Happy Marital Life Depends on Couple

The Vedic Vivah or taking marriage vows as per the Vedas, most ancient scripture in the library of Mankind, lays the foundation of a happy married life. The bride and the groom take SEVEN steps together and take a vow with each step. The seventh and the last step vow is: Now after taking nuptial vows WE ARE FRIENDS. SAKHA is the word in Sanskrit language. Friendship is between the equals and when the husband and wife treat each other as Equals, they will never denigrate each other. 

When LOVE between the husband and wife recedes or takes a back seat in life, it is time for the THIRD PERSON; male or female to enter into the life of the wedded couple. That indeed is the beginning of the end of a happy married life. The mistress gains ground day by day in the husband’s love life. Or the wife’s young lover becomes supreme in the life of the woman. However, it is essential that the THIRD PERSON must be banished as early as possible lest the marriage is on the rocks. 

SCHOOL FOR WIFE

When I mentioned to my wife that in China new and expensive schools have been opened to train wives on” How to WIN HUSBAND BACK from the Mistress, oh! she lamented and opined; why not train Husbands how to keep the flame of Love alive in the wife. A husband needs training too. I think my wife has a point. A happy married life is lived by the couple, not by wife alone. Remember the VEDIC vow: we are FRIENDS or Sakha. 

Let the new enterpreneurs in China open training schools for husbands on HOW TO WIN WIFE BACK. The booming economy of China has put a lot of money into the hands of male entrepreneurs and among other hobbies and recreations that they pursue, having a mistress is becoming more popuar than what society can digest. It is a scandal that has REACHED A POINT BEYOND WHICH THE MARRIAGE BASED SOCIAL STRUCTURE CANNOT TAKE. The sociologists are keen on finding a solution within the present set up of the social order. It is, however, defying solutions at this point of time. 

It is the legacy of Chinese Emperors to have many pretty women in their Harem in the forbidden city. The male population of China that has become very rich with the economic boom now wish to have a Mistress in every city that they visit in connection with business. May I remind Males with Mistresses that history is also full of true stories of Empresses or Dowager Empresses who kept a Male Harem to pick and choose the man to sleep with. And the choice invariably fell on a new fellow to make the dowager empress happy and satisfied in bed. A failure to achieve the desired result cost the unfortunate male his head. The same situation may arise again. History repeats itself. 

SEX IN MARRIAGE

It is a matter of human nature that Sex is important in life. In the marital life Sex is more important. Some psychologists believe that marriages are made or unmade in bed. In other words, the husband and wife must keep each other sexually satisfied and happy. Let no partner ignore the other partner. 

Companionship heightens Love and Love demands togetherness. When the couple are together, they are bound to sleep in the same bed. Sex is a natural corollary thereafter. 

If the husband and wife look after each other and take care of needs mutually the marital life will succeed. Mistress will have no place in the life of a happy couple. 

SCRIPTURES ON MARITAL SEX

One may be wondering how deep will the religious injunctions penetrate in marital sex? Well, to fathom the depth, please dive deep and all pearls will be yours. Pearls of Wisdom are there for one who cares to see and find. Let me quote an example from the Satyarth Prakash, the Magnum Opus of the great and renowned socio-religious reformer of the 19th century India. He was so much concerned about the heath, happiness and moral conduct of his countrymen that he devoted all  his time and energy to the cause of the country and countrymen and even staked his life for it. Swami Dayanand Saraswati wished the Aryas(Noble men and women) to rise and grow in numbers, in health and in happiness that he prescribed the right way and method of having SAMBHOG or marital sex If the male died and the family wished to have an heir,  the Swami recommended the Vedic way to go about it, NIYOG. A good male with intelligence, knowledge and prowess was chosen to have a go at it with the consent of the widow and procreate successfully. This was for the Nation too, without malice or sexual pleasure for the sake of sex. Indeed the Niyog was not popular and invited criticism too. However, the same aim is achieved by many in the society, albeit surreptitiously.

The noble aim of Swami  Dayanand Saraswati in writing in depth on the art of copulation in the Satyarth Prakash was to wean away the youth, both boys and girls, from the influence of cheap, dirty and erroneous booklets on sex and lead them to the right path of procreation in a healthy environment. Sex is an important aspect of human life. However, thinking human beings sublimate it and rise above the animal passion and channelize it towards the right goal: to beget a son or a daughter. The great Reformer and inspirer of the Vedic Renaissance was very concerned about the quality of our future generations. He advised the husband and wife to have sex in a manner that the semen of Brahmacharya should be utilised to beget a child and must not be allowed to go waste. A child thus born will be asset to the family and to the Nation.”They (husband and wife) should never waste their reproductive elements perfected and preserved by the practice of Brahmcharya because the children born of the union of such reproductive elements are of a very superior order.” 

