Recently several cases are sensationalized by the media where in women in live-in relationships have been subjected to gruesome violence and are brutally murdered. The mainstream media and politics pushed a toxic communal narrative and blamed women for marrying by choice and having an inter-caste or inter-religious relationship while evoking the unreasonable patriarchal notions of `love jihad’ or `honor killings’. What is overlooked in this rhetoric is that women have been facing violence even in the `arranged marriage’ system too as evident by the increasing cases reported under Section 498A IPC (domestic violence law), Section 304B IPC (Dowry law), and under Protection of Women against Domestic Violence Act of 2005. Also, in the debate regarding law and morality, it is the women who are continuously infantilized, denied agency, burdened with the obligations to follow the codes of honor while bearing violence, whereas men continued to enjoy authority, power and privileges while escaping accountability in the relationships. Moreover, in the cases pertaining to the live-in relationships, the courts in several cases have expanded the rights of women, yet confusion persists. Considering the existing situation, this work suggests for a clear-cut law on live-in relationships while strengthening the provisions available under the domestic violence law. The need is to challenge the structural discrimination that exists within the family and society while altering the culture of violence with impunity.
Violence Against Women (VAW) in Homes
Domestic abuse is prevalent in India as well as in other countries. Women are continuously being caught in the cruelty of daily violence, face fear, and their worth as a human being is diminished in the place called `home’ which are meant to provide safety and comfort by the abusers who are deemed as `protectors’ and `providers’. The UN chief António Guterres in his recent remarks made on the International Day for the Elimination of Violence Against Women on 25 November 2022 stated that “every 11 minutes, a woman or girl is killed by an intimate partner or a family member and we know that other stresses, from the COVID-19 pandemic to economic turmoil, inevitably lead to even more physical and verbal abuse,”.
The Gender Snapshot 2022 observed that “one in every 10 women and girls aged 15-49 was subjected to sexual and/or physical violence by an intimate partner in the previous year,”. This discrimination, and abuse comes at a steep cost. It limits women’s participation in all walks of life, denies their basic rights and freedoms. Despite all the progress made regarding women’s rights, deep misogyny persists. Societies have not shed violence. Rather violence is becoming much severe and harsher with rising socio-economic inequalities. Women are being murdered, burned alive, lynched, gang-raped, in public and private spaces. The idea of women being independent, and with opinions and desires of their own is still anathema to many societies.
Gruesome VAW in Homes in India
In the current context of Shraddha’s cases and other cases reported recently, toxic communal narratives of `love jihad’ or honor killing are used by the media, religious groups and politicians to defend arranged marriages while blaming women and live-in relationships for such crimes. The love or the violence in a relationship are wrapped by the notions of traditions and morality. The intersectionality of caste, religion, and other variables are being evoked not to recognize the axis of inequalities or to support women but it is used to uphold the vested interests. While identifying the caste and the religion of the victim and the abuser, what is pushed is a noxious divisive rhetoric to further the agenda of hate.
These narratives ignore the data that the highest number of crimes are recorded under section 498A (cruelty against married women), or 304B IPC (dowry deaths) as mentioned above. Women face violence, brutal harassment due to dowry or otherwise in their marital homes despite the legal provisions that criminalize violence. In many cases women are brutally murdered and burned alive. Men have strangulated young women, poisoned them, burned them alive, starved them for years or compelled them to commit suicide. These acts of violence are rooted in the historically unequal power relationship between a man and a woman.
Violence against women, whether in arranged marriages or in live-in relationship is a common phenomenon existing for ages, though over the years the severity and magnitude of violence is increasing. Women are facing extreme violence and this is happening in the conventional arranged marriages as well as in the relationships by choice. Though only some cases are highlighted by media, yet, gruesome violence is happening every day. As per the data collated by NCRB, the number of cases registered under the Dowry Prohibition Act, 1961 during 2018, 2019 and 2020 are 12826, 13307 and 10366 respectively. Further, the cases registered under Dowry Deaths during these years are 7167, 7141 and 6966 respectively. The conviction rate was 24.1, 21.5 and 38.9 for the year 2018, 2019 and 2020 respectively.
