The unheard sides of the live-in relationship in India
1. INTRODUCTION
As we all know that live relationships in India are legalized. The supreme court of India and the High Courts in India ruled in various judgments about the legality of live-in relationships in India. The constitution of India gives us rights under article 21, which says that the person has the right to life which includes the Right To Live according to their own. The couple who are in live-in relationships are not legally married couples but the court presumes them to a married couples. Also, they are given certain rights and protections by the court against violence but the supreme court of India is not clear about the live-in relationships for all religions.
The concept of live-in relationships may be considered immoral by society but not illegitimate as per the law, the couples are protected by articles 21 and 19 of the constitution of India. The supreme court also gives inheritance right to women and children but the court is silent on the matter of Muslim child property right.
There are some important case verdicts related to the live-in relationship.
a. The Allahabad High Court in the case Payal Sharma v nari the court ruled that it is not illegal to live together in a relationship without getting married as per law but it may be immoral as per society.
b. In the year 2010 the supreme court in the case Valuswamy v d pat. Laid down some criteria for the couple living together in a relationship.
1. Legal age of marry
2. Wilfull or voluntarily to cohabit
3. Enough qualified the marry or to live together
c. Now the question related to the alimony or maintenance for the women and children born out in a relationship.
d. The Punjab High Court in the Case Ajay Bhardwaj Vs Jijustna ruled that women are eligible for alimonies. ( but in section 125 of CrPC the alimony and maintenance are only given to married women, but after the report of the Malimath committee they amended and added that women who are in live-in relationships for a considerable period are also eligible for alimonies as well.
1.1 THE RIGHT OF THE PARTNERS LIVING IN A LIVE-IN-RELATIONSHIP
In 2013, the supreme court ruled that women are protected under the PWDV act, 2005 against violence. Live-in relationships fall Under Section 2(F) of the law which defines a domestic relationship.
Section 2(f) of PWDV 2005 defines a domestic relationship as 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 family”
2. WHETHER IN MUSLIM LAW, CHILDREN BORN OUT OF LIVE-IN RELATIONSHIP HAVE RIGHTS OVER THE PROPERTY, OR ON THE ANCESTRAL PROPERTY
After legalizing the live-in relationship in India now the question that comes before us is whether the children born out of a live-in relationship are considered legitimate or illegitimate, or whether they have rights over the ancestral property.
Various High Courts of India give their judgment on the same topic and ruled that the child will be considered a legitimate child as a valid married couple child because the child is innocent. The court made a presumption under section 114 of the Indian Evidence Act which says that the child born out of a live-in relationship is presumed to be child legitimate because the couple is living together for a considerable period.
The supreme court of India gives its judgment about the rights of children over ancestral property. Supreme court said that the children have rights over ancestral property and the children can not be denied ancestral property. The supreme court in Kattukandi Edathil Krishnan & Another Vs Kattukandi Edathil Valsan & Others ruled that children born to partners in live-in relationships can be considered legitimate. This is conditional in a way that the relationship needs to be long-term and not of ‘walk in, walk out’ nature.
“long course of living together between a male and female will raise a presumption of marriage between them and the children born in a such relationship are considered to be legitimate children,” said the sc Judgement. The presumption made under section 114 of the Indian evidence act 1872 considered the child as a legitimate child. The supreme court has said that a child born out of an illegitimate marriage or a live-in relationship is a legitimate child. Moreover, they are entitled to coparcenary rights on their ancestral properties as well.
This extends property rights to such children as well. The sc said, “the law presumes in favour of marriage and against concubinage”. If a man and woman consensually cohabited for a long period and their child cannot be denied the shares in the ancestral properties. The supreme court has also ruled that such children are eligible to be part of family succession. The concept of coparcenary rights originates from the legal treatise called ‘Mitakshara’ under the Hindusuccession act, 1956.
The fact of the case is that the supreme court upheld the Judgement of the Kerala High Court. While giving the Judgment Kerala High Court set aside the fact that the couple have long cohabitation between them, and from the basis on which the existence of marriage could be concluded thus making the son out of wedlock.
The reason behind the Judgement of the Kerala High Court is based on evidence produced by the defendant party who is opposing the validity of the marriage. Thus the court said that the plaintiff was an illegitimate child and dissenting him from any share in the property. In my view, the decision of the Kerala High Court is not sustainable in the eye of the law and the matter is not decided after considering all the facts given in the case. Also, the Kerala High Court is not considered the legal provision related to the live-in relationship.
Also, the judgment of the Kerala High Court is contrary to the supreme court judgment in the Case Bharatha Matha Vs R Vijay Renganathan & Ors (2010), the supreme court held that the children born through live-in relations will be considered legitimate children and will be allowed a share in the ancestral undivided property, and also contrary to case law for the protection of the child in the case of Tulsa & Ors Vs Durghatiya & Ors, (2008), the supreme court laid down the status of children born through live-in relationships. For a child to claim the status of a legitimate child born through live-in relationships, the partners must have resided under a roof for a long period. Such a child can then claim the right over ancestral property. This case has endorsed the long cohabitation point.
The plaintiff preferred a petition before the supreme court of India challenging the impugned order of the Kerala High Court, the supreme court took the matter considering all the laws and legal provisions and upheld the judgment of the Kerala High Court. Supreme court allows the petitioner a share in the ancestral property.
Let's come to the issue of whether the Muslim couple who are in a live-in relationship and the child born out of the relationship have rights over ancestral property or not is still a question, most of the judgments are about the Hindu family, there is nowhere defined or mentioned the rights and protections about the Muslim women and children. There are many questions on which the supreme court of India is silent. Is it a violation of article 15, discrimination on the basis of religion?
