Hindu woman entitled to equal property rights and Liabilities

This judgment of Supreme court upholding the amendment to the Hindu Succession Act, under which a Hindu woman / daughter will have equal rights over the property as other male member.

Ganduri Koteshwaramma & Anr. VersusChakiri Yanadi & Anr. (Supreme Court) A Hindu woman or girl will have equal property rights along with other male relatives for any partition made in intestate succession after September 2005. under the Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance rights along with other male siblings, which was not available to them prior to the amendment. The apex court said the female inheritors would not only have the succession rights but also the same liabilities fastened on the property along with the male members. According to the apex court, the right that accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except under certain circumstances. The exceptions are (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004.

SUPREME COURT OF INDIA
GANDURI KOTESHWARAMMA & ANR. VERSUS CHAKIRI YANADI & ANR.
Civil Appeal No. 8538 of 2011 (Arising out of SLP (Civil) No. 9586 of 2010)-
Decided on 12-10- 2011.

JUDGMENT

R.M. Lodha, J.-

Leave granted.

2. The question that arises in this appeal, by special leave, is: whether the benefits of Hindu Succession (Amendment) Act, 2005 are available to the appellants.
3. The appellants and the respondents are siblings being daughters and sons of Chakiri Venkata Swamy. The 1st respondent (plaintiff) filed a suit for partition in the court of Senior Civil Judge, Ongole impleading his father Chakiri Venkata Swamy (1st defendant), his brother Chakiri Anji Babu (2nd defendant) and his two sisters – the present appellants – as 3rd and 4th defendant respectively. In respect of scheduleproperties `A’, `C’ and `D’ – coparcenary property – the plaintiff claimed that he, 1st defendant and 2nd defendant have 1/3rd share each. As regards schedule property `B’–as the property belonged to his mother–he claimed that all the parties have 1/5th equal share.
4. The 1st defendant died in 1993 during the pendency of the suit.
5. The trial court vide its judgment and preliminary decree dated March 19, 1999 declared that plaintiff was entitled to 1/3 rd share in the schedule `A’, `C’ and `D’ properties and further entitled to 1/4th share in the 1/3rd share left by the 1st defendant. As regards schedule property `B’ the plaintiff was declared to be entitled to 1/5 th share. The controversy in the present appeal does not relate to schedule `B’ property and is confined to schedule `A’, `C’ and `D’ properties. The trial court ordered for separate enquiry as regards mesne profits.
6. The above preliminary decree was amended on September 27, 2003 declaring that plaintiff was entitled to equal share along with 2nd, 3rd and 4th defendant in 1/5th share left by the 1st defendant in scheduleproperty `B’.
7. In furtherance of the preliminary decree dated March 19, 1999 and the amended preliminary decree dated September 27, 2003, the plaintiff made two applications before the trial court (i) for passing the final decree in terms thereof; and (ii) for determination of mesne profits. The trial court appointed the Commissioner for division of the schedule property and in that regard directed him to submit his report. The Commissioner submitted his report.
8. In the course of consideration of the report submitted by the Commissioner and before passing of the final decree, the Hindu Succession (Amendment) Act, 2005 (for short, `2005 Amendment Act’) came into force on September 9, 2005. By 2005 Amendment Act, Section 6 of the Hindu Succession Act, 1956 (for short `1956 Act’) was substituted. Having regard to 2005 Amendment Act which we shall refer to appropriately at a later stage, the present appellants (3rd and 4th defendant) made an application for passing the preliminary decree in their favour for partition of schedule properties `A’, `C’ and `D’ into four equal shares; allot one share to each of them by metes and bounds and for delivery of possession.
9. The application made by 3rd and 4th defendant was contested by the plaintiff. Insofar as 2nd defendant is concerned he admitted that the 3rd and 4th defendant are entitled to share as claimed by them pursuant to 2005 Amendment Act but he also submitted that they were liable for the debts of the family.
10. The trial court, on hearing the parties, by its order dated June 15, 2009, allowed the application of the present appellants (3rd and 4th defendant) and held that they were entitled for re-allotment of shares in the preliminary decree, i.e., they are entitled to 1/4th share each and separate possession in scheduleproperties `A’, `C’ and `D’.
11. The plaintiff (present respondent no. 1) challenged the order of the trial court in appeal before the Andhra Pradesh High Court. The Single Judge by his order dated August 26, 2009 allowed the appeal and set aside the order of the trial court.
12. 1956 Act is an Act to codify the law relating to intestate succession among Hindus. This Act has brought about important changes in the law of succession but without affecting the special rights of the members of a Mitakshara Coparcenary. The Parliament felt that non-inclusion of daughters in the Mitakshara Coparcenary property was causing discrimination to them and, accordingly, decided to bring in necessary changes in the law. The statement of objects and reasons of the 2005 Amendment Act, inter alia, reads as under :
