LIVE-IN-RELATIONSHIP
WHAT IS “MARRIAGE”, AS UNDERSTOOD IN LAW
Supreme Court of IndiaIndra Sarma vs V.K.V.Sarma on 26 November, 2013
MARRIAGE AND MARITAL RELATIONSHIP:
23. Marriage is often described as one of
the basic civil rights of man/woman, which is voluntarily undertaken by the parties
in public in a formal way, and once concluded, recognizes the parties as
husband and wife. Three elements of common law marriage are (1) agreement to be
married (2) living together as husband and wife, (3) holding out to the public
that they are married. Sharing a common household and duty to live together
form part of the ‘Consortium Omnis Vitae” which obliges spouses to live
together, afford each other reasonable marital privileges and rights and be
honest and faithful to each other. One of the most important invariable
consequences of marriage is the reciprocal support and the responsibility of
maintenance of the common household, jointly and severally. Marriage as an
institution has great legal significance and various obligations and duties
flow out of marital relationship, as per law, in the matter of inheritance of
property, successionship, etc. Marriage, therefore, involves legal requirements
of formality, publicity, exclusivity and all the legal consequences flow out of
that relationship.
24. Marriages in India take place either
following the personal Law of the Religion to which a party is belonged or
following the provisions of the Special Marriage Act.
Marriage, as per the Common Law, constitutes a contract between a man and a
woman, in which the parties undertake to live together and support each other.
Marriage, as a concept, is also nationally and internationally recognized.
O’Regan, J., in Dawood and Another v. Minister of Home Affairs and Others 2000
(3) SA 936 (CC) noted as follows:
“Marriage and the family are social institutions
of vital importance. Entering into and sustaining a marriage is a matter of
intense private significance to the parties to that marriage for they make a
promise to one another to establish and maintain an intimate relationship for
the rest of their lives which they acknowledge obliges them to support one
another, to live together and to be faithful to one another. Such relationships
are of profound significance to the individuals concerned. But such
relationships have more than personal significance at least in part because
human beings are social beings whose humanity is expressed through their
relationships with others. Entering into marriage therefore is to enter into a
relationship that has public significance as well.
The institutions of marriage and the family are
important social institutions that provide for the security, support and
companionship of members of our society and bear an important role in the rearing
of children. The celebration of a marriage gives rise to moral and legal
obligations, particularly the reciprocal duty of support placed upon spouses
and their joint responsibility for supporting and raising children born of the
marriage. These legal obligations perform an important social function. This
importance is symbolically acknowledged in part by the fact that marriage is
celebrated generally in a public ceremony, often before family and close
friends....”
25. South African Constitutional Court in
various judgments recognized the above mentioned principle. In Satchwell v.
President of the Republic of South Africa and Another 2002 (6) SA 1 (CC), Du
Toit and Another v. Minister of Welfare and Population Development and Others
(Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), the
Constitutional Court of South Africa recognized the right “free to marry and to
raise family”. Section 15(3)(a)(i) of the Constitution of South Africa, in
substance makes provision for the recognition of “marriages concluded under the
tradition, or a system of religious, personal or family law.” Section 9(3) of
the Constitution of South Africa reads as follows:
“The State may not unfairly discriminate directly
or indirectly against anyone on one or more grounds, including race, gender,
sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language
and birth.”
26. Article 23 of the
International Covenant on Civil and Political Rights, 1966 (ICCPR) provides
that:
“1. The family is the natural and fundamental
group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age
to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the
free and full consent of the intending spouses.
4. States Parties to the present Covenant shall
take appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution. In the case of
dissolution, provision shall be made for the necessary protection of any
children.”
27. Article 16 of the
Universal Declaration of Human Rights, 1948 provides that:
“1. Men and women of full age, without any
limitation due to race, nationality or religion, have the right to marry and to
found a family. They are entitled to equal rights as to marriage, during
marriage and at it dissolution.
2. Marriage shall be entered into only with the
free and full consent of the intending spouses.
3. The family is the natural and fundamental
group unit of society and is entitled to protection by society and the State.”
28. Parties in the present case are Hindus
by religion and are governed by the Hindu Marriage Act, 1955.
