WOMAN IN ADULTEROUS RELATIONSHIP WITH MARRIED MAN KNOWINGLY NOT AGGRIEVED

Justice M. L. Tahaliyani of the High Court of Bombay noted that a woman employee entered into an adulterous relationship with a married man already staying his wife who was MD of the company where the woman was working in and that they have two children out of their marriage and so not an “aggrieved person” as per Section 2(q) of the Domestic Violence Act. The Court did not grant her any relief under the Domestic Violence Act as she was not entitled for relief under the Act.

Respondent no.2 – woman was working in the company of the applicant and she was appointed by the wife , Managing Director of the company, of the applicant . It was known to the respondent no.2 that applicant was married and staying with his wife and children but still she had an adulterous relationship with the applicant and had two children .

So respondent no.2 filed an application as per Section 12 of the Protection of Women from Domestic Violence Act , 2005 , before the Judicial Magistrate of First Class , Thane, and the court directed the applicant to give respondent no.2 an amount of Rs. 7,000/- every month , pay for children an amount of Rs. 6.500/- every months and to bear other expenses also.

Applicant filed an appeal before the Learned Additional Sessions Judge , Thane , which the court had dismissed.

So revision application was filed by the applicant before the Bombay High Court where the court noticed:

“ “ 31. In our opinion a ‘relationship in the nature of marriage ‘ is akin to a common law marriage . Common law marriages require that although not being formally married :

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 .

In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements , and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s)of the Act. Merely , spending weekends together or a one night stand would not make it a ‘domestic relationship ‘.

Live-in-relationship means?

What do you mean by live-in-relationship? Has it been defined under Indian Law? When you say a couple is in live-in-relationship, it just means the couple who are not married but are staying together and living like a married couple. It can be on a long term basis or short term depending on how well they cohabit together.

This western culture is being followed in metro cities in India but has not been defined in Indian Law. This trend has mushroomed and expanding even though society is still taking time to perceive this change and accept pre-marital sex and live-in-relationship. It does take a considerable amount of time to keep up with the change.

Benefits Of Live-in-relationship

The present generation is determined that they require to know their compatibility with their partner before they get hitched. So this kind of cohabitation gives them a way of understanding their partner and see if both are on the same wavelength. So this gives the couple a chance to know if they can have good married life without being married as after marriage if they find it difficult to live together then they need to go through the whole court procedures and not only deal with each other but deal with issues between the two families which can be as unexpected as it can turn out.

The main thing is that they can walk out of this whenever they feel this would not work out as they are not bound legally. Also cohabiting together does not mean they have responsibilities or obligations towards each other. They do not have any responsibility towards one another nor any obligation.

The Other Side Of Live-in-relationship

There are times when it is not accepted in other parts of society and is seen as a bad example to the coming generations and society refuses to accept it. It has not been taken in a manner of broad-mindedness. Though outside it might be modernized but the mindset is still narrow. Families still feel the idea of their children in live-in-relationship to be unacceptable and feel embarrassed to speak about it as they feel live-in-relationship is all about sexual pleasures.

Live-in-relationship Under Indian Law

Under the Domestic Violence Act,2005, live-in-relationship is included as a “relationship in the nature of marriage” where a woman living with a man can approach the court if abused.

Several Supreme Court judgments are there related to live-in-relationships:

1. S.Khusboo v. Kanniammal& Anr where the court said that it is not illegal under the law to live together and that it is a right to life.

2. Badri Prasad v. Dy. Director of Consolidation where Apex court recognized a live-in-relationship as a valid marriage for a couple who lived together for fifty years.

3. Tulsa & Ors v. Durghatiya &Ors where a child born out of live-in-relationship is legitimate and has the right to property.

4. D.Velusamy v. D.Patchiammal where the court observed that not all live-in-relationship amounts to a relationship in the nature of marriage and will not get benefitted by the Domestic Violence Act.,2005and concept of ‘palimony’ which is maintenance in live-in-relationship was mentioned.

WHETHER LIVE IN RELATIONSHIP IN THIS CASE COME UNDER SECTION 2(F) OF ACT ?

