The institution of marriage appears to have been evolved with a view to discipline sexual relations and ensure legitimacy of children and their intellectual and psychological development in a congenial atmosphere[1]. With advent of industrial revolution and the development of education throwing open the avenues of economic independence to women, human values, especially those pertaining to husband-and-wife relations, has undergone radical transformation.

The outcome of rapidly changing social morals has been a peculiarly ambivalent situation in the form of non-marital heterosexual relations (live-in relations as they commonly called). Such relationships among the urban, educated, upper middle class and elite young people have emerged towards their independence outlook, aimed at keeping them away from the 'shackles' that institutionalized the marriage[2].

Live-in' relationship is a de facto non-marital heterosexual relation prevailing in West with the different name like: common law marriages, informal marriages or marriage by habit, deemed marriages etc. It is a willful rejection of the institution of marriage, of the stereotypes it engenders, and of the restrictions and inequalities it has come to stand for. It is a form of inter-personal status legally recognized in some jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry[3].

Law And Live-In Relationships In India

There exists no law which directly recognizes the live-in' relationship; however, two legal moves have brought such relationship (i.e., the non-marital heterosexual relations) into sharp focus in India during the last decade. First, in 2008, the Maharashtra Government's attempt to amend Section 125 of the Criminal Procedure Code (hereinafter referred as Cr.P.C.) brought this issue to the fore. The amendment sought to broaden the definition of the term wife in Section 125 Cr.P.C. by including a woman who was living with a man like his wife for a reasonably long period[4]. This move followed the recommendations of the Malimath Committee (2003)[5].

Second, the Protection of Women from Domestic Violence Act (hereinafter referred as PWDVA) 2005, is considered to be the first piece of legislation that, is having covered relations 'in the nature of marriage', provided a legal recognition to relations outside marriage[6].In the following discussion, an attempt has been made to examine the context and implications of these two legal moves on different forms of non-marital cohabitation.

The Malimath Committee, i.e., the Committee of Reforms of Criminal Justice System, set up in November 2000 under the Chairmanship of V.S.Malimath, Former Chief Justice of the Karnataka and Kerala High Courts submitted its report in 2003 (Government of India 2003, hereinafter GOI 2003), wherein, it made several recommendations under the head offences against women first being to amend Section 125 of the Cr.P.C. which is concerned with maintenance rights of the neglected wife, children and parents.

The Committee sought to extend the definition of 'wife' in Section 125 C.r.P.C. by recommending 'to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage'. The extended definition of 'wife' is thus clearly set against the backdrop of secondary relationships of already married men and is not directed at taking cognizance of what may be regarded as emergent forms of non-marital cohabitation.

Following recommendations of the Malimath Committee, Maharashtra Government initiated an aborted attempt in 2008 to amend Section 125 Cr.P.C which brought the issue of legal status of 'live-in' relations into the public gaze. The move was construed as an attempt to confer legal status on secondary unions of men as well as legalize the 'live-in' relations, in which the young men and women choose to enter 'non-marital' heterosexual relations prior to entering a long-term committed nuptial tie.

The PWDVA And Relations In Nature Of Marriage

The PWDVA 2005, has been widely hailed as the first legislation to recognize the existence of non-marital adult heterosexual relations[7]. This Act defines an aggrieved person who will be covered under this Act as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent[8].

Further, the Act 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'.

This does not imply that the Act deals with all forms of domestic relations in a comprehensive manner. It excludes the domestic relationship between a male employer and a live-in domestic worker. The Act also clearly has no space for adult 'same-sex' relationships. Nevertheless, it can be construed that, unlike the recommendations of the Malimath Committee, the PWDVA, 2005 has implications for a broader terrain of non-marital relations, as it does not explicitly limit itself to the secondary relations of men.

In having used the idea of relations in the nature of marriage, the Act seems to have widened the scope of legally recognized domestic relationships between men and women. While this provision invited much criticism and controversy, it is important to note that it neither made an invalid marriage as valid nor provided legal recognition to bigamous marriages. But this provision merely seeks to denounce the domestic violence in any quarter, thus, not a judgment calls on the morality of the choice to cohabit outside of marriage[9].

It can, therefore, be argued that it would be sheer mistake to see this Act as conferring some sort of legal status upon non-marital relations. What it undoubtedly does, is to acknowledge the existence of such relationships and the right of women in such relations to accord protection to them from the violence.

Live-In Relationship And Judicial Attitude In India

Live-in Relationship in India is often seen as a taboo; however, it is not very uncommon to find people in big metros staying together as husband-wife without any formal marriage. None of the statutes dealing with marriage such as the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, Parsi Marriage and Divorce Act, 1936 and Christian Marriages and Divorce Act, 1872[10] recognize live-in relationship directly. Protection of Women from Domestic Violence Act, 2005 is considered as the first legislation that recognized the right of protection of a person in relationship in the nature of marriage. However, living together for long period has been considered to be presumption of marriage until some facts prove it to be otherwise under Section 114 of Indian Evidence Act, 1872[11].