This data regarding increasing violence women faces within their marital home for dowry and otherwise is substantiated by the results of NFHS over the decades, which shows that ever married women in the age group of 18 to 49 years have suffered different forms of spousal violence during pregnancy or otherwise. Women reported facing physical injuries, including eye injuries, sprain, dislocation, burns, deep wounds, broken bones, broken teeth, and other serious injuries. Violence is inflicted by their husbands as well as by formal partners. A majority of women reported that they never sought help or told anyone about such violence.
In several cases reported earlier, women have been buried alive and murdered brutally by men, as their husbands or live-in partners. For instance, on May 28, 1991, Shakereh Namazi was reportedly buried alive in the backyards of her house in Bangalore. The prime suspect was her second husband, Shraddhanand alias Murli Manohar Mishra. After three years of a sting operation, he admitted to having killed her to gain possession of her wealth. He also led the police to her remains buried in their residence. He is serving life in prison though his lawyer has filed an application recently for his release. Similarly, in the famous Tandoor murder case, Naina Sahni, was murdered by Sushil Sharma, in their home in Delhi on 2 July 1995 over suspicion of her having an extramarital affair. Sharma shot her, chopped off her body into pieces and stuffed it in a ‘tandoor’ in a restaurant managed by his friend. He was sentenced to death, later commuted to a life term. He walked out of jail in December 2018 after Delhi high court ordered his release. In Dehradun in 2010, Rajesh Gulati, a software engineer, murdered Anupama, a mother of four-year-old twins, and then, sawed her body into 70 pieces and froze them, before dumping them over several days. Anupama was charging him for having an extra-marital affair. He was convicted in 2017 and sentenced for life imprisonment with a fine of Rs 15 lakhs though he was released on bail in 2022.
There are many more reported and non-reported cases, where men have brutally murdered their wives and partners for various reasons. Therefore, it may be said that the dangerous space for women is their marital home. In a live-in relationship, women are taking the risk of choosing their companions while being invariably denied support that is supposed to come with marriage and even otherwise in arranged marriages, women are forced to `adjust’ in a violent tie. The society or the legal system has failed to question the hierarchy and inequality that exists within such relationships. The need therefore, is to rethink the hierarchical nature of arrangements, the costs in terms of life and health and problems involved including violence. Essential is to recognize the extreme vulnerability of those women who choose their partners and also of those who are forced to stay in violent marriages.
Why Can’t Women Leave the Violent Situation?
In a general discourse, questions are raised as to why can’t a woman leave the violent home. This is without taking into account the fact that a marital relationship, or a man-woman tie is more than mere exchange of sex or intimacy in lieu of `bread’ or `protection’. Also, centuries of patriarchal conditioning and socialization has made women to believe that their salvation lies in marriage. A woman who grows up in such environment when face violence felt shocked, betrayed, guilty and fearful and want that violence should stop somehow. A woman who faces violence may remain silent, justify it or may take steps to prevent it. Her response is determined by factors that are culture specific, social, or economic and is based on availability of resources and support mechanism besides her notion and sense of justice. Also, compulsions range from fear to attract more violence, fear of retaliation, lack of housing and finances, children, stigma, dearth of legal literacy and secondary status in families. In a male-dominated society, violence remains invisible under the garb of discipline while the realm of emotions prevents women to walk out of a violent situation. In the patriarchal societies, women have no other option outside marriage and family which could lend support. The code of honor prevents natal families to accept back their married daughters. More specifically, in a live-in relationship, a woman faces serious disadvantages and it is difficult for her to garner support of her natal family, friends or society. The society or the families blame women and not men in such relationships while evoking the belief regarding the “wrongness” and the notion of honour. It is a woman who is forced to carry the burden of guilt, fear and shame. The taboos, stigma and stereotypes prevalent in a patriarchal society, all privilege men while blaming women.
Why Are Men Violent?
