LIVE IN-RELATIONSHIP: A Jurisprudential Analysis
ABSTRACT
It is being truly said that the only thing which is constant and it will always happen time to time is change. Our society has observed a drastic change in its living pattern in few years. People are slowly and gradually adapting themselves into the modern world and new thoughts are emerging and voice against wrong things is gradually increasing. Drastic change came towards the idea of live-in relationships but this change has been criticised by the large part of the society due to its legality and the norms of the society. In our society we follow the paths of our elders whatever they say that is right and we believe that whatever that has been followed by our ancestors is right but as the society is changing and new ideas and new generation is coming up every day the generation gap is increasing because of this. Unlike marriage, in live-in relationships couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is cohabitation. In our society only those relations are considered legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships is deemed to be illegitimate.? The reason people decide to have a live-in relationship is to check the compatibility between couples before getting married.?
In this project we are going to research on the different views and the jurisprudential aspect of this through different schools of jurisprudence. We will also research on the laws which were made in the earlier time to consider a relationship legitimate. We will research on the laws made by Indian judiciary for live-in relationship and we are going to discuss on the problems faced by the couples who live in live-in relationship and the advantages and also the disadvantages of live-in relationships. We are going to research on the problems between old norms and new thinking. This research seeks to analyse the judicial response to the concept of live-in relationships so far. Many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable to being abandoned for the very simple reason that such relationships are not accepted in the society. It also talks about the rights available to live-in partners in India and also, what are the rights of children born out of such relationships.
INTRODUCTION:
With the current generation growing old and the new generation coming up, there are some innovations or simply new things coming up as our country India which is known as developing nations in a world where there are developed and under-developed nations. One such thing or innovation which could be seen likely to be rising is “Live-in Relationships” in which the couples live together in the same house without anybody else before getting married. This however, is accepted by some people but at the same time it is not accepted by some of the people giving reasons either in the name of religious gods or either giving reason that how can a man live with a woman in the same house without getting married and it is clearly against the ritual of marriage. It can be clearly seen that there are valid arguments against and for the motion and clearly there are some opinions which have been arising from the old as well as the new generation which is the “youth”. Our research paper mainly focuses on such arguments and also the Jurisprudential aspect of various schools and various scholars. Jurisprudence literally means “study of law” or the “Science of Law” the various schools of Jurisprudence are mainly: -
Jeremy Bentham gave the classification between Censorial and Expository Jurisprudence. Censorial Jurisprudence means literally “How law ought to be” or “How law should be”
Expository Jurisprudence means “How law is” Analytical School of Jurisprudence perceives Jurisprudence as Law laid down by the sovereign and such law cannot be rebutted and it cannot be argument the basis and existence of such a law.?
The Historical School of Law mainly is backward looking that is mainly focuses and it mainly throws light on the history of law and how laws have existed in the society and how they have evolved as the society has evolved.
The Sociological School mainly shares the societal perspective of the laws and focuses on a law to be valid if the society deems to accept it and a law is only and only acceptable in the society if it provides happiness to the greatest number of people in the society and says that people should be looked as they are the integral part of the society and they part an essential part of society like a piece of law or a statute is.
The Philosophical School of Law shares its elements with Law and morality and it believes that there exists some connection between law and morality. The Philosophical School of law states that the law is a blend of Law and reason and therefore law enforced should be Just, fair and reasonable and hence provide justice to the whole society.
The Realist School of Jurisprudence believes that the law should be based on the natural scientific principles and methods and hence should follow the evidence which can be backed up or verified from the facts.
Our research article not only throws light on the various school of jurisprudence and various scholars existing within these particular schools but also compare these in context with the Live-in Relationships.
REASONS FROM EMERGENCE OF LIVE-IN RELATIONSHIPS:
Live-in Relationships is an arrangement where a couple can reside with each other for a particular amount of time and cohabit with each other and see if they are compatible with each other to enter in the marriage. Marriage is a big step which is taken and is given very much importance in our Indian culture, but in our culture what is not seen is typically the Bride mostly gets married to somebody who she does not know, or somebody who is better off known as a stranger and getting married to a stranger is not accepted to some of the people and that’s the reason why Live-in Relationship is being given such a great importance by the youth which is coming up.
