The Big Live-In Question

There may once have been affection, but in the end even the facts were disputed.

What wasn’t under contest was that the man, a doctor named Lokesh BH in Bengaluru, was already married when he began living with a woman identified as Theertha CS around 2010. But here the narratives diverged. She claimed the marriage had been concealed and that the two had gone ahead and married each other. The man argued his marital status was never hidden, and that the two had instead started living together as live-in partners. By 2016, however, the relationship had soured. The woman had filed a raft of complaints against the man.

One of these was Section 498A of the Indian Penal Code, a law that was brought in to protect wives from dowry harassment, but which, over the years, has also been extended to other forms of marital cruelty. The woman claimed Lokesh and his family members had harassed and physically harmed her for dowry. Lokesh denied the allegation and claimed the section didn’t even apply to him since they were never married.

And here lay the nub of the matter when it reached the court. If the two were not married—and they certainly couldn’t be considered legally married if he had never obtained a divorce—but were instead live-in partners, could a law meant to protect wives be extended to one in a live-in relationship?

Lokesh tried to get the charge quashed but the Karnataka High Court dismissed it. Last month, his appeal reached the Supreme Court. “What we are now required to consider in the light of the aforenoted submissions is as to whether Section 498A IPC can be given a construction so as to include the man in a ‘live-in relationship’,” a Supreme Court Bench comprising Justices Sanjay Karol and Nongmeikapam Kotiswar Singh wrote in their judgment. “It is quite clear that the word used in the Section is ‘husband’. As already observed, Mr. Nuli [Lokesh’s lawyer], wants the word to be strictly interpreted, and the Union of India agrees with him. The respondent and Ms Nariman [the lawyer representing Theertha], say that the word should be given a purposive interpretation...”

The judges decided that this section also covered live-in relationships “in the nature of marriage”. Quoting a judgment from another case, the Bench mentioned, “Cruelty, any which way, does not check at the door, whether the house it enters is that of a married woman or not.”

The judgment, one could argue, is a progressive one. Why should a man get away with harassment and cruelty just because he never married his partner? But by extending a law that had until recently been meant only for married couples to cohabiting partners, the court was also redefining the nature of live-in relations in the country.

It is the latest in a series of judgments over the years that reorient our understanding of live-in arrangements. Taken together with the several Uniform Civil Codes (UCC) being introduced in different states, all of which contain provisions to deal with cohabiting partners, it could fundamentally reshape the nature of live-in relations.

The practice of two unmarried individuals living together may continue to be frowned upon, but anecdotally it is a practice that is growing, even in smaller towns and cities. Even Bollywood, that purveyor of the notion that marriage remains the ideal form of romance, hasn’t been able to resist following the trail of this new alternative. Mahesh Bhatt’s 1982 film Arth was an early movie that depicted infidelity and a live-in relationship in all its complexity. But by 2005, that gritty approach had been replaced with the levity of romcoms like Salaam Namaste, where a live-in relationship (albeit in Australia) was portrayed largely as something cool and perhaps even aspirational. More recently, films like Shuddh Desi Romance and Luka Chuppi have tracked the progression of this alternative form of romance from foreign locales and India’s metros to its smaller towns and cities.

The appeal of a live-in relationship is understandable. In a socially conservative country, where the lives of the young are still heavily controlled, a live-in arrangement can be an exercise in autonomy. It permits people to live with a partner of their choosing, even someone from another faith or caste; to serve as a test for compatibility; or to avoid the legal and social baggage of marriages altogether.

For Cookie Singh, who lives in what she calls a “semi-live in relationship”, the absence of marriage is the point. Originally from a small town in north Bengal, she has been in a relationship with her partner in Mumbai for over 11 years. They both, however, maintain their individual homes, with the two living together in one of the two homes when they wish. “This arrangement works for us because it also gives us space from one another,” she says.

The two work in ad film production and that is also how they met. When they chose this arrangement, there were a few reservations initially. Singh’s mother was wary and her partner’s mother would often ask why they didn’t instead marry. “But they have come round to it,” Singh says, describing how they all meet and get along with each other. “Nobody even brings it up now.”

To her, the idea of marriage, with a big event for everyone to attend, is off-putting. But of late she has begun to wonder if there might be some practical benefits to marriage. “If there were to be a medical emergency for instance, my partner won’t be able to decide on my behalf. Plus, pooling your resources together into one home may be practical,” she says. “So, it’s worth thinking about. But we remain very happy in this arrangement too.”

