De-facto marriage which is also known as the live-in relationship has become taboo for women. In the fast-paced world, people prefer to try live-in relationships with their partners to check their long-run compatibility but usually, in such cases, the women are left after some time. The women are usually left by their husbands to fend for themselves after a few years claiming that they are incompetent. The woman with her children in most cases is dropped on the streets with nothing since she was not the wife and they never completed the wedding ceremonies. So, let’s understand the position of de-facto marriages in India.
POSITION OF LIVE-IN IN INDIA
In the new awakening of morality in the courts of India, some judgments have challenged the ancient and rudimentary notions of the Indian society which were against forward-thinking. However, certain social truths are still awaiting to be accepted with open arms by the Indians and a classic example is a live-in relationship. Although a part of the Indian population has accepted it, a substantial part still opposes the idea that men and women should be allowed to stay together without the ceremonious marriage taking place. There is some hesitation among the masses and that is due to parental concerns over the security of their daughters and the notion that women are supposed to be tied in the ceremonious rituals of marriage in order to leave their family’s nest.
POSITION OF INDIAN COURTS
In the case of Ujjawal v. the State of Haryana, 2020, and the case of Gulzar Kumari v. State of Punjab, 2021, the courts refused to protect cohabiting couples, arguing that such relationships were morally unacceptable by Indian society and can be life-threatening since people will not agree to see such a relationship. It was said to have the potential to destroy the social fabric of Indian society.
But within days of these rulings, the High Court of Punjab and Haryana ruled in the cases and gave a dissenting opinion on the matter. The courts stated that the right to choose to marry or live together informally is an individual life and right and is said to be equivalent to inherent freedom which is a Fundamental Right of an Indian Citizen.
SITUATION OF WOMEN
Since society has not accepted this relationship openly yet, while living in de-facto relationship women have to hear and bear whatever the community throws at them. But as seen in most cases the woman is left to find her resources once the man of the house decides that he is not compatible to live with the woman whom he had once promised the world.
Since a large percentage of women in India still are stuffed inside their homes doing household work usually they do not have a source of income and when they get a divorce they are usually provided with maintenance and child support by the husband. But in cases of de-facto marriage women are not considered wives since they never completed the ceremonies of marriage. In such a case the law provides guidelines to help women protect themselves.
LAW TO THE RESCUE
The Report of 2003, of Reforms of Criminal Justice System by Dr Justice V.S. Malimath recommended that a man and woman living together for a sufficiently long period should be enough to draw the presumption that they are married and ‘wife’ in Section 125 of the Code of Criminal Procedure of 1973 should be altered to include a woman who was living with the man like his wife for a reasonably protracted period.
RELATIONSHIP LIKE MARRIAGE
When one reads Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 carefully then they can notice that this section talks about “domestic relationship” which 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 like marriage, adoption or are family members living together as a joint family.’ Therefore, the Domestic Violence Act enshrines the de-facto marriage by stating the term, a relationship like marriage’ so the women in live-in-relationships can make use of this act in case they become the victim of any kind of violence by their partner. This act is like amour for the women’s protection given by the law.
The presumption that two individuals living together for a long time as husband and wife are married is what is suggested by the law of the US, the UK, and even the Supreme Court in some cases. Lousia Adelaide Piers & Florence A.M. De Kerriguen v.0 Sir Henry Samuel Piers, 1849 is one of the prominent cases which acted as an insulator in setting a trend of allowing cohabitation for a long time as a dutiful wife and husband to be considered as marriage.
The Supreme Court of India in the cases of Thakur Gokal Chand v. Parvin Kumari, 1952, and Badri Prasad v. Dy. Director of Consolidation & Ors, 1978 and even Tulsa and Ors. v. Durghatiya & Ors, 2008 held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of valid wedlock.
The bone of contention lies in the way the cases are presented in front of the court. The woman in such cases has proven that she was in the relationship as a dutiful wife and it was a harmonious relationship. She has to prove that the relationship was a long-standing commitment between the partners and that the relationship was such that it coincided with the ceremonious relationship created by marriage.
Therefore, the Supreme Court issued guidelines to determine if the relationship is like marriage or not as follows:
- Shared household between the two partners
- Have a long-standing relationship
- Shared domestic arrangements and living space
- An emotional and intimate relationship
- Having child or children
- Public socialization as two partners in a live-in relationship
- The common intention in a relationship from both the sides
Once the relationship between the two is proved as the same as that of husband-wife then the woman can claim the benefits of protection even in de-facto marriage. The court will bound the man to pay for the protection and maintenance of such a relationship. Then the separation of partners will be treated as divorce and the woman will be able to start afresh and stand on her own feet once again.
The de-facto marriage is where two partners do not tie the knot as husband and wife therefore the protection of the female in such a situation was at risk. Since she could not claim her grounds of being a lawfully wedded person and therefore was unable to get any kind of relief from the courts. Therefore, the Supreme Court of India held discussions about considering this as a look-alike of ceremoniously tied marriage and providing shelter of relief to women in such marriages. Now the woman can state that her de-facto marriage is ‘a relationship like marriage.’ Since she has been living with her partner for a long-time in a shared household, she is bound to get legal protection just like a wife would be able to claim from her husband. This step by the courts all across the world has been a step to help safeguard the right to free choice of the marriage of citizens and also provide a safety net for women to fall on in cases where their partner decides to leave them or tie the knot with someone else.
Author(s) Name: Charu Kohli (Vivekanand Institute of Professional Studies, Delhi)