LEGALITY OF LIVE-IN RELATIONSHIP IN INDIA

Dissertation submitted to National Law University and Judicial Academy, Assam

In partial fulfillment for award of the degree of

MASTER OF LAWS

Supervised by Submitted by

Dr. Gitanjali Ghosh Alekh Apurv

Assistant Professor UID: SM219002

LL.M, 2ndSemester

Academic year: 2019-20

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

August, 2020
 SUPERVISOR CERTIFICATE

It is to certify that Alekh Apurv is pursuing Masters of Laws (LL.M.) from National Law
University and Judicial Academy, Assam and has completed his dissertation titled
“LEGALITY OF LIVE-IN RELATIONSHIP IN INDIA” under my supervision. The
research work is found to be original and suitable for submission.

Date: Aug-23-2020 Dr. Gitanjali Ghosh

Assistant Professor of Law
National Law University and Judicial Academy, Assam
 DECLARATION

I, ALEKH APURV, pursuing Master of Laws (LL.M.) from National Law University and
Judicial Academy, do hereby declare that the dissertation titled “LEGALITY OF LIVE-
IN RELATIONSHIP IN INDIA” is an original research work and has not been
submitted either in part or full anywhere else for any purpose, academic or otherwise, to
the best of my knowledge.

Date: Aug-21-2020

Alekh Apurv
UID: SM0219002
National Law University and
Judicial Academy, Assam
 ACKNOWLEDGEMENT

At the very outset, I would like to express my sincere and heartfelt gratitude to Dr.
Gitanjali Ghosh for her Constant guidance, co-operation and encouragement which
immensely helped me in completing my dissertation. This work would not have been
possible, with the regular consultation and inputs provided by her. It is due to her
patience and guidance that I have been able to complete this task within the time frame. I
am highly obliged for the valuable advice, directions and kind supervision.

I would also like to thank the Librarian, Officials, system Administration and staff of the
NLUJA library, Assam for their help and cooperation in making available the relevant
materials required for the study.

I am also thankful to my family for giving me the constant support, motivation and
encouragement throughout the work, so that I can complete my dissertation with utmost
dedication.

Alekh Apurv

LL.M. 2nd semester

UID: SM219002

1
 PREFACE

As a part of Constitutional Specialization, the paper is conducted on socio-legal aspects

of live-in relationships preferably homosexual couples in present scenario of India. The
purpose of the study is to analysis the rights and legal penal sanctions with regards to
heterosexual couples as well as homosexual couples in modern live-in-relationship in
India. Live-in-relationship is a term given to those man and woman who decides to live
together in an intimate relationship without the recognition of marriage. The objective
behind the study is to find out the legal position of homosexual live-in couples in our
society due to the reason that modern societies recognize legal provisions only for
heterosexual couples whereas homosexual couples are devoid of such legal recognition.
The reason for this is that the society compares live-in relationship with marriage. Thus,
the homosexual couples’ rights are violated. Though, the decriminalization has made the
homosexuality legal but this is not sufficient as still homosexuals are devoid of even
Fundamental Rights.

The main problem resides in the presumptions in the Statutes that couples will be of
different couples and most of the laws dealing with civil rights are personal laws will not
apply to same sex couples. This is the reason a “eureka” moment is necessary in the law
field.

2
 Table of Cases

A.K.Kraipak v. UOI

Chandigarh ADM v. Jagjit

D. Velusamy v. D. Patchaiammal

Gokul Chand v. Pravin Kumari

Indra Sharma v. V.K.V. Sharma

K.S. Puttaswamy v. Union of India

Khushboo v. Kannaimal

Lalsa v. Upper District Judge, Basti

Lawrence et al. v Texas

Madan Mohan Singh v. Rajni Kant

Maneka Gandhi v. UOI

Mohabbat Ali v. Md. Ibrahim Khan

NALSA v. UOI

Navtej Singh Johar and ors v. Union of India (UOI) and Ors

Naz Foundation v Government of NCT of Delhi and Others

Rajeev Singh v. Gurmeet Singh

Rao Shiva Bahadur Singh v. State of Vindhya Pradesh

Savitharamana v. Ramanarasimhaih

Shafin Jahan v. Ashokan K.M.

Shakti Vahini v. UOI

3
Somarupa Sathyanarayanan v. Shrimati Vijaya Lakshmi

Suresh Kumar Koushal & Anr v Naz Foundation & Others

Yamunabai v. Anantrao

4
 Table of Statutes

1164- Constitution of Claredon

1751- Bavarian Code

1769- Austin Code

1791- France Constitution

1791- New Penal Code

1853- Buggery Act

1860- Indian Penal Code

1872- Indian Evidence Act

1950- The Constitution of India

1974- Code of Criminal Procedure

2005- Protection of Women from Domestic Violation ACT

2017- Adoption Regulation Act

5
 Table of Abbreviations

1. CARA Central Adoption Resource Authority

2. CrPc Code of Criminal Procedure

3. ed. Edition

4. Fig. Figure

5. GOI Government of India

6. HC High Court

7. IEA Indian Evidence Act

8. IPC Indian Penal Code

9. NALSA National Legal Service Authority

10. PAP Prospective Adoptive Parents

11. PWDVA Protection of Women from Domestic

Violence Act

12. ROL Rule of Law

13. RINM Relationship in Nature of Marriage

14. SC Supreme Court

15. Sec. Section

6
 Contents

CERTIFICATE

DECLARATION

ACKNOWLEGMENT…………………………………………………………………...1

PREFACE………………………………………………………………………………..2

TABLE OF CASES……………………………………………………………………...3

TABLE OF STATUTES…………………………………………………………………4

CHAPTER-1 INTRODUCTION

1.1 BACKGROUND ..................................................................................................................... 10

1.2. AIMS AND OBJECTIVES .................................................................................................... 12
1.3 STATEMENT OF THE PROBLEM ....................................................................................... 13
1.4 RESEARCH HYPOTHESES. ................................................................................................. 13
1.5 RESEARCH QUESTIONS: .................................................................................................... 13
1.6 RESEARCH METHODOLOGY.. ........................................................................................... 14
1.7 SCOPE AND LIMITATIONS.. ............................................................................................... 14
1.8 SOURCES OF DATA.. ........................................................................................................... 15
1.9 LITERATURE REVIEW.. ..................................................................................................... 15
1.10 MODE OF CITATION.. ........................................................................................................ 15
1.11 CHAPTERIZATION.. ........................................................................................................... 17

CHAPTER-2 HISTORY AND DEVELOPMENT OF HOMOSEXUALITY AND

LIVE-IN-RELATIONSHIP IN INDIA

2.1. CONCEPT OF LIVE-IN- RELATIONSHIP IN ANCIENT INDIA.. .................................... 20

2.2. CONCEPT OF LIVE-IN-RELATIONSHIP IN MEDIEVAL INDIA.. ................................. 22
2.3. LIVE-IN-RELATIONSHIP IN MODERN INDIA.. .............................................................. 23
2.4. HISTORY OF HOMOSEXUALITY IN ANCIENT INDIA.................................................. 24

7
2.6. EXISTENCE OF HOMOSEXUALITY IN MEDIEVAL MUGHAL PERIOD.. .................. 26
2.7. HOMOSEXUALITY IN PRE AND POST INDEPENDENCE.. ........................................... 27
2.8. LEGALITY OF HOMOSEXUALITY IN MODERN INDIA.. ............................................. 27

CHAPTER-3 IS LIVE-IN RELATIONSHIP IN INDIA LEGAL?

3.1.ORIGIN OF NULLA POENA SINA LEGA.. ......................................................................... 29
3.2.RULE OF LAW.. ..................................................................................................................... 32
3.3. ARTICLE 20(1).. .................................................................................................................... 33
3.4.LEGAL VALIDITY OF LIVE-IN-RELATIONSHIP.. ........................................................... 33
3.5.RECOGNITION OF LIVE-IN IN INDIAN EVIDENCE ACT.. ............................................ 33
3.6.PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005......................... 34
3.7.CODE OF CRIMINAL PROCEDURE , 1973.. ..................................................................... 35
3.8. HOMOSEXUAL LIVE-IN RELATIONSHIP.. ..................................................................... 35
3.9.LEGAL STATUS OF HOMOSEXUAL IN LIVE-IN RELATIONSHIP.. ............................ 35
3.10.CONFLICTING SITUATION IN RECOGNIZING HOMOSEXUAL RELATIONSHIP BY
LAW. ............................................................................................................................................. 36

CHAPTER-4 WHY MARRIAGE IS A YARDSTICK?

4.1.MARRIAGE AS PER HINDUISM…………………………………………………………39

4.2. MARRIAGE AS PER ISLAM……………………………………………………………..39
4.3.MARRIAGE AS PER CHRISTIANITY……………………………………………………40

CHAPTER-5 THE EFFECTS OF DECRIMINALIZATION OF

HOMOSEXUALITY
5.1. NAVTEJ SINGH JOHAR V UNION OF INDIA.. ................................................................ 41
5.1.1. Petitioner Argument ......................................................................................................... 41
5.1.2.Applicant’s argument ........................................................................................................ 42
5.1.3. Judgment.. ........................................................................................................................ 43
5.3. LEGAL EFFECTS OF NAVTEJ SINGH JOHAR VS UNION OF INDIA.. ........................ 44
5.4. SOCIETAL CHANGE............................................................................................................ 45
5.5. INFERENCE........................................................................................................................... 48

8
CHAPTER-6 PROBLEMS AND OBSTACLES IN HOMOSEXUAL LIVE-IN-
RELATIONSHIP
6.1. MAINTENANCE ................................................................................................................... 49
6.2. DOMESTIC VIOLENCE ....................................................................................................... 50
6.3. ADOPTION ............................................................................................................................ 50

CHAPTER-7 CONCLUSION AND SUGGESTIONS

7.1. CONCLUSION.. ..................................................................................................................... 52

7.2. SUGGESTIONS. .................................................................................................................... 54
BIBLIOGRAPHY……………………………. ………………………………………………….57

9
 CHAPTER-1

INTRODUCTION

1.1 BACKGROUND

“Art.15”1guarantees that “there should be no discrimination on the basis of caste,

religion, sex etc.” But, the laws of the nation prohibited any union between people of the
same sex. Even though now the sexual union of people of same sex is de-criminalized
still these couples lack the right to form a matrimonial bond and thus they are devoid of
many of the rights that a heterosexual couple gets. This is because the court compares a
heterosexual relationship with marriage and many a times the court has pronounced the
partners to be “husband and wife” , “if the society perceives them as husband and wife”2
but this comparison can’t work in the case of homosexual couples because matrimony
between them is not permitted by the law. Art.213gives the right life and liberty and life
means not just “mere animal existence”. It encompasses the right to live your life as per
your wish. Obviously, no right is absolute and hence there are restrictions to the
enjoyment of the rights as well. The basic idea behind not making the rights absolute
because the exercise of absolute rights will deprive others of their rights absolutely. It
may be quoted here, ‘power corrupts and absolute power corrupts absolutely’. The same
is the case with rights. J.S. Mill in his book “On Liberty4” explained “the liberty of a
person is limited to the extent it does not interfere with the liberty of others.” The
homosexual couples are not able to enjoy their lives to the fullest in absence of any
provision or law as per which they can form matrimonial bonds. Since homosexuality is
decriminalized thus marrying a person of the same sex will come outside the scope of
limitations put on the fundamental rights. This research gives an in dept analysis of live
in relationship of heterosexual couples and the rights that the partners have and compares
it with homosexual couples and not recognizing a homosexual couple as live in partners
takes away their rights and the right to live a dignified life. Live in relationship often

1
The Constitution of India 1950 (India).
2
D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469 (India).
3
The Constitution of India 1950 (India)
4
JOHN STUART, ON LIBERTY 119-121 (Penguin Books 1974) (1998).