As discussed heretofore the happiness in marital life depends on the physical, mental and spiritual compatibility of the husband and wife both. The aim of begetting good and smart children cements the marital bond and never lets the couple separate or fall asunder. That is what a Vedic Vivah is all about. Let me wish the bride and the groom health and happiness in their marital life.

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Struggle of A Lady in Divorce Case

Start with a quote : “Divorce is a game played by lawyers”. -Cary Grant 

I don’t agree with the quotation mentioned above.  The reason of my disagreement is not that I am a lawyer by profession but a complex case which I am sharing  herein. I hope that It will give a good insight in  litigation of a divorce case. It may be helpful to law students and laymen  as well.  Identity and timings are changed for the sake of confidentiality. Any match to any case is just coincident. People is not important at all.  The learning of a case is important for society.

This case is about a boy and a girl  who married happily and enjoyed the marriage life for six years before they entered in  the world of litigation. They had a love marriage. Love was not just a ‘love at first sight’, rather it was a love and probably live- in for six years and thereafter arranged marriage. Lady, hereinafter called ‘wife’ was educated in computers and was running a computer institute. The boy, hereinafter called ‘husband’ was a business man and running private equity holder company. Their love, as is say,  lasted for six years and then marriage and then married life lasted for another six years. No kids. No liabilities. Everything was fine till the  one fine day when  dispute arose on pinpointing each other on a small issue. Small issue turned to ISSUES…BIG ISSUES.  Issues started growing and then turned to suspicion. Suspicion turned to allegations. Allegations turned to heated arguments. Heated arguments lead to threatening and which lead to the forced expulsion of wife from  Husband’s home. Wife was virtually thrown out of house while withholding all the earnings, investments, ornaments, property shares. She was just thrown out with a threat to keep herself from any legal action otherwise be ready for consequence and asked her to arrange a huge sum if she want to return. She was legally not aware and having no idea of what to do. It was passed twelve years with a man whom she relied and trusted the most in the world, he was her husband. She saw the laughing face of her husband on her pain. She felt cheated, betrayed but now, all these words seems to be meaningless.

Afterwards, She returned to her parental home. Parents are parents after all. The happily accepted and supported her. One fine day, She received  a family court summons, intimating her about a divorce petition filed before family court under section 13 of  Hindu Marriage Act filed by her husband. Stunned and hurt…but accepted the  to face the legal battle.  She approached for legal help but can’t afford the fees. She fought the case herself  with the help of her guide, we can better say her legal guide. Then  trial begins in Family case. She learned the fundamentals of law and started gathering information and knowledge  from anywhere and everywhere she could gather. Futhermore, Husband denied any alimony/ ornaments/ clothe/valuable which she was entitle legally.

First provision she learned was section 13 of Hindu marriage Act, 1955. The basis of divorce. There are thirteen grounds given which can be basis of the divorce among Hindu couple. The most common ground “Cruelty” was taken in this case. “Cruelty”. Includes the  physical, emotional and mental.  Wife wanted to live with Husband so for that she had filed case of restitution under section 9 of Hindu Marriage Act. Section 9 of Hindu Marriage Act has a provision of “Restitution of conjugal rights” which means that husband or wife can not live separately without any reasonable cause. So second case filed in the matter.

Since wife was not an earning member so she didn’t had sufficient income to meet out expenses during the pendency of the case so she filed a separate application under section 24 of the Hindu Marriage act (HM Act in Short) before family court. Section 24 of HM Act has provision for pendelite expense and court has ordered 3,000/- on the application.  It was the third case in this matter.

As stated above the wife was asked by her husband to arrange a huge sum of money if she wanted to return the home. This type of demand falls under category of “Dowry” and it is prohibited under law.  She filed a police report  under section 498 A of Indian Penal Code (IPC in short) . Section 498 A of  IPC has provision of punishment for husband and their relatives for cruelty and demand of dowry. Police registered the case and put up before magistrate.This was the forth case in this matter.

During these proceeding, the husband’s sister and brother-in-law has threatened her on the phone to withdraw the cases against her else she would have to face consequences. When it became unbearable then she filed a police report and police has registered a fresh case under 503 IPC. Section 503 IPC had a provision for criminal intimidation which is commonly known as ‘Threatens”.  It was the fifth case in the matter.

The adamant husband has sent few obscene SMSes to her to tease and give a mental agony. She approached the police but police denied to register any case. Aggrieved by this  she filed a private petition under  section IPC 354. IPC 354 has provision for punishment for offense against assault or criminal force to outrage of modesty of a woman. Private petition can be filed under 200 Cr.P.C. Magistrate has order for police inquiry in the matter under section 156 Cr. P.C. On the basis of police report the case of registered and trial begin. It was the sixth case in the same matter.

