Recent Trends in the institution of marriage
Live-in relationships, choice of spouse, inter-caste marriage and same-sex marriage
In one minute
The Hindu Marriage Act was not drafted with live-in couples, inter-caste elopements or same-sex couples in mind. Courts have built answers for each. Long open cohabitation raises a presumption of marriage. Adults have a constitutional right to choose a spouse. Live-in partners get limited protection under the Domestic Violence Act.
On same-sex marriage, the Supreme Court in Supriyo held that there is no unqualified fundamental right to marry and left the issue to Parliament.
Exam focus
- Frequency: No data
- Usually asked as: No data
Legal provision
- Articles 19 and 21, Constitution: they protect the freedom to choose a life partner, as held in Lata Singh and Shakti Vahini.
- Section 2(f), Protection of Women from Domestic Violence Act, 2005: "domestic relationship" covers persons who live together in a household when they are related by marriage or "in the nature of marriage".
- Sections 5 and 7, Hindu Marriage Act, 1955: they still decide who can marry under the Act and how.
- Special Marriage Act, 1954: it allows civil marriage across religion and caste.
Meaning and definition
Recent trends are the changes made by courts and legislators to fit marriage law to present society. Four fronts matter in this subject.
- Recent trends in marriage
- Presumption of marriageLong open cohabitation: Badri Prasad.
- Live-in relationshipsDomestic Violence Act test: Velusamy and Indra Sarma.
- Right to chooseLata Singh, Shakti Vahini, Shafin Jahan.
- Same-sex marriageSupriyo: left to Parliament.
Detailed explanation
Step 1: presumption from long cohabitation
If a man and woman live together openly as husband and wife for a long time, the law presumes that they are validly married. The presumption can be rebutted by strong evidence. In Badri Prasad the Supreme Court applied it to a couple who lived together for about fifty years. Such a presumption is rebuttable.
Step 2: live-in relationships
The Domestic Violence Act protects women in a "relationship in the nature of marriage". In D. Velusamy the Supreme Court gave a four-part test. The couple must hold themselves out as spouses. Both must be of legal age to marry. Both must otherwise qualify to marry, including being unmarried. They must have lived together voluntarily for a significant period.
In Indra Sarma the Court refined the test with guidelines such as duration, shared household and pooling of resources. It held that a woman who knowingly lives with a married man is not covered, and asked Parliament to legislate for such women and children.
Example. Anand and Divya, both unmarried adults, live together in Hyderabad for eight years and tell everyone they are husband and wife. Divya can seek protection under the Domestic Violence Act as a woman in a relationship in the nature of marriage.
In Chanmuniya a two-Judge Bench favoured a broad meaning of "wife" in section 125 of the Code of Criminal Procedure. It referred the question to a larger Bench, because earlier two-Judge decisions bound it.
Step 3: the right to choose a spouse
Adults may marry whom they choose. In Lata Singh the Court held that inter-caste marriage is not barred by the Hindu Marriage Act or any other law, and directed protection for such couples. In Shakti Vahini the Court held that the right to choose a spouse falls under Articles 19 and 21. Khap panchayats (caste assemblies) have no authority over it. The Court issued preventive, remedial and punitive directions. In Shafin Jahan the Court held that habeas corpus ends once an adult says she is not illegally confined. It held that parens patriae does not allow a court to annul an adult's marriage.
Step 4: same-sex marriage
In Supriyo a five-Judge Bench heard 20 connected petitions. All five Judges agreed that there is no unqualified fundamental right to marry. All five Judges agreed that the Special Marriage Act cannot be read to include same-sex couples. By a 3 to 2 majority the Court declined to order civil unions or joint adoption rights. All five agreed that transgender persons in heterosexual relationships can already marry. The Court left the wider questions to Parliament.
Exceptions and special rules
- Limited protection: the Domestic Violence Act gives a remedy to the woman. It does not declare a marriage for all purposes.
- Presumption is rebuttable: evidence that no marriage took place defeats it.
- Adults only: the right to choose belongs to adults of sound mind.
Don't confuse: marriage, live-in relationship and relationship in the nature of marriage
| Point | Marriage | Relationship in the nature of marriage | Other live-in relationship |
|---|---|---|---|
| Rites | Required (section 7) | Not required | Not required |
| Both free to marry | Required (section 5) | Required | Not met |
| Protection | Full matrimonial remedies | Domestic Violence Act reliefs | Not covered under that Act |
Inside the concept. Two unmarried adults live together for years as a couple. They fit the Velusamy test and Divya has a Domestic Violence Act remedy.
Just outside it. A man with a living wife lives with another woman who knows of the marriage. This is not a relationship in the nature of marriage.
Common mistakes
- Saying that live-in couples are married in law. They are not unless a marriage is proved or presumed.