10
considered a western concept is not new to India. In the ancient Indian culture, there was
the concept of live in relationship, although it was considered as a type of marriage.
There were 8 types of marriages as per Manusmriti5 of which “Gandharva-vivah” was a
part. “Ganndharva-vivah” meant a marriage without the involvement of parents or any
rituals. Thus, it resembles the concept of modern-day live in relationships where there is
no ritual but the couple live together as husband and wife. This ancient culture started
evading as India witnessed new cultures and they started influencing the original Indian
culture. Islam came to India with the Islamic rulers and as per Islam any relationship
before or outside wedlock is ‘haram’ and hence the cultural amalgamation impacted the
view towards live-in -relationship. With the coming of the British, the legal sanctity of
live-in relationship further faded away because it is a sin in Christianity to have a
premarital relationship. This was reflected in the codification of law of our nation, there
is no law governs live in relationship but the provisions are scattered in many legislations
such as “Protection of Women from Domestic Violence Act”, “Code of Criminal
Procedure” etc. and some judgments which recognize live in relationship as proper
marriage.

For the purpose of this thesis “Code of Criminal Procedure”, “Prevention of Women from
Domestic Violence Act”, personal laws have been studied and analyzed with regards to
the rights of homosexuals. There exist reasons that the researcher has chosen this topic

1. The researcher is close friend of a homosexual female and has witnessed her
going through domestic abuse from her live-in partner
2. The decriminalizing of homosexuality is a very positive step but it has failed to
serve its purpose due to lack of recognition of homosexual couples.

In order to get a better understanding of topic it is essential to have a rough idea of the
legislation which recognizes live in relationship:

1. “The Protection of Women from Domestic Violence Act, 2005

“Sec. 2(a)” defines an aggrieved person to be a person who has been subject of
any domestic violence and is in a domestic relationship with respondent

Manu, Manusmriti, Verse 3.24.

5

11
 “Sec 2(f)” defines a domestic relationship to mean between two person who live
or have, at any point of time lived together in a shared household through a
RINM”

A relationship in nature of marriage includes live in relationship.

2. “Code of Criminal Procedure,1974”

“Sec.125” “guarantees that a person has to maintain a child whether legitimate or
illegitimate”.

3. “Indian Evidence Act, 1872”

“Sec.114(i)” says “there would be presumption of wedlock if the partners lived in
together for long spells as husband and wife”.

1.2. AIMS AND OBJECTIVES

The aim of the thesis is to make an analytical study of the legality of live-in relationship
and analyze how the lack of recognition of live-in couples of homosexuals has deprived
them of the rights that are otherwise available to heterosexual couples.

In order to attain the aim of this thesis, the researcher has tried to set out the following
objectives:

1. To offer clear picture of the laws which recognize live-in relationship.

2. To make interviews with homosexual live in couples and know what problems
they face living in together.
3. To analyze how far the decriminalization of homosexuality has served its purpose.
4. To propose legal reforms in order to correct the injustice done to the homosexual
couples.

12
1.3 STATEMENT OF THE PROBLEM

Homosexuality has been decriminalized and this means that the right to choose a partner
irrespective of his or her sex comes automatically under right to life but this right can’t be
realized to the fullest due to lack of any legislation which recognizes same sex marriage.
The next best option is live-in relationship but here too the homosexual live in partners
are devoid of the rights that a live in partner gets in case of a heterosexual live-in couple
such as they can be recognized as husband and wife but this isn’t the case with
homosexual couples as the marriage of same sex couples isn’t recognized by the law. In
the absence of such provision the homosexual partners are rendered helpless when it
comes to splitting up and getting a maintenance or share in the property. Moreover, the
legislations which recognizes the rights of live in partners such as “Protection of Women
from Domestic Violence Act” don’t recognize same sex couples and hence in case of
domestic violence the aggrieved is with less effective remedies than what the afore
mention Act could have provided.

1.4 RESEARCH HYPOTHESES

1. Not providing the right to marry after decriminalization of homosexuality is
violation of Article 21.
2. The Judgment decriminalizing homosexuality aiming to provide equality to
homosexuals has failed to provide that.
3. Not recognizing homosexual couples in-live in relationship is violation of Article
15 as this is discrimination on the basis of sex.

1.5 RESEARCH QUESTIONS

1. What is the legal position of the nation with regard to live-in relationship?
2. What are the problems faced by homosexual couples due to lack of opportunity to
marry?
3. What are the rights of live-in partners?
4. Why the same sex couple don’t get same rights which the opposite sex couple get
in a live-in relationship?

13
 5. How not recognizing of live-in relationship of homosexual couples impacted their
relationships?

1.6 RESEARCH METHODOLOGY

In the writing of this dissertation, the researcher has adopted “doctrinal method” of
research to do a “analytical work” and compare the rights that the heterosexual couples
get; homosexual couples are denied; the effect of the judgment of the Supreme Court
decriminalization of homosexuality and has it been able to impart quality.

The researcher has adopted an “empirical method” to analyze the effect that the lack of
any law recognizing homosexual union; what problems do the homosexual couples face
when they are in a live-in relationship and how do they deal with this in absence of any
law which considers such a union to be a valid one.

One of the main objectives of the dissertation is to conduct “empirical study” on the
problems faced by the homosexual live-in couple that is resultant of homosexual couples
not being recognized in the law due to which they cannot approach the court under
legislations such as “Protection of Women from Domestic Violence Act”. The researcher
has aimed to talk to at least five such couples and few come from small towns areas
where the acceptance of such unions is not

1.7 SCOPE AND LIMITATIONS

This dissertation essentially extends to the studying of the legal position of live-in
relationship in India in respect of heterosexual couples and then comparing it to that of
homosexual couples. In the light of above-mentioned research, the researcher studies the
problems that the homosexual live-in couple faces.

A major limitation of this research is that the researcher wasn’t able to take face to face
interview of the interviewee due to budget restrain and thus had to settle for telephonic

14
interview. This turned out to be impediment as the interviewee would have had opened
up to the interviewer more if it was a face to face conversation.

Due to this being a novelty work and very less material being available on homosexual
live-in relationship the researcher has kept the work short but to the point.

1.8 SOURCES OF DATA

The researcher has utilized both primary and secondary sources in writing the
dissertation. The primary sources include legislations, case laws in addition to the data
collected in pursuance of the empirical study to be undertaken

The secondary sources comprise of a number of books, articles published in journals,

magazines and newspaper, reports and internet sources.

1.9 LITERATURE REVIEW

Anisa Sheikh has explained in her article “Need of Special Legislation for live-in
relationships” Live in relationship is very common in the Western countries and it is
taking roots in India as well. In the case of the South Indian actress Khushboo the
Supreme Court held that there is nothing wrong or illegal in living in a live-in
relationship. Even though it is allowed by court but there is nothing to regulate this type
of relation nor there is a definition to define it. There are many legislations which
recognize directly or indirectly a live-in relationship but there isn’t a uniform law for the
very purpose of regulating it the way there is to regulate marriage. Prevention of
domestic violence Act mentions relationships in the nature of marriage but doesn’t
specifically define which kinds of relationship are in the nature of marriage.

Anuja Agrawal in “Law and Live-in' Relationships in India” talks about the case of
Khushboo vs Kannaimal6. In this case the Supreme Court said “live in relationship is
permissible only in unmarried major heterogeneous sex.” So, what impact does the
decriminalization of homosexuality has on this judgment? Is live-in relationship legal in a

6
Khushboo vs Kannaimal.2010 5 SCC 600.

15
homosexual couple or illegal? Even after decriminalizing homosexuality the motive
hasn’t been served, they can’t marry and whether they can be in a live-in relationship is
also doubtful.

V.N. Shukla has given a detailed understanding of the fundamental right to equality as
guaranteed under the Constitution of India. He speaks about “Art.14, 15 and 16” of the
constitution of India and states that “right to equality is not merely negative to not to be
discriminated but also a positive one to be treated equally”. It enforces a corresponding
duty on the State to respect, protect and fulfil the right to equality.

PSA Pillai explains that under “Sec.377” “having carnal sex with a man, woman or
animal may be imprisoned for life if the sex is against the order of nature.” Anal sex is
considered to be against the order of nature as it doesn’t lead to procreation and same is
with oral sex. So, any sexual activity between the homosexuals will be against the order
of nature.

Of Mice, Men and Women explains that the concept of sex and gender differ. A person
can be a male physically but a female mentally. This concept isn’t to be mixed with
transgender who are totally a different category and are often called as the third sex. The
Sex of a Person can be Male but he might be a woman by gender. It is not necessary for a
person to be of different se and gender to be a homosexual. A person being a male and a
man can like other Male and man as well.

“Beyond Retroactivity to Realizing Justice: The Principle of Legality in International

Criminal Law Sentencing by Shaharam Dana explains that in most of the modern
democracy the legal maxim “Nullem Crimen Sine Lege” will be present because for a
democracy the important ingredient is ROL and one of the most one ingredient of ROL is
“Nullem Crimen Sine Lege” Thus if a country his a democracy it will follow the legal
maxim.

Introduction to the Study of the Law of the Constitution by A.V. Dicey elaborates on
what are the requirements for ROL. It says that the first requirement of ROL is “absence
of arbitrariness and supremacy of law”. Everything should function as per the law and the
laws should be clear cut to avoid any confusion which gives rise to arbitrariness.

16
Supremacy of law will ensure this absence of arbitrariness. Second requirement is
“equality before law”. Everyone should be equal in the eyes of law irrespective of rank or
post. Third Constitution is the resultant of ordinary law of the land.

Sexual Satisfaction and the Importance of Sexual Health to Quality of life throughout
course of US adults, an article on the website of NCBI tells how important sexual
gratification is for a healthy living and it does that by quantity researcher. It has followed
the health of people and their sexual habits and came to conclusion that sexual
gratification is very necessary for a healthy life.

Salmond on Jurisprudence explains that the function of law is to govern the behavior of
society and law is a manifestation of the collective morals of the society and that’s why
law needs to be dynamic because the morals of the society are dynamic and keep on
changing with time. What was illegal yesterday might not be today because society now
accepts it.

1.10 MODE OF CITATION

A uniform system of citation has been adopted throughout the dissertation. The Bluebook
edition (20th edition) has been adopted.

1.11 CHAPTERIZATION

Chapter 1 deals with the introduction. It is inclusive of research methodology, research

questions, aims and objectives, scope and limitation of the study and various other
aspects in relation to the introduction of the topic.

