Advaith Agrawal & Abhishek Sanjay
Introduction
The number of people entering into live-in relationships in urban areas has significantly increased over the past few decades. There is a rapid shift away from the legal complexities associated with the institution of marriage. Young couples prefer to share a common household for some time before getting a ring into the picture. Conversely, they might prefer scrapping the idea of marriage altogether and continuing to exist as a ‘live-in couple’. A recent survey suggests 80% of people aged 18-35 consider living in as the way to go. Therefore, it is not surprising that the recent UCC Bill passed by the Uttarakhand Legislature contains a provision mandating the registration of live-in relationships.
However, it is doubtful whether our legal system has sufficiently adapted to navigate the increasing complexities associated with the modern phenomena of live-in relationships. Judicial and legislative understanding of the term is quite different from its understanding within contemporary society. The aim of this paper is to critically explore this difference and, in light of inadequate legal protections for the modern live-in couple, suggest an alternative legal framework to preclude potential negative outcomes arising out of the same.
From a theoretical perspective, the rationale for maintenance or alimony is based on specialization in domestic labour. These are remedies intended to mitigate the economic consequences of relationship dissolution for partners foregoing professional opportunities to focus on domestic responsibilities. Gary Becker’s model of family economics suggests that such specialization occurs in both married and unmarried couples (albeit to a lesser degree in the latter). Further, live-in couples implicitly agree to share economic resources and responsibilities and contribute to a shared household. This serves as the premise for discussing maintenance for modern live-in couples in India.
Section II analyzes the exact type of non-marital personal relationships our legal system has preferred ascribing rights to. Section III intends to understand the nature of legal recognition given to the form of live-in relationships recognized by the law. For purposes of attempting a more qualitative analysis, only rights pertaining to maintenance and /or alimony under Section 125 of the CrPC and relief in cases of domestic violence are examined. Moreover, only heterosexual relationships are examined.
Section IV discusses the practical implications of the current legal position with respect to the issue at hand and the considerations that must be kept in mind while arriving at a solution. It argues that both the current judicial and legislative trends are a step in the wrong direction. Lastly, Section V proposes the palimony framework as a possible solution which takes into account the modern conception of live-in relationships.
The current legal position
At the outset, no one can restrict two individuals from cohabiting. The Supreme Court, blending Article 21 in its explanations, has repeatedly held that non-marital cohabiting relationships are not illegal. Therefore, what is disputed is where the law actually extends protection (a positive interference) to live-in relationships.
Now, the Protection of Women from Domestic Violence Act, 2005 is the only legislation which directly gives recognition to some form of a non-marital relationship. Women can seek monetary relief in the form of maintenance under Section 20 read with Section 12 of the PWDVA. However, only relationships “in the nature of marriage” are protected under the PWDVA, and “all live-in relationships are not relationships in the nature of marriage”.
In Velusamy v Patchaiammal, the Supreme Court equated ‘relationship(s) in the nature of a marriage’ to common law marriages (an informal marriage) and provided the following qualifying requirements – the couple must (a) hold out to society as being akin to spouses, (b) be of legal age to marry and otherwise qualified to marry, and (c) have voluntarily cohabited for a significant period of time. Further, in Indra Sarma v. V.K.V. Sarma, the Court elaborated that due consideration must be given to the following additional factors – duration of period of relationship, shared household, pooling of resources and financial arrangements, domestic arrangement, sexual relationship, children, socialization in public and intention and conduct of parties. The implication is that non-marital relationships falling within the criteria set by the court can claim what are otherwise matrimonial remedies.
Additionally, maintenance is possible under Section 125 of the CrPC. Although Section 125 uses the word ‘wife’, in Chanmuniya v Virendra Kumar, the Court opined that the term ‘wife’ would include couples living together as husband and wife for a reasonably long period of time (which would raise a presumption in favour of marriage).
In sum, there are two possible avenues for people in non-marital relationships to claim maintenance – the PWDVA and Section 125 of the CrPC. For relief under the PWDVA, the couple must classify as a relationship “in the nature of a marriage”. For relief under Section 125, the duo must have cohabited for a sufficiently long period so as to raise a presumption of a valid marriage.
