Social Fabric or Individual Freedom? : A look at what needs to be protected

Today, live-in relationship is a common pattern among people in the western world (which unfortunately has attached this practice to be related to another experiment of the WEST).But apparently it doesn’t find acceptance in the Indian society. In India “cohabitation” of people of opposite sex without marriage is largely considered immoral. Where western countries through live-in have been able to challenge social taboos around the globe, Indians seem to cultivate moral seeds to justify their stand of disdaining the same. In a recent judgement by the Madras High Court, the court observed that “marriages have lost ‘sacrament’ due to the recognition of live-in relationships by the Domestic Violence Act, 2005”. [1]

Also recently a Judgment of the Punjab & Haryana High court caused a stir within the legal fraternity owing to the ratio given by the bench consisting of Justice Anil Kshetarpal, who refused to grant protection to a runaway couple who were in a living relationship and observed that “if such protection as claimed is granted, the entire social fabric of the society would get disturbed. Hence no ground to grant the protection is made out”[2].

These recent observations by courts and the already existing notion around live-in relationships has done no good in dethreading the constant biases and prejudices that prevail in Indian society regarding marriages and gender roles

This article aims to analyze the legal standing of Live-In relationship In India, and how this aforementioned Judgment has a flaw in its Ratio Decidendi which may set a dangerous precedent for the future cases and how it goes against the previous Judgments of the Hon’ble Supreme Court of India and also what can be done for cohabitation to gain some acceptance and recognition in a country like India.

WHAT IS A LIVE- IN RELATIONSHIP AND WHY LIVE- IN?

Recent trends show that family structures in Indian households are slowly changing. Nuclear families (couple with children) form the highest percent of households…; the percentage of ‘couple only’ families has increased.[3] This development is due to the fact that in an extended family with more people, views are very diverse and divided, and conflicts and tension happen more frequently. Also, more the number of people, lesser is the privacy of the couples. Also living under one roof is more feasible economically. So for all these reasons couples tend to choose a live-in relationship which offers much better living conditions for those people who fear societal pressure as a hindrance to their liberty and freedom as a couple.

Live-in relationship or more formally Cohabitation is a relationship setup between two partners who are often romantically or sexually involved with each other and live under one roof, usually for a long term or permanent basis. This way both of them get to experience a life that is the closest to marriage and they understand to handle problems together as a family and if things are not working out, they can walk out on each other without being part of the stressful legal procedure which married couples face during divorce.

The Hon’ble Supreme Court of India in the landmark judgement “D .Velusamy v D. Patchaiammal”[4] gave an identity to common law marriage system in legal domain of India.

The court said “In our opinion a `relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. A relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a `shared household’ as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship’’.

LEGAL STATUS OF COHABITATION IN INDIA

The aforementioned case accepted the legality of this long standing taboo of live in relationship in India and set a powerful precedent for the courts to follow. The Protection of Women from Domestic Violence Act, 2005 is the only statute that has given live-in relationship a legal standing in India. Section 2 (f) of the act defines Domestic relationship as follows:

- “domestic relationship” means 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.[5]

Talking about statutes, the interpretation of Section 114 of Indian Evidence Act, 1872[6] in the case of Badri Prasad v Dy Director of Consultation and others[7], the Supreme Court accepted those couples who have lived together for a considerable time together as legally married. The bench highlighted: “Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.[8] Not alone this case, the same observation in the 1927 Privy Council judgement of A. Dinohamy v W.L. Balahamy [9] highlights that from a long time, live in relationships have had a stand in the legal forum of the country.

If the couple has conducted itself in front of the society as a couple and has lived “as” husband and wife for a considerable time period then there is no reason that they should not be given due recognition as a married couple just because they don’t have a document from the government.

Now coming to another crucial question which needs to be answered: About the freedom of life and liberty of couples.

RIGHT TO LIFE AND LIBERTY OF LIVE -IN COUPLES

The US Supreme Court in the case of Munn v Illinois[10]clearly stated that “No State "shall deprive any person of life, liberty, or property without due process of law," says the Fourteenth Amendment to the Constitution. By the term "life," as here used, something more is meant than mere animal existence.” This was again reiterated by the Supreme Court of India in the case Kharak Singh v State of U.P[11] and it was highlighted that the amendments 5 and 14 of the American Constitution were equivalent to Article 21[12] with respect to the term “life”.

Individuals who are adults have the right to take decisions which tend to affect them in the long run which include who they wish to marry and with whom they wish to spend their life with. The condition is:

i).They should be of majority age (which in India is 18[13])

ii).They should be consenting adults

iii). They should be a heterosexual couple.

The aforementioned conditions were laid down in the Supreme Court judgement of Lata Singh v State of U.P.[14] It was further said that even if the parents don’t approve of the relationship of the couple, the most they can do is cut off their social relation with the son or daughter and by no means they can use violence or coercion to interfere with their relationship.

Choice of a life partner is the most basic of rights, which means cohabitation is just another right under right to life and liberty, and rights are legal.

By not allowing protection to the runaway couple, the Punjab and Haryana High Court violated the petitioners’ right to move freely throughout the territory of India[15] (Article 19 (d)) and their right to reside and settle in any part of territory of India[16] (Article 19(e))

Punjab and Haryana High Court: A String of Contradicting Judgements

Let’s take a look at how has Punjab and Haryana High court time and again contradicted itself on the legal standing of Live in relationship.

