Live-in & premarital sex

The institution of marriage has passed   innumerable tests in India and got the legal sanction only in 1955 after the enactment of the Hindu Marriage Act by Parliament.

Naturally, the recent observation of the Supreme Court during the hearing of a petition filed by Tamil film star Kushboo has stirred the hornet’s nest by questioning social, moral and legal sanction of live-in relationships and pre-marital sex in India.
A three-judge bench of Chief Justice K G Balakrishnan, Justice Deepak Verma and Justice B S Chauhan observed, “Living together is a (part of) right to life… when two adults want to live together, it is not an offence. It cannot be illegal.”

The judges repeatedly asked the advocates opposing Kushboo to cite from the rule books - Indian Penal Code(IPC) or Criminal Procedure Code (CrPC) - to back their arguments. They said, “Please tell us what the offence is and which section of law applies?”

The Judges also cited Article 21 of the Constitution which guaranteed the right to life with dignity, liberty and respect, and stressed that the perceived immorality by a few protagonists of morality cannot be branded as offence.

A Tamil magazine in its September 2005 issue carried an article titled “Sex and young women” based on a nationwide survey. Reacting to the statistical data collated by the survey, Kushboo had expressed her opinion supporting women’s sexual freedom.
Some political parties and NGOs took up cudgels on behalf of Tamil women and their chastity. “It was acceptable if the statement had said pre-marital sex is proliferating, but Kushboo had challenged to show how many women were there who did not have pre-marital sex. By this she has questioned the very chastity of all women. That is the reason we have filed defamation cases against her,” said K Balu, leader of the lawyers’ wing of Pattali Makkal Katchi, a Tamil Nadu-based political party.

Miniammal, a lawyer in Tamil Nadu and a complainant, submitted that “there should be some morality in the comments made by people of prominence like Kushboo, who has a temple in Tamil Nadu where she is worshipped as a goddess.”
All this in spite of several judgments by the Supreme Court and various High Courts, which have not declared live-in relationships by adults illegal, if the relationship between two adults was for a considerable period.

Law and morality
In the Payal Sharma Vs Superintendent, Nari Niketan and others case, a bench of Justice Markandeya Katju (now a Supreme Court Judge) and Justice R B Mishra in Allahabad High Court in 2001 said, ‘’In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”
The bench, which found that Payal was a major and wilfully residing with her partner Ramendra Singh, said, “Petitioner... appeared before us and stated that she is above 21 years of age, which is borne out from the High School certificate... Hence she is a major and has the right to go anywhere and live with anyone.’’
In another citation, Madhya Pradesh High Court in 1985 had put its stamp of approval by legalising the live-in relationship of two adults, Loli and Radhika Singh, who had five daughters and one son out of the liaison.

Definition of ‘wife’
The National Commission for Women (NCW), in response to recommendations made by the Ministry of Women and Child Development, has sought a change in the definition of ‘wife’ as described in Section 125 of the Criminal Procedure Code (CrPC), which deals with maintenance to a deserted woman. The NCW recommended that women in live-in relationships should be entitled to maintenance if the man deserts them.
In light of the innumerable cases before various courts all over the country, the Justice Malimath Committee has recommended to the Law Commission of India (2003) to amend the statues to give the live-in partner legal rights of a wife if a woman has been in a live-in relationship for a reasonable period of time.

Even the Protection of Women from Domestic Violence Act, enacted in 2005 by Parliament has provided protection to women at the hands of their husbands as well as live-in partners, and his relatives. The law, notified in October 2006, did not distinguish between a married woman and a woman in a live-in relationship when it comes to domestic violence.

India does not have the provision to gather statistics of unmarried couples cohabiting but a study by the Mumbai-based International Institute for Population Sciences last year said that 17 per cent of young men in rural areas had premarital sex, compared to 10 per cent in urban areas.

The survey showed that four per cent of women in rural areas claimed to have had premarital sex, compared to two per cent in the cities. The survey involved 58,000 youths in the age group of 15-29 years.

However, psychiatrist Sunil Mittal has this to say: “Live-in relationship is a recent trend, which is becoming more prevalent among the urban, educated, upper-middle class youths, who view it as a sign of freedom. In the metropolises, boys and girls prefer live-in relationships to be free from the ‘shackles’ of institutionalised marriage.”


Case studies
»In January 2008, the Supreme Court validated the long-term live-in relationship of a couple as marriage. A bench of Justice Arijit Pasayat and P Satasivan declared that children born out of such a relationship would not be termed illegitimate. “Law inclines in the interest of legitimacy and thumbs down ‘fruit of adultery’,” the court said.

»A magistrate’s court at Borivli in Mumbai directed a businessman to pay monthly maintenance of Rs 10,000 to a bar singer whom he deserted after a live-in relationship. Bani Roy, the victim had sought redressal under the Domestic Violence Act, which accords the same protection to a live-in woman as to a married woman. Roy’s partner Jayantilal Jain was married to another woman. Jain stayed intermittently with Roy and had a “temple wedding” which, by law, was void, as his first marriage had not been dissolved.

»Dealing with a live-in, Bombay High Court ruled that a woman need not prove marriage to claim maintenance from her husband under the Criminal Procedure Code. She just has to provide evidence of having lived with the man for a number of years.