Realities of status quo
The judiciary, in examining ‘relationships in the nature of marriage’, is not ignorant of modern live-in relationships. In Indra Sarma, the Supreme Court acknowledged that the PWDVA “has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship.” However, judicial understanding – synonymous with ‘legal recognition’ of such relationships – significantly differs from the modern understanding of live-in relationships. The tests it has laid down hark back to the sanctity of marital unions – factors such as holding out to society as a married couple and the existence of children are given importance. In effect, the institution of marriage is put on a pedestal and is then used as a barometer to check whether non-marital cohabiting unions are ‘in the nature’ of marriage. This is apparent in the Court’s definition of relationships in the nature of marriage – “a relationship which has some inherent or essential characteristics of a marriage though not a marriage legally recognized, and, hence, a comparison of both will have to be resorted, to determine whether the relationship in a given case constitutes the characteristics of a regular marriage.”
It is safe to say that what the court does recognize is a relationship which fulfils the fundamental requirements of a marriage but cannot be called a valid marriage due to ambiguity with respect to completion of the requisite formalities or any such hinderance. Such relationships have all the attributes of a valid marriage – they fulfil the conditions of material validity – but fall short of attaining formal validity. Maintenance is inherently a matrimonial remedy, and a relationship will be protected if it is a matrimonial relationship for all practical purposes. Thus, the judiciary seems to be in favour of treating such long-term non-marital relationships as a marriage – which already has ‘legal recognition’ – rather than branding live-in relationships as a separate category.
Implications for live-in relationships
Live in relationships, in the modern understanding of the term, does not have legal recognition. The evolving jurisprudence over non-marital cohabiting relationships is incongruent with the emerging forms of live-in relationships. Even the definition under the Uttarakhand Bill (possibly representing the current legislative trend) follows this restrictive approach. As per §3(4)(b) of the Bill, a live-in relationshipis “a relationship between a man and a woman (… “partners”), who cohabit in a shared household through a relationship in the nature of marriage”.
21st century couples do not always live together as ‘husband and wife’. The labels assigned to stakeholders in such relationships – such as ‘boyfriend’ and ‘girlfriend’ – signify an acceptance for continuing an informal relationship. Sometimes, marriage is the least of their concerns, even if the intention is to stay together for as long as possible. Moreover, there are not always long spells of cohabitation preceding claims of maintenance. Even though there seems to be a relaxation in enforcing the ‘legally wedded wife’ criteria, the attempts to include non-marital unions are made keeping in mind this criterion. In such a situation, maintenance under Section 125 becomes nearly impossible.
As far as maintenance under the PWDVA is concerned, the legal framework can be best summarised as a false hope. Very few live-in relationships would fall within the criteria set by Velsumay and Indra Sarma and thereby be eligible to be a relationship in the nature of marriage. The Court’s understanding of live-in relationships is inspired by common-law marriages. The term ‘live-in relationship’ does feature in proactive judgements. But the usage of this term is qualified – live-in relationships are entitled to conditional reliefs. These conditions – holding out to society as husband and wife, cohabiting for a significant period, intention of having children, and assigning ‘proper’ domestic roles – seem very difficult for the modern live-in couple to satisfy.
Therefore, live-in couples would be denied maintenance under Section 125 and would practically have a very difficult time in claiming maintenance under the PWDVA. In effect, there is a grey area in the operation of the law with respect to modern live-in relationships. And bearing in mind the possibility of heavy litigation accompanying the growth of such relationships, there must be a legal framework to enforce the legitimate expectations of live-in couples.
Much caution must be exercised while developing such a framework. By penalizing the omission to register, legislative interventions, such as the Uttarakhand Bill, infringe upon the autonomy of individuals to define their own partnerships. The essence of opting for a live-in relationship lies in the desire to maintain privacy. A delicate balance must be struck between intervention and non-intervention due to privacy concerns. Further, it is no secret that Indian society places immense importance on the institution of marriage. Generally, there exists a veil of taboo surrounding non-marital relationships. Foisting mandatory registration in this context would perpetuate stigma and discrimination. Lastly, mandating registration, albeit for providing formal validity to relationships in the nature of marriage, blurs the line between marital couples and live-in “partners”. Over-inclusion can lead to a situation where the law recognizes non-marital unions on par with marital relations. Personal law jurisprudence peculiar to India would fall on its head if, say, a ‘girlfriend’ has rights equal to a married woman. Nevertheless (and this is most important), the Uttarakhand legislature, in adopting a restrictive definition of live-in relationships, as mentioned earlier, has dropped the ball as far as modern live-in couples are concerned.