The expression “marriage”, as stated, is not defined under the Hindu Marriage Act, but
the “conditions for a Hindu marriage” are dealt with in Section 5 of the
Hindu Marriage Act and which reads as under:
“5. Conditions for a Hindu marriage - A marriage
may be solemnized between any two hindus, if the following conditions are
fulfilled, namely:-
(i) neither party has a spouse living at
the time of the marriage
(ii) at the time of the marriage, neither
party-
(a) is incapable of giving a valid consent
to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid
consent, has been suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of
insanity;
(iii) the bridegroom has completed the age
of twenty- one years and the bride the age of eighteen years at the time of the
marriage;
(iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage governing each of them
permits of a marriage between the two;
(v) the parties are not sapindas of each
other, unless the custom or usage governing each of them permits of a marriage
between the two.”
29. Section 7 of the
Hindu Marriage Act deals with the “Ceremonies for a Hindu marriage” and reads
as follows: “7. Ceremonies for a Hindu marriage. -
(1) A Hindu marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include
the saptapadi (that is, the taking of seven steps by the bridegroom and the
bride jointly before the sacred fire), the marriage becomes complete and
binding when the seventh step is taken.”
30. Entering into a marriage, therefore,
either through the Hindu Marriage
Act or the Special
Marriage Act or any other Personal Law, applicable to the parties,
is entering into a relationship of “public significance”, since marriage being
a social institution, many rights and liabilities flow out of that legal
relationship. The concept of marriage as a “civil right” has been recognised by
various courts all over the world, for example, Skinner v. Oklahoma 316 US 535
(1942), Perez v. Lippold 198 P.2d 17, 20.1 (1948), Loving v. Virginia 388 US 1
(1967).
CONCEPT OF MARRIAGE AND MARITAL RELATIONSHIP
31. We have referred to, in extenso, about
the concept of “marriage and marital relationship” to indicate that the law has
distinguished between married and unmarried people, which cannot be said to be
unfair when we look at the rights and obligations which flow out of the legally
wedded marriage. A married couple has to discharge legally various rights and obligations,
unlike the case of persons having live-in relationship or, marriage-like
relationship or defacto relationship.
32. Married couples who choose to marry
are fully cognizant of the legal obligation which arises by the operation of
law on solemnization of the marriage and the rights and duties they owe to
their children and the family as a whole, unlike the case of persons entering
into live-in relationship. This Court in Pinakin
Mahipatray Rawal v. State of Gujarat (2013) 2 SCALE 198 held
that marital relationship means the legally protected marital interest of one
spouse to another which include marital obligation to another like
companionship, living under the same roof, sexual relation and the exclusive
enjoyment of them, to have children, their up-bringing, services in the home,
support, affection, love, liking and so on.
RELATIONSHIP IN THE NATURE OF MARRIAGE:
33. Modern Indian society through the DV Act recognizes in
reality, various other forms of familial relations, shedding the idea that such
relationship can only be through some acceptable modes hitherto understood. Section 2(f), as already
indicated, deals with a relationship between two persons (of the opposite sex)
who live or have lived together in a shared household when they are related by:
a) Consanguinity
b) Marriage
c) Through a relationship in the nature of
marriage
d) Adoption
e) Family members living together as joint
family.
34. The definition clause mentions only
five categories of relationships which exhausts itself since the expression
“means”, has been used. When a definition clause is defined to “mean” such and
such, the definition is prima facie restrictive and exhaustive. Section 2(f) has not
used the expression “include” so as to make the definition exhaustive. It is in
that context we have to examine the meaning of the expression “relationship in
the nature of marriage”.
35. We have already dealt with what is
“marriage”, “marital relationship” and “marital obligations”. Let us now
examine the meaning and scope of the expression “relationship in the nature of
marriage” which falls within the definition of Section 2(f) of the
DV Act. Our concern in this case is of the third enumerated category that is
“relationship in the nature of marriage” which means a relationship which has
some inherent or essential characteristics of a marriage though not a marriage
legally recognized, and, hence, a comparison of both will have to be resorted,
to determine whether the relationship in a given case constitutes the characteristics
of a regular marriage.
DISTINCTION BETWEEN THE RELATIONSHIP IN THE NATURE OF MARRIAGE AND MARITAL RELATIONSHIP:
36. Distinction between the relationship
in the nature of marriage and marital relationship has to be noted first.
