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Friday, November 29, 2013


Whether a “live-in-relationship” would amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship”?

A women, entered into a live-in-relationship with a man knowing that he was married person with wife and children where a man and a woman are proved to have lived together as husband and wife, the law presumes that they are living together in consequence of a valid marriage will not apply and, hence, the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. A concubine cannot maintain a relationship in the nature of marriage because such a relationship will not have exclusivity and will not be monogamous in character, the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is a rebuttable one and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage.

A relationship between a women and a married man could not be termed a relationship in the nature of marriage. The Hon’ble Supreme Court in Indra Sarma Versus V.K.V. Sarma observed.

In the instant case, the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into relationship in the nature of a marriage. Long standing relationship as a concubine, though that not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but the Domestic Violence Act does not take care of such relationships.

Appellant had entered into this relationship knowing well that the respondent was a married person and encouraged bigamous relationship. By entering into such a relationship, the appellant has committed an intentional tort, i.e. interference in the marital relationship with intentionally alienating respondent from his family, i.e. his wife and children. If the case set up by the appellant is accepted, we have to conclude that there has been an attempt on the part of the appellant to alienate respondent from his family, resulting in loss of marital relationship, companionship, assistance, loss of consortium etc., so far as the legally wedded wife and children of the respondent are concerned, who resisted the relationship from the very inception. Marriage and family are social institutions of vital importance. Alienation of affection, in that context, is an intentional tort, which gives a cause of action to the wife and children of the respondent to sue the appellant for alienating the husband/father from the company of his wife/children, knowing fully well they are legally wedded wife/children of the respondent.

Appellant and respondent were working together in a private company. The Respondent, who was working as a Personal Office of the Company, was a married person having two children and the appellant, aged 33 years, was unmarried. Constant contacts between them developed intimacy and in the year 1992, appellant left the job from the above-mentioned Company and started living with the respondent in a shared household. After several years, the man moved out of such live-in-relationship. The appellant preferred Criminal Miscellaneous Petition under section 12 of the Domestic Violence Act before the Magistrate, Bangalore. Seeking reliefs of independent residence, monetary order, compensation and maintenance. The learned magistrate found proof that the parties had lived together for a considerable period of time, for about 18 years, and then the respondent left the company of the appellant without maintaining her. Learned magistrate took the view that the plea of “domestic violence” had been established, due to the non-maintenance of the appellant and passed the order directing the respondent to pay an amount of Rs. 18,000/- per month towards maintenance from the date of the petition. Subsequently the Sessions Court upheld the Trial Court Decision.

But the Karnataka High Court set aside the Trial Court order saying that live-in- relationship did not fall within the ambit of “relationship in the nature of marriage”, a cardinal principal for one to invoke Domestic Violence Act.

The Hon’ble Supreme Court held that the appellant, having been fully aware of the fact that the respondent was a married person, could not have entered into a live-in- relationship in the nature of marriage. All live-in-relationships are not relationships in the nature of marriage. Appellant’s and the respondent’s relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship whould not fall within the definition of “domestic relationship” under Section 2(f) of the Domestic Violence Act. If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the Domestic Violence Act.

The Hon’ble Court Supreme Court further held that the appellant’s status was that of a mistress, who is in distress, a survivor of a live-in-relationship which is of serious concern, especially when such persons are poor and illiterate, in the event of which vulnerability is more pronounced, which is a societal reality. Children born out of such relationship also suffer most which calls for bringing in remedial measures by the Parliament, through proper legislation.

We are conscious of the fact that if any direction is given to the respondent to pay maintenance or monetary consideration to the appellant, that would be at the cost of the legally wedded wife and children of the respondent, especially when they had opposed that relationship and have a cause of action against the appellant for alienating the companionship and affection of the husband/parent which is an international tort.

Prepared by: S. Hemanth

Thursday, February 10, 2011

Legal perspective of the live-in relationship in India

India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of Live-in relationships. Many has been said and debated on the concept of Live-in relationships in India. It is important to understand the said concept from legal view point. In the year 2010 the Hon’ble Supreme Court of India had rendered few land mark judgments with regard to the live-in relationship.