Chapter 2 deals with the background and history of both live-in-relationship and
homosexuality in India ranging from ancient “Vedic period” to Medieval India to
Medieval Mughal India to British India and in the present modern 21st Century of India.
It also describes how the homosexuality has acquired various constitutional rights and the
present gradual situation in terms of constitutional rights.

17
Chapter 3 describes about the conflicting legal issue in recognizing a live-in-relationship
as legal in India. The chapter focuses on legal Maxim of “Nullum Crimen Sine Lege” i.e.
no one can be punished for doing something that is not prohibited by law, Rule of Law
and various legal provisions of Indian Legal Statute enabling various rights to the women
in a “live-in-relationship”. It also covers the dilemma of homosexual couples in live-in to
acquire the same rights being enjoyed by the heterosexual couples in live-in-relationship
due to the inadequate legal provisions.

Chapter 4 discusses marriages as a yardstick. This specific chapter deals with the
concept of marriage as per “Hindu”, “Islam” and Christian Marriage to clarify the basic
differences and comparison between live-in-relationship and marriage.

Chapter 5 is an empirical study based on the data collected from both general public and
homosexual couples in live-in-relationship. This particular chapter briefly describes the
after effects of decriminalization of section 377 of IPC and the various landmark cases
such as Naz Foundation that stood as the initial point of progressive in attributing rights
to the homosexual couples. Last but not the least, the chapter gives a depth insight into
the landmark case of Navtej Singh Johar Vs Union of India in achieving the highest
benefits to the LGBT community till to this present day.

Chapter 6 deals with the various struggle and obstacles which are often faced by the
homosexual couples in live-in-relationship. The reason is due to lack of any concrete
provision in our Indian Legislation. The chapter showcases the diverse problems such as
maintenance, domestic violence and adoption which are common among the homosexual
live-in couples unlike heterosexual couples.

Chapter 7 deals with the conclusion and suggestion part. This particular chapter briefly
gives the conclusion of the dissertation as well as some important suggestions being
suggested by the researcher.

18
 CHAPTER-2

HISTORY AND DEVELOPMENT OF HOMOSEXUALITY AND LIVE-IN-

RELATIONSHIP IN INDIA

The concept of “live-in-relationship” where couples of their choice of partners agrees to

share a bond of love and affection as spouses living together but outside the bond of
recognized marriage, has often raised questions on the norms and morality of “live-in-
relationship”. To some people it is still seen as a taboo and whereas to some others, it is a
progressive form of relationship for the current times where most of human lives and
relationships remain entangled. In western countries “live-in” couples are not looked
down and seen as taboo contrary to India; developing nation like India where religion
plays a dominant role itself, a relationship without marriage is always accepted as taboo
and immoral even though “live-in-relationship” has gained a valid legalized position
today. To understand more deeply the historical background of “live-in-relationship” is of
utmost importance.

The concept of live-in relationship in India is neither entirely the outcome of modern life
nor it is of a recent origin. To deeply understand the validity of “live-in-relationship” the
vital point is tracing its inception in India and how it has progressed with the changing
times.

It is believed that traces of similar concept such “live-in-relationship” is found in “Bible”

of Christianity where names of Adam and Eve are found and considered as the initial
unmarried couple in human history7. This is solely because of the absence of any kind of
concept of marriage then. They were unaware of present time’s social institution but lived
with each other together in a “live-in relationship” solely due to unawareness of existence
of any such concept of marriage8.

In India also, the context of “live-in-relationship is not a recent one. It is evident from the
“Vedic” times that “live-in-relationship” was in existence in our society in one form or
another. “Gandharva marriage” which is one such form of “Hindu” marriages according

7
Anonymous, Historical and contemporary aspects of live-in relationship,Shodhganga@INFLIBNET( Jun,
6, 2020,10:15PM),https://shodhganga.inflibnet.ac.in/bitstream/10603/224850/8/08_chapter2.pdf.
8
Id.

19
to Vedas itself gives a concrete evidence that even in ancient India “live-in” concept
existed and thus it is not merely an outcome of western influencers as most Indians
believe today. The gradual progress of this concept generation after generation has
gained a prominent legal status in our society. To understand the insight root of live-in-
relationship the far most vital thing is to trace the concept of various forms of live-in-
relationship that practiced in ancient and medieval India and comparing them with the
present concept which has now developed into a civilized and legalized characters.

2.1. CONCEPT OF LIVE-IN- RELATIONSHIP IN ANCIENT INDIA

It is evident in “Vedic times” that presence of “premarital relationships” was found from
that era and this continued and in continuation popularly known as “live-in-relationship”
in 20th century. Manu himself mentioned the reality of “premarital relationship” pointing
out that it was though not common but somewhere its subsistence was observed
infrequently during the “Vedic period” as well as afterwards. The perception of live-in-
relationship without entering the wedlock is thus not a modern one in India instead it is of
an aged old era. Moreover, demonstrations of “premarital relationships” are found in the
“Hindu” scriptures in “Vedic period9”. It is interesting to note down that even after the
establishment of marriage institution, the scriptures of “Hindu” depicts the reality of
premarital relationships as well. This conception of “premarital relationship” in ancient
era was recognized and well known as “maitri-karar”10. In “maitri-karar” each opposite
gender agrees to live together as friends and solemn to care for each other with love and
honesty. Such oath was concluded in the form of a written agreement was made between
the two consenting heterosexual partners11.

During the “Vedic Period” most renowned form of marriages that were recognized were
eight different patterns of marriages. This includes “Brahma Marriage, Daiva Marriage,
Arsha Marriage, Prajapatya Marriage, Asura Marriage, Gandharva Marriage, Rakshasa

9
Nitansh Rai, Sukant Singh Rawat, Live in relationship among hindus: reincarnation of hindu marriage,
https://www.legalindia.com/live-in-relationship-among-hindus-reincarnation-of-marriage (Last visited Aug
14, 2020).
10
Id.
11
Id.

20
Marriage, and Paisacha Marriage12”. Among all the eight forms of marriages “Gandharva
marriage” is the core reason of discussion. This is simply due to the fact that “Gandharva
marriage” are found to be similar when compared to modern “live-in-relationship”. The
major ingredients of “live-in-relationship” can be stated to be established and found from
“Gandharva marriage”. Thus, to prove the notion it is necessary to understand what is
Gandharva marriage in reality. In the “Vedic Period’, when a heterosexual couple
consents and with mutual cooperation chooses to live together they can enter in this form
of marriage even without the prior permission and involvement of their families or nor
following a peculiar ritual to celebrate the marriage. It is just an oath or promise to live
together13. Surprisingly, yet comes underneath the picture of marriage sacrament. If this
feature is compared to modern times “live-in-relationship” then it can be absolutely fair
to determine that “live-in-relationship” has somewhere similar status of “Gandharva
marriage” However, couples in “Gandharva marriage” had to perform their marital
obligations just like a married couple texts as per “Hindu” classical texts14. The
“Gandharva” style of marriage construed in Vedas can be correlated to views of
cohabitation in western world where a woman and a man jointly acknowledge living
together in sexually intimate relationship without abiding marriage rituals15.

An interesting point is that instances of “Gandharva marriages” are found in famous

“Hindu” mythology of “Mahabharat”. Mythology like “Mahabharata” gives an insight of
new era notion of “live-in-relationship”. In the “Mahabharata”, Bheem and Hadimba
Devi were believed to have had married under “Gandharva rituals16.” The marriage of
Dushyant and Shakuntala is an example from history of this class of marriage. In
“Mahabharata”, one of two major epics of “Hindus”, “Rishi Kanva-the foster father of
Shakuntala” recommends “Gandharva marriage” with the statement that the marriage of a
desiring woman with a desiring man, without religious ceremonies is the best marriage17.

12
Supra note 1.
13
Supra note 1.
14
Id.
15
Id.
16
Alakananda Bhattacharya, Gandharva Marriage- Ancient, Modern or Both? Know All about the Unique
Indian Marriage Tradition, available at https://www.weddingwire.in/wedding-tips/gandharva-marriage--
c2845. (last visited on 14 Aug, 2020).
17
Id.

21
Even in “Vaishnav” community which is prevalent in some definite place of India, the
couple enters in marriage in a like manner but in front of “Lord Krishna's” idol18.

In a nutshell it can be aforementioned that old age era of India had very optimistic and
broad positive views as regards to pre-marital forms of relationships besides marriage.
However, with the passage of time the notion slowly ceased when it encountered
dominant religion phase in our society. Many disregarded the perception of “Gandharva
marriage” as illegal, immoral and opposed to morality. This resulted in cessation of
“Gandharva marriage” by the 16th century, which was once included and approved as an
ideal form of marriage turned down to illegal form of marriage. Another significant
reason of the downfall of “Gandharva marriage” is that early marriages19 and child
marriages started to take place and hence the girl or boy was in no position to have
consent.

2.2. CONCEPT OF LIVE-IN-RELATIONSHIP IN MEDIEVAL INDIA

The exercise of similar notions of live-in-relationship also existed in medieval period of
India. From ancient stages an accepted norm was that whenever wives cannot become
mother then concubines are taken into lives for the sole purpose of bearing child. This
revealed a significance of concubines in ancient time20. This practice even followed in
medieval phase when wife fails to give birth to an heir. However, in medieval times,
“concubinage enjoyed legal tolerance between two unmarried people similar to the status
of “common-law-marriage”.21 The idea of having concubines was not an odd old concept
hence it’s always been in practice globally as well as India. A unique change felt during
medieval period is the changing variation of giving recognition to them from “sexual
slavery to common-law-marriage”.22 These dissimilarities have resumed to Mughal Rule
in India. During Mughal period, the custom of concubinage took place largely and
somewhere it was observed that “concubinage of unmarried people or their cohabitation
lost the valuation akin to common-law-marriage”.23

18
Supra note 16.
19
Id.
20
Id.
21
Id.
22
Id.
23
Supra note 1.

22
2.3. LIVE-IN-RELATIONSHIP IN MODERN INDIA

A noteworthy of advancement that perceived was glorious changes in numerous evil

social customs and brought into picture many positive renovations. Many social
reformers rose during British India and strongly participated in eradicating social evils
which existed then. In addition, a good number of effective Acts and Legislations were
also implemented to remove the discrepancies that were formed during that time. The
impact of British Indian laws led to the outcome for annihilating the process of keeping
concubinage and other evil customs in Indian society. Even it was accepted to be
nullified the custom of concubinage in India still continued even post Independent
India24.