During the marriage she and her husband together had purchased a flat with joint earnings but her husband and his family was residing in the flat and enjoying it. However, the 50% of sale price was paid by her  bank account but registry was done only on the name of her husband. That was the situation when both were living in love. Now, during litigation, the husband denied her to live in the home and thrown out of flat. So, she filed a suite of title declaration and possession for the flat as half of the sale price was paid from her bank account and she is equal owner of the property being actual buyer. This was the seventh case begin in the matter.

There was a bank fix deposit receipts on joint name of husband and wife. Which had a condition that it can be encash on  the name of ‘either or survivor’. Wife gave instructions to the bank not  to encash the FDR due to on going litigation but bank released the payment upon request made by husband with connivance of bank officials. She got nothing out of her Joint FDR. Bank didn’t respond to her request. A consumer case was filed and police report made against erring bank officials.  This was  the eighth case begin in the matter 

She filed a fresh case under section 125 Cr.P.C. for maintenance. Section 125 Cr.P.C has provision for payment of maintenance by husband to her wife in case she has not any adequate means to meet out expenses. She got relief from magisterial court and she got monthly maintenance of Rs. 1000/- .. This was ninth case in the matter.

There are few other cases filed meanwhile which we have removed to control the length of this article. After long legal battle, husband understood the seriousness of situation. Late but not the least.

Finally, the long legal battle of nine years both the husband and wife arrived to settlement. Wife, though in the stronger legal position, left much of her claim and given consent for settlement halfheartedly.  and she got satisfactory alimony. Husband filed one case on wife and he attracted the nine or more counter cases. It is apparent that lady struggled a lot to reach out justice. Finally, law has helped her a lot to reach the desired results.

I salute to the courage of the lady. It was her courage  in divorce case which lead her to get hold of what was her since the beginning of the first case.  Such courage is rare to find out. I can say that we should educate our daughters and give  them  strength of legal education so that they can stand firmly in the storm of life. So, Divorce is not the game played by lawyers, on the contrary, it is instrument for relief and justice where lawyers assist to aggrieved one.

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Inheritance under Hindu Law

We are talking about only those inheritance where male or female Hindu died intestate. Intestate means without WILL. A person who died without writing a WILL is called as ‘intestate’ in legal terminology. Inheritance under Hindu law is possible either through WILL or through operation of law.

As a general principle whenever a Hindu died intestate then a legal presumption comes in to force  that the property get vested in to legal heir automatically and it belongs to Joint Hindu Family.

Once a dispute arise or members of joint Hindu Family feels that there is requirement of distribution of inherited property then following legal recourses can be helpful and one should have basic information in this area : -

1) Have a family arrangement within legal heirs deed (though an oral and written arrangement) is acceptable but preferably have a written arrangement and get it registered.

2) Alternatively a partition deed within legal heirs  can also be prepared in the same manner.

3) Deeds should be prepared by a competent lawyer having adequate experience and exposure to Hindu Law.

4) Carry a mutation proceeding on the basis of partition/ settlement deed before Tehsildar (executive magistrate) in case of agricultural property and  before Municipal authorities in case o f urban property. ‘Mutation’ means the change of name in Govt. Records.

5) Mutation can also take place on the basis of death certificate of the intestate supported by an affidavit of the legal heirs for the same but remember that mutation cannot be the sole basis of transfer of title. Order of mutation can be challenged in civil court.

6) In the case of disputes among legal heirs on inherited property then a civil suit of partition and possession can be filed under code of civil procedure praying the court to declare the portion of inherited property in favor of petitioner and the trial begins thereafter. Once the court passes a decree of partition then accordingly mutation can take place.

7) So,  it can be said basically, inheritance under Hindu Law revolves around Hindu Succession Act, Hindu Law, state’s land revenue code, Municipal Act, stamp & registration, Civil Procedure Code etc.

Division Of Property of intestate

Whenever a Hindu dies then the property get vested among his/her heirs by virtue of Hindu Law. Now, Hindu Law, which is a well developed law, has four schedule or we can  say categories of Legal heirs.  If the first category fails then second comes and then third and so on. First category are direct relatives, second category is second line relative and third category is of ‘agnate’ (relatives from father side and forth categories are ‘cognates’ that is relatives of mother side.

Remember if any Hindu dies instate and without any relatives of abovementioned categories then the property get vested with the State Government under due procedure of Law.

Today we will see the first category only for inheritance of Male Hindu : -

Rule1.- The intestate’s widow, or if there are more widow than one, all the widows together,shall take one share. 

Rule 2.- The surviving sons and daughter and the mother of the intestate shall each take one share. 

Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share. 

Rule 4.- The distribution of the share referred to in Rule 3- 

(i) among the heirs in the branch of the pre-deceased son shall be son made that his widow (or widows together) and the surviving sons and daughters get equal portions, and the branch of his pre-deceased sons gets the same portion.

