Legislative comment on the need for laws to regulate prolonged sexual relationship

This paper will deal with the recent notice sent by the Honourable Supreme court to the
legislature asking if prolonged consensual sexual relationship could be treated as a de-facto
marriage. This paper will deal with the existing laws with regard to consensual sex, live in
relationship and marriage. In India live in relationships are treated as de-facto marriages and
hence the husband/male member is asked to pay compensation on the break of the relationship.
There is a vast difference between live in relationships and consensual intercourse. In the former
the two parties share the residence and chores just like that of a marriage, whereas the latter it is
only a satisfaction of physical needs of both individuals consensually. They do not live together
or share any work and maybe not even feelings. This is further elaborated below in the paper.
This paper also elucidates as to various legislations already made in this regard or at least similar
to it, both in India and common law where it is a practice not to allow compensation for
consensual sex relationships. It also talks as to why the courts cannot bring in a mere
presumption of law in this regard. The inability of the legislature to prosecute a person in the
criminal law has called upon such unreasonable attempt to taint he activity with civil liability.
Further is elaborated in this paper.

The recent developments in the case of Aloka Kumar vs State Karnatka and Ors, the Supreme
Court of India has sent a notice to the government, questioning as to why prolonged and
consensual sexual relationship between two individuals cannot be treated as a De Facto marriage,
and scope of the legislature to make a law stating so. A criminal liability cannot be given to the
person in this regard hence this legislation will be an attempt to taint the accused with a civil
liability. This paper focuses on this notice of the Honourable Supreme Court and why this
legislation if brought in will be a lob sided one, also the history of judgements and precedents
regarding live in relationships and mere sexual relationships both, in India and the common law.
The very first time this issue came up was in India was in the case of Vidhyarthi v. Surkhana Bai
1
. In that case the court held that although the two individuals were not married they were
presumed to be in a husband and wife relationship and the man hence was directed to pay a sum
as maintenance.
In India often to decide such cases the courts stick to Section 114 of the Evidence Act 1872, and
Section 2(F) of Prevention of Domestic Violence Act 2005. Section 114 of the Evidence Act
states - Court may presume existence of certain facts. —The Court may presume the existence of
any fact which it thinks likely to have happened, regard being had to the common course of
natural events, human conduct and public and private business, in their relation to the facts of the
particular case. Section 2(F) of the Prevention of Domestic Violence Act 2005 states “domestic
relationship” means 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

1
Vidhyarthi vs Surkhana Bai
as a joint family. The courts in India use Section 114 of the evidence act to presume the fact
that people living together as husband and wife. There is a vast difference between living
together and having a mere sexual relationship. In the latter both the parties are benefited
equally. The common law states that unless there is an explicit marriage neither a live - in
relationship nor a prolonged consensual sexual relationship can be understood as a marriage. It
gives the following restrictions:
1) They are not given equal shares in the property owned by the family of (or the inherited
property of one of the parties.
2) They do not have a right to division of the property value of one of the members of the
relationship.
3) They do not get compensatory allowance for the work done by one which benefits the other.
4) One partner cannot ask for support payments from the other.
5) The partners cannot inherit from each in absence of a will to the contrary.