There are valid arguments both for and against the motion but taking in consideration the conditions in India, most of the places in India, this term which is “Live-in Relationships” still is not known and if a survey is done and it is found out that how many people are actually aware of this particular term and how many people actually know what it means then the number of it would not be more than 50%. Even though the Government of India is taking commendable steps to improve the situation of the rural areas by providing them education and improving their overall conditions, but Live in is still a thing which remains alienated to most of the people and the population of Rural Areas or the population of areas turning into Urban Areas from Rural Areas, to increase the awareness in such areas is the thing yet India is to do.
Live in is a great option which provides to the youths the opportunity to test the other person that is their partner and to check whether they will be able to go through the process of marriage after which they will have to live together in the same house for the rest of their lives, whether or not they will adjust or not.
Although, it has not been given any legal recognition in any statute whatsoever but at the same time it is not illegal to live in a legal relationship, it is totally based upon one’s choice to live his/her owns life.
ADVANTAGES:
DISADVANTAGES:
The disadvantages are as follows:
LAWS RELATING TO LIVE-IN RELATIONSHIPS IN INDIA:
In India as the need and as the awareness about the Live in Relationship is increasing, the need for its legalisation and enforcement of special type of statute relating to Live-in Relationships in India is also increasing. In our country it is not illegal to live in the relationship of Live-in
The only statute where this particular term has been referred/used is Protection from Domestic Violence Act of 2005, apart from this no other special statute relating to Live-in Relationships exist. The laws existing in Protection from Domestic Violence Act of 2005 also are not of that much gravity. In a marriage the women suffer the most, be it biologically, physically, mentally or even verbally and there are provisions of law which provide justice for the same where as in a Live-in Relationship not being recognized by the Hindu Marriage Act, 1955 any of the partner who is the party to the Live-in Relationship could walk away from the relationship thus moving out. There is no specific/ general statute related to the Live-in Relationships. Where as in a marriage the following provisions provide justice to a wife:
According to Section 125 of the Criminal Procedure Code,1860:?
125.Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or?
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
?(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
And Section 498-A of The Indian Penal Code which states that:?
Husband or relative of husband of a woman subjecting her to cruelty. --Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
And Section 304B of Indian Penal Code, 1860 which states that:
304B. Dowry death. --(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The above cited provisions and statutes apply to a Hindu Marriage but not to a Live-in relationship.
The Protection from Domestic Violence Act 2005 mentions/ expresses Live in relationships in the Section 2(f) which includes definition as stated:
Section 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;
In the case of Badri Prasad vs. Dy. Director of Consolidation, It was the first case in the court’s history which recognized Live-in Relationship and Live-in Relationship was interpreted as a valid marriage. In this case the court gave validity to a 50 year live in relationship of a couple.
In the landmark judgment of S. Khushboo vs. Kannaimmal and Anr, In this case the Hon’ble Supreme Court dropped all the charges against the South Indian actress who was charged under Section 499 and also claimed that the petitioner encouraged pre-marital sex and live-in relationships. The court acquitted the petitioner of all the charges and held that even though it might be against the societal norms to live together in a live-in relationship but it is clearly not against the law to live together in the same house and that living together is a right to live and cannot be declared as illegal by any authority.
In the case of Indra Sarma vs. V. K.V. Sarma the court gave five categories where the concept of live-in relationships has been recognised and also proved in the court of law, they are namely-
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The court has stated that Live-in relationships falls within the category of “relationship in the nature of marriage” as defined in the Section 2 (f) of the Protection of Women from Domestic Violence Act 2005.
LIVE-IN RELATIONSHIPS FROM THE ASPECT OF JURISPUDENTIAL SCHOOLS AND VARIOUS SCHOLARS:
ANALYTICAL/POSITIVIST SCHOOL:
The analytical/positive school believes that Law is the command of the sovereign which is backed up by the sovereign and any command which is given by the sovereign has to be followed by the subjects of the people who are the population of the state or who are subordinate to the Sovereign. Sovereign has been given utmost importance and cannot be rebutted in the Analytical School that is the reason why this particular school has been named as Analytical School. In the context of Live-in Relationships, if the Sovereign makes any law related to Live-in relationships or says anything related to Live-in relationships either supporting it or being against it the subjects or the subordinates are bound to follow it irrespective of their own opinion.