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions

Similarly there are division of property among rest of the three category defined under Hindu Succession Act, 1956 and (amendment) Act, 2005.

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Know the rights of Your Daughter under Hindu Law

Gone are the days when daughters were dependent on mercy  their male relatives for their share in the ancestral property. I am referring the finding of Supreme Court in case of Gaduri Amma & other Vs Chakri Yanadi & others Civil Appeal 8538 / 2011 dated : 12th October 2011.

The finding of the case law as under which any body can understand by simple understanding to law : -

1)    Inheritance under Hindu Law is governed by Mitakshara Law through  Hindu Succession Act, 1956 which is substituted by Hindu Succession (Amendment) Act, 2005 w.ef.  9th   September  2004.

2)    After this amendment the Hindu daughter has equal right in the ancestral property as good as a Son can have. Rather, it is true that in eyes of Law daughter and Son have exactly equal rights and  share in property.

3)    The marital status of daughter does not have any effect to her rights in ancestral property. (Married or unmarried or divorcee or deserted daughters have equal rights ..marital status does not have any impact in this regard.)

4)    If  a daughter dies before partition of ancestral property, then her children will have equal rights in property which the deceased daughter can enjoy as if she would be living.

5)     Remember, the Mitakshara Law after amendment of 2005 (as above) will not effect in following conditions which means the daughters will not have rights under following conditions :

-       Partition took place by registered partition deed before 20th December 2004.

-       Court has passed the final decree on property division before 20th December 2004.

6)    If a preliminary decree is passed in a partition case but final decree is not passed then the preliminary decree can be amended and a second preliminary decree can be prepared in light of amendment 2005.  There is no confusion in this regard  now and question of amending the preliminary decree is settled by this  Judgment.

7)    This judgment or amendment in Hindu law will no way give any  right to sue the sons/father/ grand father for division made prior to passing of this Act because this amendment is not having retrospective effect.

It is  very useful law for common public and people should be made aware specially daughters who should know their rights protected by Hindu Law.

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Adoption – Legal and social perception

Parenthood is the greatest blessing in one’s life.  In olden days there was a belief that if one is not blessed with a ‘Puthra’  he is not free from the NARAKA named “PUM”. We see  the practices of performing ”’Puthrakameshti’ to have a biological child. Like parenthood the family is the dream of every child. We have several stories of adoption in our mythologies.  Sita or Janaki in Ramayana was an adopted child of King Janaka.  According the ancient belief, ‘Kanyadan’ is also to be performed by every parent to attain  heavenly bliss.

Due to many reasons beyond ones control,  there are couples who cannot have their own child. But if they have a will,  they can enjoy parenthood by adopting a child. The child gets a family life and the parents enjoy the heavenly bliss in such cases. There are several legally authorised  homes  in our country, which take care of children who are devoid of parents. To hold the hand of one such child and make him a member of the family, is a most beautiful feeling and a service. The sad part is that this is  not welcomed by many cultures and families.  Many people may agree to the idea of adopting a child. But there are a lot of people who are not having a biological child and desiring to have a child to be cared and protected, show reluctance to adoption due to the cultural barriers and some social stigma imposed upon them. 

Adopting A Child In India- its legal aspects.

Every countries have their own rules of adoption.  Rules for adoption is a way to make sure that the  child has a secured and bright future. Let us examine the very important rules and procedures existing in our land.

Who can adopt?

1. A couple who wants to give a child a loving family and healthy environment, can adopt.

2. One can adopt a child under the Hindu Adoption and Maintenance Act 1956 and under Juvenile Justice (Care and Protection of Children) Act 2000 and amended in 2006.

3. Must have a reasonable and regular source of income to support the needs of the child within the family.

4. The couples should be free from  major illness that can come in the way of parenting.

5. Neither of the parents should have a criminal record.

6. The composite age of desirous adoptive couple shouldn’t exceed 90 years for infants.

7. Single parent can adopt up to 45 years of age.

8. The age difference between the parent and the adopted child should be at least 21 years.

9. If the parent is single, there should have additional family support.

Agencies For Adoption – In India CARA is the central agency to regulate adoption. They formulate the principles for adoption. Application – Prospective adoptive parent(s) should register themselves with the local RIPA / LAPA or Adoption coordinating Agency or with the State Adoption Cell The Adoption – A home study report of the prospective adoptive parents will be prepared by the social worker of the Agency. To allay the fears and apprehensions of the prospective adoptive parent(s), pre-adoptive counseling sessions will be undertaken by the social worker during the preparation of the home study report. Assessing the ability of a couple to parent a child not born to them is of crucial importance in a successful adoption. Therefore, their suitability to care for an unrelated child is assessed through this home study and counseling. Documents relating to the financial and health status of the prospective parent(s) will be part of the Home Study Report. The Agency will make a suitable reference from amongst the admitted children legally free for adoption. If no suitable child is available, the family will be referred to the ACA. After the Home Study has been accepted and approved, a child will be shown to the parent(s). The agency will take care to match a child meeting the description, if any, desired by the parent(s). In case of placement of older children (above the age of 6), both written and verbal consent of the child will be obtained.

