SPECIAL ARTICLE

Law and Live-in Relationships in India

Anuja Agrawal

This paper focuses upon some of the legal moves

which have brought adult heterosexual non-marital
cohabitation patterns, popularly termed live-in
relations, into public focus in India. These legal moves
do not unambiguously signify legal sanction and
recognition of new forms of non-marital heterosexual
cohabitation patterns in India as some popular and
judicial readings seem to suggest. Through a critical
examination of some recommendations and aspects of
the Malimath Committee and the debates ensuing from
the Protection of Women from Domestic
Violence Act 2005, it is shown that the legal changes
are primarily directed at taking cognisance of womens
vulnerable position within conventional forms of
non-marital relations. Contradictory interpretations
and conflicting implications arise in the absence of
such legal changes being explicitly cognisant of and
responsive to diverse forms of live-in relations prevalent
in contemporary society.

This is a revised version of a paper presented at the International

Seminar In the Name of Honour: A Dialogue on Androcentric
Matrimonial Practices and Womens Subjugation in South Asia,
organised by Womens Studies & Development Centre, University of
Delhi, 16 to 18 February 2011.
Anuja Agrawal (anujaagrawal@gmail.com) teaches at the department of
sociology, Delhi School of Economics, University of Delhi.

50

here are two legal sites which have brought non-marital

heterosexual relations into focus in India over the period
of almost a decade. First, in 2008 the Maharashtra governments attempt to amend Section 125 of the Criminal Procedure Code (hereinafter CrPC) brought this issue to the fore.
The amendment sought to broaden the definition of the term
wife in this section to include a woman who was living with
a man like his wife for a reasonably long period. This move
followed the recommendations of the Malimath Committee in
2003. Second, the Protection of Women from Domestic
Violence Act (PWDVA) 2005, is considered to be the first piece
of legislation that, in having covered relations in the nature of
marriage, has provided a legal recognition to relations outside marriage. In what follows I will examine in detail the context and implications of these two legal moves for different
forms of non-marital cohabitation.

Malimath Committee Report

The Malimath Committee, i e, the Committee on Reforms of

Criminal Justice System, was set up in November 2000. It was
constituted by the then home minister and deputy prime minister L K Advani under the chairmanship of V S Malimath,
former chief justice of the Karnataka and Kerala High Courts.
In 2003 when the Malimath Committee submitted its report
(Government of India 2003, hereinafter GOI 2003), it made
several recommendations under the head offences against
women (pp 189-94). The first of these recommendations was
to amend Section 125 of the CrPC. This section is concerned
with maintenance rights of the neglected wife, children and
parents. It seeks to prevent starvation and vagrancy by compelling the person to perform the obligation which he owes in
respect of his wife, child, father or mother who are unable to
support themselves (GOI 2003: 189).
The committee sought to extend the definition of wife in
Section 125 to include a woman who was living with the man
as his wife for a reasonably long period, during the subsistence
of the first marriage (p 189, emphasis added). The extended
definition of wife is thus clearly set against the backdrop of
secondary relationships of already married men and is not
directed at taking cognisance of what may be regarded as
emergent forms of non-marital cohabitation. Providing an
explanation for its recommendation, the report argues:
A woman in a second marriage [of a man] is not entitled to claim maintenance as in law a second marriage during the subsistence of the first
marriage is not legal and valid. Such a woman though she is de facto the
wife of the man[,] in law she is not his wife. Quite often the man marries
the second wife suppressing the earlier marriage. In such a situation the
second wife cant claim the benefit of Section 125 for no fault of hers.
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The husband is absolved of his responsibility of maintaining his second
wife. This is manifestly unfair and unreasonable. The man should not
be allowed to take advantage of his own illegal acts. Law should not be
insensitive to the suffering of such women (GOI 2003: 189).

