Maitri Sambandh, Live-in Relationships and the Divided Home

The unifying point for an answer is that both concepts describe relationships the law of marriage does not reach, and both are picked up, imperfectly and only for women, by the 2005 Act.

The bridge: "relationship in the nature of marriage"

Section 2(f) of the Protection of Women from Domestic Violence Act 2005 defines a domestic relationship as a relationship between two persons who live or have at any point of time lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption, or are family members living together as a joint family.

Those seven words are the only doorway the law offers to a relationship that is not a marriage. Everything turns on how wide they are, and the Supreme Court has answered that twice.

D. Velusamy: the four conditions

D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479, decided on 21 October 2010.

Facts. A maintenance claim in which the courts below had declared the appellant married to the respondent woman, notwithstanding that another woman, Lakshmi, claimed to be his wife. Lakshmi had never been made a party and had never been given notice.

Held. Two things. On procedure, any declaration about Lakshmi's marital status made without hearing her was null and void as violating natural justice; and if no such declaration could be made, neither could the declaration that the appellant was validly married to the respondent, because if Lakshmi was his wife he could not have married again without divorcing her.

On substance, a relationship in the nature of marriage under the 2005 Act is akin to a common law marriage, and requires that the couple, though not formally married:

(a) hold themselves out to society as being akin to spouses; (b) be of legal age to marry; (c) be otherwise qualified to enter into a legal marriage, including being unmarried; and (d) have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In addition, the parties must have lived together in a shared household as defined in section 2(s). Merely spending weekends together, or a one night stand, does not make a domestic relationship.

The Court went further and said that not all live-in relationships amount to a relationship in the nature of marriage. A woman whom a man maintains financially and uses mainly for a sexual purpose, or as a servant, is not in one. It acknowledged frankly that this view excludes many women who have had a live-in relationship from the benefit of the Act, but held that Parliament had used the words "relationship in the nature of marriage" and not "live in relationship", and that a court cannot change the language of a statute in the guise of interpretation.

Why it matters here. Condition (c) is the one that decides cases and it is the one that catches maitri sambandh. If the man is already married, the couple are not otherwise qualified to enter into a legal marriage, so the relationship is not in the nature of marriage, so it is not a domestic relationship, so the Act does not apply. A maitri sambandh entered into by a married man therefore gives the woman nothing at all.

Indra Sarma: the test applied, and its cost

Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755, decided on 26 November 2013.

Facts. The appellant had lived with the respondent for many years, knowing throughout that he was married and that his wife and children opposed the relationship. She claimed relief under the Domestic Violence Act.

Held. The appeal was dismissed. Having been fully aware that the respondent was a married person, the appellant could not have entered into a live-in relationship in the nature of marriage. All live-in relationships are not relationships in the nature of marriage; this one had no inherent or essential characteristic of a marriage; the appellant's status was lower than the status of a wife; and the relationship therefore fell outside section 2(f), so that nothing the respondent did in connection with it could be domestic violence under section 3. To hold otherwise, the Court said, would do an injustice to the legally wedded wife and children, who had opposed the relationship. Ordering maintenance would be at their cost.

The Court set out five illustrative categories for testing section 2(f), which turn on whether each party was married and, where the man was married, on whether the woman knew:

• an unmarried adult woman with an unmarried adult male, which falls within section 2(f);
• an unmarried woman with a married adult male, knowingly;
• a married adult woman with an unmarried adult male, knowingly;
• an unmarried woman who unknowingly enters a relationship with a married male, which may in a given situation fall within section 2(f); and
• a relationship between partners of the same sex.

Why it matters here. It shows how the Velusamy test works on the commonest facts, and it is unusually candid about the consequence. The Court found the appellant to be a mistress in distress, said that the position of such women, and of the children born of such relationships, is a matter of serious concern, especially where they are poor and illiterate, and called for remedial measures by Parliament through proper legislation. Parliament has not legislated.

How to write the answer

MU can ask this either as a one-sentence question or as a short note, and the shape is the same.

Start with what the concepts are. Maitri sambandh is a written friendship arrangement, associated with Gujarat, by which a man and a woman agree to live together while he remains married to another. A divided home is a household broken in fact but not in law.

State the legal position flatly. Neither is a marriage. Neither creates the status of husband and wife. Neither confers maintenance as a spouse, succession, or legitimacy as the children of a marriage.

Then give the one route in. Section 2(f) of the 2005 Act reaches a relationship in the nature of marriage, and Velusamy gives the four conditions plus a shared household.