Post Adoption

Many parents are found to be reluctant to inform the child that they are adopted. In many cases it is found that the practice have created problems in their future life. So it is better that the parents should convincingly inform the child about the adoption in the very early stage. Adopting a child is a service which is above any rules and regulations. Adoption give pride and protection to a child who till few moments back was an orphanage.  The adoption is a two way process – it gives happiness of child hood  and parenthood at the same time.

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Marital break up must not Traumatise sons

The high and mighty are beyond reproach. However, the life of a public figure is like an open book, and any citizen can read any page. I sympathize with Shri Omar Abdullah and Smt Payal Nath, husband and wife, for the marital predicament that they are in at the moment. I wish the couple come out of this difficult situation of marital separation and live together as husband and wife once again. They will be bringing up their two sons better as parents. Separation means the children will be brought up by a single parent, perhaps the mother, and it may cause an impediment in the development of a well rounded personality of the two boys. The heart of an impartial observer bleeds for the boys.

There is no use of going into the reasons that caused this separation. Now it has to be accepted as a fait accompanies.  Shri Omar did well to clarify his position that he is not contemplating to tie the nuptial knot again. The two young ladies, one of the Delhi media world and the other of a political family of the Kashmir valley were dragged into this quagmire unnecessarily. We should take Omar’s word for it that he is not contemplating to  make anyone of the two charming young ladies  his bride. let us leave it at that.

I shall be failing in my duty if I do not counsel the separated couple to take the unpleasant break up in the normal stride of life. They should not avoid seeing each other but make it a point to meet at a public place along with their two sons for the sake of sons’ smooth life in future.

PUBLIC DUTY

It is nice of Shri Omar Abdullah to reassure the citizens of India that while he went through the trials and tribulations of this pre-separation period, he did not let the State of J&K suffer or feel ignored by its own Chief Minister. The affairs of State take precedence over private matters, no matter how sad the latter may be. Their marriage was on the rocks-this perception was shared by the high and the low both. It was talk of the town and was doing damage to both the families; of the husband and that of the wife.

A gossip is a gossip and gossip mongers are there in all strata of the society. Gossip mongers flourish because men and women who are well provided for but have ample time at their disposal, find rumour mongering an engaging pastime. It keeps the rumour mongers in circulation and many a time he earns a meal at the table of the rich who have ample time to while away. A popular saying in Hindi runs thus: “per ninda param sukham” that is berating others and indulging in character assassination of the known and the unknown gives the wily critic joy unbound. A word of caution before one entertains the remotest idea of getting a free lunch by rumour mongering and character assassination. Firstly, there is no free lunch in this world. One pays for it directly or indirectly. Secondly, the rumour mongers are looked down upon in a civilized society. Their presence in civil society is not welcome. Many wily persons entertain them but such occasions are few and far between.

Returning to Omar and Payal, we find that Payal has maintained a lady like silence so far. Perhaps her culture of thousands of years inherited from generation to generation forbids her to wash her dirty linen in public. This washing causes pain to the members of the inner circle and gives no joy to the cultured elements in the social order. A Hindi couplet sums up pain and silence in a situation like this :

Rahiman nij man ki vyatha man hi rakho goye; sun ithalaiyen sabau, baant na lehiyen koe.

Abdur Rahim Khanekhanan of Emperor Akbar’s court said that it would be wise to keep your vexing problem inside yourself. If you narrate to others, listeners will make fun of you and enjoy at your cost; none will share your predicament.

As a citizen of India I share the sadness of Omar and Payal and advise them to keep the marital anguish to themselves lest the world laughs at you and shares not your personal pain.

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The Socio-Legal Dimensions of Live-In Relationships

Abstract:
The article deals with the issue of “Socio-Legal Dimensions of Live-In Relationships in India”. Live-In Relationships has been one of the most controversial legal topics in the instant past. The aspects of Live-in relationships was not very clear in India until The Hon’ble Supreme Court gave its landmark judgments on the topic in the year 2010, thereby making its stand firm on the issue and upholding the sovereignty of law in India. Thus, the issue is steadily creeping up in the Indian Society and requires legislation to negate chances of misuse of the relationship.

Indian Society and Perspectives:

The word Live-in has been particularly alien to the Indian Society which has been lighted up particularly in the recent years with the advent of such relationship practiced in the metropolitan cities. Such practice is still a social taboo in a major part of the country which is constituted by villages and towns. A larger and clear picture of India thus will be substantiated by the rural India and not a handful of metros.

