Indian Society which prided itself on ‘sanskar’ and ‘family’ is undergoing a metamorphoses in the Twenty First Century. The Familial bonds are weakening. Also, a lot of people are staying away from the families in cities, mini-metros and metros. These people staying as singles do get into relationships more often than any other generation and have started a trend of “Live-in relationships.” Live-in Relationships are not illegal in India. Though the same does not command as much respect. Most people of previous generations look at it as morally and socially improper. However, new generation does not have much hang-ups about the same.
Legally, it has created a problem of sorts. The Protection of Women from Domestic Violence Act, 2005 (DV Act) made a vague attempt at bringing the Live-in Relationships under the legal preview. It protects only female partners from domestic violence in the “relationships in the nature of marriage.”
Relationship in the nature of Marriage: Though the makers of the Act may have anything in mind, the law defines the concept “In the Nature of Marriage” as exhaustive and restrictive. Apex Court in S. Khushboo Vs. Kanniammal & Anr. [JT 2010 (4) SC 478] and D. Velusamy v.D. Patchaiammal [(2010) 10 SCC 469] held that the phrase in the nature of marriage would be akin to a common law Marriage and would be subject to certain essential conditions or Characteristics. Which translated would be following:
1. They should have capacity to marry each other. Relationship between a married man and an unmarried woman or vice verse is not a “Relationship in the nature of marriage.” A woman in such a relation would be mistress or concubine.
2. The relationship should be established for a considerable time period. Or to borrow the phrase from Justice Shiv Narayan Dhingra, it should not be a Walk in and Walk out relationship. (As quoted in Alok Kumar v. State & Anr).
3. They should live in a shared household. Merely spending week-ends or one night stands can not be termed as “Relationship in the nature of Marriage.”
4. They should pool resources and have a domestic arrangement where responsibilities are shared. Where a man uses a woman for sexual purposes or as a servant and maintains financially won’t be considered a “Relationship in the nature of marriage.” And such a woman is not entitled any protection under DV Act.
5. They should have a Sexual Relationship not merely for pleasure but for emotional and intimate relationship. Having children out of such relationship would be a strong indication.
6. They must hold themselves as Husband and Wife to public at large.
In case Of Bigamous Marriage: The benefits of the D.V. Act are not available in a bigamous marriage. This is regardless the fact that the woman was married or the man was married. The courts have ruled that where the marriage is null and void, it cannot be said that the woman was in a domestic relationship with the man. Also, the second wife cannot challenge the reliefs granted to the first wife.
The drafters of the DV Act may have envisaged anything but the legislature when came out with the law where the man should not be allowed to benefits from legal loopholes by enjoying advantages of a de-facto marriage. Recently Supreme Court also said that the laws are needed to protect such women also who are living in bigamous marriage or with a married man, but that is for future.
Rape Allegations in Live-in: This is a new trend which has come in light with the change in social dynamics. B S Bassi, the then commissioner of Police said in 2015. “At least 25 per cent of the total 1,656 rape cases registered so far by Delhi Police have been because of terminated live-in partnerships or refusal to marry.” And to ward of this problem of false cases of Rape arising out of live-in relationships, a PIL was filed in Delhi High Court which sought direction to the government to keep the cases of live-in relationships outside the purview of the offence of rape under the Indian Penal Code (IPC). However, the said PIL was dismissed by Hon’ble High Court with the direction to Police that police should not arrest a person only on the basis of an allegation by a woman prior to conducting preliminary inquiry and getting a medical report, but before arrest, sufficient cause should be recorded by a senior officer to avoid false implication.
Though cases of rape in live-in relationships and rape on the pretext of marriage have routinely resulted in acquittal, but that still does not mean that a case of Rape won’t be registered against a man who has been in a live-in relationship.
The saving grace, if any, is that a woman who has stayed in a live-in relationship though not legally married can not file 498a.
This goes without saying that the this law does not protect men from Domestic Violence or abuse whether he was staying in a relationship in nature of marriage or otherwise.
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