The elements of “live-in-relationship” in modern times or simply “live-in-relationship”

are founded in Gujarat. “Maitri-Karaars”25 a form of “live-in-relationship” but which is
not exactly given the name of “live-in-relationship” for a long time then. This “Maitri-
Karaars” is usually describe as a contract of friendship where both man and woman enter
mutually with consent and on the terms and conditions that both will live a life of
friendship and woman won’t demand obligations and rights beyond friendship. In short
woman and man will live together and specially woman without claiming any rights more
than friendship during the time together and even after the end of friendship. So, “Maitri-
Karaars” was a form of modern “live-in-together” conception where both man and
woman do not enter into any ritual but decides to stay together. However, the only
difference that makes “Maitri-Karaars” differ from “live-in-relationship” is the presence
of written contract in which both man and woman clearly write down their desire not be
bound by any relationship and rights besides mere friendship. With the changing times,
many objected to it and declared such relationships as unacceptable and illegal though it
had been in continuation for a long time. These relationships are seen as socially
ambiguous and “sexually exploitative relationships.” The aim was that male in such
relationships was always wedded and the female was a single woman who was too
accountable for the income of her parental family. Since she assumes that she could never

24
Id.
25
Id.

23
marry her family readily agrees to such an agreement because this was the lone way, she
can relish a carnal relationship with a male and no questions asked. When the story of
“maitri-karaar” blew up in the media many years ago, it was declared illegal and the
contract became was of no value.26

Even in 21st century even though “live-in-relationship” has occupied a legal position in
India still it is not socially acceptable by majorities. Couples yet struggle to find a place
for themselves without being judged by the society. However, many changes were
brought that helps woman living in such relationship to claim the legal rights of
maintenance, protection from domestic violence and many more.

2.4. HISTORY OF HOMOSEXUALITY IN ANCIENT INDIA

By looking at the history of ancient it is concluded that as popularly believed

homosexuality is not a western concept and it existed in India in the past as well. It is
evident from the various facts that many examples of presence of homosexuality is found
in “Hindu” Mythology, “Vedas” and various literature drawn from“Hindu”,“Buddhist”,
“Muslim”, and modern fiction also testifies the presence of same-sex love in various
forms27. Ancient texts “suchas” the “ManuSmriti”, “Arthashastra”, “Kamasutra”,
“Upanishads” and “Puranas” refer to homosexuality. Also, there are reports that same-sex
activities are common among “sannyasins”, who cannot marry28. Thus, instances of
homosexuality are available in historical and mythological texts world over and India is
not an exception to this. The Cultural residues of homosexuality can be seen even today
in a small village Angaar in Gujarat where amongst the “Kutchi community” a ritualistic
transgender marriage is performed during the time of “Holi festival”. This wedding
which is being celebrated every year, for the past 150 years is unusual because “Ishaak”,
the bride groom and “Ishakali” the bride is both men.29

2.5. ILLUSTRATIONS OF HOMOSEXUALITY IN ANCIENT INDIA

26
Supra note 1.
27
Anuradha Parasar, Homosexuality in India – The Invisible Conflict, Delhi High Court Library, available at
http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-
%20The%20invisible%20conflict.pdf. (last visited on 14 Aug, 2020, 1:41 pm).
28
Supra note 21.
29
Supra note 21.

24
If we open the history, instances of homosexuality is found in ancient India. The concept
of “homosexuality” is not a new era trend concept, in fact it is old origin. To understand
as a whole brief description of various occurrences of homosexuality and homosexuals
mentioned in Ancient India as well as in Hindu epics like “Ramayana and Mahabharata”
are shown in the following stepwise table:

1. “In the temples of Khajuraho, there are images of women erotically

embracing other women and men displaying their genitals to each other.
Scholars have generally explained this as an acknowledgement that people
engaged in homosexual acts. The sculptures embedded in the Khajuraho
temple depict what seem to be sexual fluidity between man and man and
woman and woman. There are even instances of all-female orgies”.
2. “In the Valmiki Ramayana, Lord Rama's devotee and companion Hanuman
is said to have seen Rakshasa women kissing and embracing other women”.

3. “The Ramayana tells the tale of a king named Dilip, who had two wives. He
died without leaving an heir. The story says that Lord Shiva appeared in the
dreams of the widowed queens and told them that if they made love to each
other, they would have a child. The queens did as ordain by Lord Shiva and
one of them got pregnant. They gave birth to a child, who went on to
become famous king Bhagirath, best known for having brought River Ganga
from heaven to the earth.”

4. “The Mahabharata has an interesting story about Shikhandini, the feminine

or transgender warrior of the time and responsible for the defeat and killing
of Bhishma. Shikhandini was a daughter of King Drupada, who raised her as
a prince to take revenge from the Kurus, the rulers of Hastinapur. Drupada
even got Shikhandini married to a woman. After her wife discovered the
reality, she revolted. The day was saved by divine intervention bestowing
Shikhandini with manhood during night. Shikhandini henceforth lived like a
hermaphrodite”

25
 5. “During the great churning of milky ocean, according to Mastya Purana,
Lord Vishnu took the form of a beautiful woman, Mohini to trick the
demons so that the gods could drink all the amrut (the immortal juice found
from churning of ocean). Meanwhile, Lord Shiva saw Vishnu as Mohini and
instantly fell for him. Their union led to the birth of a child -- Lord
Ayyappa”.
6. “The famous law code, Manusmriti provides for punishment to homosexual
men and women. Manusmriti says that if a girl has sex with another girl, she
is liable for a fine of two hundred coins and ten whiplashes. But if lesbian
sex is performed by a mature woman on a girl, her head should be shaved or
two of her fingers cut off as punishment. The woman should also be made to
ride on a donkey”
7. “In the case of homosexual males, Manusmriti says that sexual union
between with two men brings loss of caste. If a man has sex with non-human
females or with another man or indulges in anal or oral sex with women, he
is liable for punishment as per the -Painful Heating Vow”.
8. “Arthashastra of Kautilya -- a treatise on politics -- also mentions
homosexuality. But the book makes it a duty of the king to punish those
indulging in homosexuality and expects the ruler to fight against the social
evil”

Source: Homosexuality in ancient India: 10 instances, by India Today.

2.6. EXISTENCE OF HOMOSEXUALITY IN MEDIEVAL MUGHAL PERIOD

During the medieval period, especially during the Mughal Dynasty, homosexuality was
prevalent. One such prominent homosexual relationship is seen between Ala Uddin Khilji
and his eunuch. During the Mughal Period many incidents of homosexual love stories of
boys was common and commonly practiced at the court of Muslim Rulers and Urdu and
Sufi poets celebrated it.30 In many incidents it is found that Babar, the first Mughal
emperor of India, had written romantically about his love affair with a boy, Baburi, at

30
Supra note 24.

26
Andezan, in the work “Turuk-i-Babri”. Relations rulers and slaves were common in that
period. The best-known relationship was Sultan Alauddin Khilji and his eunuch slave
MalikKafur.

2.7. HOMOSEXUALITY IN PRE AND POST INDEPENDENCE

When British invaded India, the notion of homosexuality was considered illegal and
criminalized. It was during the British Rule when IPC was enacted where Sec. 377 also
itself provided punishment for homosexuals and declared as an offence considering it as
act against nature. However, in the present 21st era of India, many efforts were done to
change the status of homosexuality as an offence to legalizing it. Since then,
homosexuality was always in a negative position and everyone looked down upon it and
declared as against nature rule and an immoral, evil process committed by those who
involved in it.

2.8. LEGALITY OF HOMOSEXUALITY IN MODERN INDIA

The inception of legality of homosexuality in modern Independent India has been be

traced back to the case of Naz Foundation v Government of NCT of Delhi and Others in
the year 200931. In this particular case, the Delhi HC declared a progressive judgment in
favor of homosexual community. Earlier before announcement of these judgments,
homosexuality itself was presumed to be illegal within Delhi. However, post Naz
foundation judgment, the scenario changed and some parts of “Sec. 377” of IPC were
stricken down along with giving these homosexuals and transgender the rights to
“equality before law and equal protection of law, discrimination against sexual
orientation and right to life and liberty” of the Constitution of India. A fair and equal
treatment was seen to be implemented in case of LGBT community by the Delhi.

In short, Naz Foundation case is regarded as the first ever legal progress determining
various constitutional rights to the LGBT community. Post after the judgment by Delhi
HC in Naz Foundation case hopes arose among all the homosexuals and other gay,
transgender communities in the society. Although the SC of India did not favor any rights

Naz Foundation v Government of NCT of Delhi, (2009) 111 DRJ 1).

31

27
to the LGBT community then but the initial development of legalization of
homosexuality can be said to be started from this particular judgment.

In later years, especially in Suresh Kumar Koushal&Anr v Naz Foundation & Others32a
criticism arose against the LGBT community when SC of India and objected the LGBT
community rights and totally rejected the judgment given in Naz Foundation. The SC laid
its opinion against it and criminalized even consensual intimate relationship of LGBT
community under “Sec. 377” of IPC. This dissenting judgment proclaimed by the SC
created a negative impact not only on the LGBT community but also internationally.

The effects of SC judgments in Koushal Kumar case imparted a negative dictation of law
in the society. However, positivity came to light in 2017, when 9 judge bench of the SC
in K.S. Puttaswamy v Union of India33 overruled the judgment proclaimed by two bench
judge in Suresh Koushal Case. In this case, privacy extended even towards the LGBT
community who were once deprived because of their difference in sexual orientation. The
judgment highly regarded the privacy rights of the LGBT community.

A landmark judgment in the history of LGBT community is the Navtej Singh Johar Case.
and ors Vs. Union of India (UOI) and Ors. In 2018. This case removed the constraints of
homosexuals and transgender. In this case, the SC of India decriminalized the parts of
“Sec. 377” of IPC and allowed them constitutional rights and legalization of LGBT
relationship. This landmark judgment opened a new era in the lives of LGBT community.
Presently every lesbian, gay, bisexuals or transgender have equal access to “constitutional
rights to privacy, freedom of expression, equality, human dignity and protection from
discrimination guaranteed under Articles 14, 15, 19 and 21 of the Constitution” just like
any other citizens of India.

An important highlight of the judgment in Puttaswamy case is that LGBT communities

were decriminalized from expressing their love and affection among each other.

The “Navtej Singh Case” is a great win for the homosexual community in that
homosexual acts have now been decriminalize.

Suresh Kumar Koushal&Anr v Naz Foundation & Others, (2014) 1 SCC 1.

32

K.S. Puttaswamy v Union of India, (2017) 10 SCC 641.

33

28
 CHAPTER-3
IS LIVE-IN RELATIONSHIP IN INDIA LEGAL?
Live in relationship has become common feature of the modern society but still it is
considered to be taboo. Nowhere does any law outlaw live-in relationship neither there is
any statute which permits live-in relationship. So, the question arises what is the status of
live-in relationship in India. This questions specifically bothers for homosexual
relationships. With the decriminalization of homosexuality what becomes the status of
homosexual live-in relationships in India? For these questions to be answered we need to
broaden our perspectives a little bit and look at what is the legal status of those acts for
which there is no specific law permitting it nor any specific law prohibiting it.
It is well known fact that no one is guilty unless and until proven guilty beyond
reasonable doubt. It has always been the function of law to dispense justice34. Aquinas
and Salmond to have held justice in high regard and have not shied away from admitting
that justice is the aim of law, even though they were positivist who deny to admit the
relation between righteousness and law. This arguments tells about the need for explicit
laws which clearly define what is a crime then only a person can be held guilty “beyond
reasonable doubt” to stress more on this we refer to legal Maxim of “Nullum Crimen
Sine Lege” which requires that no one no one can be punished for doing something that is
not prohibited by law.
Art. 20(1) 35too says that “no person can be convicted of any offence except for violation
of law in force” these to the legal Maxim and Art.20 (1) make it very clear that nothing
which is not prohibited is a crime.