It is quite evident from the above that the object of focus here
is not all non-marital adult heterosexual relationships but only
that between a married man and his second wife, particularly
one who has been cheated into believing that she is marrying
an unmarried man. By adding the clause during the subsistence of the first marriage, the report has left little room for any
speculation regarding the objective of the recommendation.
In 2008, Maharashtra, following the recommendations of
the Malimath Committee, initiated an aborted attempt to
amend Section 125 which brought the issue of legal status of
live-in relations into the public gaze. The move was construed
as an attempt to confer legal status on secondary unions of
men as well as legalise live-in relations of the modern kind in
which young men and women choose to enter non-marital heterosexual relations prior to entering a long-term committed
marriage tie. Thus a news item reported that a move has
been proposed to legalise Live-in Relationship (of a woman living with a man for a reasonable period, without marrying him)
by according the status of wife to her (Agrawal 2008), and
another news article titled Securing Live-in Relations began
with the story of a modern working woman living in an urban
location and having a live-in boy friend away from the prying
eyes of her family and community. The article also mentions
that men and women working in the business process outsourcing (BPO) industry are prone to enter into such relations
(Menon 2008). Discussing The Socio-legal Dimensions of Livein Relationships, Varun (2011) set out the context as the advent
of such relationship practised in the metropolitan cities. Juneja
and Sharma (2009) examine the legal developments in light of
the fact that a change is visible in our society from arranged
marriages to love marriages and now to live-in-relationships.
Such responses deflect away from the focus of government recommendations as most of them do not mention the context of
secondary relationships of men which are the primary trigger.1
There are also instances in which the courts have interpreted
this recommendation in such a light. For instance in Chanmuniya vs Virendra Kumar Singh Kushwaha and Another (SC 7
October 2010), justices G S Singhvi and A K Ganguly cite the
first part of the recommendation of the Malimath Committee
to support their case for a broad interpretation of the term
wife. For them the above recommendation of the Malimath
Committee suggests that the evidence regarding a man and
woman living together for a reasonably long period should be
sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties.2
Therefore, for these judges, the committee recommended that
the word wife in Section 125 should be amended to include a
woman who was living with the man like his wife for a reasonably long period. This omits the phrase during the subsistence
of the first marriage, which as we saw above is very much part
of the original recommendation. It can be argued that the
committee is indeed somewhat vague with regard to the scope
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of its recommendation as the summary of the report regarding

this recommendation also omits this part of the recommendation (GOI 2003: 291).3
The judges make no reference to the situation in which a
man or a woman enters a second marriage during the subsistence of the first one. Interestingly their judgment involved a
case in which the woman claimed desertion in a levirate marriage, i e, a customary marriage with the brother of the dead
husband. In the absence of the marriage rituals prescribed in
Section 7 of the Hindu Marriage Act, the high court had decided against the appellants status as wife. The notion of a second marriage of a man was not the issue here. It may be noted,
however, that even this case pertains to the legal validation of
a customary form of marital relations and not to any emergent
pattern of non-marital ties.4 It can be argued that, if the idea is
to protect women in marriages or marriage like relations
which render women vulnerable, the ground laid down by the
recommendations of the committee needs to be much clearly
stated and broadly defined when incorporated in law.
It may also be pointed out here that Section 125 in its existing
form seeks to secure the rights of a wife (as well as children
and parents) when she is unable to maintain herself. Furthermore the woman seeking maintenance5 under this provision
should not be living in an adulterous relationship and in case
the husband is willing that the wife (or a woman like a wife)
lives with him, she has to show sufficient reason for not being
able to do so. In fact the Act in its existing form suggests that
If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be a just ground for his wifes refusal
to live with him.

Thus the spirit of this section is the protection of the rights

of the primary wife of a man in a conventional heterosexual
marriage.6 It is not apparent how a simple expansion of the
definition of wife in this section will not, in at least some instances, impinge upon the rights of the primary wife and
hence this does need more discussion and debate.
Other Relevant Recommendations

We will take a brief detour here to consider the Malimath

Committees two other recommendations which have a close
bearing on the issue under discussion and which indicate a
lack of consistency in its recommendations regarding adult
non-marital heterosexual cohabitation.
In its section on Offences against Women, the second
recommendation concerns Section 494 of Indian Penal Code
(IPC), popularly understood as the law against bigamy, which
is one among a number of sections pertaining to offences
related to marriage. This section delineates as offence the act
of marrying during the lifetime of a husband or a wife and is
applicable to both men and women. However, the committee
addresses primarily men who enter second marriages in its
recommendations regarding this section. While bigamy is an
offence presumably against the rights of the first wife/husband,
the legal provisions can be brought into effect only if it can be
proven that a man/woman has had a second marriage according to proper rituals and customs. Curiously, the committee
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recommends that this provision regarding the proof of a valid

marriage undermines the rights of the second wife who can
thereby not claim maintenance (presumably, this refers to a
situation in which the proposed amendment of Section 125
was brought into effect) and hence it recommends that
to overcome these practical difficulties a suitable provision be incorporated to the effect that if the man and the wife (sic) were living as
husband and wife for a reasonably long period they shall be deemed
to have married in accordance with customary rites of either party
thereto (GOI 2003: 189).7