In  India there exists only one kind of relationship between an unrelated couple of a male and female. The said social union is termed as “Marriage” which is more of a sacrament and a divine concept and is practiced as a ritual since ages. Therefore the Indian public is unaware of the concept of Live-in. Furthermore, the concept of maitraya karars  is a known phenomena which has been practiced in traces in some parts of Gujarat and also has been brought to the notice of the courts. But in spirit such concept is radically different from live-in concept.. The lack of commitment, the disrespect of social bonds and the lack of tolerance in relationships has made a transit from the sacrament to arranged marriages to love marriages and ultimately to live-in relationships.

The Hindu Marriage Act  considers the legitimacy of child born through such relationships and establishes their succession and property rights. Furthermore, the Protection of  Women from Domestic Violence Act also provides some condolence to such aggrieved parties from any kind of atrocities faced by the females in a live-in relationships. The Supreme Court of India has taken a step further by giving landmark judgments particularly in the year 2010 which provides some clarity to the stand of such relationships in Indian context.

However in Indian context there is a urgent and dire need to recognize such relationship through legislation which would empower both the parties with rights and create obligations with duties thereby confining the ambit of such relationship. Therefore the law so enacted on live in relationship should  keep in mind the basic structure of tradition that prevails in the Indian society.

Legal Status in other countries:

The Legal status and laws governing the live-in relationships is not the same in all the countries. It varies from country to country. Some countries like USA provide a liberal view to the concept whereas, countries of the middle-east considers it a social taboo. There is difference over the property rights of the spouse and also inheritance and succession rights of the children  born through such relationships.

For instance, in United States of America exists the concept of Cohabitation Agreements containing the explicit mention of rights and liabilities under such agreements but still the social status and sanction as enjoyed by Married Couples is not enjoyed by couples in a live-in relationship. Thereby, discouraging attempts of live-in relationships with legal sanction. While in China couples sign a contract for live-in relationship. The child born through such relationships enjoys the same succession and inheritance rights as are enjoyed by children born through marriages.

The concept is well substantiated and given the most vital force in France wherein two adults of opposite sex or same sex can enter into an agreement to live together and organize their lives and thereby enjoy the rights of a married couple and also work towards social welfare. Such agreement can be revoked by both or either of the parties by giving three months prior notice to the other party. Such agreements or pacts are popularly known as “pacte civil de solidarite”. The legal status of the pact was passed by the French National Assembly in 1999 and allowed couples to enter into agreements for a social union. While in England, such couples do not have the same rights as that of a married couple. The Spouse has no inheritance right over the other’s property unless supported by a will.

The status in Scotland is by and far the most clear and substantive by conferring legal aspect to the live-in relationship in the year 2006 . The Section 25 (2) of the Act says that a court of law can consider a person as a co-habitant of another. The three essentials for declaring somebody cohabitant is the length of the period during which they lived together, the nature of the relationship during that period and the nature and extent of any financial arrangements. Whereas Section 28 of the said Act gives a cohabitant the right to apply in court for financial support. This is in case of separation and not death of either partner. Furthermore if a partner dies intestate, the survivor can move the court for financial support from his estate within 6 months.

The position in various countries is different making France and Scotland the most liberal countries as far as live-in relationship concept is concerned. And while most of the countries are legislating laws to bind this new facet of social union and providing legal sanctity to the union. In India, the judgments given by the Supreme Court are further clearing perceptibility of Live-in’s in India and one would clearly presage that soon there would be legislations governing this specific field of law in India as well.

The Legal aspects of Live-In Relationships

A walk-in and walk-out relationship.

In the words of Dhingra J., “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners. People who choose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or vice-versa”

The position of Live-in Relationships is not very clear in the Indian context but the recent landmark judgments given by the Hon’ble Supreme Court provides some assistance when we skim through the topic of Live-In and analyze the radius of the topic in Indian legal ambit.

The couples tied with the knots of live-in relationships are not governed by specific laws and therefore find traces of assistance in other civil laws. The law is neither clear nor is adamant on a particular stand, the status is dwindling.

The Privy Council in A Dinohamy v. W L Blahamy laid down the principle that “Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage”. Furthermore the Supreme Court granted legality and validity to a marriage in which the couple cohabited together for a period of 50 years. The Supreme Court held that in such a case marriage is presumed due to a long cohabitation.

Furthermore the Hon’ble Allahabad High Court stated that a live-in relationship is not illegal. Katju J. and Mishra J. stated that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”

The Hon’ble Supreme Court accepted the principle that a long term of cohabitation in a live-in relationship makes it equivalent to a valid marital relationship.  The Supreme Court also held that live-in relationships cannot be considered as an offence as there is no law stating the same.

