The Supreme Court held that a live-in relationship comes within the ambit of the right to life enshrined under Article 21 of the Constitution of India.
‘A’ married to ‘B’, both Hindus, governed by Hindu Marriage Act, 1956 (HMA). Since their marriage could barely survive, and within few months of marriage, their relations got estranged, consequently ‘A’ filed a divorce-petition seeking dissolution of marriage.
Recommended ArticlesView All
View | Pakistan Election: Will Imran Khan's changed tack from long march to resignations to snap poll work?
IST5 Min(s) Read
View | G20 Presidency: India can shape global Web3 narrative
IST6 Min(s) Read
While divorce proceedings are pending, ‘A’ came into contact with ‘C’, and both being Hindus, are now staying together in live-in relationship.
‘A’ & ‘C’, have certain questions, viz. Can ‘A’ and ‘C’ stay together in live in? Can ‘B’ bring any proceedings against ‘A’ and ‘C’? Can ‘A’ marry ‘C’ during the pendency of marriage with ‘B’?
Section 5 HMA stipulates conditions for a Hindu marriage, providing neither party has a spouse living at the time of marriage. Section 11 HMA provides marriages to be void, upon being challenged by either party to be declared a nullity, if it is in contravention to Section 5 HMA. Burden to proof, lies on the party making allegations, requiring it to be proved by reasoned and cogent evidences and not mere on hearsay.
A party who complains of second marriage, during the subsistence of first marriage, having sufficient proof of second marriage, can bring a complaint against the breaching party under Section 17 HMA, which provides for punishment for bigamy, under sections 494 and 495 IPC.
Marrying again during life-time of husband or wife, is punishable with imprisonment of either description for a term which may extend to seven years, and fine under 494 IPC. Section 495 IPC, gives right to file a complaint against the party having committed the crime by concealing the fact of the former marriage, punishable with imprisonment of either description for a term which may extend to ten years, and fine.
A compliant constituting an offence under sections 494/495 IPC, can be filed Section 198 ‘CrPC’ by the person aggrieved. Initially under Section 198 (2) CrPC, it provided that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code. Section 497 IPC defined adultery, being an offence, punishable under section 498 IPC. However, in 2017, the Constitution Bench of the Apex Court struck down Section 497 IPC declaring adultery no longer an offence in the case of “Joseph Shine Vs. Union of India”.
After Section 497 IPC was struck down, a question came up for consideration, as to whether a married person can stay with other partner in live in while the first marriage is surviving.
The Apex Court, in the case of ‘Lata Singh v. State of U.P.’ while dealing with the concept of live-in, held 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, at relevant time 497 IPC was in force, so it was only applicable to unmarried couples.
In “S. Khushboo v. Kanniammal," Apex Court gave legal recognition to live-in relationships by categorizing them as “domestic relationships” protected under the Protection of Women from Domestic Violence Act, 2005. The Court held that a live-in relationship comes within the ambit of the right to life enshrined under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and that the act of two adults living together, in any case, cannot be considered illegal or unlawful. However, they have become a developing area of controversy with respect to the types of live-in relationships that are recognized.
In Indra Sarma v. V.K.V. Sarma, it categorised live-in relationships into two domestic cohabitation between two unmarried individuals and domestic cohabitation between a married and unmarried individual or two married individuals.
There were conflicting views by the High Courts of Bombay, Allahabad and Rajasthan, which repeatedly refused to grant protection to such live-in couples, citing reasons that a live-in relationship between a married and an unmarried person is illegal. Initially the Punjab and Haryana High Court went a step further and referred to these relationships as unacceptable, claiming that they destroy the country’s ‘social fabric’.
However, the Delhi High Court, taking a contrarian stand, adopted a wider approach, upholding the rights of a female live-in partner, irrespective of the marital status of both individuals.
In a recent decision, the Punjab and Haryana High Court, disagreeing with the decision of Allahabad High Court that held the live-in relation between married persons without having been divorced u/s 494 IPC as offence (Aneeta v. State of U.P.), held that prima facie, no offence would be committed by the parties, they being adults in a live-in-relationship with each other, whether or not any divorce petition was pending before the court. The view so taken was by placing reliance upon the judgement of Supreme Court in Joseph Shine (Supra).
Answering the questions: ‘A’ and ‘C’ can stay together in live-in relation. ‘B’ can initiate proceedings against ‘A’, alleging that ‘A’ has married ‘C’, and has committed offence of bigamy, however, ‘B’ will have to prove that marriage between ‘A’ and ‘C’ has been solemnized. The marriage between ‘A’ and ‘C’ will be void ab initio being in violation of Section 5 of the Act.
The Author, Advocate Manish Kumar is a practising lawyer at Supreme Court and High Court. He runs his own law firm.
The views expressed in the article are his own
(Edited by : Aditi Gautam)
First Published: IST