The recommendations are silent about how this change

would have an impact upon the existing liability for punishment under Section 494 which can extend up to seven years
and a fine. Assuming that there is no change in this liability,
the recommendations entail contradictory results for men and
women: the men who enter bigamous relations would be seen as
having married for a second time on lesser evidence than was
admissible so far and women who have entered such a relationship would also be treated as having married the man on lesser
evidence and can claim some of the rights of a second wife on
this score. It is not clear who is the primary intended beneficiary of this recommended change which enforces a more liberal definition of bigamy: the first wife, who can claim that the
husband has entered a bigamous relation on lesser evidence
and charge him as such or the second wife, who can ostensibly
also claim some rights on lesser evidence of a customary marriage. However, insofar as this recommendation seeks to benefit the second wife, it rests on the changes recommended in
Section 125 though this is not explicitly stated in the report.
Lack of Consistency

The lack of consistency in the committees recommendations is

however most obvious from the changes suggested in the adultery law. Section 497 of the IPC criminalises adultery as an offence that a man commits when he has sexual intercourse
with the wife of another man without the consent or connivance of the husband. It may be noted here that the marital
status of the man who commits adultery is irrelevant to this
section. The committee suggests that the object of this section
is to preserve the sanctity of marriage. The society abhors
marital infidelity (GOI 2003: 190). It goes on to argue that
there is no good reason for not meeting out similar treatment
to wife who has sexual intercourse with a married man (ibid,
emphasis added). While outwardly it might appear that the
idea of this recommendation is to treat men and women at par,
note that in reference to women, the authors of the report slip
into referring to wife rather than to woman and curiously
it also refers to a married man instead of man in general.8
This renders the recommendation rather vague. What if a
married woman has a sexual intercourse with an unmarried
man and what if an unmarried woman has such a relation
with a married man? The existing law criminalises the man in
the former case and, it seems, this situation will remain
unchanged if we follow the above stated logic.
As already pointed out above, in its existing form, the adultery law does not apply only to married men having sexual
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intercourse with wives of other men. It applies to any man,

married or otherwise, who has sexual intercourse with the
wife of another man. The actual gender asymmetry of the
adultery law is thus that it does not allow a wife to charge
either her husband or another woman with adultery. This is
what has been pointed out in the recent Supreme Court (SC)
verdict in the case of Kalyani vs State Tr Inspector of Police and
Anr (Supreme Court, December 2011) which referred to a situation in which a wife sought to charge a girl friend of her
husband under section 497 of the IPC pertaining to adultery.
The judgment explicitly states that the present law does not
allow any woman to be charged under this section. Though
not stated explicitly, this is true in two senses. First, a married
woman who enters into an adulterous relation with any man
(married or unmarried) cannot be charged under this law by
her husband (who can however charge the man). Second, an
aggrieved wife cannot charge a woman who has sexual intercourse with her husband. Thus not only can a woman not be
charged under this law, she also cannot use this law in any
way. She can neither invoke the charge of adultery against her
husband nor can she do so against any woman with whom the
husband has sexual relations. However, a husband can use it to
charge another man who has sexual relations with his wife but
he cannot use it to bring about criminal charges against his
wife.9 Interpretations of the gender asymmetry of this provision usually refer to the punish-ability of the man and the
lack of legal culpability of the woman while ignoring that this
law explicitly safeguards a husbands sexual prerogative over
the wife while providing no such protection to a wife. This law
is thus entirely consistent with the patriarchal paradigm which
treats a woman as the property of her husband not to be violated by any other man. A gender symmetrical formulation of
the law may, on the other hand, read as follows:
Adultery is an offence that (i) A man/woman commits when he/she
has sexual intercourse with the wife/husband of another man/woman
without the connivance of the husband/wife (ii) A husband/wife
commits when he/she has sexual intercourse with another woman/
man without the connivance of his/her wife/husband.

It is of course debatable whether such laws, insofar as they

criminalise consensual sexual relations, are desirable in the
first place.10 But that is not the focus of my discussion here.
Returning to the recommendations of the Malimath Committee, it appears that the committee has stringent objection
to a married woman having sexual relations outside marriage
and to punish such a woman is the real objective which set the
committee to make this recommendation. But the actual wording of the recommendation is very parsimonious in suggesting
that Section 497 of the IPC should be suitably amended to the
effect that whosoever has sexual intercourse with the spouse
of any other person is guilty of adultery Surely, this does not
fulfil the avowed goal of the committee to punish the adulterous
wife as long as she is not having sexual intercourse with the
spouse of any other person. It seems that the real intention of
the recommendation got lost in its hasty wording. It is at best
speculative to think what this could mean in the context of
commercialised sex relations where neither a woman nor a
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man may be in a position to know the marital status of their