In the well talked about case of S. Khushboo v. Kanniammal , the Supreme Court gave its landmark judgment and held that there was no law which prohibits Live-in relationship or pre-marital sex. The Supreme court further stated that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex.

In another case the Supreme Court stated that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act, that they Live as husband and wife and the children born to them will not be illegitimate.

Hence the High Courts and the Hon’ble Supreme Court  in a number of decisions delivered until recently have showed the positive signs of recognizing the legitimacy of the live-in relationships and have also shown the inclination for a legislation to be enacted with the objective of protecting the rights of couples in a live-in relationship.

Rights of Women in a Live-in Relationship in India

The Rights of Women in such relationships do not have much condolence except some traces of assistance offered by the Protection of Women from Domestic Violence Act which covers in its ambit “relationship similar to marriage” or live-in relationships. The definition of “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 . Hence the words in the nature of marriage are self explanatory and buy within its meaning the social concept of live-in.

Furthermore in the recent years the recommendations by various committees and NGO’s have awaken the spirits of justice in the interest of women specially aggrieved by such relationships. Apart from this the Hon’ble Supreme Court has also given landmark judgments make its stand clear on the issue. For instance in the landmark case of D. Veluswami v. D. Patchaimmal  it was held a woman in a live-in relationship is not entitled to maintenance unless she fulfills certain parameters, the Supreme court had observed that merely spending weekends together or a one night would not make it a domestic relationship.

In order to get maintenance, the essential four conditions are:

1.      The couple must hold themselves out to society as being akin to spouses.
2.      They must be of legal age to marry.
3.      They must be otherwise qualified to enter into a legal marriage.
4.      They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
The Supreme court observed that not all Live-in relationships will amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005.If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not be a relationship in the nature of marriage.

The National Centre for Women made recommendations to the Ministry of Women and Child Development to include female live-in partners within the ambit of section 125 of Cr.PC  in order to establish their rights and make them entitled to right to maintenance. The Hon’ble Court also in the case of Abhijit Auti v. State of Maharashtra and others  supported the above principle and furthermore the Maharashtra Government showed a positive sign by accepting the Malimath Committee  Report and also the Law Commission Report and held that if a live-in relationship continues for a very long time she is entitled to enjoy the rights of a wife but it was recently ruled out that a wife under section 125 of Cr.PC is a divorced wife and the right to maintenance should only be enjoyed by a divorced wife and not by a female partner who merely cohabited with her male partner .Since in case of a live-in relationship there exists no marriage and hence no concept of divorce. Therefore a female partner under live-in relationship should not be construed as a wife under section 125 of the Cr.PC. The decision of the Hon’ble Court is in the righteous spirit as empowering any women who cohabited with a man would result in misuse of the legal provisions under section 125 and would therefore be unfair on the part of the male partner as well. 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 a reasonably long period.

The need of the present hour is not to try bringing live-in relationships under the ambit of any existing law but to enact a new different law which would look into the matter of live-in’s separately and would grant rights and obligations on the part of the couples thereby reducing the cases of misuse of existing laws and also to reduce cases of atrocities faced by the female partners under such relationships.

Rights of Child born through a Live-In Relationship  

The Child born through a Live-In Relationships enjoys the same rights of succession and inheritance as are enjoyed by a child through a married couple under the Hindu Marriage Act.  Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

Thus in order to keep up the spirits of law in the righteous direction and to subside the social evils wherein illegitimate child was denied his rights the Hindu Marriage Act has granted legitimacy to children born through marriages which are not valid. Hence such definition brings within itself the ambit of live-in relationships and children born through such relations.

While still the other laws have not guaranteed such legality to children born through such relationships and therefore the status is dwindling for legal status of children which results in extensive misuse of the provisions and still escape liability. Hence the legality of a child is doubtful in other laws and has to be proved beyond reasonable doubt. Furthermore if the live-in partners decide to separate the question of the future of the child is tossed. Therefore the laws regarding the guardianship should be amended to include within its ambit the guardianship of children born through such relationships.

Conclusion:

The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in relationship should have no bondage between the couples because the sole criteria for entering into such agreements is based on the fact that there lies no obligation to be followed by the couples whereas in some instances the Court has shown opposite views holding that if a relationship cum cohabitation continues for a sufficiently and reasonably long time, the couple should be construed as a married couple infusing all the rights and liabilities as guaranteed under a marital relationship.

It also appears strange if the concept of live-in is brought within the ambit of section 125 of the Cr.PC where the husband is bound to pay maintenance and succession as the ground of getting into live-in relationship is to escape all liabilities arising out of marital relations. If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there would arise a conflict between the interests of the wife and the live-in partner. Apart from lacking legal sanction the social existence of such relationships is only confined to the metros, however, when we look at the masses that define India, there exists no co-relation between live-in relationships and its acceptance by the Indian society. It receives no legal assistance and at the same time the society also evicts such relationships. The Parliament should try and enact a separate branch rather than trying to bring live-in within the ambit of the existing laws as such futile approach would further adversely complicate the judicial mechanism.