Relationship of marriage continues, notwithstanding the fact that there are
differences of opinions, marital unrest etc., even if they are not sharing a
shared household, being based on law. But live-in-relationship is purely an
arrangement between the parties unlike, a legal marriage. Once a party to a
live-in- relationship determines that he/she does not wish to live in such a
relationship, that relationship comes to an end. Further, in a relationship in
the nature of marriage, the party asserting the existence of the relationship,
at any stage or at any point of time, must positively prove the existence of
the identifying characteristics of that relationship, since the legislature has
used the expression “in the nature of”.
SECTION 2(q) OF THE DV ACT
37. Reference to certain situations, in
which the relationship between an aggrieved person referred to in Section 2(a) and the
respondent referred to in Section
2(q) of the DV Act, would or would not amount to a relationship
in the nature of marriage, would be apposite. Following are some of the
categories of cases which are only illustrative:
a) Domestic relationship between an
unmarried adult woman and an unmarried adult male: Relationship between an
unmarried adult woman and an unmarried adult male who lived or, at any point of
time lived together in a shared household, will fall under the definition of Section 2(f) of the
DV Act and in case, there is any domestic violence, the same will fall under Section 3 of the DV
Act and the aggrieved person can always seek reliefs provided under Chapter IV
of the DV Act.
b) Domestic relationship between an
unmarried woman and a married adult male: Situations may arise when an
unmarried adult women knowingly enters into a relationship with a married adult
male. The question is whether such a relationship is a relationship “in the
nature of marriage” so as to fall within the definition of Section 2(f) of the
DV Act.
c) Domestic relationship between a married
adult woman and an unmarried adult male: Situations may also arise where an
adult married woman, knowingly enters into a relationship with an unmarried
adult male, the question is whether such a relationship would fall within the
expression relationship “in the nature of marriage”.
d) Domestic relationship between an
unmarried woman unknowingly enters into a relationship with a married adult
male: An unmarried woman unknowingly enters into a relationship with a married
adult male, may, in a given situation, fall within the definition of Section 2(f) of the
DV Act and such a relationship may be a relationship in the “nature of
marriage”, so far as the aggrieved person is concerned.
e) Domestic relationship between same sex
partners (Gay and Lesbians): DV
Act does not recognize such a relationship and that
relationship cannot be termed as a relationship in the nature of marriage under
the Act. Legislatures in some countries, like the Interpretation Act, 1984
(Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act,
1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.),
have recognized the relationship between the same sex couples and have brought
these relationships into the definition of Domestic relationship.
38. Section 2(f) of the
DV Act though uses the expression “two persons”, the expression “aggrieved
person” under Section 2(a) takes
in only “woman”, hence, the Act does not recognize the relationship of same sex
(gay or lesbian) and, hence, any act, omission, commission or conduct of any of
the parties, would not lead to domestic violence, entitling any relief under
the DV Act.
39. We should, therefore, while
determining whether any act, omission, commission or conduct of the respondent
constitutes “domestic violence”, have a common sense/balanced approach, after
weighing up the various factors which exist in a particular relationship and
then reach a conclusion as to whether a particular relationship is a
relationship in the “nature of marriage”. Many a times, it is the common
intention of the parties to that relationship as to what their relationship is
to be, and to involve and as to their respective roles and responsibilities,
that primarily governs that relationship. Intention may be expressed or implied
and what is relevant is their intention as to matters that are characteristic
of a marriage. The expression “relationship in the nature of marriage”, of
course, cannot be construed in the abstract, we must take it in the context in
which it appears and apply the same bearing in mind the purpose and object of
the Act as well as the meaning of the expression “in the nature of marriage”.
Plight of a vulnerable section of women in that relationship needs attention.
Many a times, the women are taken advantage of and essential contribution of women
in a joint household through labour and emotional support have been lost sight
of especially by the women who fall in the categories mentioned in (a) and (d)
supra. Women, who fall under categories (b) and (c), stand on a different
footing, which we will deal with later. In the present case, the appellant
falls under category (b), referred to in paragraph 37(b) of the Judgment.
40. We have, therefore, come across
various permutations and combinations, in such relationships, and to test
whether a particular relationship would fall within the expression
“relationship in the nature of marriage”, certain guiding principles have to be
evolved since the expression has not been defined in the Act.