Less emphasis is placed on the question as to why men chose to abuse women with impunity when violence is legally prohibited. Is it the culture of violence with impunity or is it toxic masculinity or both? Perhaps, in the male dominated society, violence is sanctioned and legitimized by the social norms. A batterer does not act in a vacuum rather his actions are legitimized by the hierarchical social order that normalizes and trivializes violence while enabling him to act violently and get away with it. This uneven social order devalues a woman her and makes her vulnerable. Structural inequalities act to erode female dignity while inflating the men’s sense of entitlements. Media and courts in some cases portray batterers as innocent, an object of pity and essentially gentle who are driven to commit violence because of tensions or because of victim’s provocative act, or his obsession with alcohol, nagging behavior of wife, or because she failed to discharge duties or that she is disloyal or characterless. In all cases relating to violence against women, either in a public or in a private domain, an abuser is a powerful person in comparison to the victim. He is 1) better equipped in terms of skills and abilities to articulate the situation to his advantage; 2) uses cunning tactics such as lie or deceit to demoralize the complainants; 3) controls the resources and; 4) in position to hire a battery of lawyers to represent himself in the courts. The legal system while adjudicating cases pertaining to domestic violence or cruelty in marriages or cases pertaining to live-in relationships, hardly take these factors regarding inequalities in marriages or vulnerability of women in public and private space, into account.
Live-in Relationships and the Law
In the masculine world, the love and violence in a relationship is intermeshed with the traditions and morality to oppress women. It is the women in the patriarchal society who are burdened with the obligations to follow the codes of honor of the family and the society, the shame, respect and the guilt, while for men no such social, legal or moral norms are manufactured. Women, in the patriarchal societies are infantilized while their agency and persona are diminished whereas men dictate the decisions governing the lives of women. The codes of rights and the wrongs are deeply etched for women. The upper caste, elite, Hindu men in the traditional society, even when they are vile, alcoholic, rapists, murderers or criminals are entitled to privileges as sanskaari men. The constitution provides every person a right to life with dignity, yet, the social and moral norms act to diminish such rights. The equality and the social justice exist on papers but hardly in the real lives’ situations.
Live-in relationships are situations where two adults above the age of 18, cohabit without marrying each other. The difference between the marriage and live-in relationship is the applicability of legal rights and obligations that comes with the formal arrangement. Live-in relationships, as marriage are not formally registered and to end these, a formal divorce is not required, though in a formal marriage too, the practices where men informally abandon women continues. However, courts, while pronouncing decisions on live-in relationships, compare them to marriages to determine whether the relationship has the characteristics of a marriage or are in nature of marriage. In some cases, the relationship between Radha and Lord Krishna in the mythological text is evoked to justify live-in relationships in comparison to an ideal marriage which is equated as the one between Lord Ram and Sita where wives sacrificed everything for the sake of their husbands. In some cases, the courts have upheld certain rights, such as, the right of the female partner to file a domestic violence case, right to maintenance, rights of children born out of such relationship and so on.
Live-in relationship: Law v Morality
Live-in relationship, is legally accepted, but it is considered a taboo in India. Legitimacy is accorded to heterosexual marriage; otherwise, all other sort of relationships is deemed to be illegitimate. In absence of any specific legislation, or rules, on the subject, the Supreme Court has issued certain guidelines in some of its judgment for regulating such relationships.
In the western countries, the concept of ‘Pre-nuptial Agreements’ institutionalized cohabitation in America, thereby giving them the same rights as a married couple. Similar are provisions in European countries such as Denmark and Sweden. In Canada, live-in relationships are recognized as ‘Common Law Marriages’. The parties have the same rights as married couples under the federal law. The tie gets legal sanctity if the couple stays in a conjugal relationship for 12 continuous months. These forms of agreements also take into account the property and assets of partners, the rights of child born out of such relationships and various other factors,
In India, the legality of live-in relationship stems from the Articles 19(a) – right to freedom of speech and expression and Article 21- protection of right to life and personal liberty. Right to life emphasizes on the freedom of an individual to enjoy life by all means unless prohibited by the existing laws. An individual has a right to live with a person of his/her interest with or without marriage.