The legal conception around arrangements like Singh’s may have been undefined, but that is now changing. There may be no law that deals specifically with live-in relationships but the first big shift legally came about with the passing of the Protection of Women from Domestic Violence Act, 2005. This Act introduced the phrase “relationship in the nature of marriage” when discussing the protections granted to women within domestic relations. The courts have since defined this to mean long-term relationships that resemble a traditional marriage. Over the years more judgments have followed, such as the one expanding the definition of the word ‘wife’ in Section 125 of the Code of Criminal Procedure to include women in long-term cohabiting relationships so they could be eligible for maintenance if the relationship failed. The latest judgment now expands the definition of the word ‘husband’ in Section 498A.

These may all be progressive verdicts that grant protection. But what they have also done, by bringing in financial obligations and penal provisions, is make live-in relationships legally almost indistinguishable from marriages. “I would not say the court’s perspective on live-in relations is changing. I would say they have become more conscious of it,” says Mrunalini Deshmukh, a well-known Mumbai-based lawyer who specialises in family law. “Section 498A in the IPC is strictly limited to the wife. But what the Supreme Court has done is not just look at the letter of the law but its spirit and intent too. Live-in relationships are something you cannot ignore today. In that backdrop, they have said that even if a woman is in a relationship which is akin to marriage, the law has to protect her.”

The expansion of Section 498A to live-in couples has men’s rights activists in India particularly worried. “It is purely judicial overreach,” says Shonee Kapoor, who offers legal consultation for husbands falsely charged under sections like 498A. “The judgment extends the definition of a husband to absurd levels. People enter into relationships like this voluntarily because they don’t want the mutual obligations of husband and wife to be present. Section 498A has already been misused left, right and centre. There is no reason this won’t happen with live-in relationships,” he says. The court might have built some safeguards, limiting the section’s scope only to those in relations “in the nature of marriage”, but according to Deepika Bhardwaj, an activist and documentary filmmaker, this will be lost on the ground where the local police officer is unlikely to consider such nuances when applying the section when a jilted partner accuses the other of cruelty. “It will become very difficult for men to get out of toxic live-in relationships now. Live-in relationships by their nature may be a walk-in, walk-out kind of relationship. But here it is going in another direction,” she says.

The phrase ‘live-in relationship’ suggests a single social arrangement. But it covers several. There is the couple trying out domestic compatibility before marriage, those priced into sharing a home, those that avoid a wedding on principle, and the couple barred from marrying.

In JP Nagar, the southern end of Bengaluru, Lakshmi, 36, and Prakash, 39 (names changed), live in a one-bedroom apartment in a building whose narrow balconies hold gas cylinders, drying uniforms and buckets positioned beneath leaky ACs. From Kota, Lakshmi is a senior nurse at a private hospital. Prakash is from Palakkad and works in the kitchen of a business hotel. Their work days begin and end at different hours. The city they know is the city of shift changes and buses caught running. They met two years ago at a mutual friend’s wedding. By then she had been divorced for three years. Prakash had spent most of his 30s moving between hotel kitchens across India. Their relationship moved quickly. When her paying-guest accommodation raised the rent early last year, she moved in with him.

The landlord would only rent out to a married couple, so Prakash signed the lease and Lakshmi was introduced as his wife. Within the socially neat arrangement, the two keep their finances separate. Rent and groceries are divided. She sends money to her parents and he supports his mother and a younger brother. They do not own anything together beyond some appliances and a pressure cooker whose original ownership is disputed.

Lakshmi says she does not want another wedding. Their families know different versions of the story, but there is no elaborate conspiracy to hide the relationship. It survives through strategic omissions and the reluctance of parents to ask what they consider an awkward question. The couple speak to each other in Hindi and Kannada. “Between the two of us we speak a dozen languages, including Arabic. I worked in the Gulf for three years,” Prakash says. “Maybe we will settle down there someday.” Lakshmi speaks with a happy lilt that doesn’t betray concerns about the future. If they separate, there is no child or shared property to divide. But Prakash worries that if one becomes seriously ill, the other may have to introduce himself or herself as a spouse, a friend or a colleague.

