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Tuesday, June 21, 2011

LIVE-IN-RELATIONSHIP

A new social phenomenon has emerged in our country known as “live-in-relationship”. This new relationship is still rare in our country and is sometimes found in big urban cities, but it is very common in North America and Europe. When a wife is deserted, in most countries the law provides for maintenance to her by her husband, which is called “alimony”. However, earlier there was no law providing for maintenance to a woman who was having a live-in- relationship with a man without being married to him and was then deserted by him. In the United States of America, the expression “palimony” was coined which means grant of maintenance to a woman who has lived for a substantial period of time with a man without marrying him, and is then deserted by him. The first decision on palimony was the well-known decision of the California Superior Court in Marvin Vs Marvin. This case related to the famous film actor Lee Marvin, with whom a lady Michelle lived for many years without marrying him and was then deserted by him and she claimed palimony.  Subsequently in many decisions of the courts in the US, the concept of palimony has been considered and developed.  The US Supreme Court has not given any decision whether there is a legal right to palimony, but there are several decisions of the courts in various States in the US.  These courts in the US have given divergent views, some granting palimony, some denying it altogether, and some granting it on certain conditions.  Hence in the US, the law is still in a state of evolution on the right to palimony. Although there is no statutory basis for grant of palimony in the US, the courts there which have granted it have granted it on a contractual basis.  Some Courts in the US have held that there must be a written or oral agreement between the man and the woman that if they separate the man will give palimony to the woman, while other courts have held that if a man and woman have lived together for a substantially long period without getting married there would be deemed to be an implied or constructive contract that palimony will be given on their separation. A law has now been passed in the year 2010 by the State Legislature of New Jersey that there must be a written agreement between the parties to claim palimony. Thus, there are widely divergent views of the courts in the US regarding the right to palimony.  Some States like Georgia and Tennessee expressly refuse to recognize palimony agreements.
In our country, while enacting the Protection of Women from Domestic Violence Act, 2005 the Parliament has taken notice of this new relationship, that is, live-in- relationship.  Section 2(a) of the Act states:
              “2.(a) “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.”
Section 2(f) states:
            “2.(f) “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”.
            Therefore, the expression “domestic relationship” includes not only the relationship of marriage but also a relationship “in the nature of marriage”. Unfortunately, this expression has not been defined in the Act. 
    Some countries in the world recognize common law marriages.  A common law marriage, sometimes called de facto marriage, or informal marriage is recognized in some countries as a marriage though no legally recognized marriage ceremony is performed or civil marriage contract is entered into or the marriage registered in a civil registry.  The Supreme Court of India has held that “relationship in the nature of marriage” is akin to a common law marriage.  Common law marriages require that although not being formally married:
(a)   The couple must hold themselves out to society as being akin to spouses.
(b)   They must be of legal age to marry
(c)    They must be otherwise qualified to enter into a legal marriage including being unmarried.
(d)   They must have voluntarily, cohabitated and held themselves out to the world as being akin to spouses for a significant period of time.
The Supreme Court of India has held that “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005 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.  “Shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Merely spending weekends together or a one night stand would not make it a “domestic relationship”. 
          An ‘aggrieved person” under the Act can approach the Magistrate under Section 12 for the relief mentioned in Section 12 (2). Under Section 20 (1) (d) the Magistrate can grant maintenance while disposing of the application under Section 12(1).  Section 26(1) provides that the relief mentioned in Section 20 may also be sought in any legal proceeding, before a civil court, family court or a criminal court.  Thus, a woman who can prove that she has been in a live- in -relationship with a man as explained above can claim maintenance under the Act.
The Supreme Court of India has said:  “In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror, as depicted in Leo Tolstoy’s novel Anna Karenina, Gustave Flaubert’s novel Madame Bovary  and the novels of the great Bengali writer Sharat Chandra Chattopadhyaya.  However, Indian society is changing and this change has been reflected and recognized by Parliament by enacting the Protection of Women from Domestic Violence Act, 2005”.

- P.RAJENDRAN
www.prajendran.com

2 comments:

  1. is there any legal documentation to be done before setting into a live in so as to have a legal proof in case anything turns out wrong and the woman has to apply for palimony or against domestic violence,.....????

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    1. no as mentioned in the article it clearly state that the relation ship either oral or written can be considered as an agreement until it is challenged and is denied but it is always good to have the same in written form so that will protect the intrest of the party . sorry up till now no such case have gone up to the supreme court to decide it on the issue as well as we in india lack law in this regard . as o live in relation ship . rather we read the same under different pretext of law .

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