“…… The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property.”
13. With the above object in mind, the Parliament substituted the existing Section 6 of the 1956 Act by a new provision vide 2005 Amendment Act. After substitution, the new Section 6 reads as follows :”6. Devolution of interest in coparcenary property.—
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- –
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,–
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be.
Explanation.– For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect –
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation.–For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation. –For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”
14. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
15. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.
16. The legal position is settled that partition of a Joint Hindu family can be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before December 20, 2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the respondent no.1 is the determination of shares vide preliminary decree dated March 19, 1999 which came to be amended on September 27, 2003 and the receipt of the report of the Commissioner.
17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a 3- Judge Bench decision of this Court in the case ofPhoo!chand and Anr. Vs. Gopa! La! [AIR 1967 SC 1470] wherein this Court stated as follows:
“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree .“
18. This Court in the case of S. Sai Reddy vs. S. Narayana Reddy and Others [(1991) 3 SCC 647 11]had an occasion to consider the question identical to the question with which we are faced in the present appeal. That was a case where during the pendency of the proceedings in the suit for partition before the trial court and prior to the passing of final decree, the 1956 Act was amended by the State Legislature of Andhra Pradesh as a result of which unmarried daughters became entitled to a share in the joint family property. The unmarried daughters respondents 2 to 5 therein made application before the trial court claiming their share in the property after the State amendment in the 1956 Act. The trial court by its judgment and order dated August 24, 1989 rejected their application on the ground that the preliminary decree had already been passed and specific shares of the parties had been declared and, thus, it was not open to the unmarried daughters to claim share in the property by virtue of the State amendment in the 1956 Act. The unmarried daughters preferred revision against the order of the trial court before the High Court. The High Court set aside the order of the trial court and declared that in view of the newly added Section 29-A, the unmarried daughters were entitled to share in the joint family property. The High Court further directed the trial court to determine the shares of the unmarried daughters accordingly. The appellant therein challenged the order of the High Court before this Court. This Court considered the matter thus;
“… A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a 12 court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits”.
19. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not apprised of the decisions of this Court in Phoolchand and S. Sai Reddy. High Court considered the matter as follows:
“In the recent past, the Parliament amended Section 6 of the Hindu Succession Act (for short `the Act’), according status of coparceners to the female members of the family also. Basing their claim on amended Section 6 of the Act, the respondents 1 and 2 i.e., defendants 3 and 4 filed I.A. No. 564 of 2007 under Order XX Rule 18 of C.P.C., a provision, which applies only to preparation of final decree. It hardly needs an emphasis that a final decree is always required to be in conformity with the preliminary decree. If any party wants alteration or change of preliminary decree, the only course open to him or her is to file an appeal or to seek other remedies vis-` -vis the preliminary decree. As long as the preliminary decree stands, the allotment of shares cannot be in a manner different from what is ordained in it.”
20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of C.P.C. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The court would thereafter proceed for preparation of final decree. In Phoolchand1, this Court has stated the legal position that C.P.C. creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.
21. Section 97 of C. P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.
22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.
23. The view of the High Court is against law and the decisions of this Court in Phoolchand1 and S.Sai Reddy.
24. We accordingly allow this appeal; set aside the impugned judgment of the High Court and restore the order of the trial court dated June 15, 2009. The trial court shall now proceed for the preparation of the final decree in terms of its order dated June 15, 2009. No costs.

