“It’s better to have a live-in relationship rather than having a divorced life!”

This is common refrain in the favour of live-in relations in the world. Live in relationship are not new for western countries but of late the concept is getting rooted in east also. The word “live in” is found to be controversial in many terms in eastern countries.

As Indian society is witnessing a drastic change in its living pattern, people are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by the society.

Unlike marriage, in live-in relationships couples are not legally bound to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation.

Taking the cognizance of skyrocketing concern of modern-day relation, some family courts have ruled that after the due process of petition for divorce an individual has right to be in live in relationship. In the case under discussion, marriage of a Hindu couple could barely survive, and within few months of marriage, their relation got estranged, resultantly husband filed a petition under section 13 of the Hindu Marriage Act in 2017, which was initially filed in Family Court at Mumbai, and later pursuant to the orders of the Apex Court got transferred to the Principal Judge, Family Court at Delhi in 2019.

The matter since then was pending, there is complete destruction of the essence of marriage between parties and it reached the stage of irretrievable/complete break-down. After rounds of negotiation, a formal compromise agreement was entered into, which was conveyed through e-mail but wife unilaterally sought novation of the terms of the agreement. It is during the pendency of the petition under Section 13 of the Act, husband came into contact with a woman, and both being Hindus started staying together. Referring to section 5 and section 11 of the Hindu marriage Act which states condition for void marriage in particular Section 5(i) when read with Section 11, it clearly prohibits any marriage with a person whose previous marriage was subsisting on the date of marriage, and any subsequent marriage performed would be void ab initio.

In a recent decision the Punjab and Haryana High Court delivered in Paramjit Kaur v. State of Punjab, disagreed with the decision of Allahabad High Court, which held the live-in relation between married persons without having been divorced u/s 494 IPC as offence,

In the hearing petitioners submitted that they were in a live-in relationship with each other and were in apprehension of danger to their life and liberty at the hands of the SHO, Police Station Samrala, District Ludhiana, harassing them at the instance of the said respondents.

Considering the judgement of Supreme Court in Joseph Shine v. Union of India, (2019) 3 SCC 39, by which the Supreme Court had struck down Section 497 (adultery) of the IPC as being unconstitutional and violative of Articles 14, 15 and 21 of the Constitution, The Bench warned of strict actions in case the petitioners are again harassed by the SHO on account of any live-in-relationship that they have with each other. Taking notice of the ruling in the case at hand, the court in its decision ruled that if husband had married women by following all ceremonies and public functions etc. then this may not only entail voidness of marriage but also criminal prosecution on behalf of first wife may be ensued.

However, living with women without performing public functions, there is no legal impediment in this scenario and obviously, formal marriage can take place after annulment of first marriage. Also in 2003 when the Malimath Committee on Reforms of Criminal Justice System submitted its report, it made several recommendations under the head “offences against women”. One of its recommendations was to amend Section 125 CrPC so as to alter the meaning of “wife”. Owing to this alteration, a revision was made and now the expression “wife” incorporates the ladies who were previously in a live-in relationship and now her accomplice has abandoned her at his will so a lady in live-in relationship can now get the status of a wife.

So, as it is being truly said that the only thing which is constant in this world is change. This decision may restrain couples on the verge of divorce to think about making a new beginning.

(The author is a lawyer practising in the Supreme Court. The views expressed in this article are solely of the author.)