CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

FAMILY LAW – I
PROJECT ON

ETHICAL ASPECTS OF LIVE IN RELATIONSHIP

AND GAY MARRIAGE & ITS LEGAL ACCEPTANCE

SUBMITTED BY SUBMITTED TO

DIKSHA PRASAD DR. MANI PRATAP

E. No. -CUSB2013125041 ASSISTANT PROFESSOR
B.A LL. B (2020-25) SCHOOL OF LAW AND GOVERNANCE
SECTION- A
4th SEMESTER

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude
to our Family law professor Dr. Mani Pratap, who
gave me the opportunity to do this knowledgeable
assignment on a “Ethical aspects of live in relationship and gay marriage & its
legal acceptance”
which also helped me in doing a lot of
Research and I came to know about so many things.
Secondly, I would also like to thank my parents and a
friend who helped me a lot in finalizing this
assignment.

Thank You
Diksha Prasad
CUSB2013125041

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CONTENTS Page No.
 Title Page 1
 Acknowledgement 2
 Contents 3
 Introduction 4
 Live-in-relationship 5
 Legal Provision 5
 Maintenance 5
 Same sex marriages 6
 Present legal status of same sex marriage in India 6
 Conclusion 7
 Bibliography 8

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 INTRODUCTION

We are living in the fastest growing world where the changes happen every now and then. The
debate over same-sex marriage is one that most of us have heard about and about which we
have strong feelings. "Marriage is a basic human right," said Dr. Martin Luther King Jr. People
can't be told they can't fall in love." While this was expressed in the context of inter-racial
marriage, the same can be said about homosexuals. All men were born free and equal in nature.
Individuality comes before society. A web of social interactions makes up society. Social
interactions and processes are included in social relationships. A social change is a living
arrangement in which an unmarried couple lives together in a long-term relationship that
resembles marriage. The definition of live in relationship is ‘an arrangement of living in which
the couples who are unmarried live together to conduct a long- going relationship similarly as
in marriage.’ Often marriage is considered as sanction for couples to live together but with
changing times this norm is not usually followed specially with the cosmopolitan population
who are always eager to question the established social norms. The greatest question is whether
the society would admit such change or not.

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 LIVE-IN-RELATIONSHIP
In India, live-in relationships are a relatively recent notion. These relationships have become
more mainstream as times and people's attitudes have changed. The number of such
relationships is steadily increasing. In India, marriage is seen as a sacramental institution.
Between two individuals the concept of husband, wife, and family is still highly valued. Many
communities around the country are affected. In India, live-in relationships are not illegal,
although they are frowned upon. ‘It is not acceptable in society, and it is regarded immoral,
“When two adults wish to live together, what is the crime as a whole? Is it considered a crime?
It cannot be an offence, a three-judge bench of Hon'ble Supreme court of India said that there
is no special law in India to deal with the concept of live-in relationships and its legality1. But
the Indian courts through various decisions, have laid down the law in respect of such
relationships in certain aspects.

LEGAL PROVISIONS
The law traditionally has been biased in favour of marriage. Public policy supports marriage
as necessary for the establishment of a family, the basic societal unit. To preserve and
encourage marriage, the law reserves many rights and privileges to married persons.
Cohabitation carries none of those rights and privileges The Privy Council laid down the
principle that "Where a man and a woman are proved to have lived together as a man and wife,
the law will presume, unless the contrary be clearly proved, that they were living together in
consequence of a valid marriage and not in a state of adultery2.

MAINTENANCE
The wife and several other relatives are entitled to maintenance under Section 125 of the
Criminal Procedure Code. The term 'wife' is defined as a woman who has been divorced by her
husband or has obtained a divorce from him and has not remarried. It is not essential for a
woman to prove her marriage to be entitled to maintenance under section 125 of the Cr.P.C.
This provision also allows a woman in a relationship to claim maintenance. If a man and
woman live together for a long time, they will be treated as a married couple, and their child
will be considered legitimate3. A kid born out of a live-in relationship is not entitled to an
inheritance in Hindu ancestral coparcenary’s property; instead, the child can only claim a share
of the parents' self-acquired property.
The Indian Penal Code, Section 375, defines six scenarios that constitute for rape. Three of
them deal with consent, two with 'misconception,' and one with the legal age restriction. When
a guy is arrested for rape, police use Section 417 and Section 376. Section 417 deals with the
penalty for cheating, and it specifies a maximum sentence of one year in prison, with or without
a fine. If the alleged rape lasted more than a few days, weeks, or months, it might be considered
cheating or a breach of trust. At the same time, the foregoing complaints arising from live-in
relationships lead to false complaints, break-ups, and unsuccessful live-in partnerships when
the relationship goes sour.