Court verdicts legalizing live-in relationships
The cases relating to the live-in relationships have been adjudicated during the colonial times and after independence too. For instance, in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy (AIR 1927 PC 185) the Privy Council took a stand “where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage” This same view was also taken in Mohabbat Ali Khan v. Md. Ibrahim Khan (AIR 1929 PC 135) wherein the court held that for the marriage to be legitimate, both the partners have lived together as spouse.
However, the vocabulary and the grammar remained androcentric, where the courts as well as the society, have used the terms such as `concubines’ and `keeps’ while devaluing women during the colonial times and also in the current context. For men in live-in relationships, no such terms are used, even in situations when men dupe women, tell lie about their existing marriage, cheat women in cases of fraudulent marriages, abandon women and so on.
In 1978, the Supreme Court in Badri Prasad Vs Board of Consolidators ruled that a presumption of marriage arises if a man and a woman have lived as husband and wife for a long time. In 2001, the Allahabad High Court in Payal Sharma Vs Nari Niketan ruled that it is not illegal for a man and a woman to live together. The HC drew a distinction between law and morality to state that, “Hence, she is a major [adult] and she has the right to go anywhere and live with anyone. In our opinion, a man and a woman, even without getting married can live together if they wish. This may be considered immoral by society but it is not illegal”
Live-in Relationship and the Domestic Violence Act, 2005
For the first time while enacting PWDVA, the legislature acknowledged the live-in relationships by giving rights and protection to females who are not legally married, but are living with a male in a relationship, which is in the idea of marriage, akin to wife, however not equivalent to wife. Section 2(f) of the Domestic Violence Act, 2005 defines: “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”.
Live-in relationship is not categorically defined here but left to the courts for interpretation. The court have interpreted the expression “relationship in the nature of marriage” and presumed that the live-in relationships will be covered under the ambit of the expression `nature of marriage’. This provision, therefore, theoretically, gives women rights to protect themselves in situation of violence.
In 2006, the Supreme Court in Lata Singh Vs State of UP ruled that two persons of opposite sex living together are not doing anything illegal. In 2010, in Madan Mohan Singh v Rajnikant, the Court held that the relationship that continued for a long time cannot be termed as `walk in or walk out relationship’ and it is presumed that relationship is in nature of marriage.
In 2010, SC in S. Khushboo v. Kanniammal reiterated that “A live-in relationship between two consenting adults of heterogenic sex does not amount to any offense (with the obvious exception of ‘adultery’), even though it may be perceived as immoral”. In 2013, in Indra Sarma v. VKV Sarma, the court ruled that a woman in a live-in relationship is protected under the Domestic Violence Act. In 2015 Dhannulal v. Ganeshram, the SC states that “It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin”.
In 2010, the Supreme Court in Velusamy v. D Patchaimal laid down criteria for live-in relationships to be legal. It is held that the couple must hold themselves out to society as being akin to spouses, they must be of legal age to marry, they must be otherwise qualified to enter into a legal marriage, including being unmarried, they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time, therefore, certain live-in relationships, where two married persons or one married and another unmarried person are staying together, do not have legal basis.
What makes a live-in relationship akin to a marriage as per the law?
Courts, through various cases, have laid down certain conditions for live-in relationships to be considered as relationships in the “nature of marriage”. These are:
- Duration of the Relationship – The couple should have lived together for a significant period of time.
- Socialisation in Public
- Age – The couple must be above the legally valid age of marriage.
- A sexual relationship where the parties emotionally and intimately support each other.
- Financial Arrangement similar to marriage.
- Domestic Arrangement – The couple must have a domestic arrangement.
- Intention and conduct of the parties
- Children – Having children is an indication that the nature of the relationship is similar to that of a marriage, and that the parties have a long-term view of the relationship.