3.1. ORIGIN OF “NULLUM CRIMEN SINE LEGE”

“Nullum Crimen Sine Lege” though has several meanings but in a narrower meaning it is
that exact formulation which concerns the Action- Consequence element of punitive
laws. The essence of that Action- Consequence component is that “no person shall be
penalized but in pursuance of a statute which fixes punishment for criminal conduct.”

34
P.J. FITZGERALD, SALMOND ON JURISPRUDENCE 60 (12 TH ED.2012).
35
INDIA CONST. art. 20 cl. 1.

29
Exclusion employed in it is that no conduct shall be held criminal unless it is specifically
described in the conduct circumstance component of a panel statute. Adding in
understanding of “Nullum Crimen Sine Lege” is included the rule that Panel Statutes
must be strictly interpreted and significant rule of it is that “Penal Laws shall not be given
retroactive effect.”

Now coming to the origins of this “Nullum Crimen Sine Lege” rule. Though
characteristic of its Latinity, it is not of a Roman source but was born in Eightieth
Century Liberalism. Although certain aspect of this rule has some irregular expression in
Roman history though it blossomed mainly in Eighteenth Century. To limit the Roman
jurisprudence of “Extraordinaria judicia” that is limitless discretion in the judiciary
required pre-definition of offence and penalty. Under Roman law which touched it’s
most rigorous rank with Sulla, who insisted that “for certain wrongdoings both offence
and penalty be exactly described in the statute under which the accusation was brought.”
Under Sulla the prohibition against “retroactivity” of Penal Laws was well known and
followed.
In the Eighteenth century when mediaeval doctrine of the intensely engrained pre-
eminence of law and its facet of Theological authoritarian aspect got challenged by the
rise of modern state. Though many say origin of “Nullum Crimen Sine Lege” in Magna
Carta may not be very true”. Actually, both were more a limitation of both processes and
substantiate Law upon the Royal Prerogative. Some traces it in English Principal of Law
from “chart of Henry”, the first which got reiterated in the “constitution of Clarendon” in
1164.Actually, “Magna Carta” is the great symbol of the Socio-Political forces that
established the supremacy of the ROL in England. After that the rise of Parliament has an
important part to be precise it is Parliamentary influence which actually changed the
sense of the “Nullum Crimen Sine Lege” near to some real estimate to the rule as it is
today. The “Bavarian code of 1751” and “Austin code of 1769” also paved the way for
the ingredients of this law.
However, the real motivation to achieve the theme of “Nullum Crimen Sine Lege” came
with the “French Revolution”. Long before the French Revolution the movement for
codification had advanced some of the idea underlying “Nullum Crimen Sine Lege” on

30
its technical side. It was in the “code of the Austrian Monarch Joseph II” that a specific
exclusion of analogy, first entered the modern criminal law. The English tradition of rule
of law translated by Eighteenth century French philosophers into terms expressive of
Revolutionary ideology, joined with the continental movement for codification to provide
“Nullum Crimen Sine Lege” with its particular current meanings.
During the Revolutionary French era by drafting “Declaration of the Rights of Man”,
Lafayette got inspiration for this from “Virginia Declaration”. The declaration fixed the
prevailing meanings of “Nullum Crimen Sine Lege” not only as a basic constitutional
safeguard of individual against of oppressive government but also as a “Cardinal Tenet of
Penal Law.” The rule was restated in the “French constitution of September 3, 1791.” It
reappeared in the French code of 1810, there to remain practically unchanged. The rule
incorporated in “Bavarian code” drafted by Feuerbach in1813.
Feuerbach is generally credited with the statement of “Nullum Crimen Sine lege” in its
current form. He pronounced three principles and declared that they should be adopted
without exception “nulla poena sine lege, nullapoena sine crimine, nullum crimen sine
poena legali.” Feurbach’s integration of prevailing political ideology with criminal law
was simple enough- one who violates the liberty guaranteed by the social contract and
safeguarded by penal law commits a crime. All future offenders cannot be known in
advance and physically coerced. Hence, he argued that the essential purpose of
punishment must be deterrence by threat it means it must be psychological. Incidental
purposes were direct deterrence by witnessing the infliction of punishment, making the
State secure through incapacitation of the offenders. He was tempering penalty with
humanitarianism. To his theory of psychological constrain, Feurebach added those
principals regarding the punishment of offenders which have generally been associated
with English Utilitarianism and classical penology.
So, to conclude the origin of “Nullum Crimen Sine Lege” can be traced back to
Eighteenth Century Liberalism. Though the phrase is in Latin, its formative can be traced
to English Liberalism, French Revolution and in the rise of Modern States. Its final
formation was outlined by the three principles of Feuerbach. He had tempered Penalty
with Humanism by mixing Psychological Constrains with principal of English Utilitarian
& classical Penology, the final form of “Nullum Crimen Sine Lege” got originated.

31
 3.2. RULE OF LAW
“Nullum Crimen Sine Lege” Is considered best basic requirement of rule of law by
modern democratic state does it means any modern democracy36 which follows rule of
law will adhere to this legal Maxim we examine whether India follows rule of law or not
if it does then it should adhere to the legal Maxim. ROL in simple terms means that law
lies above all and even the king is not above it. Dicey described the rule of law.37
1 “as absence of arbitrariness and Supremacy of law”
2 “equality before law”
3 “constitution to be result of ordinary law of land”
India possesses the first two ingredients. Firstly, there is no arbitrariness in law as India
follows a written constitution which has explicitly written down rules assigning power to
the government and has also put limitation on the very powers provided, this is
called “constitutionalism”38 and the government is Constitutional government. The
powers of government are limited by the provider itself i.e. the constitution, hence there
is very little scope of arbitrariness. Secondly, India have equality before the law39 anyone
and everyone is equal before the law. Moreover, the state just doesn't have the “negative
responsibility” not to discriminate but also a “positive responsibility” to treat everyone
equally and that's why there are other articles in the constitution such as Art. 15 16, 17
which explicitly provide for equal treatment. In this way the constitutional provisions
ensure ROL in India. Judicial decisions to firmly confirm the presence of ROL in the
country the SC has ruled that ROL is a part of “basic structure” and cannot be destroyed
or abrogated by any act of parliament, in A.K.Kraipak vs UOI40. The SC specifically
mentioned that our state by the virtue of being a welfare state is controlled by ROL in
Maneka Gandhi VS UOI41SC affirmed that arbitrariness in exercise of power by the state
would infringe the rights of people does it is well established that India has ROL and that
the basic ingredients of rule of law “Nullum Crimen Sine Lege” has to be present.

36
Shaharam Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in International Law
Sentencing, Vol 99.JCLC, 857, 865-867 (2009)
37
A.V. DICEY, INTRODUCTION OF STUDY OF LAW OF THE CONSTITUTION 90 (Macmillan, 10 th
ed 1959).
38
M.P. JAIN, THE CONSTITUTION OF INDIA 57 (8 th ed 2018).
39
INDIA CONST. art. 14.
40
A.K.Kraipak vs UOI, AIR 1970 SC 150 (India).
41
Maneka Gandhi VS UOI, AIR 1978 SC 597 (India).

32
3.3. ARTICLE 20(1)
Our constitution has engrained in it the legal Maxim “Nullum Crimen Sine Lege”. Art
20(1)42 makes explicitly clear that “no person shall be convicted of any offence except for
other than the violation of law in force at that time it is” thus it is clear that without a
specific law there can be no violation of it. Thus, it restrict “retroactivity” as well, if there
was no law prohibiting the act at the time of the commission and there then no new law
can outlaw it43is very clear that there must be clearly laid out law and then only its
violation can be termed as an offence. Art. 20(1) use the word ‘law in force’. The “law in
force’ must be the law which was actually an operation on the date of commission of
offence and not the law which was made by legal fiction is made operative by virtue of
the power of Legislature to pass retrospective law”. In Rao Shiva Bahadur Singh versus
State of Vindhya Pradesh44 the court observed that the law in force means law of
factually in operation. There is no such low in India which says that live-in relationship is
a crime hence we can conclude that the contrary can’t be true.

3.4.LEGAL VALIDITY OF LIVE-IN-RELATIONSHIP

The research has reached to the conclusion that nowhere in any law in India has live in
relationship in outlawed and has further illustrated that for anything to be illegal it must
violate a law in force which clearly prohibited this not being the case nothing can be
illegal. But the problem is no law recognize is live-in relationship as well and does it
create a confusion the researcher in this chapter shows that even though there is no law
which clearly legalizes live in relationship but we find provisions here and there which
recognize live in relationship.

3.5. RECOGNITION OF LIVE-IN IN INDIAN EVIDENCE ACT

Sec 124 of IEA45 says that “the court may presume” some facts which are as per the
knowledge of judge is within the course of normal happening. These presumptions are
valid until they there is an evidence presented against the presumption is46.The pre-

42
INDIA CONST. art. 20. cl. 1.
43
INDIA CONST. art. 20 cl. 1.
44
Rao Shiva Bahadur Singh v. State of Vindhya Pradesh, A.I.R 1955 SC (India).
45
Indian Evidence Act, 1992, Act No. 101 of 1992.
46
Fateh Gunai v. sardar, AIR 1958 Punj 333 (India).

33
requisite of these assumptions is that the fact should have had happened in course of
natural events as per general human conduct. These assumptions are clearly based on
knowledge of the court and no whatsoever rule applies. For example, if a letter has been
posted by “A” then the court may presume it has reached “B” if “B” couldn't disprove
resumption irrespective of the fact whether “B” has received the letter or not.
The word “may” has its own significance it means the court is not bound by any rule and
it can or cannot presume the fact.
This Sec. has been used by the court to presume marriage if there is long cohabitation of
the parties then live in relationship can't be termed as “walk-in walk-out” relationship and
there rise as the presumption of marriage47 this presumption however like all other
presumption is rebuttable48.In Lalsa vs Upper District Judge, Basti49.The parties were
always treated as husband and wife. The deceased husband was a Railway employee. The
deceased husband has acknowledged female as wife by making declaration in various
forms and documents maintained by railways. The parties were living together for four
years, the court presumed them husband and wife. When a man and a woman cohabit for
long time the court presumes in favor of marriage against concubage50.