Live-in Relationship: Recent Developments in Indian Context

Author : Swapan Deb Barma

In an observation that will cheer votaries of pre-marital sex and live-in partners, the Honourable Supreme Court Of India opined that a man and women living together without marriage cannot construed as an offence.

India is a country, which is slowly opening its doors for western ideas and lifestyles and one of the most crucial episodes amongst it, is the concept of live-in relationships. We can witnesses the number of unmarried partners living together is scaling high. Just a generation or two ago it was scandalous from an unmarried man and woman to live together. Today, most couples, who marry, live together first has gone mainstream. But that change happens so quickly. It is no wonder things are inconsistent.

MEANING OF LIVE-IN RELATIONSHIP

Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. The term ‘wife’ should include live-in partner too: SC
The legal definition of live in relationship is “an arrangement of living under which the couple which is unmarried lives together to conduct a long-going relationship similarly as in marriage.”
Today, cohabitation is a common pattern among people in the Western world. People may live together for a number of reasons. These may include wanting to test the compatibility or to establish financial security before marrying. It may also be because they are unable to legally marry, for instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or permitted. Other reasons include living with someone before marriage in an effort to avoid divorce, a way for polygamists or polyamorists to avoid breaking the law, a way to avoid the higher income taxes paid by some two-income married couples (in the United States), negative effects on pension payments (among older people), philosophical opposition to the institution of marriage and seeing little difference between the commitment to live together and the commitment to marriage. Some individuals may also choose cohabitation because they see their relationships as being private and personal matters, and not to be controlled by political, religious or patriarchal institutions.
POSITION OF LIVE-IN RELATIONSHIPS ABROAD
With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary to look at the legal rights and obligations for live-in couples around the world. While heterosexual couples who are in a live-in relationship are called “co-habitant”, same sex couples are legally defined as “civil partners”. But the law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.
• SCOTLAND
Family Law (Scotland) Act, 2006, for the first time identified, and in the process by default, legalised live-in relationships of over 150000 cohabiting couples in the country. Section 25(2) of the Act states that a court of law can consider a person as a co-habitant of another by checking on three factors; the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements.
• FRANCE
Live-in relationships in France are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by the French National Assembly in October 1999. Cohabitation is defined as a “de facto stable and continuous relationship” between two persons of different sexes or of the same sex living together as couple. The pact defines the relationshp as a contract, and the couples involved as “contractants”. The contract binds “two adults of different sexes or of the same sex, in order to organise their common life.” For a valid contract to exist, the contractants “may not be bound” by another pact, “by marriage, sibling or lineage.”
• UNITED KINGDOM
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004. Though a man and woman living together in a stable sexual relationship are often referred to as “common law spouses”, the expression is not wholly correct in law in England and Wales. The Government feels that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to ownership of each other’s property on breakdown of relationship. If a cohabiting couple separates, the Courts have no power to override the strict legal ownership of property and divide it as they may do on divorce. Unmarried partners have no automatic inheritance over their partner’s assets on death. Cohabiting couples are treated as unconnected individuals for taxation purposes.
• CANADA
Living together in Canada is legally recognised as “common law marriage”. In many cases common law couples have the same rights as married couples under the federal law of the country. A common law relationship gets legal sanctity if the couple has been living in a conjugal relationship for at least 12 continuous months, or the couple are parents of a child by birth or adoption, or one of the persons has custody and control of the child and the child is wholly dependent on that person for support.
• IRELAND
Though living together is legally recognised in Ireland, news reports says the public is up in arms against a new legislation to introduce legal rights for “separated” live-in couples to demand maintenance or share their property with their dependent partners. The scheme will apply to both opposite sexs and same sex unmarried couples who have been living together for three years, or two years in the case of a cohabiting couple with children. The Government, with this legislation, intends to provide legal and financial protection for the vulnerable and financially dependent cohabitants in the event of death or the breakup of a relationship.
