Live in Relationship and Maintenance

 

By - Nikita Verma, Jagran Lakecity University, Bhopal. 

Introduction 

Living relationship has been considered as legal in India and this is the reason the concept of Living relationship has been increased in India. Since a person in Living relationship enjoys all the rights as husband and wife, when they separate they shall also be granted the same right of Maintenance as the wife. This point has been considered by the Hon'ble court and therefore the Maintenance is provided to the female who stays in a living relationship for a considerable period of time.  

This article of mine will deal in depth with maintenance in living relationships and which relationships are considered as living relationships and so on. 

Living Relationships 

Living relationship is no where defined in any status and because of this there is no definite definition of Living relationship. But as per the courts understanding in the judgment a Living relationship is the relationshiprelationship in which two people live together as husband and wife. Also, as per section 2(f) of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as PWDV act) ""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". So it is very much understandable that Living relationship falls under domestic relationship in PWDV act.

Before a person claims for maintenance in Living relationship, the first thing required is to prove that the relationship was a Living relationship. To prove the relationship as a living relationship. To prove that there was existence of a living relationship two things have to be proved, which are -

Living under the same roof - The person who is claiming for maintenance under the Living relationship has to prove that both of them are living together from a particular time or have lived together at a particular duration. The simple way to prove these things is by the witness testimony. The neighbors can be the witness in this condition and this evidence will be the primary evidence. If due to any reason, any witness doesn't come forward to help the person then, they can have a primary contract between each other. Just like a marriage certificate they can make a contract of living relationship, in the beginning of the relationship which can help them at the time of proving their relationship as living relationship.

Husband and wife relationship - The second which should be there in a relationship is the relationships as husband and wife which means the sexual relationship. If two people are living together but don't have a relationship like husband and wife then their relationship will not be considered as a living relationship. This thing can be proved by medical examination. Although the Court generally doesn't go for it, if the other person doesn't raise the issue that they were not in the living relationship. 

Through this the relationship can be proved a living relationship and the person who doesn't have any means to fulfill the basic requirement can claim for maintenance. 

In Dwarika Prasad Satpathy v. BidyutPrava Dixit and Anr., the Court held that maintenance cannot be denied where there was evidence of the parties living together. Giving a crucial clarification on live-in relationships, the Supreme Court had said that if parties have "lived like husband and wife" for a significant amount of time and had children, the judiciary would presume that the two were married.

Although there are some relationship which doesn't fall under the ambit of living relationship, which are - 

A Mistress - This refers to a relationship between a married man with a female other than her wife, generally for the sexual relationship. Since in this relationship the man is married to another and also they both are not living together, it isn't considerd as a living relationship and they are not legally valid.

A Concubine - This refers to a woman who cohabitation with a man, in addition to his official wife. They are not given the same rights as the married wife; they are treated as lower than the wife. This relationship doesn't come under living relationships. 

Casual Relationship - This refers to a voluntary relationship between a male and a female. Although they have sexual relationship but since they doesn't live together in the same house, this relationship also doesn't under living relationship.

Prostitution - This refers to the women who are paid for the sexual activitie. Since there is no relation between husband and wife they also do not come under living relationship.

These are the relationships which are not covered under living relationships and they can't claim maintenance. As till now only the right has been given to a female to claim maintenance who lives with the male in a living relationship.

Maintenance 

Maintenance refers to the amount of money or things which are claimed by one person from another for the purpose of Living of that person. There are different laws for different religions which talks about Maintenance for their particular religion like for Hindu, Maintenance is provided under section 24 and 25 of Hindu Marriage Act, 1955(hereinafter referred as HMA). Under HMA Husband and wife both can claim Maintenance from the other spouse. 

Sec 125 of Code of Criminal Procedure 1908, (hereinafter referred as Cr.P.C) talks about Maintenance of wives, children and parents. The section provides that any person having sufficient means, neglects or refuses to maintain: 

his wife unable to maintain herself, or

his legitimate or illegitimate child, or 

his father or mother

Who are unable to maintain themselves can claim Maintenance. Under Cr.P.C only a wife can claim for maintenance and not the Husbnad.

The explanation provides the definition of wife as "wife includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried".  Although the definition doesn't cover the female who lives in the living relationship, because of this very much fact, as the Code has been formed in 1908 and this concept is the new concept. But the Court has time by time given it a new meaning.

As stated earlier there is no statute which talks about living relationships and this is the reason that one will not find anything about this in the law. There are many Landmark judgments, which have provided  living relationships a legal status. 

In the case of Payal Sharma v. National Niketan, the SC held that there is a difference between law and morality. Times can come when the thing which is legally valid can't be morally good but this will doesn't raise a question on the legality of the thing. Same goes with living relationships. A man and a woman can live together as husband and wife in the same house without getting married and still their relationship will be considered as a legal relationship. 

A person can't be married and at the same time in a living relationship with another person. Living relationship is legal when it is with one person, then that person is not married at the time of that relationship. The same has been held in the case of Kusum v. State Of UP, in which the woman has not got divorced from her husband and still was living with another man. Since her marriage was not dissolved, the living relationship with another man wasn't legal, ignoring the fact that she was living with another man for the past five years. It will be considered as adultery till the time the person is married with another and living with another person. 

Although the definition of wife given under Cr.P.C does not include a woman who is in a living relationship but the Court has time to time evolved it. The Court has stated in its judgment that if the couple has lived a good amount of time together in living relationship and the female doesn't have any means to live her life she can claim Maintenance under sec 125 of Cr.P.C and she will be considered as the wife.  The same was upheld by the SC in the case of Chanmuniya v. Virenda Kushwaha. The courts also held that the man enjoyed all the rights of a married man and therefore it is the responsibility of the man to maintain the women. 

Conclusion 

A female, who lives in a living relationship can claim for maintenance from her partner under section 125 of Cr.P.C. The court can allow her maintenance if they have spent a considerable amount of time together and the court thinks fit that the female is unable to maintain herself and is totally dependent on her partner. 

Reference 

Statues

Protection of Women from Domestic Violence Act, 2005

Hindu Marriage Act, 1955

Code of Criminal Procedure 1908

Cases 

Dwarika Prasad Satpathy v. BidyutPrava Dixit and Anr., (1999) 7 SCC 675.

Payal Sharma v. National Niketan, AIR 2001 All 254

Kusum v. State of U.P., W.P.(C) No: 53503 of 2016.

Chanmuniya v. Virendra Kushwaha, (2011) 1 SCC 141.