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Hindu Marriage Act must keep up with times to provide protection to partners, children in live-in re

This article was first published on First Post here and is republished here with the permission of the author.

The Bombay High Court in Indubai Jaydeo Pawar vs Draupada case recently ruled that a one-night stand is not a marriage under the Hindu Marriage Act (HMA) and therefore, a child born out of such a relationship would not be a legitimate child. Based on this, the court ruled that while a child born from a one-night stand would enjoy rights over the father’s property, he would not have any claim over his father’s ancestral property.

An important observation made by the court was that while the HMA applies only to marriages, the Indian society is undergoing changes which have led to grey areas raising questions such as whether children born out of live-in relationships are legitimate and whether homosexual unions are marriages.

Indian courts have in fact been confronted with such issues in the past: one such instance is where the Indian Supreme Court determined whether a woman in a live-in relationship is entitled to palimony (the equivalent of alimony).

Such instances indicate that even when a particular relationship does not fall within the society’s traditional notion of ‘marriage’, Indian courts today are mindful of the purpose for which marriage laws were enacted and are accordingly deciding cases under the HMA.

Meaning of ‘marriage’ under the HMA

The Hindu Marriage Act, 1955 is the legislation which relates to marriages among Hindus and applies also to Buddhists, Jains, and Sikhs. The provisions of the HMA deal with the conditions for a Hindu marriage (such as valid consent, the minimum marriageable age for the bride and groom, etc), registration of Hindu marriages, grounds for divorce, etc. The HMA also contains provisions dealing with the ‘legitimacy of children of void and voidable marriages’ (Section 16) and ‘permanent alimony and maintenance’ (Section 25).

While marriage is not defined under the HMA, Section 7 of the Act lays down that a Hindu marriage may be solemnised in accordance with the “customary rites and ceremonies” of either party. Section 7 further elaborates that where the rites and ceremonies include the ‘saptapadi’ (the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage is only said to be complete when the seventh step is taken. The provisions of HMA thus apply to ‘marriage’ as understood in accordance with Section 7. At present, the HMA does not apply to other relationships.

Court decisions on the application of HMA to non-marriages

Indian courts are increasingly allowing claims under the HMA in cases involving relationships which are not marriages. In 2015, a two-judge bench of the Supreme Court ruled that an unmarried couple living together under the same roof will be presumed to be married, and the woman would be entitled to inherit legal property after the death of her partner. The court, however, noted that this presumption can be rebutted by “leading unimpeachable evidence”. The court affirmed its observation in an earlier 2010 case of Madan Mohan Singh vs Rajni Kant (AIR 2010 SC 2933).

In Uday Gupta vs Aysha case (2014), the Supreme Court clarified that children born out of live-in relationships could not be termed illegitimate. When applying Section 16 of HMA to non-marriages, the Supreme Court has preferred the purposive interpretation approach i.e. the court has interpreted the legal provisions by determining the purpose and intent behind enacting the legislation.

In Bharatha Matha vs R Vijaya Ranganathan case (AIR 2010 SC 2685), the court was faced with the issue of determining the legitimacy of children born out of live-in relationships and observed, “It is evident that Section 16 of the (Hindu Marriage) Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object.”

In May 2015, the Supreme Court ruled that a man is obliged to pay alimony (maintenance) to a woman with whom he was in a live-in relationship. In the United States, courts are known to grant ‘palimony’ (a portmanteau of the words ‘pal’ and ‘alimony’) which is the equivalent of alimony in a live-in relationship.

Broadening the scope of marriage under the HMA

Law has always been understood as dynamic i.e. it changes with the needs and demands of the time in which it operates. When the HMA was first enacted in 1955, relationships such as live-in relationships and homosexual unions were unheard of. Today, relationships which are not in the nature of marriage are more prevalent in the society, which has led to the emergence of grey areas in marriage laws.

While Indian courts started grappling with these issues only recently, countries such as the United States had started dealing with these issues much earlier. In 1977, the California Supreme Court dealt with palimony in the landmark case, Marvin vs Marvin (18 Cal 3d 660) which led to many such actions being filed in the United States. Similarly, under the Civil Partnership Act 2004, same-sex couples can enter into a ‘civil partnership’ and enjoy almost the same rights and obligations as opposite-sex couples do in marriages.

There is a need to bring amendments to the Indian law to grant legal status to relationships such as live-in relationships. A possible disadvantage of not treating certain kinds of relationships as marriage is that couples in live-in relationships (who are not ready to commit to a marriage) may be forced to marry to give legitimacy to their relationship and secure rights under the HMA.

Further, the legitimacy of children from live-in relationships also remains questionable. While Indian courts have certainly upheld rights of the partners and children in a live-in relationship, the meaning of such a relationship is not clear. The Supreme Court had provided certain guidelines on the meaning of live-in relationship in a maintenance case under the Domestic Violence Act; the Legislature could incorporate these guidelines under the HMA.

The provision under HMA could also be made gender-neutral wherein a female partner could be ordered by the court to pay maintenance to her male partner depending on the financial status of the partners. Indian courts have held that a financially poor husband is entitled to maintenance from his wife. It is also possible that a woman entered into a live-in relationship with a man on a promise that he would marry her in the future. Cases of false promises of marriage in order to establish sexual relations with a woman are not unheard of in India, therefore, it is desirable that the HMA is made applicable to live-in relationships.

The issue of treating homosexual unions as marriage has not yet been ruled in by courts in India. The Supreme Court in Suresh Kumar Koushal vs Naz Foundation upheld the constitutional validity of Section 377 of the IPC which criminalises homosexuality. With more people of the LGBT community openly expressing their sexuality, live-in relationships involving same-sex couples are conceivable, and the issue of maintenance to homosexual partners in a live-in relationship could arise in the future.

As pointed out in an article by Nayantara Ravichandran, it would be problematic to include homosexual unions under the HMA due to conflicting religious beliefs. The appropriate way forward in such a case could be to recognise such relationships as a ‘civil partnership’ (similar to the United Kingdom law).

A concern which was raised by the petitioner in Uday Gupta vs Aysha was that treating marriages which are not solemnised according to customary Hindu traditions would undermine the very institution of marriage. However, if we compel couples to marry, it would curtail their freedom of choice. The scope of marriage under the HMA must, therefore, be expanded to accommodate the changes in society and to provide legal protection to the rights of partners and children born out of non-marriages.

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