The Supreme Court bench comprising of Justice K. S. Radhakrishnan and Justice Pinaki Chandra Ghose noted that in order to provide a relief under the Domestic Violence Act , the live-in-relationship should be a relationship in the nature of marriage within the ambit of the definition given under Section 2(f) of the Protection of Women from Domestic Violence Act , 2005. The Court upheld the judgment of Karnataka High Court .

Appellant lady and respondent man who was already married , were working in same company and had an intimate relationship even if appellant had the knowledge that respondent was married and has two children. They started staying in a shared household which was against the wishes of the family of appellant and legally wedded wife of the respondent. After more than a period of 14 years of living together , the respondent left the appellant.

Criminal Miscellaneous petition was filed by the appellant before the III Additional Chief Metropolitan Magistrate , Bangalore , under Section 12 of Domestic Violence Act where the court ordered the respondent to pay the appellant an amount of Rs. 18,000/- every month from the petition date.

Respondent filed an appeal under Section 29 of Domestic Violence Act before the Sessions Court where the court affirmed the order of Learned Magistrate.

An appeal was filed by the respondent before the Karnataka High Court where the court gave decision that the relationship does not fall under the scope of “relationship in the nature of marriage “ and set aside the orders of the below courts.

Appellant filed an appeal before the Supreme Court where the court opined:

“We are , therefore , of the view that the appellant , having been fully aware of the fact that the respondent was a married person , could not have entered into a live-in relationship in the nature of marriage . All live-in –relationships are not relationships in the nature of marriage . Appellant’s and the respondent’s relationship is , therefore , not a “relationship in the nature of marriage “ because it has no inherent or essential characteristic of a marriage , but a relationship other than “in the nature of marriage “and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship “under Section2(f) of the DV Act.”

Here Are the Rights You Need to Know

India has witnessed a drastic change in the way the present generation perceive their relationships. The taboo that used to haunt partners in live-in relationships has also started to fade away with society opening up about the idea of pre-marital sex and live-in relationships.

This improved mindset is a result of freedom, privacy, profession, education and also globalisation. Moreover, for most of us – it is not an escape from responsibilities but a way to understand our partner and to check if at all we are compatibility.

A live-in relationship not only gives the couple an opportunity to know the partner without having to engage into a legally binding relationship but also excludes the chaos of family drama and lengthy court procedures in case the couple decides to break up.

It involves continuous cohabitation between the partners without any responsibilities or obligations towards one another. There is no law tying them together, and consequently, either of the partners can walk out of the relationship, as and when they want.

How is live-in defined under Indian Law?

The Supreme Court in Indra Sarma vs. V.K.V. Sarma defined live-in relationships in five distinct ways- A domestic cohabitation between an adult unmarried male and an adult unmarried female. This is the simplest kind of relationship.

A domestic cohabitation between a married man and an adult unmarried woman (entered mutually). A domestic cohabitation between an adult unmarried man and a married woman (entered mutually).

These two are the most complex grey areas of acknowledging live-in relationship. Furthermore, the second type of relationship mentioned is adultery which is punishable under Indian Penal Code.

A domestic cohabitation between an unmarried adult female and a married male entered unknowingly is punishable under Indian Penal Code as well. A domestic cohabitation between two homosexual partners, which cannot lead to a marital relationship in India as no marital laws against homosexuality are defined yet.

Legal Status of Live-in

In most western countries there is a broader understanding of the idea of a couple in a relationship, which is evident in their legal recognition of prenuptial agreements, civil and domestic union of couples etc. However, it is not the same in India.

The Apex Court in so many of its judgments has stated that if a man and a woman “lived like husband and wife” in a long-term relationship and even had children, the judiciary would presume that the two were married and same laws would be applicable.

In another instance, the Apex court even declared that for a man and a woman in love to live together is part of the right to life and not a “criminal offence”. Therefore, live-in relationships are legal in India ?

The Status and Laws Surrounding Live in Relationship in India

Well, the answer to this query is NO. To have a live-in relationship, law in India is still not clear on that. 

It is, however, pertinent to mention here that even though there is no live in relationship act per se. Therefore, there is a lot of obscurity about the live in relationship in India legal status.