sexual partner. Should we see all sex workers as adulteresses
when they enter relations of paid sex with married men? But
such nuances and implications have not entered into the thinking about this legislation.
If read in continuity with the other recommendations of the
committee, the text of the actual recommendation would imply
that, if implemented, any woman having a sexual relationship
with a married man would be guilty of adultery and vice versa.
By this logic the women in secondary marriages who are
sought to be protected through the amendment of Section 125
of the CrPC and who appear to gain some leverage through the
changes suggested in the bigamy law would end up being
treated as indulging in adulterous relations. So if all the recommendations of the committee were implemented, a woman
can simultaneously seek maintenance under Section 125 of
the CrPC and be charged with adultery under Section 497 of the
IPC. A man on the other hand may be susceptible to charges of
adultery and bigamy at the same time as he pays maintenance to
the woman with whom he is in a bigamous/adulterous relation!
While it is not possible to go into further extrapolations
about the legal implications of these recommendations, which
are yet to be implemented, it is apparent that a clear and
consistent thinking on this issue did not shape the recommendations of the committee. Furthermore, even as we point out
the tensions and contradictions of such moves, it is also important to identify the intentions behind these moves which do
not appear to converge with a desire to legitimate all forms of
non-marital relations. As would also be clear from the above
discussion of the different recommendations of the committee, there is considerable ambiguity towards women in nonmarital relations with men. The intentions, at least of those
who drafted the Malimath Committee report, can be summed
up as aiming at protecting women who have inadvertently
entered marriage like relations with married men while
wives who may be in such relationships with other men,
need to be punished.
The gamut of issues which non-marital relations between
unmarried/marriageable men and women are not even
touched upon in the report. It is evident that none of the recommendations of the committee are concerned with the patterns of cohabitation in which both partners are unmarried
and whose relation is not encumbered by a previous marriage.
However, the recommendations may also have direct implications for the same. Some of the responses to the Maharashtra
governments attempt to amend Section 125 point out that this
is a significant category of non-marital relations, particularly
associated with the newly emerging trends in urban Indian society and it can be treated as a sign that there is a lot of anxiety
about the implications the legal moves have for such relations.
It may be argued that once enshrined as law, the distinction
between these apparently traditional and modern forms of
non-marital cohabitation would be insignificant. But it would
be worthwhile to spend some time working out these implications rather than leaving it to the imagination of people as to
what this would mean. Moreover to bring widely divergent
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forms of relationships under the ambit of a single law should

be the consequence of very detailed consideration of its implications for each form rather than an unintended and unclear
by-product which allows for a lot of loopholes and inconsistency. Such problems would become even more obvious in the
following discussion of the inclusion of relations in the nature
of marriage in the PWDVA 2005.
The PWDVA and Relations in the Nature of Marriage

The PWDVA 2005, has been widely hailed as the first legal Act to
recognise the existence of non-marital adult heterosexual relations.11 This Act defines an aggrieved person who will be covered under this Act as 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[a], emphasis added). Further the Act defines a
domestic relationship as 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 (Section 2[f], emphasis added).

From this it is evident that to the broad range of domestic

relationships between a man and her husband, father, brother,
and other male and even female kin related through consanguinity or marriage, the PWDVA has added the category of
relations in the nature of marriage.
This does not imply that the Act deals with all forms of
domestic relations in a comprehensive manner. Hence it
excludes the domestic relationship between a male employer
and a live-in domestic worker.12 The Act also clearly has no
space for adult same-sex relationships. Nevertheless, it is possible to say that, unlike the recommendations of the Malimath
Committee, the PWDVA, 2005 has implications for a broader
terrain of non-marital relations as it does not explicitly limit
itself to the secondary relations of men. In having used the
idea of relations in the nature of marriage, the Act seems to
have widened the scope of legally recognised domestic relationships between men and women. In a commentary on one
case arising out of the Act, the report Staying Alive 2009 (Lawyers Collective and ICRW 2009) suggests that
Whilst this provision has invited much criticism and controversy, it is important to note that it does not make an invalid marriage valid or provide
legal recognition to bigamous marriages This provision merely seeks
to denounce domestic violence in any quarter. It is not a judgment call
on the morality of the choice to cohabit outside of marriage (p 7).