• AUSTRALIA
The Family Law Act of Australia states that a “de facto relationship” can exist between two people of different or of the same sex and that a person can be in a de-facto relationship even if legally married to another person or in a de-facto relationship with someone else.
• UNITED STATES
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law, subject to certain requirements. The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements”. The country later institutionalized cohabitation by giving cohabiters essentially the same rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living together are not recognized as legal parents.
POSITION OF LIVE-IN RELATIONSHIPS IN INDIA:
In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values. Female live-in partners have economic rights under Protections of Women and Domestic Violence Act, 2005. The Supreme Court has ruled that in live-in relationship, a woman is entitled to all reliefs, including maintenance under the protection of women under the Domestic Violence Act 2005
The Maharashtra Government in October 2008 approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife. Whether a period is a ‘reasonable period’ or not is determined by the facts and circumstances of each case.
The National Commission for Women recommended to the Ministry of Women and Child Development in 30th June, 2008 that the definition of ‘wife’ as described in section 125 of Cr.P.C., must include women involved in a live-in relationship. The aim of the recommendation was to harmonise the provisions of law dealing with protection of women from domestic violence and also to put a live-in couple’s relationship at par with that of a legally married couple. There was a Committee set up by the Supreme Court for this purpose, called the Justice Malimath Committee, which observed that “if a man and a woman are living together as husband and wife for a reasonable long period, the man shall be deemed to have married the woman.”
The Malimath Committee had also suggested that the word ‘wife’ under Cr.P.C. be amended to include a ‘woman living with the man like his wife’ so that even a woman having a live-in relationship with a man would also be entitled to alimony. On 16.09.2009, the Supreme Court in a case observed that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of Cr.P.C. A woman in a live-in relationship may also claim maintenance under section 125 Cr.P.C.
In a case the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has the right to live with a man even without getting married, if both so wish”. The Supreme Court observed that a man and woman, if involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be considered as legitimate.
PROS AND CONS OF LIVE-IN RELATIONSHIPS:
The Supreme Court’s controversial observation Okaying live-in relationships and pre-marital sex has generated fierce debate across the country. The historic observation has made to upset many orthodox groups fearing that it would destroy the sanctity of marriage. A fragment of the society including noted social activists and prominent dignitaries have stepped ahead and shared their precious views on this.
Social scientists have already identified grave social problems like young age pregnancy of adolescent girls, drug abuse, violence and juvenile delinquencies and in the wake of the controversial ruling, the erstwhile objectionable social behaviour gets legalized, many felt. This way, the new generation will be more spoilt. They will prefer live-in relationships to marriages arranged by their parents. There is no guarantee that the male in such relationship will turn out to be a loyal partner in the long run or would not leave the woman with their issues and run away without prior notice.
BJP spokesperson Shaina, expressed that, according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs.”
When the Maharastra Government approved a proposal suggesting that a woman involved in a live-in relationship for a ‘reasonable period’, should get the status of a wife, Shaina said that the Government on one hand has banned dance bars because they are spoiling the social atmosphere, while on the other it is promoting illicit relationships through such amendments. Senior BJP leader Jaywantiben Mehta also opposed the amendment. “It will have adverse effect on our values. The amendment will prove to be a loss for the women instead of gain,” she said.
On the other hand, the section advocating freedom of choosing live-in relationship has hailed it as a pragmatic move. The recent observations, as they see, should be welcomed because it lays down emphasis on individual freedom. It opens frontiers to understand the personality traits of their partner well. Since there are no legal complications in a live-in relationship, walking out of such a relationship would be much easier than walking out of a marriage. Metro life that throws floodgates of challenges also supports this kind of an arrangement. The individuals should be free to live as they think best, subject only to the limitation that their actions and choices should not cause harm to others. It is a very radical attitude. Some people are of the view that women should be given the liberty to choose their life partners and should not be forced into marriages if they are not ready.