Regarding the legal status of live in relationship in India, the Supreme Court has ruled that any of the couples who are cohabiting together for a very long period of time, they will be presumed as legally married unless proven otherwise.

As far as the modern generation is concerned, India has been witness to many drastic changes in terms of various perceptions. As far as this generation goes, the effects of live in relationship are viewed as much similar to any relationship in general.

Whether live in relationship is good or bad is totally dependent on the couple engaging in the same. The taboo which used to haunt couples entering into a live in relationship is slowly dissipating.

The Indian society or the society, in general, is becoming more open to the concept of pre-marital sex and live in relationship. This is leading to slowly lifting-off the taboo surrounding it.

There are various factors acting as a reason for this drastic change in the mindset, as far as Indians are concerned towards live in relationship such as:

• Improved education

• Globalisation

• Freedom and

• Privacy

Now before getting into the live in relationship rules, one can think upon the latest Supreme Court judgement on live in relationship in India. 

The live in relationship rules & regulations in regards to this matter is very stringent and strict. Live in relationship sex or cohabitation with any married party is completely illegal and criminal in nature.  The aggrieved party can file for a criminal case of adultery under section 497 of the Indian Penal Code. The aggrieved party may also file for divorce on the grounds of his/her partner having an illicit relationship.

The Supreme Court judgement on live in relationship in the case Indra Sarma vs. V.K.V. Sarma states that co-living relationship can be broken down into five distinct ways:

• Firstly, according to the court, any domestic cohabitation between an adult male and an adult female who are unwed is the simplest form of relationship.

• Second, comes the cohabitation between a married man who is an adult and an unwed adult woman or vice versa.

• It is important to mention about live in relationship, that cohabitation is taking place with mutual consent.

• The Supreme Court has made it very clear that any domestic relationship with a married individual will tantamount to adultery. So, even if the cohabitation happens unknowingly can act as a ground for divorce.

• Lastly, the apex court also speaks about the domestic cohabitation which takes place between homosexual partners.

However, as far as homosexuals are concerned the cohabitation cannot lead to any marital relationship. The reason for the same being that there is no such law which has yet defined gay marriage in India.

Speaking about the laws for live in relationship in India, first we need to know are live in relationships legal in India or not? 

The Supreme Court has also managed to pass some landmark judgments when it comes to discussing the legal rights of any child born out of live in relationship.

The Supreme Court on live in relationship has stated in many a case that any child born out of a live in relationship shall:

In the case of SPS Balasubramanyam Vs. Sruttayan, the SC stated that - "Any woman or man have been living under the same room and have also been cohabiting for a certain number of years, then it will be presumed that these parties have been living as husband and wife under Section 114 of the Evidence Act. The children that will be born to these couples are not illegitimate."

• This is one of the landmark judgments as far as the Supreme Court is concerned. Also, the legitimacy of the child born out of a co-living relationship is concerned.

• The apex court has managed to interpret the statute. This in concurrence with Article 39 (f) of the Constitution for the child.

In another landmark judgment was passed in the case of Tulsi vs D, where it was held by the Supreme Court that any child born out a co-living relationship will not be considered as illegitimate.

• The only prerequisite being that the parents of the child must be living together under the same roof. That too for a given number of years such that the society can deem them to be ‘husband’ and ‘wife’.

It is important to mention out here that since such landmark judgments the live in relationship in India statistics has shown significant growth.

As far as it comes to how to break up a long term relationship living together or how to leave a relationship when living together, the apex court has not set up any specific rules or regulations.

It is absolutely up to the parties if they decide not to cohabit together. The effect of live in relationship is totally based upon the mindset of the parties entering into one.

The live in relationship act in India even though allowed by the apex court has no such clear laws defining the same.

Protection against exploitation of women and children in live-in relationships

Maintenance of lady partner

The right of maintenance is available to wives under all personal laws in India. However, none of the religions recognises and accept live-in relationships. Since no remedy is granted to women involved in a live-in relationship, Indian Courts have widened the scope of maintenance under the Criminal Procedure Code.

Therefore, Section- 125 of the Criminal Procedure Code has been provided to give a legal right of maintenance to lady partners in or out of a marriage.