1
S. Khushboo v. Kanniammal & Anr., (2010) 5 SCC 600
2
Dinohamy v. WL Blahamyfoot, AIR 1927 P.C 185
3
Radhika v. State of Madhya Pradesh, 2011 (10) SCC 705

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 SAME-SEX MARRIAGES
As we, the largest democracy in the world, are constantly debating for legalising gay marriages
and same sex relationships, it is really necessary to introspect ourselves first before legalising
same sex marriages. It’s very unfortunate that we are still very far from legalising same sex
marriages. The problem isn’t with our judiciary, leaving few decisions (including Section 377)
our judiciary, by far; India’s most forward-looking institution. We as a society are simply, if
not distressingly, far from ready to legalise gay marriage. Our judiciary is a very intellectual
organisation. If it has passed a nationwide legislation for legalising same sex marriages, it
knows it very well that there will be far more criticism than support. The Supreme Court also
knows that Parliament will throw a tantrum like it always does on sensitive issues.
Homosexuality is mentioned in the Manu smriti, which tells us about Hindu norms of conduct,
although the consequences are minor, as seen in Arthashastra. For example, sexual “A woman
who is not a virgin" reads as "a woman who is not a virgin" in a relationship between an old
woman (not a virgin) and a young virgin girl. Pollutes A damsel (virgin) must have (her head)
shaved or have two fingers cut off right away. I was forced to ride a donkey into town."

PRESENT LEGAL STATUS OF SAME SEX MARRIAGE IN INDIA

According to Section 377 of the Penal Code it is an offence for a person to voluntarily have
carnal intercourse against the order of nature. While views for this section were rare until 2009
but due to a sudden increase in human right groups and an increasing number of LGBT groups,
the law was taken as harassment for HIV/AIDS prevention activists, sex workers, gay men and
other LGBT groups. Even The Law Commission of India favoured the retention of this section
but in its 172nd report, delivered in 2000 it recommended its repeal, as did the then Health
Minister, Anbumani Ramadoss. The Naz Foundation an NGO is at the forefront of the
campaign to decriminalise homosexuality. Section 377 criminalises same sex sexual behaviour
irrespective of the age and consent of the people involved, posing one of the most significant
challenges in effective HIV/AIDS interventions with sexual minorities. In the year 2001, a law
suit was filed in the Delhi High Court, asking for a legislation of homosexual intercourse
between consenting adults. The Court however refused to entertain their petition as it said the
petitioner had no locus stand in the matter. On further appeal to the Supreme Court, the SC
held that Naz Foundation had the locus standi to file a Public Interest Litigation in this matter
and the case was sent back to the Delhi High Court. and to “read down” section 377 to exclude
adult consensual sex from within its purview. In December 2002 Naz India filed public interest
litigation (PIL) to challenge Section 377 IPC in the Delhi High Court. On 2-7-2009, the High
Court of Delhi struck down much of Section 377 IPC as being unconstitutional. The Court held
that to the extent Section 377 criminalised consensual non-vaginal sexual acts between adults;
it violated an individual fundamental right to equality before the law, freedom from
discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution
of India. The High Court did not strike down Section 377 completely it held the section was
valid to the extent it related to non-consensual nonvaginal intercourse or to intercourse with
minors and it expressed the hope that Parliament would soon legislatively address the issue.
But subsequently the Supreme Court on 11thDecember, 2013, reversed the decision and
validated provisions of Section 377 which was taken as heavy blow to equal rights.

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 CONCLUSION

As stated by Aristotle "Man perfected by society is the best of all animals; he is the most terrible
of all when he lives without law and without justice" A statute should attempt to provide
sanctions for rape and sexual assault in grounds of morality. Our politicians should be clear in
their minds that the law's legitimate duty in this country is to protect vulnerable members of
society, not to enforce a moral code.
Article 21 of India's Constitution guarantees all citizens the "right to life and personal liberty,"
which means that they are free to live their lives as they see fit without infringing on the rights
of others. There is currently no law that addresses the concept of live-in partnerships or that
penalises same-sex marriages. Even in the lack of particular legislation, our judicial system can
help. The court does not want to bear sole responsibility because if Section 377 of the IPC is
struck down, many social institutions would oppose it, and the sensibilities of some parts of
the population will be seriously damaged. The repeal of Section 377 is a first step toward
decriminalisation, but it is insufficient. The only way to truly decriminalise homosexuality is
to grant it legal protection. The institution of marriage can be used to decriminalise
homosexuality in its genuine sense. As a result, it is the responsibility of the legislature, not the
courts, to enact more radical legislation in order to strike a balance between the social interests
of the majority of people.
In the Indian context, there is a pressing need to legitimise such relationships through
legislation, which would then provide the parties with rights and obligations, thereby defining
the relationship's legal status. Because current legislation is only in the form of court
judgements, and the current law is not particularly clear on maintenance, succession, child
rights, and custody, the newly evolved societal change requires specific legislation. There is no
legal safeguard in place to protect the future of a child born from a relationship that isn't a
marriage. Because the partners' rights, responsibilities, and obligations are not established, the
sour relationship ends in victimisation.

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 BIBLIOGRAPHY

1) Diwan, Paras, Modern Hindu Law, Universal Law Publishing Co., New Delhi, 2002

2) https://Legalseviceindia.com
3) https://Scconline.com/blog/post
4) IP LEADERS