It can therefore be argued that it would be mistaken to see

the Act as conferring some sort of a legal status upon nonmarital relations. What it undoubtedly does is to acknowledge
the existence of such relationships and the right of women in
such relations to protection from violence.
However, the connotation of the phrase in the nature of
marriage is far from obvious and, as we will see below, this is
already a ground for contestation of the Act. This aspect of the
Act was thus legally challenged in the Delhi High Court in 2008.
In the case of Aruna Parmod Shah vs UOI,13 the petitioner challenged the constitutionality of the Act on the grounds that,
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first, it discriminates against men and second, the definition of

domestic relationship contained in Section 2(f) of the Act is
objectionable. Regarding the second, the petitioner argued
that placing relationships in the nature of marriage at par
with married status leads to the derogation of the rights of
the legally-wedded wife. The Delhi High Court rejected both
these contentions regarding the constitutional status of the
Act. With regard to the second contention, which is of concern
to us, the court said that there is no reason why equal treatment should not be accorded to a wife as well as a woman who
has been living with a man as his common law wife or even as a
mistress (ibid, emphasis added). In this case the judges interpreted a relation in the nature of marriage as covering both a
common law marriage and a relation with a mistress without clarifying the legal and social connotations of these terms.
Referring to this usage in the judgment, Staying Alive 2008,
(Lawyers Collective and ICRW 2008) defines a Common Law
marriage as referring to
Individuals who have lived together for a substantial period of time
and who represent to the world that they are married. Some of the
factors taken into account to determine a common law marriage are
whether the parties reside in the same household, have children from
the relationship, share names, etc (ibid: 57n3).

It suggests that such marriages are recognised as valid in

law. Although it does not appear that there is any notion of
common law marriage which exists in Indian law, the presumption in favour of marriage and against concubinage is of
long-standing. In fact there have been a number of past judgments in which the courts have used Section 114 of the Indian
Evidence Act, 1872, which suggests that the Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural
events, human conduct and public and private business, in
their relation to the facts of the particular case to make a presumption of marriage. In a Supreme Court SC judgment in
2008 thus, for example, it was suggested that the act of marriage may be presumed from the common course of natural
events and the conduct of parties as they are borne out by the
facts of a particular case.14 In a 2010 judgment as well, the
judges made a strong argument in favour of presumption of
marriage in any case where a man and woman have been living
together for a reasonably long period of time and cite a long
legal history of judgments which have favoured a presumption
of marriage over that of concubinage.15 Hence one can contend that the Indian legal system does not always seek strict
evidence regarding the validity of a marriage in the face of
other circumstantial evidence which indicates the existence of
a relation in the nature of marriage.16 This is further evident
from the SC judgment in the famous case involving the south
Indian actress Khushboo (S Khushboo vs Kanniammal & Anr,
28 April 2010) wherein, apart from other prominent issues
such as freedom of speech, etc, judges Deepak Verma and
B S Chauhan clarified the scope of criminality in consensual
adult relationships when they reiterated that:
While it is true that the mainstream view in our society is that sexual
contact should take place only between marital partners, there is no

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statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of adultery as defined under Section 497 IPC.

It is thus obvious that non-marital relations have not had a

criminal or illegal status in India insofar as they are not covered by the adultery law and insofar as the principle of presumption of marriage prevails. And this is not a new trend.
However, the same is not the case when one of the parties to the
marriage is already married. And it is this that can be seen to
be a newly recognised thorny issue in the Indian legal domain.
A certain amount of dissonance in the interpretation of the
idea of relation in the nature of marriage in the PWDVA, 2005
can thus be traced to the legal status of such relationships. In a
judgment delivered in October 2010, the SC has dwelt at length
upon the interpretation of this provision of the Act. In a case
which concerned a woman seeking maintenance from an apparently already married man under Section 125, the judges
observed that:
Unfortunately [the] expression [in the nature of marriage] has not
been defined in the Act [PWDVA, 2005]. Since there is no direct decision of this Court on the interpretation of this expression we think it
necessary to interpret it because a large number of cases will be coming up before the Courts in our country on this point, and hence an
authoritative decision is required.17

The judgment further observes that:

It seems to us that in the aforesaid Act of 2005 Parliament has taken
notice of a new social phenomenon which 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 in India, but it is
very common in North America and Europe.

After making this statement which equates relation in the

nature of marriage with live-in relations prevalent in the
west, the judges state that in their opinion a relationship in
the nature of marriage is akin to a common law marriage.
According to the judgment, 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 cohabited and held
themselves out to the world as being akin to spouses for a significant period of time.
Interestingly and controversially, this definition of common
law marriage has been taken from Wikipedia on Google as
duly acknowledged by the judges in the text of the judgment.
Incidentally, this is not the only reference to a web-based
source in this judgment which refers to Google as a source at
two other places.18 But to return to the matter of immediate
concern here, the third criterion which has been set out seems
to considerably delimit the scope of relations covered by the
PWDVA. The judges go on to state that:
In our opinion not all live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To
get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a keep whom
he maintains financially and uses mainly for sexual purpose and/or as
a servant, it would not, in our opinion, be a relationship in the nature
of marriage.
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In her commentary on the PWDVA, 2005, Agnes (2011b) has

suggested that the PWDVA has
transformed the yesteryears concubines into present day cohabitees
While some may dismiss the term cohabitee as a western or urban phenomenon, this term can now be invoked to protect the rights of thousands of women, both urban and rural, who were earlier scoffed at as
mistresses or keeps in the judicial discourse (ibid:154).