41. Section 2(f) of the
DV Act defines “domestic relationship” to mean, inter alia, a relationship
between two persons who live or have lived together at such point of time in a
shared household, through a relationship in the nature of marriage. The
expression “relationship in the nature of marriage” is also described as
defacto relationship, marriage – like relationship, cohabitation, couple
relationship, meretricious relationship (now known as committed intimate
relationship) etc.
42. Courts and legislatures of various
countries now began to think that denying certain benefits to a certain class
of persons on the basis of their marital status is unjust where the need of
those benefits is felt by both unmarried and married cohabitants. Courts in
various countries have extended certain benefits to heterosexual unmarried
cohabitants. Legislatures too, of late, through legislations started giving
benefits to heterosexual cohabitants.
43. In U.K. through the Civil Partnership
Act, 2004, the rights of even the same-sex couple have been recognized. Family
Law Act, 1996, through the Chapter IV, titled ‘Family Homes and Domestic
Violence’, cohabitants can seek reliefs if there is domestic violence. Canada
has also enacted the Domestic Violence Intervention Act, 2001. In USA, the
violence against woman is a crime with far-reaching consequences under the Violence Against Women Act,
1994 (now Violence Against Women Reauthorization Act, 2013).
44. The Interpretation Act, 1984 (Australia)
has laid down certain indicators to determine the meaning of “de facto
relationship”, which are as follows:
“13A . De facto relationship and de facto
partner, references to (1) A reference in a written law to a de facto
relationship shall be construed as a reference to a relationship (other than a
legal marriage) between 2 persons who live together in a marriage-like
relationship.
(2) The following factors are indicators of
whether or not a de facto relationship exists between 2 persons, but are not
essential —
(a) the length of the relationship between them;
(b) whether the 2 persons have resided
together;
(c) the nature and extent of common
residence;
(d) whether there is, or has been, a
sexual relationship between them;
(e) the degree of financial dependence or
interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of
their property (including property they own individually);
(g) the degree of mutual commitment by them to a
shared life;
(h) whether they care for and support
children;
(i) the reputation, and public aspects, of
the relationship between them.
xxx xxx xxx
xxx xxx xxx”
45. The Domestic and Family Violence Protection
Act, 2012 (Queensland) has defined the expression “couple relationship” to mean
as follows”:
“18. Meaning of couple relationship
1) xxx xxx xxx
2) In deciding whether a couple relationship
exists, a court may have regard to the following –
a) the circumstances of the relationship between
the persons, including, for example–
(i) the degree of trust between the persons; and
(ii) the level of each person’s dependence on,
and commitment to, the other person;
b) the length of time for which the relationship
has existed or did exist;
c) the frequency of contact between the persons;
d) the degree of intimacy between the persons.
3) Without limiting sub-section (2), the court
may consider the following factors in deciding whether a couple relationship
exists-
a) Whether the trust, dependence or commitment is
or was of the same level;
b) Whether one of the persons is or was
financially dependent on the other;
c) Whether the persons jointly own or owned any
property;
d) Whether the persons have or had joint bank
accounts;
e) Whether the relationship involves or involved
a relationship of a sexual nature;
f) Whether the relationship is or was exclusive.
4) A couple relationship may exist even if the
court makes a negative finding in relation to any or all of the factors
mentioned in subsection (3).
5) A couple relationship may exist between two
persons whether the persons are of the same or a different gender.
6) A couple relationship does not exist merely
because two persons date or dated each other on a number of occasions.”
46. The Property (Relationships) Act, 1984 of
North South Wales, Australia also provides for some guidelines with regard to
the meaning and content of the expression “de facto relationship”, which reads
as follows:
1 “4 De facto relationships (1) For the
purposes of this Act, a de facto relationship is a relationship between two
adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or
related by family. (2) In determining whether two persons are in a de facto
relationship, all the circumstances of the relationship are to be taken into
account, including such of the following matters as may be relevant in a
particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or
interdependence, and any arrangements for financial support, between the
parties,
(e) the ownership, use and acquisition of
property,
(f) the degree of mutual commitment to a shared
life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the
relationship.
