21 Jan 2008, 0127 hrs IST, Dhananjay Mahapatra, TNN
Live-in couples, a trend that is yet to be legitimised in the Indian social mileu, was the focus of a recent judgment of the Supreme Court.
The apex court's inclination to consider such relationships, after a long spell of togetherness, as valid marriages could give women a lot to cheer about. For, she could have a right to inherit, claim insurance benefits and family pension in the event of her partner's death, which she is not entitled to at present.
Was the apex court talking something radical in the Indian context? Was it something new? How long should a couple live together as husband and wife to clutch on to this judgment to claim marriage and enjoy the rights flowing from it? There is nothing radical about the recent judgment. It did not enunciate a new theory.
It was merely reiterating a principle that was first chronicled in 1927 as a ruling of it's predecessor — the Privy Council.
The case was between A Dinohamy and W L Blahamy. The council laid down the general principle: "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."
As per the 1927 ruling, a live-in relationship was to be considered a valid marriage if the couple lived together and there was no evidence to the contrary.
Two years later, the council revisited the legal issue in the Mohabhat Ali Vs Mohammad Ibrahim Khan case. It made a significant addition to the conditions laid down in the 1927 ruling. It said: "The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years."
So, for a live-in couple to be considered validly married, the court wanted evidence of cohabitation, that too for a number of years, between a couple. It did not specify the minimum number of years of cohabitation.
After 23 years in the case between Gokal Chand and Pravin Kumari, the Supreme Court reiterated the 1929 principle, but added a caveat. It said though the presumption for a valid marriage between a live-in couple could be drawn from their long cohabitation, it was no guarantee to earn them legitimacy, if the evidence regarding living together was rebuttable.
"If there were circumstances which weaken and destroy the presumption of long years of cohabitation, the courts could not ignore them" and consider the live-in couple to be legally married, it had said.In this 1952 judgment, the apex court had refused to recognise a live-in relationship, even though the couple lived together for some years before the pregnant woman went away from him and lived alone with her child born out of her live-in relationship with the man.
The rebuttal of a presumption in favour of a valid marriage, in this case, came from the child, who said she did not remember her father ever visiting her or her mother.
The court in the Badri Prasad case (1978) had recognised a live-in relationship as a valid marriage frowning upon the authorities for questioning their relationship 50 years after the couple started living together and were treated as husband and wife by the relatives.
In the January 15, 2008, judgment pronounced by a Bench comprising Justices Arijit Pasayat and P Sathasivam, the court leaned in favour of legitimising a live-in couple as they had lived together for 30 years.
It quoted the 1978 ruling, which had said: "There is a strong presumption in favour of wedlock where the partners have lived together for a long spell as husband and wife. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of the legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy."
So to acquire legitimacy or the 'legally married' tag, a live-in couple has to do the following:
Cohabit together for a long period (a minimum of 30 years, as per the instances taken note of by the apex court!)
Be known in society as husband and wife. This means either have children or get their names registered in some document, for example by property jointly as husband and wife.
Leave no evidence to allow anyone to rebutt their relationship.