In conclusion, the steps taken by (i) the Indian judiciary in identifying live-in relationships as akin to marriages and (ii) the Uttarakhand State legislature to recognize and mandate registration of live-in relationships, while progressive, do not legitimize the expectations of a growing (and complex) segment of Indian society. The current legal framework is mixing oil and water – marriages and live-in relationships are two fundamentally different concepts, and principles of the former cannot be the only basis on which laws on the latter are made.
Moving towards a solution: the palimony framework
Keeping these considerations in mind, it is contended that American and British jurisprudence over this issue and the emerging concept of ‘palimony’ (alimony for non-marital relationships) can be instrumental in devising the aforementioned legal framework. While the legal institutions of marriage in the UK and the USA do not have the predominant religious character evident in India, the Supreme Court of India has indirectly considered looking West as the appropriate strategy to legally deal with modern live-in relationships, keeping in mind our fast-changing social context. In Velusamy, the Supreme Court commented that it was not upon them to decide “whether in our country there can be a valid claim for palimony on the basis of a contract, express or implied, written or oral since no such case was set up by the respondent in her petition”. This, unfortunately, is the closest that Indian courts have come to acknowledging the concept of palimony.
In the landmark Marvin case, the Supreme Court of California held that “courts should enforce express contracts between non-marital partners”. It clarified that “in the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties”. Further, despite certain subjectivity – state courts have taken divergent stances, and the American Supreme Court has not given an opinion on the issue – “the Courts there which have granted it have granted it on a contractual basis”.
Even in the UK, the legal framework allows for two consenting adults to enter into a cohabitation agreement with predetermined factors pertaining to the dissolution process. The UK Supreme Court has established guidelines for determining the rights of cohabiting partners in relation to property ownership and financial support.
The following considerations must be addressed by any framework aspiring to address the grey area we have identified – the institution of marriage, individual autonomy, and social welfare. It is argued that awarding palimony on a contractual basis, expressly or impliedly, caters to these concerns directly. The sanctity of the institution of marriage would be upheld, as there would be a clear demarcation between marriages and modern live-in relationships. The latter is an informal union associated with varied uncertainties with respect to nature and form. A strict statutory framework might prove obstructive in some cases (where maintenance was never part of the initial agreement to live-in) and unsatisfactory in others (vice-versa). Legitimizing rights based on an underlying contract would prevent over-litigation as well. Pointedly, the settled Indian jurisprudence on ‘relationships in the nature of marriage’ would remain unaffected as it caters to a different set of factual matrices.
Lastly, the autonomy of individuals is championed. The proposed registration under the Uttarakhand Bill would be available in the public domain. Recently, the head of the panel preparing the UCC Rules also mentioned that couples would be able to access information about their partner’s past. Nevertheless, cohabitation agreements such as the ones regulated in the UK are not available in the public domain. Moreover, the implementation of these agreements is most practical and efficient – palimony is a one-time payment whose calculation has not proved difficult in the USA.
Conclusion
Live-in relationships, contrary to popular opinion, do not have enough safeguards with respect to maintenance. In the current legal atmosphere, only the PWDVA offers some semblance of relief. Even this is problematic due to the constant emphasis on the institution of marriage featuring in interpretations of the term ‘relationship in the nature of marriage’. While a healthy debate could ensue on whether live-in relationships merit maintenance or alimony, there is no harm in adopting a practical legal framework which, in the future, could cater to a diverse and growing section of the population. Uttarakhand’s UCC is not only a step in the wrong direction (it concerns only relationships in the nature of marriage) but also intrusive and over-regulatory. The framework proposed above removes the live-in debate from the public sphere and places it safely within the consent-based logic of private law. In doing this, American and British jurisprudence can be considered as a guiding light, keeping in mind the simplicity with which they have adjudicated this issue. We cannot afford to kick the can down the road, and the instant paper is only an attempt to advocate for some change in the status quo.
Advaith Agrawal is a third-year student at The National Academy of Legal Studies and Research, Hyderabad. Abhishek Sanjay is a second-year student at The National Academy of Legal Studies and Research, Hyderabad.
NUALS Law Journal 