As expected, women from various walks of life have welcomed progressive moves on live-in relationships. Jaishree Misra, a New Delhi based author says, “India has changed. If people think youngsters are losing their values, then I would say they are becoming more pragmatic. In today’s times, it is better for them to know what they are getting into” .
This is not the first time live-in relationship is in the ambit of debates and discussions. There has been a long-standing controversy whether a relationship between a man and a woman living together without marriage can be recognized by law. With changing social hypothesis entering the society, in most places, it is legal for unmarried people to live together. Now even in a country like India bounded by innumerable cultural ethics and rites, the law finds legally nothing wrong in live-in relationships.
This, however, cannot be construed that law promotes such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. Such stands, in particular cases of live-in relationship, it appears that, by and large, is based on the assumption that they are not between equals and therefore women must be protected by the courts from the patriarchal power that defines marriage, which covers these relationships too.
MAINTENANCE FOR LIVE-IN PARTNER:
The Supreme Court reserved its verdict on the question whether a woman in a live-in relationship or under the mistaken belief of being the wife of an already married man was entitled to maintenance.
The court reserved its order in a case where D. Velusamy has challenged an order of the Madras High Court directing him to pay maintenance of Rs.500 per month to his ‘second wife’ D. Patchaiammal. Velusamy allegedly married Patchaiammal when his first marriage was still intact . Further long-term relationship valid to claim alimony
LEGITIMACY OF THE CHILD BORN OUT OF A LIVE-IN RELATIONSHIP:
The Supreme Court on an earlier occasion, while deciding a case involving the legitimacy of a child born out of wedlock has ruled that if a man and a woman are involved in a live-in relationship for a long period, they will be treated as a married couple and their child would be legitimate. Also, the recent changes introduced in law through the Domestic Violence Act, 2005 gives protection to women involved in such relationships for a ‘reasonable long period’ and promises them the status of wives. A Supreme Court Bench headed by Justice Arijit Pasayat declared that children born out of such a relationship will no more be called illegitimate. “Law inclines in the interest of legitimacy and thumbs down ‘whoreson’ or ‘fruit of adultery’.”
INHERITANCE RIGHTS
The Supreme Court held that a child born out of a live-in relationship is not entitled to claim inheritance in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only claim a share in the parents’ self-acquired property. The Bench set aside a Madras High Court judgment, which held that children born out of live-in relationships were entitled to a share in ancestral property as there was a presumption of marriage in view of the long relationship.
Reiterating an earlier ruling, a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar said, “In view of the legal fiction contained in Section 16 of the Hindu Marriage Act, 1955 (legitimacy of children of void and voidable marriages), the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the properties of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.”
A child can only make a claim on the person’s self acquired property, in case the child is illegitimate. It can also be interpreted in a way in which a child could lay a claim on the share of a parents’ ancestral property as they can ask for that parents’ share in such property, as Section 16 permits a share in the parents’ property. Hence, it could be argued that the person is not only entitled to self acquired property but also a share in the ancestral property.
The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in relationship with some other person and seek inheritance for the children from the property of that other person. The relationship with some other person, while the husband is living is not ‘live-in relationship’ but ‘adultery’. It is further clarified that ‘live in relationship’ is permissible in unmarried heterosexuals (in case, one of the said persons is married, the man may be guilty of adultery and it would amount to an offence under Section 497 of the Indian Penal Code).
NEGATIVE EFFECT IN THE SOCIETY
This fashion of live-in relation has effected all the youth of the society for various reasons. Nothing escapes without without leaving drawbacks. No doubt such relation gives two partners the maximum opportunity to right to liberty, right to privacy, right to life. But the negative point has to be realised as well. Below I have list few point resulting to such relationship.
a. Breaking down of marriage institution
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony . Therefore, it would be easily mentioned that live-in relationship is but degrading the valued of marriage which is recognised as social union unlike live-in relationship where there is only well of two person. Marriage leads to a bonding between a man and woman and this ensures security for children. Let us also caution the protagonists of live-in relationships that parting of ways, for one reason or the other, will leave behind deep scars of being used and rejected. Progenies of such relationships will also end up as misfits in society