(3) No finding in respect of any of the
matters mentioned in subsection (2) (a)-(i), or in respect of any combination
of them, is to be regarded as necessary for the existence of a de facto
relationship, and a court determining whether such a relationship exists is entitled
to have regard to such matters, and to attach such weight to any matter, as may
seem appropriate to the court in the circumstances of the case.
(4) Except as provided by section 6, a reference in this
Act to a party to a de facto relationship includes a reference to a person who,
whether before or after the commencement of this subsection, was a party to
such a relationship.”
47. “In Re Marriage of Lindsay, 101 Wn.2d
299 (1984), Litham v. Hennessey 87 Wn.2d 550 (1976), Pennington 93 Wash.App. at
917, the Courts in United States took the view that the relevant factors
establishing a meretricious relationship include continuous cohabitation,
duration of the relationship, purpose of the relationship, and the pooling of
resources and services for joint projects. The Courts also ruled that a
relationship need not be “long term” to be characterized as meretricious
relationship. While a long term relationship is not a threshold requirement,
duration is a significant factor. Further, the Court also noticed that a short
term relationship may be characterized as a meretricious, but a number of other
important factors must be present.
48. In Stack v. Dowden [2007] 2 AC 432,
Baroness Hale of Richmond said:
“Cohabitation comes in many different shapes and
sizes. People embarking on their first serious relationship more commonly
cohabit than marry. Many of these relationships may be quite short-lived and
childless. But most people these days cohabit before marriage….. So many
couples are cohabiting with a view to marriage at some later date – as long ago
as 1998 the British Household Panel Survey found that 75% of current
cohabitants expected to marry, although only a third had firm plans: John
Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers
of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation
is much more likely to end in separation than is marriage, and cohabitations
which end in separation tend to last for a shorter time than marriages which
end in divorce. But increasing numbers of couples cohabit for long periods
without marrying and their reasons for doing so vary from conscious rejection
of marriage as a legal institution to regarding themselves ‘as good as married’
anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”
49. In MW v. The Department of Community
Services [2008] HCA 12, Gleeson, CJ, made the following observations:
“Finn J was correct to stress the difference
between living together and living together ‘as a couple in a relationship in
the nature of marriage or civil union’. The relationship between two people who
live together, even though it is a sexual relationship, may, or may not, be a
relationship in the nature of marriage or civil union. One consequence of
relationships of the former kind becoming commonplace is that it may now be
more difficult, rather than easier, to infer that they have the nature of
marriage or civil union, at least where the care and upbringing of children are
not involved.”
50. In Lynam v. The Director-General of
Social Security (1983) 52 ALR 128, the Court considered whether a man and a
woman living together ‘as husband and wife on a bona fide domestic basis’ and
Fitzgerald, J. said:
“Each element of a relationship draws its colour
and its significance from the other elements, some of which may point in one
direction and some in the other. What must be looked at is the composite
picture. Any attempt to isolate individual factors and to attribute to them
relative degrees of materiality or importance involves a denial of common
experience and will almost inevitably be productive of error. The endless scope
for differences in human attitudes and activities means that there will be an
almost infinite variety of combinations of circumstances which may fall for
consideration. In any particular case, it will be a question of fact and
degree, a jury question, whether a relationship between two unrelated persons
of the opposite sex meets the statutory test.”
51. Tipping, J. in Thompson v. Department
of Social Welfare (1994) 2 SZLR 369 (HC), listed few characteristics which are
relevant to determine relationship in the nature of marriage as follows:
“(1) Whether and how frequently the parties live
in the same house. (2) Whether the parties have a sexual relationship. (3)
Whether the parties give each other emotional support and companionship.
(4) Whether the parties socialize together or
attend activities together as a couple.
(5) Whether and to what extent the parties share
the responsibility for bringing up and supporting any relevant children. (6)
Whether the parties share household and other domestic tasks. (7) Whether the
parties share costs and other financial responsibilities by the pooling of
resources or otherwise. (8) Whether the parties run a common household, even if
one or other partner is absent for periods of time.
(9) Whether the parties go on holiday together.
(10) Whether the parties conduct themselves towards, and are treated by
friends, relations and others as if they were a married couple.”
52. Live-in relationship, as such, as
already indicated, is a relationship which has not been socially accepted in
India, unlike many other countries. In Lata Singh v. State of U.P.