The Indian Legal system should devise new strategies in order to counter the present existing problems of live-in. The live-in relationships should be presumed as permanent after a specific period of time. Furthermore, the children born through such relationships irrespective of the parents religion should be guaranteed the rights of inheritance, succession etc. The female partner’s role to prove the burden of such relationship should be relaxed. Persons who enter into a live-in relationship with a living spouse should be convicted for bigamy. A separate legislation should only be competent enough to grant assistance to the female partners aggrieved by such relationships. At last, the sooner our society accepts live-in relationships, the better chances the Indian Judiciary has for passing judgments which are in the righteous spirit of law and in the interest of justice, equity and good conscience

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Marriage Registration : Provision, Procedure & Purpose

Supreme court has said in its landmark reportable judgment of Smt. Seema vs Ashwani Kumar SCC (2) 2006, 578 that “compulsory registration of marriage would be a step in the right direction for the prevention of child marriage still prevalent in many parts of the country. There after marriages are made compulsorily registered in most of the states by notification. Still a large number of marriages solemnized prior to the decision and even after the decision  are still unregistered and people have lots of dilemma for marriage registration.

Provisions regarding marriage registration.

1) The Special Marriage Act, 1954 applies to Indian citizens and their marriage can be registered and solemnized  by the Marriage Officer specially appointed for the purpose.  Person of any religion can directly approach the Officer for a new marriage solemnization or a registration of previously solemnized marriages.

2) Hindu Marriage Act  Section 8 lays down the provision of marriage registration and  gives State Government ample power to make rules regarding this. The marriage registration in this act is voluntary.

3) Muslim personal laws recognizes the registration of Marriages through Public or Private Kazis.

4) The registration of marriage is compulsory under the Indian Christian Marriage Act, 1872 by concerned Church soon after the marriage ceremony along with the signatures of bride and bridegroom, the officiating priest and the witnesses.

5) The Parsi Marriage and Divorce Act, 1936 makes registration of marriages compulsory.

There are several other local  laws in various states which lays down compulsory/ volunteer registration which can be referred in particular case.

Provision for basic condition for  registration under Special Marriage Act.

(a)   Neither party has a spouse living:

(b) neither party-

(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind, or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity or epilepsy;

(c) the male has completed the age of twenty-one years and the female the age of eighteen years;

(d) the parties are not within the degrees of prohibited relationship:

(e)  The spouse does not fall under prohibited degree of relationship.

Procedure :

The person seeking registration under Hindu Marriage Act or Special Marriage Act has to approach the office of the Additional  Divisional  Magistrate where the marriage has solemnized or the husband / wife resides and submit the  application for the marriage registration in the designated format along with following documents.  

1.Five  Passport Size Photographs – each of Marrying Persons.

2. Residential Proof (Voter Card / Passport / Ration Car / Driving License / Rent Deed) of Marrying Persons.

3. Date of Birth Proof (Municipal Corporation Certificate, X th or XII th Examination Certificate, Passport, PAN Card) of Marrying Persons).

4.If any party is divorcee Certified copy of Decree of Divorce granted by the Court.

5. If any party is widow / widower Death Certificate of the dead spouse.

6. If any party is a Foreign Citizen or holding a foreign Passport or is having foreign residential address – Certificate of Present Marital Status of the party / No Impediment Certificate / NOC from concerned Embassy and Valid VISA.

7. Two Witnesses ( Both should be major ).

8. Photograph of Marriage.

9. Marriage Invitation Card.

10. Affidavit by both the parties.

11. Affidavit of Name change (if applicable) .

12. Challan of 10/- with the cashier for registration under Hindu Marriage Act and Rs. 15/- under Special Marriage Act.

13.  Certificate of concern Presit / Kazi  certifying the marriage for other than Hindu.

14. All the document should be attested by Govt. officer/ Public Notary.

On the notices to both the parties and on the notice board of the ADM office,  after lapse  30 days both the parties have to attend the office of ADM along with witnesses. The ADM usually call a police verification, address to the objection and report which needs to be address.

Upon satisfaction, the ADM pass the order  for registration of marriage.

Purpose : The marriage registration is substantial proof of marital relationship and the validity of the child reproduced from the marriage. It  helps court and authorities to decide various issues arising out  of marriage and custody, property dispute, family matters etc arising out of marital relationship. The VISA authorities accept the marriage certificate issued by Additional Divisional Marriage. It is very important and now becoming compulsory to register the marriage and it is better to opt for registration when parties have clean intention for a marital relations and wish to help the spouse and children.

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