Rights of partners in live-in relationships
Initially, Section 125, Code of Criminal Procedure (CrPC) allowed a married woman, who is unable to pay for herself, to claim alimony from the husband. The Malimath Committee report has extended the definition of the term ‘wife’ to include “a woman who has lived with a man like his wife for a considerable amount of time and thus is legally eligible to claim maintenance.”
In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha (2011) the High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down this decision and awarded maintenance to the woman saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the PWDVA. It is held that women in live-in relationships are equally entitled to the claims and reliefs available to a legally wedded wife. This is reiterated in Ajay Bhardwaj Vs Jyotsana (2016). In Lalita Toppo vs State of Jharkhand (2018) the SC held that the victim, that is, the estranged wife or the live-in partner would be entitled relief under the Act including the right to reside in a shared household.
Right to Invoke Section 498A IPC
In Shivcharan Lal Verma & Ors. vs. State of Madhya Pradesh the Apex Court held that there must be a valid marital relationship between the accused and the victim otherwise the penal provisions of Section 498A will not be attracted.
Later on in 2009, the SC in Koppisetti Subbharao vs State of A.P. went on to protect a woman in a live-in relationship from harassment for dowry. The Court while denying the contention of the man that Section 498A does not apply to him since he was not married to his live-in partner held that the “nomenclature ‘dowry’ does not have any magical charm written over it’. The court expressed “there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married, but also anyone who has undergone some or other form of marriage, and thereby assume for himself the position of husband to live, co-habitat and exercise authority as such husband over another woman”.
However, the courts in several decisions have held that for an offence under Section 498-A to be committed, the parties must have undergone some sort of ceremonies with the object of getting married.
Rights of Children born out of live-in relationships
In S.P.S. Balasubramanyam v. Suruttayan (1994) the SC said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption that they live as husband and wife and the children born to them will not be illegitimate.” In Neelamma v. Sarojamma (2006) it is stated that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenary property but is entitled to claim share in self acquired properties, if any. The SC said “the law presumes in favour of marriage and against concubinage”. The court in Tulsa v. Durghatiya (2008) clarified that a child born out of such relationship will no longer be considered as an illegitimate child. This fact that the children born out of the live-in relationship would be eligible to inherit the property after the death of the father is reiterated in several decisions. In June 2022, the Supreme Court in Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan ruled that children born to partners in live-in relationships can be considered legitimate based on the condition that the relationship needs to be long-term and not of ‘walk in, walk out’ nature.
Right to visa extension in a live-in relationship
In an interesting case Delhi High Court in Svetlana Kazankina v. Union Of India (2015), the petitioner was an Uzbekistan national in a live-in relationship with an Indian men and had a son out of that relationship. She sought the extension of her visa to stay in India. The respondents pleaded that they are granting extension of visa in case of marriages and not for persons in the live-in relationships. The court extended “the benefit of the DV Act also to women in live-in relationships in the nature of marriage, there is a need to extend the benefit of the Rule/Guideline providing for extension of visa of foreigners married to an Indian national to foreigners though not married but in a live-in relationship the nature of a marriage with an Indian national”.
Confusion persists – Patriarchy is deeply rooted
In K.S. Puttaswamy vs. Union of India, it was held that it should be the discretion of individuals as to how they want to lead their lives and State is only required to guarantee protection to individuals’ autonomy rather than imposing restrictions. Privacy also incorporates the right to live with dignity to fulfil the objective of personal liberty and freedom which are the cornerstone of the Indian Constitution and democracy
A bench of Rajasthan State Human Rights Commission, in September 2019 demanded a law against live in relationships calling them out as violative. Live–in relationship not to fall under DV Act if a woman is aware that the partner was married, ruled Supreme Court in 2013. The issue therefore is the lack of clarity in implementing the legal provisions. Different courts have interpreted the legal provisions in various ways while denying justice to many women.
Monolithic view of marriage
In July 2021, in Aneeta v State of UP, the petitioner is a married woman staying with another man for the reason that her violent husband tortures her. The Allahabad HC states that “We do not permit the parties to such illegality as tomorrow petitioners may convey that we have sanctified their illicit relations. Live-in-relationship cannot be at the cost of social fabric of this country”. The court imposed the cost of Rs 5000/ on the petitioners and said that the “Bench is not against live-in-relationship but is against illegal relations”.