[AIR 2006 SC 2522] it was observed that a live-in relationship between two
consenting adults of heterosexual sex does not amount to any offence even
though it may be perceived as immoral. However, in order to provide a remedy in
Civil Law for protection of women, from being victims of such relationship, and
to prevent the occurrence of domestic violence in the society, first time in
India, the DV Act has
been enacted to cover the couple having relationship in the nature of marriage,
persons related by consanguinity, marriages etc. We have few other legislations
also where reliefs have been provided to woman placed in certain vulnerable
situations.
53. Section 125 Cr.P.C.,
of course, provides for maintenance of a destitute wife and Section 498A IPC is
related to mental cruelty inflicted on women by her husband and in-laws. Section 304-B IPC
deals with the cases relating to dowry death. The Dowry Prohibition Act,
1961 was enacted to deal with the cases of dowry demands by the husband and
family members. The Hindu Adoptions and Maintenance Act, 1956
provides for grant of maintenance to a legally wedded Hindu wife, and also
deals with rules for adoption. The Hindu Marriage Act,
1955 refers to the provisions dealing with solemnization of marriage also deals
with the provisions for divorce. For the first time, through, the DV Act, the Parliament has
recognized a “relationship in the nature of marriage” and not a live-in
relationship simplicitor.
54. We have already stated, when we
examine whether a relationship will fall within the expression “relationship in
the nature of marriage” within the meaning of Section 2(f) of the
DV Act, we should have a close analysis of the entire relationship, in other
words, all facets of the interpersonal relationship need to be taken into account.
We cannot isolate individual factors, because there may be endless scope for
differences in human attitudes and activities and a variety of combinations of
circumstances which may fall for consideration. Invariably, it may be a
question of fact and degree, whether a relationship between two unrelated
persons of the opposite sex meets the tests judicially evolved.
55. We may, on the basis of above
discussion cull out some guidelines for testing under what circumstances, a
live-in relationship will fall within the expression “relationship in the
nature of marriage” under Section
2(f) of the DV Act. The guidelines, of course, are not
exhaustive, but will definitely give some insight to such relationships.
1) Duration of period of relationship Section 2(f) of
the DV Act has used the expression “at any point of time”, which means a
reasonable period of time to maintain and continue a relationship which may
vary from case to case, depending upon the fact situation.
(2) Shared household The expression has
been defined under Section
2(s) of the DV Act and, hence, need no further elaboration.
(3) Pooling of Resources and Financial
Arrangements Supporting each other, or any one of them, financially, sharing
bank accounts, acquiring immovable properties in joint names or in the name of
the woman, long term investments in business, shares in separate and joint
names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements Entrusting the
responsibility, especially on the woman to run the home, do the household
activities like cleaning, cooking, maintaining or upkeeping the house, etc. is
an indication of a relationship in the nature of marriage.
(5) Sexual Relationship Marriage like
relationship refers to sexual relationship, not just for pleasure, but for
emotional and intimate relationship, for procreation of children, so as to give
emotional support, companionship and also material affection, caring etc. (6)
Children Having children is a strong indication of a relationship in the nature
of marriage. Parties, therefore, intend to have a long standing relationship.
Sharing the responsibility for bringing up and supporting them is also a strong
indication.
(7) Socialization in Public Holding out to
the public and socializing with friends, relations and others, as if they are
husband and wife is a strong circumstance to hold the relationship is in the
nature of marriage.
(8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be and to
involve, and as to their respective roles and responsibilities, primarily
determines the nature of that relationship.
STATUS OF THE APPELLANT:
56. Appellant, admittedly, entered into a
live-in-relationship with the respondent knowing that he was married person,
with wife and two children, hence, the generic proposition laid down by the
Privy Council in Andrahennedige Dinohamy v. Wiketunge Liyanapatabendage
Balshamy, AIR 1927 PC 185, that 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. Reference may also be made to the judgments of this Court in Badri Prasad v. Director of
Consolidation 1978 (3) SCC 527 and Tulsa v. Durghatiya 2008
(4) SCC 520. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 this Court held
that 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 cohabition
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.
57. We may note, in the instant case,
there is no necessity to rebut the presumption, since 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 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 we are afraid that DV Act does not take
care of such relationships which may perhaps call for an amendment of the
definition of Section 2(f) of
the DV Act, which is restrictive and exhaustive.