“There is no reason a couple should be married to be able to take care of each other,” says Lakshmi. All states, she says, should follow her home state’s example and try to implement the UCC, providing a uniform legal framework for marriage and live-in relationships. Of late, courts have ruled that live-in relationships may be treated as marriage-like when a woman seeks protection from violence or cruelty. But that is barely enough, Lakshmi says. “What about liabilities, children? And basic rights like being able to stay in hotel rooms without a marriage certificate?” she asks.

The law has not created a single status called the live-in partner, but the relationship becomes legally visible the moment someone asks the state to intervene.

In Chennai, a metro known for its orthodox ways, live-in relationships may increasingly be visible, but marriage remains the assumption people make; and the standard against which couples are always measured. For Simran Mann, 39, a student counsellor, this became clear while trying to find a home in the city, some five years ago with her partner. Prospective landlords asked questions about their religion, whether they were vegetarian or non-vegetarian and whether they had dogs. None, on the face of it, had anything to do with their relationship status. Still, Simran says the questions revealed just how conservative society could be.

“To be blunt, we continue to lie through our teeth about our relationship status because we aren’t married,” she says. “We eventually went with the make-believe: that we were ‘married’. It helped that we have a child, making it easier for neighbours and others to assume that we were a conventional family moving in.”

Mann, a mother of an eight-year-old boy from an earlier relationship, lives with her boyfriend of a few years in one of the more liberal parts of Chennai. It is a gated community where pets are allowed, people of all faiths live together, and residents are free to eat what they want. Yet, Simran says, “this freedom doesn’t extend to one’s relationship status.”

For Mann, the irony is that living together itself has brought a sense of freedom that marriage might not. “Despite how society looks at it, living together with the one you love without the burden of a contract is incredibly liberating,” she says.

The courts might have had to interpret the legal meaning of a live-in relationship in the absence of laws that govern it. But this is changing as state governments introduce provisions regulating such arrangements in their UCCs. First off the blocks was Uttarakhand which stipulated that such a relationship must be registered within a month of its inception, failing which one can even be arrested, and there are other clauses meant to protect women within these relationships. What has alarmed many, however, is the state abrogating powers to itself to check these relations through provisions like the one permitting the registrar to conduct “summary inquiries”, the demand for identity and address proof, and the information of registrations being passed to the local police station. One clause specifically states that parents of those under 21 are to be informed when such a relationship is registered. After these provisions were challenged, the government proposed some changes, but according to Abhijay Negi and Snigdha Tiwari, two Dehradun lawyers representing a petitioner who has challenged these provisions, these changes were proposed in court and haven’t yet been implemented on the ground.

“With these provisions, the state is interfering and surveilling the private lives of individuals,” Tiwari says.

According to them, rightwing elements trying to break up interfaith marriages and relationships have been on the rise in the state. This Bill, they argue, will further endanger youth in such relationships.

Kavita Srivastava, A Jaipur-based women’s rights activist, connects the growth of live-in relationships to the rise in women exercising their autonomy. To her, laws like the UCC are attempts to curb that autonomy.

Srivastava knows this well. As president of the People’s Union for Civil Liberties, she often gets calls and messages from women across the country asking for help. Some of these are messages from women locked up in their homes because their parents have learned about their relationship with someone they disapprove, and sometimes these are by women who need help in getting away from an abusive household. “We always tell them to first write down what exactly they want, and we then get the police to visit and rescue them. If they themselves go to the police, the cops usually send them back to their homes. But when you involve higher ups, who in turn contact the local police station, then they can be rescued,” she says. In some cases, there will be emergencies, where the woman calling is being beaten or hurt, and in these cases, Srivastava will help provide them shelter and protection. “In those calls, I tell them, ‘Just run. Hop on to a bus and come’,” she says.

Back in Mumbai, Mahadev Thakur, a cinematographer, faced another kind of difficulty. Two years ago, he was looking for a flat to move into with his girlfriend but being constantly rejected. There were solutions available. They could claim to be married, and like many of their friends in such arrangements, offer forged documents and digitally-created wedding photographs as proof. But the two were adamant they wouldn’t lie. They eventually found a house whose owner was willing to rent to an unmarried couple. Whether the rest of the building society would agree, however, was another matter. So, it was the landlady who came up with a suggestion. “In the rent agreement [a copy of which had to be submitted to the building office], she put the title ‘Mrs’ ahead of my partner’s name,” Thakur says.