Then close it again where it closes. Because condition (c) requires that the parties be qualified to marry, including being unmarried, a maitri sambandh with a married man fails the test, as Indra Sarma holds; and the Court itself said the remedy for that must come from Parliament.

If there is room, say what the pattern shows. The law has moved from refusing to notice these relationships at all to protecting the women in some of them from violence. It has not moved to giving any of them the economic consequences of marriage. That gap is what MU means by calling these concepts "emerging".

A worked example

Two households. In the first, Jayesh and Rekha sign a written maitri sambandh; Jayesh is married to somebody else and Rekha knows it. In the second, Kiran and Sneha, both unmarried and both over twenty-one, have lived together for eight years, introduced each other as husband and wife, and share a household. Both women are turned out.

Is either a marriage? Neither. A maitri sambandh is an agreement, not a marriage; it creates no status, and neither party becomes a spouse.

Can Rekha claim maintenance as a wife? No, because there is no marriage.

Can she claim under the Domestic Violence Act? The doorway is section 2(f), a relationship "in the nature of marriage", and the test is in D. Velusamy v. D. Patchaiammal: the parties must hold themselves out as spouses, be of legal age to marry, be otherwise qualified to enter a legal marriage, including being unmarried, have voluntarily cohabited for a significant period, and have lived in a shared household. Jayesh was married, so the relationship fails the third requirement.

Is that the end of it for her? On Indra Sarma v. V. K. V. Sarma it is: a woman who entered such a relationship knowing the man was married is outside the Act. The Court described her as a mistress in distress and left the remedy to Parliament.

And Sneha? She satisfies every requirement in Velusamy, so hers is a relationship in the nature of marriage and the reliefs of the Act are open to her: a protection order, a residence order, monetary relief, custody and compensation.

Does that make her Kiran's wife? No. The Act gives her its own reliefs; it confers no matrimonial status, and she inherits nothing from him as a widow would.

What it does NOT mean

A maitri sambandh is not a marriage. It is an agreement, and it creates no status; neither party becomes a spouse.

It does not confer maintenance or succession rights. No provision of the Hindu Marriage Act or the Hindu Succession Act attaches to it.

A divided home is not a legal category. It describes a household the law of marriage does not reach.

"Relationship in the nature of marriage" is not every live-in relationship. On Velusamy the parties must hold themselves out as spouses, be of legal age, be otherwise qualified to marry, including being unmarried, have voluntarily cohabited for a significant period, and have lived in a shared household.

A woman who knows her partner is married is not within it. Indra Sarma holds so, and describes her as a mistress in distress, asking Parliament to act.

The Domestic Violence Act does not make such a relationship a marriage. It gives the reliefs of that Act to a woman who satisfies section 2(f); it confers no matrimonial status.

Quick revision

• Maitri sambandh: an agreement by which a man and a woman agree to live as friends; it is not a marriage and creates no status, no maintenance and no succession.
• The divided home: a household the law of marriage does not reach, so the parties fall outside the matrimonial statutes.
• The doorway: s.2(f) of the Protection of Women from Domestic Violence Act 2005, which covers a relationship "in the nature of marriage".
• D. Velusamy v. D. Patchaiammal: the parties must hold themselves out to society as spouses; be of legal age to marry; be otherwise qualified to enter a legal marriage, including being unmarried; have voluntarily cohabited and held themselves out to the world as spouses for a significant period; and have lived in a shared household.
• Indra Sarma v. V. K. V. Sarma: a woman who entered the relationship knowing the man was married is outside the Act; the Court called her a mistress in distress and left the remedy to Parliament.

Test yourself

1. What is maitri sambandh, and what is its legal effect? An arrangement, found chiefly in parts of Gujarat, by which a man and a woman agree in writing to live together as friends. It is an agreement and not a marriage; it creates no matrimonial status, and neither party acquires the rights of a spouse to maintenance or succession.

2. Which statutory provision may reach such a household? Section 2(f) of the Protection of Women from Domestic Violence Act 2005, which defines a domestic relationship to include a relationship in the nature of marriage.

3. What must be shown for a relationship in the nature of marriage? On D. Velusamy v. D. Patchaiammal, that the couple held themselves out to society as being akin to spouses; that they were of legal age to marry; that they were otherwise qualified to enter into a legal marriage, including being unmarried; and that they voluntarily cohabited and held themselves out to the world as spouses for a significant period of time, in a shared household.

4. Is a woman who knew her partner was married protected? On Indra Sarma v. V. K. V. Sarma she is not: such a relationship is not one in the nature of marriage for the purposes of the Act, and the Court, describing her as a mistress in distress, left it to Parliament to provide a remedy.