STATUTE REVIEW OF DOMESTIC VIOLENCE ACT IN A LIVE IN

RELATIONSHIP FROM A WOMAN’S PERSPECTIVE

3.3 Family law II

Submitted by:

Harsh Awasthi

UID No. UG19-48

B.A.LL.B. (Hons.) 2nd Year, 3rd Semester

Submitted to:

Prof. (Dr.) Vijendra Kumar

(Professor of Law)

Ms. Ashwini kelkar

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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Table of Contents
Introduction...........................................................................................................................................2
Live-in Relationship and Law in India.....................................................................................................3
Domestic Violence Act, 2005.............................................................................................................3
Criminal Procedure Code, 1973.........................................................................................................4
Evidence Act, 1872............................................................................................................................4
Judicial Response to Live-in Relationships.............................................................................................4
Conclusion.............................................................................................................................................9

Introduction
The advent of live-in relationships in the Indian society, which traditionally holds the
institution of marriage as a primary requirement for relationships between a man and woman,
has pushed for some landmark reforms in defining the rights of women in a relationship. the
role of women is not confined to homes and kitchens anymore, women have got into every
area of work and proved their mettle. One thing, that the lawmakers must take into
consideration is- that the women have come a long way, and that the lawmakers and the
courts now have a duty to uphold, the space which the women have earned for themselves in
the society. And in that fashion, Honourable supreme court has delivered a landmark
judgement in defining the rights of women in live-in relationships and has rightly expanded
the boundaries for the women to avail their rights.

The author in this article has attempted to review the protection of women from domestic
violence act and analyse some landmark judgements in this area

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Live-in Relationship and Law in India

Live-in relationships in india are not governed by any law particularly laid down for the
purpose, hence there still exists a lot a grey area relating to matter of laying down rights and
commitments for live- in relationships, leave alone the rights of children born out of such
relationships. However, courts, or particularly supreme court has included the live-in
relationships under the ambit of relationship in nature of marriage. But a definition of live-in
relationships from the law-making body is still awaited as it would ensure a greater certainty
in adjudicating the lawful status of such relationships. However, it is needless to mention that
Indian law, which is largely codified during the british rule, does not recognises live-in
relationships. Though law is still unclear about the status of such relationship yet few rights
have been granted by interpreting and amending the existing legislations so that misuse of
such relationships can be prevented by the partners. Various legislations are discussed below
—

Domestic Violence Act, 2005

The legislature, for the first time in 2005 relaxed the archaic boundaries of relationship
between a man and a woman, in Protection of Women from Domestic Violence Act, and has
included, though not explicitly, live-in relationships under the ambit of scrutiny by the courts,
and has given their rights to those women who are not married but choose to live with a man,
in a relationship which is in nature of marriage, though not equivalent to marriage.

The pertinent section in the domestic violence act, 2005 is section 2(f) which lays down:-

Domestic relationship means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family members
living together as a joint family1.

Though the term “live-in relationship” is not defined specifically in the statute and thus is
largely for the courts to interpret in a manner to include live in relationships under its ambit.
However, the courts have extended the meaning of the term “relationships in nature of

1
S. 2(f) of the Domestic Violence Act, 2005.

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marriage” to include live-in relationships and thus guaranteed the women, irrespective of the
fact that the relationship falls in the strict boundaries of marriage, protection from abuse,
violence etc.

Criminal Procedure Code, 1973

The Malimath committee, which was constituted to suggest reforms in the criminal justice
system, submitted its report In 2003 and made various recommendations under the head
“offences against women3”. The committee suggested an amendment to section 125 CrPC
and extend the meaning to term “wife” and extend the rights guaranteed under the statute to
women who was been in a live-in relationship for a considerable period of time, so as to
ensure that the women are not left to the arbitrary will of their male partner. Where partners
live together as husband and wife, a presumption would arise in favour of wedlock 4. However
recently, a criticism has been made that the couple in absence of a legal wedlock, cannot get
separated by way of legal procedure i.e they cannot give divorce and thus they cannot claim
maintenance too.

Evidence Act, 1872

The court may presume the existence of any fact which it thinks likely to have happened,
regard being given to the common course of natural events, human conduct and public and
private business, in a relation as to the facts of the particular case. Therefore, where a man
and a lady live respectively for a long spell of time as a couple then there would be an
assumption of marriage5.