58. Velusamy case (supra) stated that
instances are many where married person maintain and support such types of
women, either for sexual pleasure or sometimes for emotional support. Woman, a
party to that relationship does suffer social disadvantages and prejudices, and
historically, such a person has been regarded as less worthy than the married
woman. Concubine suffers social ostracism through the denial of status and
benefits, who cannot, of course, enter into a relationship in the nature of
marriage.
59. We cannot, however, lose sight of the
fact that inequities do exist in such relationships and on breaking down such
relationship, the woman invariably is the sufferer. Law of Constructive Trust
developed as a means of recognizing the contributions, both pecuniary and
non-pecuniary, perhaps comes to their aid in such situations, which may remain
as a recourse for such a woman who find herself unfairly disadvantaged.
Unfortunately, there is no express statutory provision to regulate such types
of live-in relationships upon termination or disruption since those
relationships are not in the nature of marriage. We can also come across situations
where the parties entering into live-in-relationship and due to their joint
efforts or otherwise acquiring properties, rearing children, etc. and disputes
may also arise when one of the parties dies intestate.
60. American Jurisprudence, Second Edition,
Vol. 24 (2008) speaks of Rights and Remedies of property accumulated by man and
woman living together in illicit relations or under void marriage, which reads
as under:
“Although the courts have recognized the property
rights of persons cohabiting without benefit of marriage, these rights are not
based on the equitable distribution provisions of the marriage and divorce laws
because the judicial recognition of mutual property rights between unmarried
cohabitants would violate the policy of the state to strengthen and preserve
the integrity of marriage, as demonstrated by its abolition of common-law
marriage.”
61. Such relationship, it may be noted,
may endure for a long time and can result pattern of dependency and
vulnerability, and increasing number of such relationships, calls for adequate
and effective protection, especially to the woman and children born out of that
live-in-relationship. Legislature, of course, cannot promote pre-marital sex,
though, at times, such relationships are intensively personal and people may
express their opinion, for and against. See S. Khushboo v. Kanniammal
and another (2010) 5 SCC 600.
62. Parliament has to ponder over these
issues, bring in proper legislation or make a proper amendment of the Act, so
that women and the children, born out of such kinds of relationships be
protected, though those types of relationship might not be a relationship in
the nature of a marriage.
63. We may now consider whether the tests,
we have laid down, have been satisfied in the instant case. We have found that
the appellant was not ignorant of the fact that the respondent was a married
person with wife and two children, hence, was party to an adulterous and
bigamous relationship. Admittedly, the relationship between the appellant and
respondent was opposed by the wife of the respondent, so also by the parents of
the appellant and her brother and sister and they knew that they could not have
entered into a legal marriage or maintained a relationship in the nature of
marriage. Parties never entertained any intention to rear children and on three
occasions the pregnancy was terminated. Having children is a strong
circumstance to indicate a relationship in the nature of marriage. No evidence
has been adduced to show that the parties gave each other mutual support and
companionship. No material has been produced to show that the parties have ever
projected or conducted themselves as husband and wife and treated by friends,
relatives and others, as if they are a married couple. On the other hand, it is
the specific case of the appellant that the respondent had never held out to
the public that she was his wife. No evidence of socialization in public has
been produced. There is nothing to show that there was pooling of resources or
financial arrangements between them. On the other hand, it is the specific case
of the appellant that the respondent had never opened any joint account or
executed any document in the joint name. Further, it was also submitted that
the respondent never permitted to suffix his name after the name of the
appellant. No evidence is forthcoming, in this case, to show that the
respondent had caused any harm or injuries or endangered the health, safely,
life, limb or well- being, or caused any physical or sexual abuse on the
appellant, except that he did not maintain her or continued with the
relationship.
ALIENATION OF AFFECTION
64. 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, as held by this Court in Pinakin Mahipatray Rawal case
(supra), 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..
65. We are, therefore, of the view 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 would not fall within the definition of
“domestic relationship” under Section 2(f) of
the DV 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 DV Act.
66. We have, on facts, found 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.
67. 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 intentional
tort.
68. We, therefore, find no reason to
interfere with the judgment of the High Court and the appeal is accordingly
dismissed.
J.(K.S. Radhakrishnan)
J.(Pinaki Chandra Ghose)
New Delhi November
26, 2013