3.6.PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005

To protect women from violence PWDVA has a long list of women who are covered by
it. This act has realized that women regardless of the kind of relationship she has with the
abuser can face abuse in that relationship, for the very matter of the PWDVA includes
such relationship as well as which are like marriage but not exactly marriage. This
includes live-in relationship as well, the condition being that it is “like marriage.”
PWDVA a uses phrases ‘RINM’ thus, for a living relationship to be a “RINM” it has to
be more than just “walk-in walk-out relationship”. In Shrimati Gurpreet Kaur Vs. Shri
Rajiv Singh51 the court “RINM” means de-facto marriage in Somarupa Sathyanarayanan
Vs.Shrimati Vijayalakshmi52 the court held that for a relationship to be “RINM” both the
parties must be qualified to enter legally into a marriage. Thus, a “Hindu” man and a

47
Madan Mohan Singh v. Rajni Kant, AIR 1967 SC 1134 (India).
48
Gokul Chand v. Pravin Kumari, AIR 1952 SC 23 (India).
49
Lalsa v. Upper District Judge, Basti, AIR 1999 ALL. 342 (India).
50
Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 SC 135 (India).
51
Rajeev Singh vs Gurmeet Singh, AIR 1998 Del 384
52
Somarupa Sathyanarayanan Vs. Shrimati Vijaya Lakshmi, AIR 1992 SC 604

34
woman who are already married can't be in a “RINM” as bigamy is not permitted in
“Hindu” personal law. A live-in relationship can be RINM only if it resembles marriage
otherwise it will be a walk-in workout relationship. This view was already held in the
case of Indra Sharma vs V.K.V. Sharma53 the respondent was already married and hence
he was not qualified to be married to the appellant and as it could not be classified as
marriage.

3.7.CODE OF CRIMINAL PROCEDURE, 1973

Sec. 125 of CrPc provides that a man has to maintain his wife and one who doesn't
comply may be punished for one year54.Wife means a “divorced wife55” who cannot
maintain herself. This provision is a measure of Social justice and specially enacted to
protect women and children and falls within the Ambit of Art.15 (3)56 and Art.3957. For
this section wife means only “legitimate wife58” or a “legally wedded wife59” prima facie
it appears that a woman in live-in relationship would be included in the category wildly
but in D.VeluswamyVs. Patchaiammal,60 the Supreme Court held that two people who
live together and if the society perceive them as husband and wife then she can claim
maintenance.

3.8. HOMOSEXUAL LIVE-IN RELATIONSHIP

There is no such thing as marriage for the homosexual couples thus the next best option
that they have is to be in a live-in relationship with their partner but the clouds of mystery
surround the legal status of live-in relationship of homosexual couples as because
homosexuality is a totally new concept India. New law evolves from the need of it and
with changing society the law keeps on changing.

3.9. LEGAL STATUS OF HOMOSEXUAL IN LIVE-IN RELATIONSHIP

It has already been proved by the researcher that nothing is a crime unless there is clear-
cut violation of any law. Thus, the pre-requisite becomes that there should be law. Before

53
Indra Sharma vs V.K.V. Sharma, 2014(1) RCR (crl) 179 (sc).
54
The Code of Criminal Procedure, 1973, Act No. 2 Of 1974.
55
The Code of Criminal Procedure, 1973, Act No. 2 Of 1974.
56
INDIA CONST. art. 15. Cl. 3.
57
INDIA CONST. art. 39.
58
Savitharamana v. Ramanarasimhaih, (1963) 1 CR LJ 13.
59
Yamunabai v. Anantrao, 1988 Cr. LJ 793.
60
D.Veluswamy vs. Patchaiammal, 2010 (9) RCR (crl) 746 SC.

35
the decriminalization of homosexuality there existed a law in form of Sec.37761 in IPC
which criminalized any form of homosexual conduct but now with the decriminalization
what status does that leave to homosexual couples? Since there is no explicit law
pronouncing homosexual live-in relationship illegal thus it becomes clear that
homosexual live-in relationship is legal. As already explain Art 20(1)62 and “Nullum
Crimen Sine Lege” ensure this. Though the live-in of homosexuals isn’t illegal as no law
prohibits it but on the other hand there is no law as well which recognizes the
homosexual live-in relationship. So much so there are no judgments as well by any court
which have talked about homosexual live-in relationships. Homosexual relationships
though not legal are not recognized by the society and law and they end up being “walk-
in walk-out” relationships. The effect being that they are devoid of the rights that the
heterosexual couples have.

3.10. CONFLICTING SITUATION IN RECOGNIZING HOMOSEXUAL

RELATIONSHIP BY LAW
The recognition provided to the heterosexual couple give some benefit to the live-in
couples which are available only to the married couple such as protection in PWDVA,
maintenance but to gain the benefit which are available to the married couple the live-in
relationship should be resembling a marriage. This phrase “resembles a marriage” has
been used by statutes and used directly or indirectly in many places and many judgements
the domestic violence act has defined “RINM” and the court has explained the meaning
of relationship in nature of marriage. Further, as mentioned earlier the court has made it
clear that what are the ingredients which make a “RINM” that it becomes clear that not
all live-in relationship is alike some are “No Strings Attached” “walk-in, walk-out”
whereas others are recognized by the society. It is very clear that the rationale behind
providing marriage like benefits will even couple is that they resemble marriage. The
standard measure of comparison is marriage, one reason behind such comparison can be
that many communities no rituals of marriage is required and just for which cohabitation
is enough to make it a marriage. Making marriage standard of comparison for
recognizing live-in relationship has had the effect that homosexual couples are not devoid

61
Indian Penal Code, 1860, Act no. 45 of 1860.
62
INDIA CONST. art. 20. cl. 1.

36
of these benefits t heterosexual couple can't marry as no law recognizes the same sex
marriage this has caused them double losses neither they can marry nor can their live-in
relationship be recognized in the eyes of law. The next best option available to
homosexuals in absence of marriage is live-in but live-in relationships too leave them
hanging and devoid of rights. The reason that they live in relationship can't be recognized
by law is because it can't be compared to marriage because homosexual marriages don't
exist.

37
 CHAPTER-4
WHY MARRIAGE IS A YARDSTICK?

India is a country where family relationship and kinship is held in high regard. This is
very evident and need not much prove. This kinship has started the hereditary “caste
system”63 and has given rise to many modern problems such as nepotism. In her address
to Oxford Maneka Guruswamy says that in India our identity starts from whom we are
related to. Aristotle said that family is the basic unit of society64 and this is more than true
for India as a nation. If you the look closely then we find difference in the opinion from
Western world. Here, in India marriage unlike West is not just an option but a
compulsion. This many people would disagree with and give a hundred examples of
single person but the reality is marriage is a must in Indian society the Western societies
bent towards individualistic approach but India has more of a community approach and
no doubt this is the reason that the divorce rate is low in India. That can be whole other
debate whether it is good or it is bad but a matter of fact it is low, the next question arises
is why is marriage so important to India to answer this question we have to look into one
even more important aspect of Indian society religion. India is a kaleidoscope of religions
and find many of them and many varieties in them but the most dominant over here are
“Hinduism” “Islam” and Christianity making 18.5% 13.4% at 2.3 % respectively only
0.1%65 people have not stated their religion. This figure is very low when compared to
USA which has 26% atheists66 and this percentage was even higher in Scandinavian
countries. Religion has a lot to do with the Matrimony obsessed nation. In all the
religions marriage has been held in high regard, may be at the time of inception of the
religions increasing the population was an important thing. There are many religions in
India and if the research covers each and every religion that this research would become a
description of the religions, for the sake of simplicity that in such has committed himself
to three major religions of India “Hinduism” and “Islam” and Christianity define what is
the importance of marriage for religion.

63
10th Mandal, Rig Ved.
64
William Bennet, Stronger Families Stronger Society, NY Times, April 24, 2004.
65
2001 Census of Religion.
66
Anonymous, Non-existence of Faith, American Atheists, https://www.atheists.org/ (last visited on 14
Aug).

38
4.1. MARRIAGE AS PER “HINDUISM”
“Hindu” marriage is considered to be a sacramental bond and that's why previously the
“Hindu” society didn’t recognize divorce. As per “Hindu” belief marriage is not for one
but seven lives. It is also one of the “sanskar” out of the total sixteen. These “sanskar”
can be understood at as rites of passage which are necessary to obtain “moksh” which is
the state of “nirvana” in “Hinduism”. Marriage being one of the “sanskaar” too is very
important for the attainment of “moksh” the importance of marriage is not just in the
afterlife but also in the living. Wife has been called the source of “purushartha” not only
of “dharma”,“artha”,“kama” but also of “moksh”.It is evident that to attain “moksha” to
having a wife is important this is because wife is half of the husband. A wife called
“patni” is also “dharampatni” that means a person who performs Dharma with her
husband. Without a wife many of the “yajnas” are incomplete, to perform them there
should wife with the man. Thus, it becomes clear that having a wife completes man and
he can't attain “Moksha” which is the ultimate aim of “Hindu” nor can he perform all
“yajnas” without her. This is the reason why “Hindus” hold marriage in high place and
hence divorce was too was not an option but later on it was introduced.

4.2. MARRIAGE AS PER ISLAM

A person who follows “Islam” is called “Muslim”. For a “Muslim” the highest award that
he can I get is to go to “Jannat”. The holy book of “Muslims”, “Quran” and the“Hadiths”
at many places describe the ways to attain “Jannat” and one of the ways to do that is to
get married. It is considered that whoever gets married has completed half of his faith. In
“Islam” marriages contractual unlike in “Hindus” but still is held in high regard and is
considered to be the shield against immoral vices that a person might involve due to
cravings of the flesh “And those who guard their chastity67” “The Holy Quran” directs
everyone to marry and if they don’t without any good reason or excuse then they have
disobeyed the word of God. Marriage in Islam is considered “Sunnat Muwakkidah”
meaning an act which when performed will get a person closer to “Jannat”. Due to such a
high regard for the marriage all the kinds of marriage that are considered to be
experimental are forbidden in “Islam”.

67
Koran 23.5.

39
4.3. MARRIAGE AS PER CHRISTIANITY
Christianity too has the same view on marriage as that of “Islam” and “Hinduism”. For
the Christian marriage is a very special bond made by God himself. They believe that a
divorce is disobeying the God’s will. In the “Holy Bible” it has been said that the man
will leave his mother and father and join his wife. The Christians go to the extent that
they proclaim that husband and wife are one flesh68 and hence can’t be separated. Thus,
to prevent divorces the Christians have an engagement period so that the couples get to
know each other and find out if they are compatible if not then they can separate. “It is
better to break engagement but not marriage”.

68
The Holy Bible, Genesis chapter 2 verse 25.

40
 CHAPTER-5
THE EFFECTS OF DECRIMINALIZATION OF HOMOSEXUALITY
Homosexual relationship was made a crime by “Sec.377”69 of IPC introduced in 1861 by
British based on “Buggery Act of 1853” and this continued for a very long time.
Homosexuality was seen as an offence because it was against natural course and it didn't
lead to procreation. It was considered to be unnatural by British because of their Biblical
beliefs. The Holy Bible prohibits same sex relationship in many places such as book of
“Leviticus70” and many other places.
The west has long back started to accept LGBT community. France had accepted LGBT
back in 1791 with the adoption of “New Penal Code” which no longer criminalized
sodomy and then Prussia, Luxembourg and Belgium followed in 1794, 1794 and 1795
respectively. Finally, the most successful democracy the USA in 2003 ruled anti-sodomy
laws to be unconstitutional71. Mostly after developments in USA India too started to see
Pro LGBT movements. The resultant was in 2009 Delhi HC pronounces the anti LGBT
law to be against FRs provided in the “Constitution of India”. But, in 2013 Supreme
Court reversed the decision of Delhi HC in Naz Foundation Vs government of N.C.T. of
Delhi72. This led to outcry from different spheres there discontent on social media from
movie industry International forum and political parties. Finally, in year 2019 Supreme
Court finally decriminalize homosexuality in Navtej Singh JoharVs Union of India73.