1. May 18 : The bench of Justice Jaishree Thakur observed that “a live-in relationship may not be acceptable to all, but it cannot be said that such a relationship is an illegal one or that living together without the sanctity of marriage constitutes an offence”[17]

2. May 18: The bench of Justice Sudhir Mittal in this case made some pro bono observations about live in relationship: “The individual also has the right to formalize the relationship with the partner through marriage or to adopt the non-formal approach of a live-in relationship.”[18]


3. May 17, 2021: The bench of Justice Jasgurpreet Singh Puri said that “"The scope of the present petition is only regarding the protection of life and liberty of the petitioners and, therefore, the validity of the marriage cannot be a ground for denial of such protection.”[19] 4. March 12, 2021: The bench of Justice Arvind Singh Sangwan of Punjab and Haryana High Court stated that “The terms and conditions of live-in relationship relied upon by the petitioners referred to above; especially stating that it is not a ‘Marital Relationship’ is nothing but a misuse of the process of law as it cannot be morally accepted in society.”[20]


5. January 25, 2021: A single bench of Justice Alka Sarin while hearing a case on a live in couple seeking protection from their family members observed that “Parents cannot compel a child to live a life on their terms. Every adult individual has a right to live his or her life as he or she deems fit. The petitioners are both major and have every right to live their lives as they desire within the four corners of the law.”[21]



THE WAY FORWARD

Indian judiciary has always proved that when it comes to social norms and practices, they are sound and valid. Therefore, it's time for the judges to re-consider their stand on live-ins. Article 21, which prevents the encroachment of life or personal liberty by the State except in accordance with the procedure established by law is a major tenet here.. Moreover, unarticulated observations which don't recognize live-in as an offence and still question it from a regressive societal perspective is a big issue of concern. For society to make a positive mindset it is necessary that a clear and expounded law comes up on the subject (cohabitation). The judiciary has through these tough times, taken full control and has done justice to the aggrieved parties. The biggest example is decriminalizing homosexuality in the Navtej Singh Johar case[22]. The legislature has to step in and supplement and ease judiciary’s work for the betterment of society and freedom of those who have trouble in residing with their partners just because the societal narrative fails to acknowledge pre-marriage cohabitation.

For this drastic or revolutionary change to happen, we need to do what is possible. Let’s look at the following points and analyse what needs to be done.

1. There should be a statute like the Special Marriage Act, 1954[23](which permits people to marry anyone they like irrespective of cast and religion) which allows two consenting heterosexual adults to live under one roof and protects them from the negative influences of their respective families.

2. The Government in 2000 formed a committee with Justice V S Malimath as its head also called Malimath Committee or the Committee on Reforms of Criminal Justice System to recommend steps for the revamp of laws relating to criminal law system in India which was too outdated to handle the new challenges faced by the system. The Committee submitted its report to the Government and listed many recommendations to be considered ,one of which was ; “Definition of the word ‘wife’ in Section 125 of the Code (Code Of Criminal Procedure) be amended to include a woman who was living with the man like his wife for reasonable long period.”[24] This provision has had a long standing debate and it is now high time to consider this and implement it. Apart from helping love prosper and providing lovers protection from the society it will also help the women in a non marital relationship to have a legal right and will help them in claiming maintenance when and if needed.

3. In the case of Sumanpreet Kaur & Anr. v State of Punjab & Ors.[25] Justice Rajeev Narain Raina made very strict observations and stated that "It is not for this Court in a protection petition to engage itself in social mores, norms and human behavior or introduce personal ideas on morality." The Bench further stated that "Even if it is assumed that the girl is minor, it must be remembered that in the Hindu Marriage Act, 1956 marriage of a minor girl is not void but voidable on reaching the marriageable age,"

This makes lot of sense when re-iterating the “entire social fabric of the society would be disturbed” line of the same court in the case discussed above (Ujjawal v. State of Haryana).The role of the court is to provide justice to people and save them from harms that otherwise society will inflict on them due to socio-cultural reasons and not to stand with the society and corner those who are seeking protection. If things like these begin to happen more frequently there would be no difference between a lawless society and a society governed by rules and regulations. Therefore judges should keep their personal feelings, ideologies and biases aside while deciding the merits of a case. Issues involving complicated subjects like live-in require discernment and a prospective approach that goes beyond the definite shackles of the society.

In straight contrast to a judgement like this we have a rare judgement by the Orissa high court. A division bench of the court consisting of Justices S.K Mishra and Savitri Ratho on 24 august 2020 delivered the historical judgement. The Judgement which was a concurrent one nonetheless granted approval to a woman who wanted to live with her same sex partner. Justice Mishra observed that: "There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner."[26] Justice Ratho further said “The oft-quoted maxim – love knows no bound has expanded its bounds to include same-sex relationships. A reading of the Supreme Court judgments will indicate that individual rights have to be balanced with social expectations and norms. The freedom of choice is therefore available to the two individuals in this case who have decided to have a relationship and live together and society should support their decision."[27]

So, the question is when some courts have gone to the so called limits of acknowledging the liberty, and freedom of choice of same sex couples, then why some courts apply orthodox thinking methods to their Ratio Decidendi dealing with heterosexual, consenting adults? The perspective needs to change.

4. The PERSPECTIVE being talked about in the above point will change through awareness, the primary source of which is education. Educating children to embrace the change and not look towards something as hurting their beliefs and sentiments when the thing is very normal and as simple as two “consenting” “adults” living together. This doesn’t mean embracing ideas of the west but applying rational thinking and coming to a conclusion by oneself.

Changes come, they come by revolutions active or silent, but they gradually and slowly come. But for those changes to come, efforts need to be made by each of us. The Judiciary is very actively indulged in making these changes, but we as a society have to collectively accept the fact that two people living together does no harm, then there will be a change, and a domino effect will start giving birth to more revolutionary changes.