In such cases Section 114 of the Evidence Act will not apply merely because of the reason that in
this case or in most of such cases the relief sort for is not marriage and hence the assumption of a
de-facto marriage cannot be taken. Quite contrary to this, the position of Indian courts have
always differed and have allowed the payment of maintenance to the woman and held this
relationship as a de facto marriage. It has to be understood that this prolonged consensual sex is
in a way beneficial to both the parties. Both the man and the woman decide to fulfil only their
physical needs and enter into this form of relationship. This is entered into by those who show no
interest in marrying or living a life together. This goes on to show that treating this as a de-facto
marriage defeats the whole point of this relationship. If this legislation is brought in, it would be
giving an extra advantage or benefit to the female and would leave the male member at a
disadvantage, since both the members gain equally out of the physical relationship and if this
legislation is brought in, it would favour one group more than the other. The Honourable
Supreme court held in Velusamy v. Patchaiammal2 that live in relationships are akin to that of the
Common law marriages, but did not grant them the same status as that of a common law
marriage, it instead granted the same, the status of a de- facto marriage, and it is travelling on the
same path with the case of the consensual sexual relationship. This relationship has to be seen in
a different way from that of a live in relationship primarily because here there is no intention of
living as a couple or as anything close to a marriage. It is nothing close to a domestic
relationship, as nothing but sexual pleasure is derived from this form of relationship. It is only
the fulfilment of the physical needs of two individuals without any strings attached and hence the
will not fit under the definition of ‘husband’ and ‘wife’, and the Prevention of Domestic Violence
Act cannot be brought in nor can the court assume this to be situation similar to the marriage, as
there is no living under the same roof or any activity similar to that of a marriage, such as sharing
of recourses or even affection at times. Unlike live in relationship there is no compulsion in a
consensual sexual relationship for two members to maintain each other as there is no love or care

2
AIR 2010 SCW 6731
for the other involved it is just purely done to satisfy the sexual needs of two individuals. In India
in the case of M. Palani vs. Meenakshi 3 the Madras High court has held that even in the case of
a consensual sexual relationship the relationship can be understood as a domestic relationship as
per the Prevention Of Domestic Violence Act as the court believes that they were together at
least for that small point of time and hence it falls under that defection. The courts in this case
have given a beneficial construction to a criminal statute, hence defeating the purpose of that
statute. A criminal statue should always be given a strict interpretation so as to maintain the
essence of the statute. This also has been held true in multiple cases where the courts have held
that the basic postulate of criminal law is that a criminal statue is to be given strict interpretation
as intended by the legislature. Any deviation from this golden principle would render the purpose
of criminal justice system inert. Needless to emphasize that the rule of strict interpretation has to
be followed with regard to the penal statutes and Court is not permitted to add something into the
statute4. The basic postulate of criminal law is that a criminal statue is to be given strict
interpretation as intended by the legislature 5. Any deviation from this golden principle would
render the purpose of criminal justice system inert. The honourable High Court of Punjab in the
case of Thakur Gokal Chand vs Pravin Kumari 6 held that long cohabitation cannot be a
presumption of marriage and that some circumstances which break that presumption should not
be ignored in that situation. 7A presumption of marriage may be drawn from long cohabitation,
but this is rebuttable. There can be some circumstances that destroy the presumption and the
court can’t destroy it. The constitution guarantees equality for equals under Article 14 of the
Indian Constitution. In this case both the parties are equally placed and an additional attempt to
place any legislation to provide equality will be arbitrary and unjust for one party. This would
also lead to an excessive legislation on this matter.
Hence with regard to this matter the legislation, if passed will be an arbitrary one and will go
against equality. This paper is a legislative comment on the new notice sent by the Honourable
Supreme Court to the legislature to make a law on this regard. Further considering the
circumstances and the available of already prescribed laws this legislation will be an unnecessary
and arbitrary legislation and would not be right on the Legislature to make a legislation on this
regard. It is unreasonable for the court to direct the legislation, when a case has come up wherein
the respondent has not committed any act which is against the existing legislations conveniently
to form a new legislation which would create the tortuous liability.
This paper will submit that all legislations are well sufficed and do not need any further
amendments.

3
MANU/TN/0820/2008
4
Yerragudi Suryanarayana Reddy vs. Senior Intelligence Officer, Directorate of Revenue
Intelligence, NDPS (12.06.2017 - APHC)
5
Saleem Ur Rehman vs. State of J&K and Ors. (07.05.2018 - JKHC) :
MANU/JK/0351/2018
6
Thakur gokalchand vs Pravin kumari AIR 1932 SC 231
7
Thakur gokalchand vs Pravin kumari 1952 AIR 231