b. In and out relationship
Other easy way of defining the term “live-in,” is “walk-in and walk-out” relationship which entails no obligation on the parties. “It (live-in relationship) is a contract of living together which is renewed every day by the parties and can be terminated by either without the consent of the other. Thus people who choose to have a live-in relationship cannot complain of infidelity or immorality . Therefore, we can say it nothing more than personnel enjoyment.
c. Anti-Hindu and live-in relationship
The Bharatiya Janata Party (BJP) has agitation over legalising live-in relationship as anti-hindu. The party state that according to the Hindu Marriage Act, 1955, there is no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs
d. Negative identity
Everyone has the moral liability to adhere to life-enriching norms to enable the future generations to be proud of their birth, cultural traditions and national identity. Why should children be made to bear the cross of the skewed behaviour of their parents? Responsible parents will leave a valuable legacy and not vicarious liabilities to the progeny.
Even when parents normatively raise their children, many precautionary measures are required to insulate them from the ill-effects of the unsanctioned societal deviations and the vicious projections of modernity. India cannot afford to throw its proven and time-tested merits of its custom to the winds .
e. Weakens social relationship:
As such relationships are choice of two individual wish to make their own family without the will of their parents there is always expectation of weak relation between the parents of the spouse family. Therefore it is no doubt that there is always change of conflict of ideas and opinion in the family as a result it will laterally lead to weaken the relation between other member of the family. So over all it is no it has a better negative effect in the society.
LATEST DEVELOPMENT
In latest development the Supreme Court of India on 21 October 2010 laid conditions for women seeking maintenance in live-in relationship . This was decided by a bench comprising Justices Markandey Katju and T S Thakur said that in order to get maintenance, a woman, even if not married, has to fulfil the following four requirements:
accordingly maintenance claim can me sought by the spouse.
(1) The couple must hold themselves out to society as being akin to spouses
(2) They must be of legal age to marry
(3) They must be otherwise qualified to enter into a legal marriage including being unmarried
(4) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
The apex court passed the judgement while setting aside the concurrent orders passed by a matrimonial court and the Madras High Court awarding Rs 500 maintenance to D Patchaiammal who claimed to have married the appellant D Velusamy.
Velusamy had challenged the two courts order on the ground that he was already married to one Laxmi and Patchiammal was not married to him though he lived with her for some time.
The Domestic Violence Act expanded the scope of maintenance by using the expression ‘domestic relationship’ which includes not only the relationship of marriage but also a relationship ‘in the nature of marriage’.
According to the apex court, the legislation was enacted in view of the new social phenomenon in the country in the form of live-in relationship.
“However, Indian society is changing and this change has been reflected and recognised by Parliament by enacting the Protection of Woman from Domestic Violence Act, 2005,” the bench said.
However, on 22 October 2010, Additional Solicitor General Ms. Indira Jaising strongly objected the word used by Supreme Court by using the “keep” in a judgement on the right of maintenance of women in live-in relationship
SUGGESTIONS & RECOMMENDATIONS
Live-in relationships are now very popular in India. The law does not prescribe how we should live; it is ethics and social norms which explain the essence of living in welfare model. The Court itself notices that what law sees as no crime may still be immoral. It has said in a judgement of 2006, notices by the Court now, that two consenting adults engaging in sex is not an offence in law “even though it may be perceived as immoral.” Of course, such protective sanctions may potentially lead to complications that could otherwise be avoided. But simply raising the hammer may not be the best route to taming the bold and the brave. Awareness has to be created in these young minds not just from the point of the emotional and societal pressures that such a relationship may create, but also the fact that it could give rise to various legal hassles on issues like division of property, violence, cases of desertion by death of a partner and handling of custody and other issues when it comes to children resulting from such relationships.
While the Supreme Court’s opinion might not have the undesirable effect on more and more couples preferring live-in relationships rather that opting to wed, it could certainly embolden more young men and women as they would now be convinced that there is no breach of law in the live-in relationship. One can only weigh the pros and cons and take into account the impact of their decision on their family and most importantly on themselves.