinking. Many statutes which give “rights” and “obligations” to “spouses” now include

“unmarried spouse” within its ambit, for instance the Protection of Women Against Domestic

Violence Act. By incorporating terms which widen the scope of the legislative schemes for
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instance terminology such as a woman who was living with the man like his wife for reasonable

long period.14

Time and again the apex has taken the stand, one that favours granting spousal status to couples

living together. In Badri Prasad v. Dy Director of Consolidation and ors.15 It was held that:

“where the partners lived together for long spell as husband and wife there would be

presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on

the person who seeks to deprive the relationship of legal origin to prove that no marriage took

place. ;law leans in favour of legitimacy and frowns upon basturdy.

Similar observation was also made in Gokal Chand v. Parvin Kumari16 where the honourable

court observed that:

“continous cohabitation of women as husband and wife and their treatment as such for a

number of years may raise the presumption which may be drawn from long cohabitation is

rebuttable and if there are circumstances which weaken and destroy that presumption, the court

cannot ignore them.”

In Tulsa v. Durghatia17 same observation was made, where the defendant was in living together

relationship for 30 years as husband and wife and had five daughters and a son out of the

presumed wed lock. In this case the apex court held good the presumption of marriage in the

event of their long cohabitation of 30 years.

14
Committee on Reforms of Criminal Justice System
[sourced from http://mha.nic.in/pdfs/criminal_justice_system.pdf]
15
AIR 1978 SC 1557
16
AIR 1952 SC 231
17
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3.3 LIVE-IN RELATIONSHIPS, LAW AND MORALITY: THE TANGENCY POINT

Law and morality correspond to one another in varying and striking ways. Both encompass rules

with general applicability, which we perceive to have special importance in our lives and to provide us

with personal mandates that can operate irrespective of at least some consequence. Both purport to

provide us with reasons to act that can override other compelling ones that arise from personal interest.

And most importantly we tend to construe no warranted difference in legal or moral judgement without

some difference in natural facts18. Live – in or cohabitation – pre-marital, post-marital, non marital ,

represent one of the significant changes in the pattern of union formations. It has come a long way from

being a ‘deviant’ or ‘alternate’ lifestyle to one that is normative. Thereby bringing about sweeping change

in the landscape of traditional family law.

From the fact that law and morality share a deep and pervasive structure—rises an

analogue in the moral and legal domain of what Noam Chomsky has called the “deep structure”

or “universal grammar” of language19. This structure arises from the fact that morality and law

engage psychological adaptations with the same natural function: to allow us to

resolve various classes of social contract problems20 flexibly.

18

To say that a moral property supervenes on a nonmoral property is to say that two items cannot
differ in their moral properties without differing in some nonmoral property as well. See, e.g., R.M. HARE, THE LANGUAGE OF
MORALS 80 (Oxford Univ. Press 1964) (1952).
19
NOAM CHOMSKY, ASPECTS OF THE THEORY OF SYNTAX 136 (1965)
20
The term “social contract problem” will be used generally to refer to any situation in which
all parties beginning from a suitably defined starting position would agree to be bound by certain
rules on the condition that all others would be similarly bound.
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CONCEPT OF BLUE FAMILIES21 IN U.S. AND ITS RELEVANCE IN INDIA

WITH REGARD TO COHABITATION (NON-MARITAL, PREMARITAL,
POST MARITAL)

The rise in phenomena of living together also corresponds to blue family. Blue families are

characterized by greater wealth, higher average levels of education, greater urbanization, lower

fertility levels, and lower levels of church attendance.They have been among the first to embrace

a new family model, which we term“the new middle class morality,” that responds to the post-

industrial economy by delaying childbearing and investing in the educational and workplace

opportunities of both men and women. To realize the advantages that have come with increased

specialization among women, the new model involves less control of sexuality, celebrates more

egalitarian gender roles, and promotes financial independence and emotional maturity as the sine

qua non of responsible parenthood. The hallmarks of the new system’s success are lower rates of

divorce and teen births; its weaknesses may ultimately be falling fertility and high percentages of

the population living alone. In this new model, abstinence is unrealistic, contraception is not only

permissible, but morally compelled, and abortion is the necessary (and responsible) fallback.