But the above fragment from the SC judgment belies the

hopes for such a transformation.19
The judges further state that:
No doubt the view we are taking would exclude many women who
have had a live-in relationship from the benefit of the 2005 Act, but
then it is not for this Court to legislate or amend the law. Parliament
has used the expression relationship in the nature of marriage and
not live-in relationship.

In saying this, the judges appear to be implying that the scope

of the term live-in relationship is much broader than that of
relationship in the nature of marriage. Indirectly, however, the
judgment also equates what it treats as a new social phenomena with the idea of relationship in the nature of marriage,
subject to the definition of common law marriage as taken from
Wikipedia. Arguably there is much confusion in the various arguments of the judgment which seems to draw upon contradictory meanings of the phrase live-in relationship.
In her commentary on this judgment, Indira Jaising of the Lawyers Collective, who is one of the main authors of this Act, is evidently dismayed at the manner in which the court has interpreted
this provision.20 She specifically lashed out at the exclusion of cases in which one of the parties is already married. She argues:
This would mean that if a married man deceived a woman into marrying him, and lived with her as if married, this would not be a relationship in the nature of marriage, even though they represent to the world
that they are married and live in a stable relationship and have children together. This was not the intention of the Act and it was in some
measure intended to protect women like these. The phenomena of
a man marrying more than once is well known in this country, and
the history of permitting multiple marriages has not been erased by
the law but continues to influence the behaviour of men. The strange
result of this interpretation has been that the man will not be in a relationship in the nature of marriage for he is previously married but the
woman will be in a relationship in the nature of marriage, as she is not
previously married (Lawyers Collective and ICRW 2010: iv).

It is worth mentioning here that the Lawyers Collective had

hailed an earlier judgment (Aruna Parmod Shah vs UOI, Decided on 7 April 2008, High Court of Delhi) as progressive
which had observed the unequal character of relations in the
nature of marriage. I quote from the judgment:
An assumption can fairly be drawn that a live-in relationship is invariably initiated and perpetuated by the male The Court should
also not be impervious to social stigma which always sticks to women
and not to the men, even though both partake of a relationship which
is only in the nature of marriage.

The court in making this observation and the Lawyers Collective in approving it appear to be signalling that in this case
there is convergence in both, the intention and the interpretation of the Act, as being directed at protecting women from
violence within forms of relations between men and women
which are presumed to be unequal.21
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While it may be open to debate whether all forms of heterosexual relations are unequal, and whether all forms of nonmarital heterosexual relations also ought to be construed to be
so and whether this should be the presumption in drafting all
laws, it needs to be acknowledged that it is this gendered assumption which seems to be giving legal visibility to live-in
relations in India.
From the above brief discussion it is also evident that the
meaning of relations in the nature of marriage in PWDVA is
already subject to contestation and contrary to Jaisings contention that the expression is self-explanatory... It obviously
relates to those cases in which the parties are not married yet
cohabit, not everyone seems to agree, at least not judges Markandey Katju and T S Thakur. They even suggest that the Parliament has used the expression relationship in the nature of
marriage and not live-in relationship, thereby suggesting
that the two have very different connotations.
Conclusions

The public and even judicial responses to the legislative move

to amend Section 125 and the provisions of the PWDVA, 2005
are sometimes deflected by a focus upon presumably western
forms of non-marital cohabitation in which usually unmarried
men and women enter non-marital but exclusive relations
with each other, often as a form of experimentation prior to a
marital commitment. However, it is not evident that the primary impetus for legal changes is coming from recognition of
the modern style of living together. The legislative measures
are a response to more traditional and even patriarchal forms
of non-marital cohabitation in which the male partner is
already married and enters a relation with another, usually
unattached woman, who may or may not be aware of the marital status of this man. Thus these legal moves appear to be set
against the backdrop of prevalent practices of married men
entering secondary relations with women. As is evident from
the statement made by Jaising, the main concern of those who
have been pushing for such legislation is to provide some relief
to women who have been in such relations under fairly conventional conditions. This was even more obvious in the case
of the recommendations of the Malimath Committee which
have however not been implemented. Such cases are arguably
quite distinct from a western style cohabitation patterns which
are referred to as live-in relationships in popular vocabulary.
However, it is not obvious that all forms of non-marital relations can or should be treated as legally identical. In any case,
even if they should be treated as such, the decision to do so
should be preceded by a careful consideration of the implications this will have for the different categories. As things
stand, in the absence of clear social and legal categorisation of
non-marital relations, the field has been left wide open and
even the highest judicial functionaries have allowed themselves to pontificate upon the need to separate a relation in
the nature of marriage from that with a servant or a keep
and a one night stand. Notwithstanding the political incorrectness of a good deal of these ruminations, this reveals the
confusion which has arisen around who might be the beneficiary
55