2
Ajay Bhardwaj v. Jyotsna, 2016 SCC OnLine P&H 9707.
3
Justice V.S. Malimath Committee Report.
4
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.
5
S. 114 of the Evidence Act, 1872.

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Judicial Response to Live-in Relationships

“With changing social norms of legitimacy in every society, including ours, what was
illegitimate in the past may be legitimate today.”

— Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun6

The supreme court of India has proved its role as custodian of constitution and the court of
last resort and has rightly endeavoured to bridge the gap between the lacuna in the existing
laws and the need of remedy to the people, and has tried to struck a balance between societal
norms and constitutional values.

Starting from the times of privy council, courts have tilted the presumption in favour of
marriage in cases concerning live-in relationships. Example could be taken of the judgement
in re andrahennedige dinohamy v. wijetunge liyapatabendige blahamy7 wherein, the privy
council opined that “where a man and a woman have been living together, the law will
presume that they have been living so after solemnisation of legitimate marriage, unless it is
established that the relationship is in a nature of concubinage” This same view was also taken
in Mohabbat Ali Khan v. Md. Ibrahim Khan 8 wherein the court held the marriage to be
legitimate as both the partners have lived together as spouse.

The supreme court of India, dealing with a matter which largely concerned the issues relating
to live-in relationship, in its judgment in Badri Prasad v. Director of Consolidation 9 extended
legal legitimacy to a 50-year live-in relationship. However supreme court at the same time
reserved the possibility of opposite, “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 a bastard 10.” Even though it
may tempt to presume the relationship in the nature of marriage, certain peculiar
circumstances do occur which may force the Supreme Court to rebut such a presumption11.

6
(2011) 11 SCC 1 : (2011) 2 UJ 1342.
7
AIR 1927 PC 185.
8
AIR 1929 PC 135.
9
(1978) 3 SCC 527.
10
Ibid.
11
Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, 333.

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Various high courts too have time and again held in scheme of recognising the live-in
relationships, example could be taken of a case in Allahabad high court, namely Payal
Sharma v. Nari Niketan12 wherein the court, in a bench comprising of hon’ble Mr. Justice
Katju and justice R.B Mishra, observed that, “a man and a woman, can live together, without
solemnisation of marriage between them. There is a difference between law and morality”
Thereafter, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel 13, the Court
observed that two people who are in a live-in relationship without a formal marriage are not
criminal offenders. This judgment then was made applicable to various other cases.

In Madan Mohan Singh v. Rajni Kant14, the Court held that, live-in relationships which are
continual for a long period of time cannot be treated as ‘walk-in and walk-out’ relationships
and that, there has to be a presumption in favour of marriage while adjudicating matters in
this area. This approach towards the live-in relationships by the court is commendable,
because it focuses on recognition of live-in relationships.

In landmark case of S. Khushboo v. Kanniammal 15, the hon’ble Supreme Court observed that
the right to life and personal liberty as guaranteed under article 21 of the constitution of india
would include a couple’s right to live together, and cannot be called to be illegal or unlawful
regardless of the absence of a legally solemnised marriage

the Delhi High Court in Alok Kumar v. State 16, this case also concerned issues around live-in
relationships. In this case, the woman in the live-in relationship had a child of her own and
the male partner in the live-in relationship had a wife and a child, with whom he had not
separated legally. The delhi high court in its judgement held the realationship as a ‘walk-in
and walk-out relationship’ and the one in which the parties enter into a contract everyday
which can be terminated by either party at any point of time.

In Koppisetti Subbharao v. State of A.P 17, the Supreme Court observed that the term
“dowry” does not requires a strict interpretation so as to restrict its application only to the
married couples, It simply mean a request of cash or any other monetary demand in
connection to a relationship between a man and a woman. The court, also did not accept the

12
2001 SCC OnLine All 332.
13
(2006) 8 SCC 726.
14
(2010) 9 SCC 209.
15
(2010) 5 SCC 600.
16
2010 SCC OnLine Del 2645.
17
(2009) 12 SCC 331.

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argument of defendant, that since he was not legally married to the complainant and thus the
provision under 498A of the Indian penal code would not apply.

In Chanmuniya v. Virendra Kumar Singh Kushwaha18, in this particular case the woman
remarried to his husband’s brother after the death of her husband, the marriage was
solemnised according to their customs. After the marriage the second husband started to
mistreat her and deserted her. When the issue arose before the hight court in delhi, the court
held that the marriage cannot be said to be a valid marriage as it wass not performed
according to section 7 of hindu marriage act. And thus, the woman cannot claim restitution of
conjugal rights and maintenance. The case then was appealed before the supreme court,
which observed that the the provision of 125 CrPC has to be read in the light of protection of
women from domestic violence act, and the woman who has spent a considerable amount of
time with a man is entitled to same rights and benefits as that of a wife.