Non-marital cohabitation is irrelevant to child custody determinations absent an immediate

impact on the child, but domestic violence is a serious threat to family integrity that requires

state intervention. Recognition of same-sex relationships is a matter of basic

equality. The blue states have unprecedented numbers who will never marry, falling fertility

rates and considerable concern about the lack of commitment within intimate relationships

Red Families on the other hand emphasize a more traditional family system that

celebrates marriage as the institution ordained to promote the unity of sex, procreation and

childrearing. This traditional system, in tandem with religious teachings about sin and

21
RED FAMILIES V. BLUE FAMILIES Naomi Cahn And June Carbone 2007
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guilt,places a premium on the control of sexuality. As a result, it encourages marriage relatively

soon after (if not before) the beginning of sexual activity, identifies responsible childbearing with

family form rather than economic selfsufficiency or emotional maturity, and embraces more

authoritarian models of parenting and the state -- both should be able and willing to intervene to

promote the “right” moral values. Within red families, abstinence outside of marriage is a moral

imperative, the shotgun marriage is the preferred solution to an improvident pregnancy, and

socialization into traditional gender roles is critical to marital stability. Abortion is an

abomination not only because it violates religious teachings about the beginning of life, but also

because it represents a determination to evade the consequences of immoral conduct. And

gay marriage is, if anything, worse than abortion – the symbol of at the ability to

flout moral teachings in the name of individualism and choice.

However, the states having majority of blue families have unprecedented numbers who

will never marry, falling fertility rates and considerable concern about the lack of commitment

within intimate relationships.

Two primary demographic factors distinguish red families from blue ones. The first is age. The

average age of marriage in the United States as a whole is now 25 for women and near 27 for

men. In Massachusetts, among the bluest of blue states, it is 27 for women and 29 for men. In

Utah, the average woman marries before she turns 22, the average man before 24. The same can

be observed in India, taking the urban educated families and the rural conservative families. The

model of blue families apply to the families in metropolitans like Bombay, Bangalore, Delhi as

compared to small towns and cities. Thus members of blue families are more likely to enter into

live-in relationships as compared to those in rural. However instances of the contrary are there,

but that exist in the lower rung.

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CONCLUSION

Most people today associate "justice" primarily with rights. It is relationships not rights that

people really live for. Thus it is the human relationships that steal the center stage. Even when

there was little recognition of rights of cohabitants, it thrived which conforms its independence

from the concern of rights and entitlements. But however due to the progressive of judiciary, the

rights of cohabitants have been duly recognized. Apart from judiciary the legislation have

acknowledged the rights of cohabitation as are discussed in this paper.

However one sphere which needs due consideration is defining the scope and meaning of

terms like lived in cohabitation for long spell or continuous. For today, with the recognition of

the rights of cohabitants cohabitation has been waxed as marriage. marriage establishes “a social

institution that rests upon common values and shared expectations for appropriate behavior

within the partnership,” cohabitational relationships lack “social blueprints” and

even a nomenclature; cohabitation thus does not produce a consistent meaning either for those

within such a relationship or those outside it.

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REFERENCES

1. International Encyclopedia of women: Global Women’s issues and Knowledge, by Cheris

Kramarae, Dale Spender, Vol I, Routledge 2000.
2. Haskey, J., ‘Trends in marriage and cohabitation: The decline in marriage and the
changing
3. pattern of living in partnerships’, Population Trends, Vol. 80, 1995, pp. 421-29.
4. Cohabiting Mother: changing marriage and motherhood?, by McRae, Susan, London:
Policy Studies Institute, 1993.

5. Currently Cohabiting: Relationship Expectations and Outcomes in the British Household

Panel Survey.

6. Family studies: An introduction, by Jon Bernardes, pp.136, Routledge 1997 1980

7. Higher education and the reproductive life course: A cross cultural study, by Sarbani
Banerjee, pp.134, Rozenbeg publishes.
8. Family studies: An introduction, by Jon Bernardes, pp.136, Routledge 1997
9. Marlene Dixon, "Why Women's Liberation? Racism and Male Supremacy,"
10. Sheila Cronan, "Marriage," in Koedt, Levine, and Rapone, eds., Radical Feminism