5.1. NAVTEJ SINGH JOHAR V UNION OF INDIA

This was the case which finally allowed who sexual relationship. It made consensual
sexual relation between two adults legal. Thus, without striking out “Sec. 37774” it
amended it.

5.1.1. Petitioner’s Arguments

The petitioner has argued for legalization of homosexuality on the basis of right to
privacy, equality, no discrimination on the basis of sex and right to freedom of speech.
69
Indian Penal Code, 1860, Act no. 45, 1860.
70
The Holy Bible, Levictus.
71
Lawrence et al. v. Texas, 539, U.S. 558 (2003).
72
Naz foundation v. Govt of NCT of Delhi, 160 Delhi Law Times 277.
73
Navtej Singh Johar Vs Union of India, AIR 2018 SC 4321.
74
Indian Penal Code, 1860, Act no. 45, 1860.

41
The petitioner has argued that sexual orientation is protected by “Art.2175” and any
discrimination would run contrary to constitution. “Art.21” gives the “right to life and
liberty” and this includes living a life which is more than “mere animal existence76”.
Sexual gratification is very important for a human. A good sexual life is very important
for a quality life. In an article77 published on “National Centre for Biotechnology
Information” the researcher has found that sexual satisfaction was a highly important
aspect of quality of life and this was supported by empirical data. The petitioner has
argued that sexual orientation is an essential attribute to privacy. Privacy has been
included under “Art.21” and the sexual orientation is protected by FRs. “Right to
Equality” guarantees that there will be no discrimination everyone will be equal in the
eyes of law and hence it will be violating “Art.1478” as well. The petitioner has argued
that there is no “intelligential differentia79”The “reasonable classification” between
“natural” and “unnatural sex “as order of nature has not been defined anywhere. The
petitioner has further argued that “Sec 377” of IPC also violates “Art. 1580” as it
discriminates on the sex of person’s partner.

5.1.2. Respondent’s arguments

The applicant has argued mainly on “reasonable restrictions” of FRs, morality and
homosexuality being unnatural. The applicant has argued that all the fundamental rights
are subject to “reasonable restrictions” and within this “reasonable restriction” falls
homosexuality. Thus, the right to privacy is to limited by “reasonable restrictions” and
hence cannot be abused. The applicant has argued that homosexual sexual relationships
are carried by abusing organs and this abuse goes against the concept of dignity and
hence it is against FRs as they provide “right to live with dignity”. The law made in
“Sec.377” is right and is made after looking at the system and principles which prevailed
in ancient India. To illustrate that the intervenor has put forth the work of W.Friedman

75
INDIA CONST. art. 21.
76
Maneka Gandhi v. UOI, AIR 1978 SC 597.
77
Flynn KE, Lin L, Bruner DW, et al. Sexual Satisfaction and the Importance of Sexual Health to Quality
of Life throughout the Life Course of U.S. Adults. Vol 4. J Sex Med. 325, 342-356 (2016)
78
INDIA CONST. art. 14
79
V.N. Shukla, CONSTITUTION OF INDIA 52 (13 th ed.2017)
80
INDIA CONST. art. 15.

42
‘Law in changing society81’ in which the interview has observed that prohibiting a
particular behavior that the society considers condemnable by criminal law is dependent
on the values of the society and hence copying the ones isn't appropriate. It was stated by
the intervening that people indulging in unnatural sexual activity are more susceptible to
HIV / AIDS. The intervening argued that allowing homosexuality it would run in
contravention to many religions practiced in India and would be violative of “Art.25”

5.1.3. Judgment
The five bench judge of Supreme Court came to the conclusion that “Sec.377” was
unconstitutional insofar as it applies to consensual sexual conduct between adults in
private was unconstitutional overruling the Suresh Kaushal Vs.Naz Foundation82
judgement relying on NALSAVs UOI83. The court held that not recognizing gender
identity of someone will be violative of their dignity as gender identity is “intrinsic” to
personality of a person. the court held that “Sec.377” is an unreasonable restriction to the
“right to freedom of expression” as because sexual intercourse in private “does not in any
way harm public decency or morality” and letting “Sec.377” be on the books of statute
would cause “chilling effect on Art.19(1) a”. “It violates the privacy right under 19 1 a”.
The court confirm that “intimacy between consenting adults of the same sex is beyond
legitimate interest of the state” and the right to equality is violated by anti sodomy laws
as the anti -sodomy targets a part of society. Further, the court relying on its decision in
Shafin Jahan Vs. Ashokan K.M.84 and in Shakti Vahini vs UOI85 affirmed to that adults
right to “choose a life partner of his / her choice’ is an important ingredient of individual
Liberty”.

81
W. FRIEDMAN, LAW IN CHANGING SOCIETYS. (ed. 2nd ) (1972).
82
Suresh Kumar Koushal&Anr v Naz Foundation & Others, (2014) 1 SCC 1.
83
NALSA v. UOI. AIR 2014 SC 1863.
84
Shafin Jahan v. Ashokan K.M. AIR 2018 SC 357.
85
Shakti Vahini v. UOI.AIR 2018 SC 1601.

43
5.2. EFFECT OF NAVTEJ SINGH JOHAR vs UNION OF INDIA
The judgement was a final nail in the coffin and finally homosexuality was allowed but
did this change anything? They [the LGBT] don't have right to marry and adoption and
etc. Is this judgement any good? Has it changed anything? We look at two aspects, first
the legal and second the societal. The reason for looking into societal dimension is “a law
fails if it doesn't change the society”. The basic function of law is to guide behavior of
society. In the words of Bentham “moral or legal laws prescribe how man should
behave86”. This behavior change can be achieved by two methods either by force or just
by people abiding the law because its law. “In a less civilized society there will be great
in need of sanction and in more civilized society, laws will be obeyed by Convection87”.
Thus, change in thinking and awareness is very important for the successful
implementation of law without the desired behavior change law becomes dead letter.

5.3. LEGAL EFFECTS OF NAVTEJ SINGH JOHAR VS UOI CASE

The legal effects of Navtej Singh Johar Vs UOI88 are more than just decriminalizing
homosexuality, with the decriminalization of homosexuality many more things come
attached to it. “Right to equality” ensures that like will be treated likely and unlike be
treated unlikely but with this is also a condition that there can be “no equality in illegal
act89”. Someone can't ask for equal treatment if she or he is doing illegal act.
Homosexuals were criminals in the eyes of the law as homosexuality was illegal but now
since it has become legal and homosexuality is no longer at crime, then homosexual
couple can now ask to be treated equally with the heterosexual couples. This should have
had the effect of equal treatment as that of heterosexual couple. Thus, not providing the
right to marry not recognizing homosexual live-in couples and not providing adoption
rights is discriminating on the homosexual couples. They should be now provided equal
rights with that of heterosexuals. The only argument against that this contention can be
homosexual and heterosexual couple are not alike and hence there is an “intelligential
differentia” here this argument fails on the reasonable classification test because the thing
differentiating a homosexual couple and heterosexual couple is the sex of the partner.

86
PJ FITZERALD, SALMOND ON JURISPRUDENCE, 18 (12 th ed.).
87
PJ FITZERALD, SALMOND ON JURISPRUDENCE, 50 (12 th ed.).
88
Navtej Singh Johar Vs UOI,AIR 2018 SC 4321.
89
Chandigarh ADM v. Jagjit. AIR 1990 SC 2114.

44
“Art.16” prohibits discrimination “only on the basis of sex” Thus the object of
classification is not lawful here. “The object of classification must be lawful90”

5.4. SOCIETAL CHANGE

The discrimination against homosexual couples would not end just by making it legal but
also the society should accept it to only then homosexuality could be the new normal.
The research in pursuance of the effects of decriminalization of homosexuality has
conducted a survey on the awareness about homosexuals. One of the questions that was
asked was “decriminalization of homosexuality more made you more tolerant words
homosexuality?”81.4% of the people agreed that they have become more tolerant than
what they were before the judgment towards homosexuality. Their response is
represented in the form of a pie diagram in figure 1

Fig.1

V.N. SHUKLA. CONSTITUTION OF INDIA 53 (13 th ed.).

90

45
Despite the growing tolerance towards homosexuality still 24% of the respondent feels
that homosexuality is either sin wrong or unnatural.

Fig 2
The above data signifies that there are still people who even though have become more
tolerant than what they were before the judgement but still feel that it is wrong sin or
unnatural out of the respondents who feel that they have turned more tolerance towards
LGBT 12% still feel that it is still wrong unnatural or sin.
The rate of acceptance of LGBT is very high in the respondents but when asked if they
would be comfortable with their family member being gay only 36.5% of the sample
population was comfortable with that. The sample population was asked to rate on a scale
of 0 to 5 on how comfortable they will be if the child of sibling admit he she is gay. Fig.3
records their responses.

46
 Fig.3
out of the respondents who feel that they are more tolerant about LGBT 8.43% would
not be comfortable if there sibling or child turns out to be gay and of these newly turn
more tolerant 36.5% will totally be comfortable with the kid or sibling being homosexual.
In another set of interview the research I interviewed 15 homosexuals. The interviewer
asked the question to the interviewees is “is decriminalization of homosexuality half-
hearted measure by the Indian society?” Their responses are represented in fig.2

47
 Fig.4

5.5. INFERENCE

The researcher found out from the survey conducted that the judgement has been able to
make homosexuality more acceptable so much so that those who became more tolerant
than what they were before decision 82.8% of them are ready to accept homosexuality in
their home with varying degree of acceptance but there's still remains a minority in the
respondents who even though have become more tolerant towards homosexuality but still
feel it's wrong sin or a natural and won't be comfortable at all if their close one turned out
to be homosexual. From the interview the interviewer came to know that homosexuals do
feel happy about decriminalization but too feel that only decriminalization is a half-
hearted measure as allowing only carnal satisfaction without being able to form couple
equating homosexual couples with animals. Most of the animal part their ways after
meeting but Human form bond for life and not providing them such opportunity is taking
away the human dignity.

48
 CHAPTER-6
PROBLEMS AND OBSTACLES IN HOMOSEXUAL LIVE-IN-RELATIONSHIP
“Prima Facia” it appears that the problem of homosexual couples not having the rights
same as heterosexual couple has the roots in homosexual marriages not being recognized.
So, one would say that the problem can be solved by just granting them the right to
marry, then they too have the yardstick with which the court can measure their
relationships and come to the conclusion whether they resemble marriage or not. While
suggesting this simple answer the researcher would like to draw focus on the fact that
marriages have always been between different sexes and thus the resultant is that all the
laws are centered on heterosexual couples, not just in the matrimonial and personal laws
but also at different places. Even after gay marriage being legal many of the laws won’t
recognize husband and husband relationship or wife-wife relationship and it will send all
the work back to square one. Here, the researcher looks at few such laws which will still
be a problem even after gay marriage is recognized.