SPECIAL ARTICLE

of such laws and whether such legal protection is equally desirable in different forms of relationships. Jaisings statement
that this provision affords protection against domestic violence to women in live-in relationships, legally void/voidable
marriages22 and common law marriages offers us a preliminary classification of non-marital heterosexual cohabitation
patterns. But clearly there is some dissension regarding the
possibility of treating all of these under one heading, particularly if this entails conferring identical rights upon women in
such relations, at least under certain conditions.
It may also be noted that none of these legislative moves
should be treated as dealing comprehensively either with the
gamut of live-in relations or with the corpus of rights and obligations which might require legal redress in such relations. At
best they extend some of the rights of married women to women
who are in non-marital relations with men. A preliminary
Notes
1 Not all responses to the legal moves are however impervious to their context. For example
see Prakash Yedhula (2009) for a more nuanced response to the legal moves.
2 As will be shown below, this statement has
been made in the Malimath Committee, not in
the context of the amendment of Section 125 of
CrPC, but in their recommendation regarding
the Section 494 of the Indian Penal Code which
pertains to bigamy.
3 The exact wording in the summary is: Definition of the word wife in Section 125 of the
Code be amended to include a woman who was
living with the man like his wife for reasonable
(sic) long period (p 291).
4 However, see Chowdhry (2007) for a detailed
discussion of how such contemporary conditions
have enforced leviratic relations upon widowed
women among particular communities.
5 Earlier the maximum amount of maintenance
was 500 but this clause was omitted in an
amendment in 2001. Different states also specify different amounts of maintenance ranging
between 1500 and 3000.
6 Some studies show that, alongside alcoholism,
a second marriage or an extramarital relationship of the husband is the dominant factor in
desertion of the first wife. See Kulkarni and
Bhat (2010).
7 See n 3 above.
8 In the summary of recommendation, it is again
noted that As a man can be punished under Section 497 of IPC for adultery, for having sexual intercourse with a wife of another man it stands to
reason that wife should likewise be punished if
she has sexual intercourse with another married
man (GOI 2003: 290, emphasis added).
9 However, both men and women can use the
charge of adultery as a basis for seeking divorce.
10 See Agnes (2011a: 138-40) for a discussion of
the undesirability and inappropriateness of
criminalising such relations in contemporary
societies.
11 See Karanjawala and Chugh (2009: 294).
12 It is worth mentioning here that while domestic workers have been clearly excluded from
the PWDVA, 2005, there has been much ambivalence regarding the inclusion of domestic
workers even within the ambit of the Prohibition of Sexual Harassment of Women at Workplace Bill 2010, rendering them among the
most vulnerable section of women workers.
See Tandon (2011) for instance.
13 Aruna Parmod Shah vs UOI, Decided on 7 April
2008, High Court of Delhi.

56

comparison of these legal moves with the legal trajectory of

relations of cohabitation in western societies will show that
the Indian situation is quite far from affording a high degree of
legal protection to modern forms of non-marital relations and
that the desirability of such protection is itself a much debated
terrain. Some western countries such as the Netherlands (Law
on Registered Partnership, 1997) and France (Pacte Civil de
Solidarit or PACS, 1999) have directly legislated on the status
of non-marital relations both heterosexual and homosexual
(Bradley 2001). While both these pieces of legislation deal with
non-marital cohabitation, neither of them address secondary
marital relations of the sort sought to be addressed in the Indian case. Hence, it is useful not to see the legal trend in India as
replicating the western model in any sense as much as asserting
the need to more openly discussing the desirability and nature
of legal remedies for men and women in such relations.