There are mainly two scholars in this school, Jeremy Bentham and John Austin.
Jeremy Bentham:
Jeremy Bentham in his book Limits of Jurisprudence said that the law should be based and focused on Maximum happiness or maximum liberty and minimum pain, which is actually the Principle of Utility. Jeremy Bentham gave the classification between Expository Jurisprudence and Censorial Jurisprudence and said that Expository Jurisprudence is concerned with What law is and Law has to be followed as it is i.e., as it is laid down by the sovereign and concerning the Censorial part, the law ought to be like as it provides maximum number to maximum number of people. In the context of Live-in relationships, any law which is/ had been laid down by the sovereign is final and cannot be argued or cannot be argued and the law which has to be made regarding the live-in relationships has to be made in such a way that that particular law provides maximum happiness/ liberty to maximum number of people.
John Austin:
John Austin was the father of the Analytical School of Jurisprudence that is why this school is also known as the Austinian School of Jurisprudence and according to Austin Jurisprudence was based on Analysis therefore he gave the name to this school- Analytical School. According to his book, Province of Jurisprudence defined, He wrote that Jurisprudence is the command of the sovereign which is backed up by the sanction, which in context of Live-in Relationships means that if the Austinian sovereign has ordered any command to its subjects or the subordinates, the subordinates are bound to follow it and they are bound to give them habitual obedience and if they fail to do so, such an action is backed up by sanctions which in today’s world are known as punishments.
HISTORICAL SCHOOL:
Analytical School was totally based upon social analysis whereas Historical school is based totally on the history, on the customs, on how the society existed in the past, The Historical Schools looks backward in the laws which existed in the society before this particular society which exists today and then it analyses the situation according to what will be the best for the current scenario. According to this school, the law grows in the society like language and there shall be no restrictions put on the spurt growth of the law when in grows initially, after sometime the law can be handed over to the jurists for its codification, Main Scholars are Von Savigny, Henry Maine, Puchta. In context of Live-in Relationships, the law regarding live-in if it existed in the past, then only it will be accepted in the society or if it accepted by morals and customs of the people then only such a practice of Live-in Relationships will be recognised in the society of Historical School.
F.K. Von Savigny:
Von Savigny was a father of the Historical School of Jurisprudence and he administered and was inspired by Roman Law. In 1800, it was decided that the whole of Germany should follow the same or the similar law and such an idea was criticised heavily by Savigny by saying that a law could only be restricted to one volk giest which means general will of the people and this criticism was compiled in Vom Beruf.
Von Savigny gave the principle of Volk giest which said that a law is only restricted to one society or only to one Volk Giest, in context of Live-in relationships, in a historical school society, some of the Volk-Giest might accept the Live-in Relationships concept or it might reject it, but it will not be the same in every Volk-Giest. This was administered by Von Savigny.
SOCIOLOGICAL SCHOOL:
The sociological school unlike any other school deals with the society as a whole because it believes law to be a social phenomenon as law creates an impact on the society. The sociological school studies the existing societal relations between the individuals of the society. The sociological school developed in the 19th late and the early 20th century and it mainly promoted Laissez-Faire state which supports the non-intervention of state in the financial activities of the individuals residing in the society. The social interest was narrowed down to the individual interest like Education, Health and Welfare. There were many scholars of this school like Ehlirch, Roscoe Pound and Ihering.? In the context of Live-in Relationships, the Sociological School would accept Live-in if the society, well the individuals would accept it at an individual level if they individually feel that it is of a landmark development for them after considering all the advantages and disadvantages of it.
EHLRICH:
According to Ehlrich the main source of law was the society, he was of the view that the law originated from the society and he advocated the term which is “Man in association” which was similar to the term society. According to Ehlrich, All the people living in the society interacting with each other are affected because of law, this is what he coined to be “Living Law”.?
The legal developments which had been taken place in that place, the centre of gravity would not be given to the Judiciary or the legislation but actually and in real to the people which are actually a part of the society. According to Ehlrich’s views and concepts, the concept of Live-in Relationships would be accepted firstly, in obvious sense, if the society accepts it and the society thinks that it’s for the greatest good for them and there is a sense which exists that tells them that the law related to Live-in relationships will be affected as they interact with more and more people and continue to have families and reproduce and go through the process of divorce.