Judgment date: October 07, 2010

Facts: The Appellant, Chanmuniya was married to Ram Saran and had 2 daughters. Ram Saran died on 07.03.1992. Chanmuniya married Virendra Kumar Singh Kushwaha, the younger brother of her deceased husband, in accordance with the local custom of Katha and Sindur. They were living as husband and wife together, Virendra Kumar Singh Kushwaha started harassing and torturing Chanmuniya, she asked for maintenance but Kushwaha refused saying that she wasn’t his legally wedded wife.
The Uttar Pradesh High Court also dismissed her petition on the ground that 125 Cr.P.C is available only to the legally wedded wife; thereafter she approached the apex court to seek justice.

Decision: Women in Live-in relationships are also entitled to all the reliefs given in the said Act (The Protection of Women from Domestic Violence Act, 2005).

Important observations: The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. In the absence of express contracts, 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.

The Protection of Women from Domestic Violence Act, 2005 assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even ‘economic abuse’. Economic abuse includes deprivation of financial and economic resources. Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under section 125 Cr.P.C.

The Protection of Women from Domestic Violence Act, 2005 gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes Live-in relationships in the nature of marriage within the definition of ‘domestic relationship’. Therefore, women in Live-in relationship are also entitled to all the reliefs given in the said Act, they should also be allowed in proceedings under section 125 of Cr.P.C.

Judgment date: October 21, 2010

The Hon’ble Supreme court in the above case observed that a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters, the Supreme court had observed that merely spending weekends together or a one night would not make it a domestic relationship.

A bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a women, even if not married, has to fulfill the following four requirements:
1. The couple must hold themselves out to society as being akin to spouses.
2. They must be of legal age to marry.
3. They must be otherwise qualified to enter into a legal marriage.
4. They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

The Supreme court observed, in our opinion not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005. To get such benefit the conditions mentioned above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage.

 The Apex court passed the judgment while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to Patchaiammal who claimed to have married the appellant D Velusamy. 

Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time. 
The Apex court also observed, "No doubt the view we are taking would exclude many women who have had a Live-in relationship from the benefit of the 2005 Act (Protection of Women from Domestic Violence Act), but then it is not for this court to legislate or amend the law. Parliament has used the expression 'relationship in the nature of marriage' and not 'Live-in relationship'. The court in the garb of interpretation cannot change the language of the statute," the bench observed.

Judgment date: April 28, 2010

In appeal filed by the well know actress, Khushboo seeking quashing of criminal proceedings filed against her mostly in the state of Tamil Nadu, for the remarks made by her in an interview to a leading new magazine. The Hon’ble Supreme court opined that a man and woman living together without marriage cannot be construed as an offence.

The Apex court said there was no law which prohibits Live-in relationship or pre-marital sex.

The Supreme court, held that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex. In case, one of the said persons is married, man may be guilty of offence of adultery and it would amount to an offence under section 497 IPC.

In S.P.S Balasubramanyam Vs Suruthaya @ Andali Padayachi and Ors. AIR 1992 SC 756, the Supreme court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act, that they Live as husband and wife and the children born to them will not be illegitimate.

In Adan Mohan Singh Vs Rajni Kant, the Supreme Court observed “The courts have consistently held that the law presumes in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (vide: Mohabbat Ali Khan Vs Mohd. Ibrahim Khan, AIR 1929 PC 135; Gokalchand Vs Parvin Kumar, AIR 1952 SC 231; S.P.S Balasubramanyam Vs Suruttayan (1994) 1 SCC 460; Ranganath Parmeshwar Panditrao Mali Vs Eknath Gajanan Kularni (1996) 7 SCC 681; and Sobha Hymavathi Devi Vs Setti Gangadhara Swamy and Ors., (2005) 2 SCC 244).

Prepared by: S. Hemanth

Advocate at Hemanth & Associates