14 See Tulsa & Ors vs Durghatiya & Ors, Decided

on 15 January 2008, Supreme Court of India.
15 Chanmuniya vs Virendra Kumar Singh Kushwaha and Anr, Decided on 7 October 2010,
Supreme Court of India.
16 Agnes (2011b) recounts a number of legal cases
going back to early 1950s which depend on the
principle of presumption of marriage (ibid:
153-59).
17 D Veluswamy vs D Patchaiammal, Decided on 21
October 2010, Supreme Court of India.
18 See Mahapatra (2010) for a comment on this
controversial reference to a web-based source
in the judgment.
19 The use of the term mistress in the case of
Aruna Parmod Shah vs UOI, Decided on 7 April
2008, High Court of Delhi, has already been
noted above. The usage did not come under
flak that it faced in the D Veluswamy vs D
Patchaiammal case, presumably because the
judges accepted the right of mistress to
equal treatment. As will be shown below, the
Lawyers Collective even hailed the judgment
as progressive.
20 See the Preface to Staying Alive 2010 (pp iv-v)
for a detailed critique of this judgment and the
language it uses by Jaising.
21 In reference to a case with Mumbai High Court
(Manda R Thaore, W/o Sh Ramaji Ghanshyam
Thaore vs Sh Ramaji Ghanshyam Thaore, Criminal Revision Application No 317/2006), Staying
Alive 2010 notes approvingly that in this case
court had indicated that PWDVA could step in
where Section 125 failed to address the women
in secondary marriages, once again indicating
the intention of the authors of the Act (see Lawyers Collective and ICRW 2010: 138-39).
22 Jaisings further statement includes bigamous
or fraudulent marriages in this category.

References
Agnes, Flavia (2011a): Family Law, Volume I, Family Laws and Constitutional Claims (New Delhi:
Oxford University Press).
(2011b): Family Law, Volume II, Marriage, Divorce, and Matrimonial litigation (New Delhi:
Oxford University Press).
Agrawal, Subhash Chandra (2008): Legalising
Live-in Relationship: Caution Needed, Merinews, 11 October, viewed on 21 December 2010
(http://www.merinews.com/article/legalising-live-in-relationship-caution-needed/144116.shtml).
Bradley, David (2001): Regulation of Unmarried
Cohabitation in West-European Jurisdictions
September 29, 2012

Determinants of Legal Policy, International

Journal of Law, Policy and the Family, 15(1): 22-50.
Chowdhry, Prem (2007): Contentious Marriages,
Eloping Couples: Gender, Caste and Patriarchy in
Northern India (Delhi: Oxford University Press).
GoI (2003): Committee on Reforms of the Criminal
Justice System (Bangalore: Ministry of Home
Affairs, Government of India).
Juneja, Saakshi O and Bhumika Sharma (2009):
Live-in Relationships: The Indian Perspective, India Law Journal, 2(2), viewed on 11
March 2012 (http://indialawjournal.com/volume2/issue_2/article_by_saakshi.html).
Karanjawala, Tahira and Shivani Chugh (2009): The
Legal Battle Against Domestic Violence in India:
Evolution and Analysis, International Journal of
Law, Policy and the Family, 23(3): 289-308.
Kulkarni, Seema and Sneha Bhat (2010): Issues and
Concerns of Deserted Women in Maharashtra
in Economic & Political Weekly, 45(38): 59-66.
Lawyers Collective and ICRW (2008): Staying
Alive: Second Monitoring & Evaluation Report
on the Protection of Women from Domestic Violence Act, 2005.
(2009): Staying Alive: Third Monitoring & Evaluation Report on the Protection of Women from
Domestic Violence Act, 2005.
(2010): Staying Alive: Fourth Monitoring &
Evaluation Report on the Protection of Women
from Domestic Violence Act, 2005.
Mahapatra, Dhananjay (2010): Can Wikipedia Be
the Basis of SC Ruling?, The Times of India,
25 October, viewed on 30 December 2010
(http://timesofindia.indiatimes.com/india/
Can-Wikipedia-be-the-basis-of-SC-ruling/
articleshow/6806187.cms).
Menon, Ramesh (2008): Securing Live-in Relations, India Together, 16 November, viewed on
10 January 2011 (http://www.indiatogether.
org/2008/nov/soc-livingin.htm).
Tandon, Aditi (2011): Sexual Harassment at Workplace Draft Bill: House Committee, Govt Differ
on Inclusion of Domestic Workers, Tribune,
8 December, viewed on 11 Macrh 2012 (http://
www.tribuneindia.com/2011/20111209/main3.
htm).
Varun (2011): The Socio-legal Dimensions of Livein Relationships, 29 August, viewed on
11 March 2012 (http://www.lawyersclubindia.
com/articles/The-Socio-Legal-Dimensions-ofLive-In-Relationships-3966.asp).
Yedhula, Prakash (2009): Live-in Relationships in
India Accorded Legal Status, 11 January,
viewed on 11 March 2012 (http://www.lawyersclubindia.com/articles/Live-In-Relationshipsin-India-Accorded-Legal-Status-598.asp).
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