Domestic Violence

The Domestic Violence Act was enforced as an attempt to protect women from abusive (physical, mental, verbal or economic) marital relationships. However, as per Section- 2 (f), it not only applies to a married couple, but also to a ‘relationship in nature of marriage’.

Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.

Children out of marriage

Partners living together for a long time may have kids together. However, live-in couples are not allowed to adopt kids as per the Guidelines Governing the Adoption of Children as notified by the Central Adoption Resource Authority. In case of dispute with respect to custody of the child, you may also consult a Child Custody Lawyer.

Legitimacy and inheritance rights of children

Inheritance rights of children are mentioned in Section- 16 of the Hindu Marriage Act, where the legal status of legitimacy is provided even to illegitimate children (those born out of marriage) for the sole purpose of inheritance. Therefore, inheritance rights have been granted to children born out of a live-in relationship. These rights are available in both ancestral and self-bought properties.

Custody and maintenance rights of children

The position on the maintenance rights of children out of marriage varies in personal marriage laws. For instance, under the Hindu Law the father has to maintain the child, whereas under the Muslim Law the father has been absolved of such an obligation.

However, under Section- 125 of the Criminal Procedure Code, remedy is available for children who are unable to claim maintenance under personal laws. Section- 125 provides a legal right of maintenance to wives, children.

What Are the Pros of Live in Relationship & the Cons Surrounding It?

The pros of co-living relationship include:

• Lesser responsibilities: One of the major positives of being in a live in relationship is the fact that there are fewer responsibilities. There is no social or legal bond when it comes to living together. Marriage does involve a lot of compromises which can be avoided in this scenario.

• Low legal Issues: There are lower legal issues when it comes to a living relationship. Divorce is one of the ugliest legal issues when it comes to marriage. As far as live in is concerned such legal hassles can be avoided. A couple can simply move on rather than being in a suffocating relationship.

• Financial Freedom: Another excellent advantage of a live in relationship is the aspect of financial freedom. One can easily divide expenses when it comes to a live-in relation. This concept is rather difficult when it comes to marriage.

The cons of co-living relationship include:

• Social Censure: One of the major cons of being in a live-in relationship is the fact that society scorns upon the whole concept. Live in relationships as of yet have still not been accepted in most parts of the society, especially in India.

• Lack of Commitment: It can be stated that one of the biggest advantages of a live-in relationship is also one of its largest disadvantages. There is a lack of commitment when it comes to the co-living relationship. This is why most of them are so short lived. The likelihood of one getting out of a live-in relationship is as quick as one entering into one.

Cases held : 

Patchaiammal from Tamil Nadu claimed maintenance from Veluswamy, who objected on the grounds that he is already married, and that his relationship with Patchiammal was a brief one.

While a lower court is yet to decide whether this was a valid live-in relationship, the Supreme Court has said that to qualify for palimony, the couple must have voluntarily cohabited and presented themselves to the world as "akin to spouses for a significant period of time."

The court has also said that both partners must be single.

''It's going to weaken other precedents which have come and which have been progressive ...Wife's rights have to be maintained but also the live-in partner, who has obviously taken care of the person ... cannot be just used and thrown out,'' says women's rights activist Sonya Gill.

The Supreme Court is also hearing another case which has presented a Constitutional conflict.

On one hand, the  Domestic Violence Act says a woman in any relationship in the nature of marriage can claim maintenance,But the Criminal Procedure Code limits the right to a wife.

The Supreme Court has declared that Section 497 is unconstitutional. Adultery is not a crime. This judgment has overturned the three previous rulings by the Supreme Court on Section 497.

The judgment by a five-judge Supreme Court bench headed by Chief Justice Dipak Misra has overturned the previous three rulings on the matter.

Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter's wife.

The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory.

Section 497 reads: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."

Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved wife if her husband was found to be in an adulterous relationship.

Section 497 of the Indian Penal Code

Section 497 gives a husband the exclusive right to prosecute his wife's lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery.

Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.Further, the law does not take into account cases where the husband has sexual relations with an unmarried woman.

Section 198 (2) the Criminal Procedure Code

The code allows a husband to bring charges against the man with whom his wife has committed adultery.