However, there are some qualifiers for a couple to be covered under the “relationship in
nature of marriage”, i.e the parties to the relationship must be over the legal age to enter into
a wedlock, the parties must be qualified to give a valid consent to cohabit, parties must in the
eyes of world seem akin to spouses for a considerable amount of time. Hence, not every
relationship could be said to be in a nature of marriage, as the example is mentioned in the
earlier part of this article of the delhi high court judgement in alok kumar v. state. It
additionally held that if a man has a “keep” whom he maintains financially and uses
principally for sexual reasons or potentially as a slave then it would not be considered, as a
relationship in the nature of marriage19.

Recently, The Hon’ble supreme court, in landmark judgement, namely Indra Sarma v. V.K.V
Sarma20, elaborately deliberated on the issue of live-in relationships, the bench comprising of
Justice K.S Radhakrishnan and Justice Pinaki Chandra Ghose, laid down certain conditions
that need to be fulfilled for a couple to get status of “relationship in nature of marriage”. The
judgement held that “ when the woman is aware of the fact the that the man with whom she is
in a relationship with is having a legally wedded wife, cannot claim remedy under provisions
of protection of women from domestic violence act. However the court still maintained a
sight on the fact that the inequities do exist and it is ultimately the women who suffer the
18
2010 SCC OnLine Del 2645.
19
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 : AIR 2011 SC 479.
20
(2013) 15 SCC 755.

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greater share of the disrespect and injustice. And held that, in cases where the women find
themselves in an extremely disadvantaged position women can approach the forum for
seeking some remedies in form of pecuniary and non-pecuniary damages. Also, the hon’ble
court called upon the legislature to pass a exhaustive law in this area. so that the victims of
such relationships can get the protection. For the time being, the court has laid down certain
guidelines for the courts, so as to ensure uniformity and also prevent injustice until a law is
laid down by the legislature. Following are the guidelines laid down by the hon’ble court-

“(1) Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of
time’, which means a reasonable period of time to maintain and continue a relationship which
may vary from case to case, depending upon the fact situation.

(2) Shared Household

The expression has been defined under Section 2(s) of the DV Act and, hence, need no
further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring
immovable properties in joint names or in the name of the woman, long-term investments in
business, shares in separate and joint names, so as to have a long-standing relationship, may
be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a
relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for
emotional and intimate relationship, for procreation of children, so as to give emotional
support, companionship and also material affection, caring, etc.

(6) Children

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Having children is a strong indication of a relationship in the nature of marriage. Parties,
therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-
up and supporting them is also a strong indication.

(7) Socialisation in Public

Holding out to the public and socialising with friends, relations and others, as if they are
husband and wife is a strong circumstance to hold the relationship is in the nature of
marriage.

(8) Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to involve, and as to

The supreme court has recently delivered a judgement 22 holding that parties to a live-in
relationship must be presumed to be legally married. The court went on to lay down that after
the death of the male partner in a live-in relationship, the woman partner would be entitled to
inherit the property of the male partner.

Conclusion

Live-in relationships have since always been susceptible to non-acceptance in the society and
have also faced serious criticism from the society, plausible reason for the same could be –
live-in relationships pose a threat to the institution of marriage, which is considered a holy
sacrament between a man and a woman. Women particularly have been at a disadvantaged
position during the subsistence of live-in relationship and also after the breakdown of the
same. The constitution of India, celebrated as the lengthiest constitution in the world, came
into force on 26 January 1950, did not recognised the right to marry, as provided by the
universal declaration of human rights, 1948 under article 16.

However, the protection of women from domestic violence act, for the first time endeavoured
to relax the strict pre requirements for a woman to claim remedy from a relationship. But the
said act is not exhaustive and there are still a lot of gaps in deciding the rights and duties of
21
Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.
22
Dhannulal v. Ganeshram, (2015) 12 SCC 301.

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parties to live-in relationship. And it is the duty of the legislature to accommodate the rights
of all its citizens in the changing world order. And hence, there is an urgent need for a
exhaustive code for determining the rights and liablities of the parties to the relationship and
also the dissolution of relationships and rights of the children born out of such relationships.

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