The supreme court of India is complete silence in this matter, Muslim law is not permitted a pre-marital relationship between a Muslim couple, and the child born out of the relationship is considered to be illegitimate.
As for the protection of Muslim women and their children, on one side there are protections given by the supreme court of India to women and children under various provisions .but there is no clarity about whether the law will apply to all religions or not. The supreme court of India needs to enforce a law for the protection of Muslim children born out of a live-in relationship in India. Muslim personal law not permitted Zina which means the pre-marital relationship between a Muslim male and female and the child born out of that relationship is illegitimate.
Then what for the protection of the child? Because as per the Muslim personal law the child is considered illegitimate, and also the child did not have rights over ancestral property, Now the question is whether the presumption of marriage and legitimacy of a child under sections 114 and 112 of the Indian evidence act 1872 will apply or not, if the same provision will apply to the children then the provision is contrary to the Muslim personal law,
The protection given under the PWDV act 2005 to the women similar to married women under section2 (f) will give protection to Muslim women it defines a domestic relationship as 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 like marriage.
Discrimination against the homosexual male in live in relationship in India
After decriminalizing the status of live-in relationship in India (1), another question erupted which is whether the homosexual couple has the right to live together. The answer is yes because India has decriminalized section 377, after this homosexual couples are left with the only option to carry on their relationship as live in relation couples.
So nowadays those who belong to homosexuals have the right to live together also it is recognized by the legislature too.
Petition related to the live-in relationship between same-sex couples is filled in various courts in India, and the courts give their judgment according to their interpretation. Some state High Courts dismissed the petition while some courts give Judgement in favour of homosexual couples.
Homosexual couples are also protected by article 21 which is vast enough to protect an essential right of self-determination with regard to a person's identity and freedom of choice with regard to the sexual choice of the partners.
The Punjab High Court ruled that homosexual couples are entitled to live-in relationships and protection of their lives and liberty as intended under article 21 of the constitution of India. Also, the Orissa High Court ruled that homosexual couples in, live-in relationships are recognized under constitutional rights and equality. It was held that women in a same-sex live-in relationship are protected under the 2005 domestic violence law similarly to different-sex – cohabiting couples.
After all this now the question arises as that the homosexual couple can be protected under the PWDV ACT 2005, the answer is yes only homosexual females can be protected under section 2 (f) of the aforesaid act. The same has been ruled by the Orissa High Court which held that women of the same-sex live-in relationship are protected under the 2005 domestic violence law similarly to different-sex cohabiting couples. Now another question has come to light what about the protection of male homosexuals in India because the law passed by the Orissa High Court can be considered discriminatory in nature? The law only protects female homosexuals, not male homosexuals. The supreme court is also silent in this matter. The Judgement of the Orissa High Court is contrary to equality before the law, and equal protection of the law (article 14 of the constitution ). It is also against natural justice and rule of law. The law only protects the interest of female homosexuals not the interest of male homosexuals.
To protect the interest of male homosexuals the court needs to enforce the law for the protection of male homosexuals. The verdict of the Orissa High Court was given under the case Chinmayee Jeena vs the state of Odisha & others. In this case, the female homosexual was given protection similar to married & heterosexual female couples. But what about male homosexual protection which law will protect the rights of male homosexuals if one male homosexual suffered violence from a partner? Relief under the PWDV act, 2005 is not available to men in live-in relationships. In this connection, it is pertinent to mention that in the case of khushboo vs kanniamal, the court observed that a live-in relationship is invariably initiated and perpetuated by men only.
How the court without considering the nature of violence by one male homosexual to another male homosexual and passed a law only for female homosexuals? The court in the aforementioned case said the relationship only initiated and perpetuated by only men is irrational, and seems discriminatory in nature too. , if the heterosexual or homosexual couple is starts living in a live-in relationship means they both jointly (voluntarily and with consent ) initiated to live together, for example, the man not bound to the woman to live with him, the girl or woman voluntarily agreed to cohabit with the men. That means not only men but women equally initiated the relationship to live together, so why does the court discriminate between the protection provision of male and female homosexuals?
After consideration, there is a clear violation of the fundamental rights of male homosexuals and discrimination among male and female homosexuals in India. How the court ruled that the relationship is only initiated by the men, it is unable to differentiate that the relationship is only initiated by the male but in reality, we know that the relationship is initiated by both gender. There is a clear violation of articles 14,15, and 21.
Let's understand some court verdicts
- In the case of Giridhar the petitioner was convicted under sections 342 and 354 of the Indian penal code. The petitioner claimed that as there are no provisions relating to assault against men to outrage his modesty, hence providing such laws for women is discriminatory. Section 354 is contrary to article 15(1). The petition was dismissed stating the law to be in consonance with Article 15(3).
- Like the same there is discrimination against men homosexual, the court has to consider the fact and rationality of the aforesaid subject and soon pass an order regarding the same.
Another verdict is that air India v. Nargesg meerza (1981) in this case, an exclusive reading of article 14 was done by the supreme court of India and it was decided that employment cannot be denied to any person on the ground of sex, in the aforementioned case the court is promoting gender equality but on the other side their inequality between the male and female homosexuality. If the court thinks that this is gender equality, then why not equality in male and female homosexuality
The court has to consider the issue and enforced a rule for the protection of male homosexuals in India because male homosexuals are also unsafe in India.
(1). Navjot Singh Johar V. Union of India