As per these interpretations, women must remain within the boundaries of marriage in order to access courts for securing protection from violence. The monolithic view of marriage propounded by the state and propagated by the courts. Many courts still prefer a restricted and heteronormative understanding of the marriage as an institution.
Patriarchy is deeply entrenched
The legal system though provides a platform for women to raise their concerns and has theoretically evolved some rights over years, however, in actual practice it has failed to curb crime against women, perhaps, because the implementation of those rights and laws is weak. Women are approaching the legal system with the hope that they will no longer be abused. However, on the other side, the violent men, the male-dominated courts, and the patriarchal society act as the `up keepers and the preservers’ of patriarchy and are not willing to come out of their traditional age-old patriarchal mindset. The `clash of ideologies’ operates on a daily basis in the courtrooms. A vast difference exists between the way women are dealing with the realities of domestic abuse, the way the laws exist on paper, and the top-down approach taken by the courts while implementing the laws. An `insecurity’ prevails in the male-controlled society that is fearful of women who are demanding violence-free homes, see marriage as a partnership and expect men to be companions rather than the masters or the lords.
What is required?
The approach of the courts and society towards live-in relationship needs transformation besides changing the vocabulary and grammar used to devalue women. The terms such as keeps and concubines reflects the inferior position of women; for men no such terms exist to exclude them from the privileges they enjoy in marriage or otherwise and this in itself is an anathema. There is a need to recognize the autonomy of women and their rights in terms of choosing whether to marry or the choice of their partners and deciding about living arrangements beside other conjugal and reproductive rights such as those pertaining to contraception, abortion, freedom from marital rape and violence and so on.
In legal terms, essential is the changes that are primarily directed at taking cognizance of women’s vulnerable position in marriage or live-in relationships. More specifically, for the abandoned or divorced women and children, women who live-in or marry without knowing the previous marital relationship of the man, illegitimate children, and other such categories, special provisions are required. Perhaps, a clear-cut law determining the rights of women and children in live-in relationships is required while clearly laying down the rights and obligation of the parties in terms of property rights, rights of children born and so on. The law needs to protect the rights of women in marriage as well as rights of women in live-in arrangements.
Addressing the issues relating to violence against women in public and private spaces is vital. What is also required is the strong implementation of the provisions mentioned in the domestic violence law – both civil and criminal. While implementing the criminal law, what needs to be ensured is fixing the accountability of the perpetrator and certainty of punishment to deter the crime and while enforcing the civil law, proper and timely implementation of rights as mentioned under PWDVA is essential. Continuous monitoring of rights, training, gender sensitization programs all are significant besides strengthening the infrastructure to enforce the law such as deployment of the number of Protection Officers, providing quality working shelter homes, short stay homes, medical facilities, legal aid, special provisions at workplaces, social security provisions for women and children mandatory making of safety plans and more importantly, enforcing social security provisions for women survivors of violence.
Addressing structural inequalities existing in the families and the society is essential to smash patriarchy or as Tara Bai Shinde in her famous title Stri Purush Tulna written in response to a letter justifying the death sentence to a young widow, Vijyalakshmi for aborting her infant in 1882 stated
“Let me ask you something, Gods! You are supposed to be omnipotent and freely accessible to all. You are said to be completely impartial. What does that mean? That you have never been known to be partial. But wasn’t it you who created both men and women? Then why did you grant happiness only to men and brand women with nothing but agony? Your will was done! But poor women have had to suffer for it down the ages”
“But do men not suffer from the same flaws that women are supposed to have?”
Shinde raised questions about the in-depth inequalities that prevail in the society then. These questions pertaining to structural discrimination and inequalities within families and societies are still valid in today’s context and need discussions, debates and answers.
Adv Dr Shalu Nigam is an advocate, researcher and author working at the intersection of law, governance, and women’s rights.
