An Indian legal perspective of live - in relationship with a view of position abroad

1. An Indian LEGAL Perspective With a View of Position Abroad 2010 Live – in Relationship

2. Live – in Relationship Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and / or sexually intimate relationship. The term is most frequently applied to couples who are not married.

3. Legal Position on Live – in Relationship in India The Indian Perspective

4. The Indian Perspective The concept of live-in-relationship is not new in India and has been recognized and accepted in certain parts of Gujarat way back in 1993. According to reports "MaitriKarar" (Friendship Agreement) were entered into between a married Hindu man and his "other woman" in order to give a sense of security to the said woman and were also found to be registered with the District Collectorate. The Supreme Court set up the Justice Malimath Committee, which in its report submitted in 2003 observed that "if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman." The Malimath Committee had also suggested that the word 'wife' under Cr.P.C. be amended to include a 'woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony.

5. The Indian Perspective The Protection of Women from Domestic Violence Act. 2005 is a Legislation enacted for the purpose of protection of women from domestic violence and includes Iive-in relationships in the ambit of domestic relationship as defined in Section 2(f) which reads as follows: "domestic relationship" means a relationship between two persons who live or have, at any point of time, live 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; The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a 'reasonable period', should get the status of a wife. Whether a period is a 'reasonable period' or not is determined by the facts and circumstances of each case.

6. The Indian Perspective The National Commission for Women recommended to the Ministry of Women and Child Development on 30th June. 2008 that the definition of 'wife' as described in section 125 of Cr.P.C. must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple's relationship at par with that of a legally married couple. In AbhijitBhikasethAutivs.State Of Maharashtra and Others, 2009 CriU 889 on 16.09.2008, the Bombay High Court observed that it is not necessary for woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. A woman living in relationship may also claim maintenance under Sec. 125 Cr.P.C. In Tulsa & Ors. vs. Durghatiya & Ors.. AIR 2008 SC 1193, the Supreme Court observed that a man and woman who are involved in live in relationship for a long period, they will be treated as a married couple and their child would be called legitimate.

7. The Indian Perspective S. Khushboo vs. Kanniammal and Anr., (2010) 5 SCC 600, the Supreme Court opined that a man and a woman living together without marriage cannot be construed as an offence. The Supreme Court said that there was no law prohibiting live-in relationships or pre-marital sex. "Living together is a right to live" the Supreme Court said, apparently referring to Article 21 of the Constitution of India which guarantees right to life and personal liberty as a fundamental right. The Supreme Court in the case of BharathaMatha & Anr. vs. R. VijayaRenganathan & Ors. held on 17.05.2010 that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property.

8. The Indian Perspective Conclusion Indian Law recognizes Live - in relationship as a part of the constitutionally guaranteed fundamental right to life and personal liberty. Live - in relationship is treated at par with matrimonial relationship subject to certain tests / conditions.

9. Legal Position on Live – in Relationship OUTSIDE INDIA The Global Perspective

10. The Global Perspective Scotland Family Law (Scotland) Act. 2006. for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.

11. The Global Perspective France Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a "de facto stable and continuous relationship" between two persons of different sexes or of the same sex living together as couple. The pact defines the relationship as a contract, and the couples involved as "contractants". The contract binds "two adults of different sexes or of the same sex, in order to organise their common life". For a valid contract to exist, the contractants "may not be bound" by another pact, "by marriage, sibling or lineage."

12. The Global Perspective United Kingdom Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as "common law spouses", the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other's property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner's assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.

13. The Global Perspective Canada Living together in Canada is legally recognised as "common law marriage". In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for at least 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.

14. The Global Perspective Ireland Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for "separated" live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexes and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the breakup of a relationship.

15. The Global Perspective Australia The family Law Act of Australia states that a "de facto relationship" can exist between two people of different or of the same sex and that a person can be in a de- facto relationship even if legally married to another person or in a de facto relationship with someone else.

16. The Global Perspective United States Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the "prenuptial agreements". The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.

17. Thank You for your kind attention Live – in Relationship A Presentation by Ankur S. Kulkarni Advocate – on – Record Supreme Court of India LEX REGIS LAW OFFICES www.lexregis.in C-57, Lower Ground Floor, Nizamuddin East, New Delhi – 110013, Delhi, India Phones : + 91 11 41826000 Fax: + 91 11 41826003 E-Mail: mail@lexregis.in