Indian Courts have also made a strong argument in favour of presumption of marriage in cases where a man and woman have been living together for a reasonably long period of time. For instance, Privy Council in 1927 in A. Dinohamy vs. W.L. Blahamy[12], laid down the general proposition that:
where a man and woman are proved to have lived together as husband and wife, the law will presume unless contrary be clearly proved; that they were living together in consequence of a valid marriage, and not in a state of concubinage.

As per this ruling, a live-in relationship was to be considered as a valid marriage if the couple lived together and there was no evidence to the contrary.

In 1929, the Privy Council made significant additions to 1927 ruling Mohabhat AIi vs. Md. Ibrahim Khan[13], wherein it held that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

For a 'live-in' couple to be considered validly married, the court wanted evidence of cohabitation for a number of years, without specifying the minimum number of years. In 1952, the Supreme Court in Gokal Chand vs. Parvin Kumari[14] reiterated the principle laid down in Dinohamy's case but added that though the presumption for a valid marriage between a live-in couple could be drawn from their long cohabitation, it was no guarantee to earn them legitimacy if the evidence of living together was rebuttable and observed that:
Continuous cohabitation of woman and man as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

The Supreme Court in the case of Vidyadhari v. Sukhrana Bai[15],issued a Succession Certificate to the 'live-in' partner, who was nominated by the deceased. In Abhijit Bhikaseth Auti v. State of Maharashtra, the Bombay High Court observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under Section 125 of C.r.P.C.[16]

In Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh[17], the Supreme Court extended the protection against dowry under S. 498-A of the Indian Penal Code, 1860 so as to to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband and resort to cruelty or torture to the women.

This case has extended the protection of women from dowry even when they are in a live-in relationship. Whereas, Delhi High Court while dealing with the validity of 'live-in' relationship in Alok Kumar vs. State[18], observed that:
There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Further, the persons entering into such relationships are debarred from complaining of infidelity or immorality of the other partner.

It is thus obvious that non-marital relationship does not have a 'criminal' or 'illegal' status in India insofar as they do not amount to 'adultery' and insofar as the principle of 'presumption of marriage' prevails and this is not a new trend. However, this cannot be construed that courts promotes such relationships rather the law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage.

Such stands, in particular cases of live-in relationship, by and large, are based on the assumption that they are not between equals, and therefore women must be protected by the courts in the patriarchal setup of the society. But the same is not the case when one of the parties to the marriage is already married and it is this which can be seen to be a newly recognized thorny issue in the Indian legal domain.

Conclusion
Hence, keeping inconsideration, the Indian social conditions and cultural ethos, it is obvious that all forms of 'non-marital' relations cannot or should not be treated as legally identical. In any case, even if they should be treated as such the decision to do so should be preceded by a careful consideration of the implications this will have for the different categories.

Since there is no clear legal definition of 'non-marital relations', the field has been left wide open and hence the Apex Court felt an urgent need to separate a 'relation in the nature of marriage' from that with a 'servant' or a 'keep' and a 'one night stand'.

This, however, cannot be construed that judiciary promotes such 'live-in' relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts in the patriarchal set up of Indian society.

End-Notes:

1. Sarojini Nayak & Jeevan Nair, Women's Empowerment in India, 110 (2005) Pointer Publisher, Jaipur
2. Shoma A. Chatterji, Women in Perspective-Essays on Gender Issues; 168 (2010) Vistas Publishing.
3. Bradley, David "Regulation of Unmarried Cohabitation in West-European Jurisdictions - Determinants of Legal Policy", International Journal of Law, Policy and the Family, 15(1): 23 (2001)
4. Maharashtra to Legalize `live-in' Relationships, Times of India October 09, 2008
5. Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System 189-94 (2003).
6. S. 2(g), Domestic Violence Act, 2005.
7. Karanjawala, Tahira and Shivani Chugh "The Legal Battle Against Domestic Violence in India: Evolution and Analysis", International Journal of Law, Policy and the Family, pp. 289-308, (2009).
8. Protection of Women from Domestic Violence Act, 2005, S. 2(a).
9. Lawyers Collective and ICRW: Staying Alive: Second Monitoring & Evaluation Report on the Protection of Women from Domestic Violence Act, 2005;7(2008).
10. S. 11of the Hindu Marriage Act, 1955; S. 4of Parsi Marriage and Divorce Act, 1936; Sections 4-9 of Christian Marriages and Divorce Act, 1872.
11. S. 114, the Indian Evidence Act, 1872
12. AIR 1927 PC 185
13. AIR 1929 PC 135
14. AIR 1952 SC 231
15. AIR 2008 SC 629
16. (2009) Cr LJ 889
17. AIR 2009 SC 1329.
18. (2010) Cr.L.J. 299