6.1. MAINTENANCE
We have already seen that a live-in female partner too has, a right to maintenance if the
society sees them as a married couple. But a homosexual couple can’t be seen as a
married couple because marriage for homosexual couple doesn’t exists and thus anyone
perceiving the couple as husband and wife would be termed their imagination gone wild.
One of the interviewee named Pratyush Pani a student of zoology at OUAT,
Bhubaneshwar when asked “how has not having the right to marry and non-recognition
of homosexual live-in couple affected you” replied “there’s always an insecurity about
your relationship that might lead to mental health issue” another interviewee who doesn’t
wish to be named replied to the same question “might be broken in future”. The lack of
recognition and without any repercussion of walking away sure gives the homosexual liv-
in relationship “no strings attached” status and thus there surrounds clouds of mystery
over the future of the relationship. Having right to maintenance guarantees a string
attached status and thus before walking away people still have a little hesitation as they
law obviously changes the perception of people. People are less likely to do anything
which is illegal even though no one is watching.

49
6.2. DOMESTIC VIOLENCE
One of the main reasons of evolution of State and law was that people wanted to feel
safe. There are theories which explain that people surrendered some rights to State in
order for being protection from external aggression. Having a sense of protection and
feeling safe is a pre-requisite for a person to live life peaceful, be healthy and perform at
his best. A person feels most safe when she is at home but sometimes the safest place on
earth too can become the most dangerous place for a person because of presence of a
person in home who is abusive. The most common form of abuse at home is from spouse
or partner and thus as safeguard there is Protection the govt. has provided Prevention of
Women from Domestic violence Act. “Sec 2(f)” of the Act says “RINM”. Thus, here too
the yardstick is marriage. If the live-in relationship resembles a marriage then only it is
covered by the PWDVA otherwise not.
This leaves the homosexuals couples without specific resort unlike heterosexual couples.
An interviewee named Olivia who works as language coach in Vadodara admits “yes, the
idea of domestic violence scares me”. Another interviewee Amar Das who doesn’t wish
to provide any further details admitted he feels afraid of live-in relationship of live-in
relationships now because of his past abusive relationship.

6.3. ADOPTION
Having a child is considered by many to be essential part of family. But many people
can’t have their own biological child and hence they go for adoption.
Child adoption is regulated by CARA, a statutory body under “Ministry of Women and
Child Development, GOI”. It is the nodal for adoption of Indian children. “Adoption
Regulation,2017” Sec.5 lays the criterions for PAP. As per this Sec. anyone irrespective
of marital status can adopt a child. This provision makes adoptive parent a single parent.
The Sec. provides for couple adoption as well, condition being that the couple has two
years of stable marital relationship. Couple who are in live-in but fulfil the criteria for
being in a de facto marriage are eligible. Thus, here too the yardstick is marriage and
therefore the homosexual couples will be ineligible to adopt. They can however adopt
child as an individual but that would mean the other person won’t have any rights on the
child and neither any legal liabilities. Olivia who works in Vadodara, GJ as language
coach mentions “I want to see hope for a normal family life” when asked about adoption.

50
Sanket Sveronic too says “If we adopt a kid, he still can’t see us as a couple because
legally there is nothing as that” Another interviewee who wishes not to be named and is a
student from Pune, MH currently studying in Ireland too has this fear that she won’t be
able to have a family life, her exact words were “The court talks about human dignity as
you say but not providing thee right to live as normal family to a considerable portion of
population isn’t it derogatory to human dignity”
There are many other places where the same kind of problems will be there as in
maintenance, domestic violence and adoption but the researcher doesn’t want to go at
length describing them all because that will be a futile toil as there are numerous laws
which have the same problems. All the personal laws will fall in this category. Property
laws too fall in this category.

51
 CHAPTER- 7
CONCLUSION AND SUGGESTIONS

7.1. CONCLUSION
Live-in relationships are taboo still now and that’s the reason people are still not aware
whether it is legal or not. Due to the social condemnation people take it that its illegal or
are not sure what is the legal status of live-in relationship. Live-in relationships are totally
legal and there is no law prohibiting it. This is well established that live-in relationship
isn’t a crime but another question arises whether it is recognized by law or not? Live-in
relationship is recognized by the law but there is a condition: they should resemble
marriage. Hence, there are two kinds of live-in relationship one which is like marriage
and the other which isn’t like marriage. The SC has given a condition in Indira Sarma
case which when satisfied make live-in relationship like marriage. Thus, marriage has
become the yardstick for live-in relationships. The court has taken the view “marriage
like relationships deserve marriage like rights” and the ones which don’t resemble
marriage are “walk-in, walk-out” relationship and are devoid of marriage like rights.
Making marriage the yardstick and reference has resulted in homosexual relationships
being devoid of marriage like rights because marriage for them doesn’t exist. Thus, they
can never claim maintenance or inheritance etc. This is violative of fundamental rights of
homosexuals as there is no intelligible differentia between homosexual couples and
heterosexual couples. The only way in which they differ is sex of their partners and
Art.15 prohibits discrimination only on the basis of sex. Further, Navtej Singh Judgment
is an appreciable first step by Indian society but now we need to look beyond it. This
judgment merely makes having sex legal but nothing beyond that. This takes away the
essence of humanity from the homosexuals. The needs of animals are limited, mainly
restricted to food, shelter and sex but humans are an advanced species and their needs are
not limited to the three. This is very well illustrated by Moslow’s “Hierarchy of Needs”.
He has depicted the needs in form of a pyramid. A human tries to go up the pyramid but
for that s/he needs to go step by step and thus the more basic needs need to be fulfilled
before advancing to higher needs. The court has done its part in enabling the
homosexuals to fulfil their physiological needs but after that they will need to advance to

52
higher needs i.e. security and safety and not having legal recognition to their relationship
is a big roadblock in that. Without feeling safe that they won’t be abused in a
relationship, without having the assurance that even if they split, there will be
maintenance they can’t even fulfill their basic needs of safety. Then they have
physiological need of being loved. Not having a legal recognition is a roadblock here too.

”
Fig.4

Source: Simply Psychology.

In the above figure, a pyramid showing the basic rights of humans is demonstrated. In
short not having these rights to form a human relationship is equating these homosexuals
with animals. This takes away their right to live with “human dignity” and makes them
live a life of “mere animal existence”. Just as animals live for the next moment without
any prospect of future, they too have to live the same life where nothing is sure of their
future and two people are just together for carnal needs just as animals. Just as animals
move away after mating the other person may move away without any repercussion.

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It seems that making homosexual marriages a legal reality is the answer to all the
problems of the homosexual couples. With bringing homosexual marriage into existence
they too would have a yardstick with which their live-in relationship would be compared.
The solution to the problem is not so simple. Heterosexual marriage was the only kind of
marriage the world has known for a long time and for India homosexuality is a new
concept. All the laws have evolved around heterosexual marriage and thus have always
considered husband and wife. When the laws were made there was no “husband-
husband” or “wife-wife” relations so no laws were made keeping such relationships in
mind. Thus, even if gay marriages are recognized by the law then too there will be many
laws which won’t be recognizing such relationships, such as maintenance, Domestic
violence laws, personal laws etc.

7.2. SUGGESTIONS
The live-in relationships though are recognized by the law but there is no consolidated
law for live-in relationship thus every time to enforce their rights the couples will have to
go to courts. Enforcement of right if made so difficult is actually violation of rights.
When the rights are already mentioned explicitly the chances of their violation is less
compared to when they are not mentioned explicitly. Therefore, there should be a law
which recognizes live-in relationship and says that it is legal and mentions that what
rights they have. There need not be any new for this purpose. An amendment in “The
Special Marriage Provision Act” to recognize live-in relationship will be the best
solution. Just penning down that what kind of live-in relationship will make a relationship
“resembling marriage” will solve the problem. One may argue that already many
judgments have been there on deciding what constitutes a live-in relationship
“resembling marriage” but for a layman to know his/her rights through judicial decisions
is beyond the legitimate expectation.

The problem with homosexual couples is more complex. Only by making laws which
recognize homosexual unions or recognize homosexual marriage will not suffice as the
whole concept of rights emancipating from marriage or likewise union is centered on
wife and husband and thus this won’t qualify them for many of the rights as maintenance
or protection from domestic violence. The personal laws too won’t recognize such a

54
relationship. Thus, there need to be a change at whole new level to accommodate the new
change in society. The world is changing and equality between the two genders is one of
the main aims of our constitution. It is no longer the world where men worked and
women stayed back at home. When we talk about equality we already as a society assume
that to bring equality between sexes, women must be empowered and protected and often
forget about the other gender. There are men as well who suffer domestic violence, there
are men as well who want to be house-husband, who are dependent on their wife. But the
law refuses to admit that men too can be at the other end of exploitation. This is the
resultant of toxic patriarchal mentality of the country. This toxic masculinity has not only
harmed females but males as well and males don’t have any resort as well. The need of
the hour is for more and more gender-neutral laws and this only this can bring in more
gender equality and moreover, it will benefit the homosexual couples as well. If the laws
are made gender neutral then irrespective of what is the sex of the partner a person can
seek remedy when their rights get violated or ascertain their rights. This will require to
amend many laws such property, CrPc, PWDVA etc. With the changing society it is need
of the hour and it serves dual purpose.

55
BIBLIOGRAPHY

Books

JOHN STUART, ON LIBERTY 1998, Penguin Books

P.J. FITZGERALD, SALMOND ON JURISPRUDENCE 12th ed.2012, Universal Law

Publishing

A.V. DICEY, INTRODUCTION OF STUDY OF LAW OF THE CONSTITUTION 10th

ed, Macmillan Publishers.

M.P. JAIN, THE CONSTITUTION OF INDIA 8th ed 2018, LexisNexis

V.N. SHUKLA, CONSTITUTION OF INDIA 13th ed.2017, Eastern Book Company

FRIEDMAN, LAW IN CHANGING SOCIETY 2nd ed. 1972, Penguin Books

Journals
Shaharam Dana, Beyond Retroactivity to Realizing Justice: The Principle of Legality in
International Law Sentencing, Vol 99.JCLC, 857, 865-867 (2009)

Flynn KE, Lin L, Bruner DW, et al, Satisfaction and the Importance of Sexual Health to
Quality of Life Throughout the Life Course of U.S. Adults. Vol 4. J Sex Med. 325, 342-
356 (2016).

Internet Sources

Alakananda Bhattacharya, Gandharva Marriage- Ancient, Modern or Both? Know All

About the Unique Indian Marriage Tradition, available at
https://www.weddingwire.in/wedding-tips/gandharva-marriage--c2845.

Anuradha Parasar, Homosexuality In India – The Invisible Conflict, Delhi High Court
Library,http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexual
ity%20in%20India%20-%20The%20invisible%20conflict.pdf.

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Anonymous, Homosexuality in India Overview, available at
https://shodhganga.inflibnet.ac.in/bitstream/10603/245237/8/08%20chapter%202%20pdf.
pdf.

Anonymous, Nonexistence of Faith, American Atheists, available at

https://www.atheists.org/ (last visited on 14 Aug).

Newspaper Articles

William Bennet, Stronger Families Stronger Society, NY Times, April 24, 2004.
2001 Census of Religion.

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