An uncharted domain

The institution of marriage has undergone significant changes in recent times. In the past, arranged marriages were the only acceptable form of marriage in society. However, with the influence of Western culture, the perception of society shifted, and love marriages became accepted. Now, another form of relationship called "live-in relationship" is gaining popularity among the younger generation.

A live-in relationship refers to two individuals cohabiting without the intention of having a permanent relationship. This type of relationship has emerged due to modernisation and urban culture, particularly in large cities. However, live-in relationships are not widely accepted in India due to the stigma and taboo attached to them, as arranged marriages are still considered the societal norm.

The main issues that arise are whether society will readily accept this type of relationship and what the repercussions of accepting such relationships will be. Should existing marriage laws be amended, or should new laws be enacted to regulate these relationships? The judiciary has been inconsistent in recognising live-in relationships, but it has been sensitive to the protection of women's interests and has played a role in delivering justice to affected women.

Currently, there is no specific law in India to directly address live-in relationships. The Hindu Marriage Act, 1955, grants a legal status to children born out of "voidable" or "void" marriages. The Protection of Women from Domestic Violence Act, 2005 (PWDVA), recognises relationships in the nature of marriage and provides security for women facing violence in such relationships. The Supreme Court has held that if a man and a woman have lived together for a long period of time and have held themselves out to society as being akin to spouses, they will be considered legally married. However, the court also recognised that not every live-in relationship will be considered a relationship in the nature of marriage. The individuals must fulfil certain conditions, such as holding themselves out as spouses socially, reaching the legal age of marriage, being legally qualified to marry, and cohabiting voluntarily for a reasonable period of time.

The institution of polygamy has declined in the last few decades. Monogamy has been accepted in the law for Christians, Hindus, Parsis, and Jews, except for Muslims. Due to legal provisions and societal practices, second marriages are deemed invalid in India, resulting in women not being entitled to maintenance under the law.

The Hindu Marriage Act of 1955 is applicable to other Indian communities, such as Jains, Sikhs, and Buddhists. It provides for maintenance during divorce proceedings, and post-divorce maintenance is to be provided according to the capacity of the individual responsible for maintenance.

Under the Hindu Adoption and Maintenance Act of 1956, a married woman has the right to claim maintenance throughout her lifetime from her partner. She also has the right to cohabit in a different place than her partner without sacrificing her right to maintenance. The only conditions where she would not qualify for maintenance are if she is unchaste or if she renounces Hinduism by converting to another religion. Additionally, a woman who has divorced her partner can also claim maintenance under the provision for wives, but bigamy, being an offense, is not covered under this provision.

In Muslim law, Mahr is an amount decided upon at the time of marriage, without fixing a specific limit. The main purpose of Mahr is to act as a deterrent for the husband divorcing his wife and to provide the woman with sufficient resources to support herself post-divorce or after the death of the husband. However, if the divorce is mutually agreed upon or initiated by the wife, she loses her claim to the Mahr amount. The Mahr amount provides financial security for the woman. The power to reduce or waive the Mahr amount is not given to the man; only the wife is allowed to reduce or waive the quantum of Mahr. Thus, Mahr protects the interests of married women. However, Muslim personal law does not have provisions specifically addressing maintenance for wives after divorce. Men are allowed to practice polygamy under Islamic laws, and all wives are to be maintained by the husband. Second marriages are considered valid, and the wives are entitled to the same benefits and rights as the first wife.

Under Muslim personal law, Iddat refers to the period of time during which a woman is required to observe after the separation or death of her husband, during which she is not allowed to marry another person. After the Iddat period, the wife can only claim the Mahr but not any other maintenance. Prior to the landmark judgment of Mohammad Ahmad Khan v. Shah Bano Begum, a wife could not claim maintenance after the completion of her Iddat period under Muslim law. However, the Supreme Court did grant maintenance to Shah Bano. The Court observed that a Muslim woman who is incapable of supporting herself is entitled to maintenance under Section 125 of the Criminal Procedure Code (CrPC), even after the Iddat period, until she remarries.

In the wake of controversies arising from the Shah Bano case, the Union legislature passed the Muslim Women (Protection of Rights on Divorce) Act in 1986. As per Section 3 of the Act, a Muslim woman can only seek maintenance during the Iddat period. After Iddat, she is entitled to claim maintenance from her parents and relatives. In the absence of relatives, the Act provides that the Magistrate shall direct the State Waqf Board to maintain the woman. However, various High Courts had different opinions regarding the applicability of Section 125 of the CrPC to a Muslim divorced wife, highlighting the poor drafting of the Act. It is unfortunate that such an Act still exists in a country that aspires to deliver social justice.

Different personal laws governing various communities, namely Hindus, Parsis, Christians, and Muslims, establish the concept of maintenance and alimony. Christian individuals find relief under the provisions of the Indian Divorce Act of 1869. The Parsi Marriage and Divorce Act of 1936 governs relief for Parsis and provides for both temporary and permanent maintenance. Usually, the conditions of the parties involved are given priority and considered when determining the quantum of maintenance.

The writer is a research scholar. Views expressed are personal