- Saying that Supriyo recognised same-sex marriage. It did not.
- Forgetting that Supriyo was unanimous on no fundamental right to marry, and split 3 to 2 on civil unions and adoption.
- Mixing the two Domestic Violence Act cases. Velusamy gave the four-part test, and Indra Sarma added guidelines.
Apply it
Problem
Kamal, an adult Hindu, marries Rukhsar, an adult Muslim, in Hyderabad. Her brothers threaten them and file a false kidnapping case. What can the couple rely on?
Issue
Do adults have a protected right to marry across religion?
Rule
The right to choose a spouse is protected under Articles 19 and 21. The Court has issued binding directions to protect couples from harassment and violence.
Application
The couple are adults who married by choice. Their families cannot lawfully threaten them, and the police must protect them.
Conclusion
The couple can seek protection and quashing of the false case, following Lata Singh and Shakti Vahini.
Leading case laws
- Badri Prasad v. Deputy Director of Consolidation
Facts. A man and woman lived together as husband and wife for about fifty years. Their marriage was challenged.
Principle. Long open cohabitation raises a strong rebuttable presumption of marriage.
Why it matters. It protects long-term couples who cannot prove a ceremony.
- D. Velusamy v. D. Patchaiammal
Facts. A woman sought maintenance as the appellant's wife. He said he was already married to another woman.
Principle. The Court laid down a four-condition test for when a live-in relationship is marriage-like under the Domestic Violence Act.
Why it matters. It is the first test for such relationships.
- Indra Sarma v. V.K.V. Sarma
Facts. An unmarried woman lived with a married man for years and he left her without maintenance.
Principle. Not every live-in relationship is in the nature of marriage. A woman who knowingly lives with a married man is outside the Act. The Court gave eight guidelines.
Why it matters. It expanded the Velusamy test and asked Parliament to legislate.
- Chanmuniya v. Virendra Kumar Singh Kushwaha
Facts. A widow said she was married by Katha and Sindur to her husband's younger brother. The High Court held the essentials were not performed.
Principle. The Bench favoured a broad meaning of wife but referred three questions to a larger Bench.
Why it matters. It is a reference order, not a final ruling.
- Lata Singh v. State of Uttar Pradesh
Facts. Lata Singh, a major, married outside her caste. Her brothers had the husband's family falsely accused of kidnapping.
Principle. No offence was committed. An adult can marry anyone, and inter-caste marriage is not barred.
Why it matters. It started the protection of the right to choose.
- Shakti Vahini v. Union of India
Facts. An NGO asked the Court to stop honour killings and khap interference with consenting adults' marriages.
Principle. The right to choose a spouse falls under Articles 19 and 21. Khap panchayats have no authority. The Court issued preventive, remedial and punitive directions.
Why it matters. It gave binding guidelines against honour crimes.
- Shafin Jahan v. Asokan K.M.
Facts. An adult woman converted to Islam and married a man of her choice. The High Court annulled the marriage on her father's habeas corpus petition.
Principle. Habeas corpus ends once the adult says she is not illegally confined. Parens patriae does not apply to an adult with capacity.
Why it matters. It protects an adult's choice of faith and spouse from judicial overreach.
- Supriyo @ Supriya Chakraborty v. Union of India
Facts. Fifty-two petitioners in 20 connected cases sought recognition of a right for same-sex couples to marry.
Principle. No unqualified fundamental right to marry. All five Judges agreed that the Special Marriage Act cannot be read to include same-sex couples. By a 3 to 2 majority the Court declined to order civil unions or joint adoption.
Why it matters. It marks the limit of judicial power on marriage reform.
How to write this answer in the exam
5-mark answer
- Four fronts in one line each.
- Presumption: Badri Prasad.
- Right to choose: Lata Singh.
- Same-sex marriage: Supriyo.
10-mark answer
- Why the 1955 Act needed support from courts.
- Presumption of marriage and live-in relationships.
- Velusamy, Indra Sarma and the Domestic Violence Act.
- Right to choose: Lata Singh, Shakti Vahini, Shafin Jahan.
- Supriyo and its 3 to 2 split.
- Present position and gaps.
Key points to remember
- Long open cohabitation raises a rebuttable presumption of marriage (Badri Prasad).
- Velusamy: four-part test for a relationship in the nature of marriage.
- Indra Sarma: a married man's partner who knows of his marriage is outside the Act.
- Right to choose a spouse is protected by Articles 19 and 21.
- Supriyo: no unqualified right to marry; same-sex recognition left to Parliament.
Quick self-test
1. Which case gave the four-part test for live-in relationships?
D. Velusamy v. D. Patchaiammal.
2. Does Hindu law recognise same-sex marriage after Supriyo?
No. The Court left it to Parliament.
3. Which Articles protect the right to choose a spouse?
Articles 19 and 21.