ROSCOE POUND:
Roscoe Pound is known as the father of the Sociological School of Jurisprudence and he advocated “Social Engineering” which literally means that like scientist’s new experiences shall be used to make inventions and Law shall be dealt as a body and knowledge and should be used as a subject of Social Engineering so as to solve the problems of societies and the people which actually comprise these societies.
The Individual’s interest in the society is the supreme and nothing is more supreme than that, but if every individual counts his interest as supreme then there would be a conflict in the society therefore the law is created. The objective of law is to ensure that harmony and brotherhood is maintained by entertaining only that interest which seems most important to the Law bodies. Pound advocated that this was the system of Maximum happiness and minimum friction. In the context of Live-in Relationships, it would be accepted in the society if there it is discovered to the people via the inventions which are made through the process of “Social Engineering”. And if most of the people residing in the same society have the same interest regarding Live-in Relationships than this specific similar interest would be entertained.?
PHILOSOPHICAL SCHOOL:
Philosophical school believes that Law and reason goes hand in hand. Reasons are some sort of higher principles which are Just, Fair and Reasonable For e.g., Principles of Natural Justice. If the sovereign has made any law and that particular law is against natural justice then that particular law, although valid though from the perspective of Analytical School, but it is not valid from the point of view and the opinion of the Philosophical school because according to this school law follows morality and rationale and law should have some ethical values. It is believed in this school that Law is the means to an end and the end here is the Justice, only the manner in which Law will reach justice is to be decided. According to the perspective of Philosophical School, the concept of Live-in Relationships will be valid if it is not against the natural principle of justice and it is just fair and reasonable. The main scholars of this school and their theories are as follows:
Saint Thomas Aquinas:
At this time, the law was influenced to a great extent by religion and the main issue was how does one decide what exactly are the principle of natural justice and it was this scholar who said that for this answer one should read the scriptures, god revolutions and get knowledge on different religions to know the answer of that question.
According to Aquinas, The Live-in concept will only be accepted if it is existing in the scriptures being talked above.
John Locke:
John Locke gave the theory of Social contract theory, that the people have given their powers to the government so that there is correct use of it and if government misuses its powers, then the government can be overthrown by the people because it was Democracy who actually elected the existing government.
The concept of Live-in will be exist in the society complying with John Locke’s principles if it fits in the concept of Social Contract theory given by him and laws made by the government as the government or the state is the competent authority here.
Immanuel Kant:
Immanuel Kant administered the saying “we the people” which shows the united will of the people.
He administered that Law could be used as an instrument to pursue both individual as well as general interest. “Act in such a way that maxim of your action could be made maxim of General Maxim”
As said above, the concept of Live-in will only survive and exist in the society of Immanuel Kant’s underlying principle if such concept is the united will of all the people residing in the state or the society and it is individual and as well as a shared general interest.
REALIST SCHOOL:
The realist school studies how Law is in action/ reality. The judgment which is given by the judges plus the human factor of the judges and lawyers while giving this judgement.
The realist school mainly asks two questions which are-?
The Live-in Relationship concept would exist in the realist society if it is not against the above cited principles of Realist School. There are two types of jurists in Realist Schools which are- American Realism and Scandavian Realism.
JUSTICE O.W. HOLMES:
Justice O.W. Holmes urged that law and morale are not mixed together; He urged that we should have a legal theory.
According to the principles and research set out by Justice O.W. Holmes, Live-in relationships should not be judged from the perspective of morale if a law is being made on them.
CONCLUSIONS:
There have been valid arguments both for and against the topic which is Live-in Relationships and considering all those arguments and considering the situation of our country in relation to Live-in Relationships, there are more further developments which needs to take place but it will take time to develop in our country as compared to other countries which are more developed like ours which are The United States of America and United Kingdom. Anyway, according to the above cited cases and judgement it is not illegal to live or reside in a live-in relationship according to any existing law and certainly there are laws which recognise the rights of both the partners residing in a live-in relationship and also a child arising out of live-in relationships. Live-in has received and is receiving constant criticism from the society, but the societal morals do not form the basis and standard for the laws existing in the state.
Law Student at Army Institute of Law (AIL), Mohali
2 年Very insightful ??