Introduction:
India has been known for its vastness in culture. Our culture is very old and dates back to almost thousands of years. However, today the western culture has a great influence on the Indian Society especially the younger generation and this can be witnessed by the rapid change in fashion, food, technology, and especially in the living styles of the citizens. Today, people living in the metropolitan cities have adapted a western culture called Live-in Relationship.
A live-in relationship is a relationship in the nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently, either of the partners can walk out of the relationship, as and when, they will do so.[1]
However, in India, only those relations between a man and a woman are considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sorts of relationships are deemed to be illegitimate. So, the live-in relationship has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by the society.[2] The legal position of live-in Relationships is not very clear in the Indian context but the recent landmark judgments given by the Hon’ble Supreme Court provide some assistance when we skim through the topic of live-in and analyze the radius of the topic in Indian legal ambit.
This article talks about the current legal position and validity of the live-in relationship, international perspective on it, along with the present scenario of it in India. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships, with landmark judgments.
International Perspective
United Kingdom: In the United Kingdom, living in a live-in relationship, does not give the couple a legal status as compared to a married couple. It is not mandatory for the couple to financially maintain each other, even if they are sharing a house or uplifting family. Nevertheless, if the couple gives birth to a child, it is the duty of both to maintain the child and bring up the child ignoring the fact that they are married or cohabiting.
Scotland: The live-in relation is governed in Scotland under the Family Law (Scotland) Act, 2006. According to section 25(2) of the act, a court of law, may consider a person as a cohabitant of another by checking on three circumstances:
- the length of the period during which A and B have been living together (or lived together);[3]
- the nature of their relationship during that period; and[4]
- the nature and extent of any financial arrangements subsisting, or which subsisted, during that period.[5]
Australia: The Family Law Act 1975, states that a “ de facto relationship” may exist between two persons of either same-sex or different and such person may be in a de facto relationship even if the person is legally married to some another person or in a de facto relationship with someone else.
United States of America: Before 1970, the live-in relationship that is cohabitation was illegal in the US, however, it has gained a legal status according to the requirements. The legal history of America is evidence of many consensual sex legislations that have paved the way for living together contracts and their cousins, known as prenuptial agreements. In the USA, the word ‘palimony’ was coined which means grant for maintenance for a woman, lived for a considerable duration of time with a man in a live-in relationship.
France: In France, a pacte civil de solidarité or a civil pact of solidarity commonly known as a PACS, is a form of civil union between two adults (same-sex or opposite-sex) for organizing their joint life. It brings rights and responsibilities, but less so than marriage. From a legal standpoint, a PACS is a contract drawn up between the two individuals, which is stamped and registered by the clerk of the court. Since 2006, individuals who have registered a PACS are no longer considered single in terms of their marital status. Their birth records will be amended to show their status as pacsé (in a PACS) as well. [6]
China: There is no legal procedure established to end a live-in-relationship in China. Children born out to wedlock have equal rights as born to parents who are married.
Legal Validity and Status of Live-In Relationship
Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship.[7] The term is most frequently applied to couples who are not married. There is no specific law on the subject of live-in relationships in India. There is still no legislation in India to define the rights and duties of the parties to a live-in relationships, the status of children born to such couples. In a situation like this where there is no legislation, the Courts have come forward to give clarity to the concept of live-in relationships. The Courts have taken the view that where a man and a woman live together as husband and wife for the long term, the law will presume that they were legally married unless proved contrary.
The first case in which the Supreme Court of India first recognized the live-in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation[8]. In this case, the apex court held that the live-in relationship is legally valid if a couple of live-in relationship for 50 years. The Allahabad High Court again recognized the concept of live-in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others[9], wherein it held that the live-in relationship is not illegal.[10] The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for society but is not illegal.
Later the case of S. Khushboo vs. Kanniammal & Anr.[11], the Supreme Court held that living together is a right to life. However, in one of its judgments Alok Kumar vs. State, the Delhi High Court[12] the court held that life in relation is a walk-in and walk out the relationship, and no strings are attached to it so this kind of relationship does not create any legal bond between the partners.
The judgment of Indira Sarma vs VKV Sarma by the Supreme Court came in as a breath of fresh air. Amidst the lack of specific legislation on the subject, the apex court made an important decision to discuss live-in relationships under the pretext of the Domestic Violence Act The Supreme Court in Indra Sharma case held that “live –in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in our country. Long-standing relationship as a concubine, though not a relationship in the nature of marriage, of course, may at times deserves protection because that woman might not be financially independent, but we are afraid of that Domestic Violence Act, 2005 does not take care of such relationships which may perhaps call an amendment of the definition of section 2(f) of the Domestic Violence Act, which is restrictive and exhaustive.” The Court also asked Parliament to bring in proper amendments to the Protection of Women from Domestic Violence Act or to enact a suitable legislation.
Rights of a Female in Live-in Relationship
In June 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973.[13] The view was also supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others.
In October 2008, the Maharashtra Government also supported the concept of life in relationships by accepting the proposal made by Malimath Committee and Law Commission of India which suggested that if a woman has been in a live-in relationship for a considerably long time, she ought to enjoy the legal status as given to the wife.[14] However, recently it was observed that it is divorced wife who is treated as a wife in the context of Section 125 of CrPC and if a person has not even been married i.e. the case of live-in partners, they cannot be divorced, and hence cannot claim maintenance under Section 125 of CrPC.[15]
After the amendment in 2005, the women’s right to ancestral property is secured by the Hindu Succession Act, 1956. This provides her rights to ancestral and self-acquired property, like son, regardless of her marital status. So, whether a woman is married or in a live-in- relationship, the right to parental property will accrue to her by birth, while the property acquired by oneself will be divided according to the will.
The Supreme Court of India had held that if a man and woman living together for a long period of time, would be considered as married and will enjoy all rights also the children born to live-in partners are treated as Legitimate. Such children have the right to self-acquired properties of their parents according to the Section 16 of the Hindu Marriage Act.[16]
Section 125 of CrPCprovides rights to the children that they can always claim maintenance even if their personal laws do not offer maintenance to them. In case the live-in partners are estranged, still they have an obligation to maintain their children.
Legal Status of Children Born out of Live-in Relationship
The first time when the Supreme Court held the legitimacy of children born out of the live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan[17], the Supreme Court had said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.”[18]
Further, the court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of the Constitution of India which sets out the obligation of the State to give the children adequate opportunity so that they develop in proper manner and further safeguard their interest.
Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatiya[19] has held that a child born out of such a relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognize them as husband and wife and it should not be a “walk-in and walk-out” relationship.[20]
In another case Bharatha Matha v. R. Vijaya Renganathan[21], the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that the Indian judiciary in the absence of specific legislation has been protecting the rights of the children by giving the law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.
On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi, Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun[22] remarked that irrespective of the relationship between parents, the birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such a relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act, 1955.
Conclusion
Relationship formation in India has changed tremendously, at least in urban areas. Incited by anything from movies and soap opera to the lives of Bollywood persons, the younger generation has started leading a very liberal lifestyle. To know their partners, they denounce the marriage and get down to living-together arrangements. But, Live-in relationships in India have still not received the consent of the society.
Law and society are two faces of the same coin. Law should progress with society. In the absence of any statutory definition of this concept and law to deal with such relationships Indian judiciary tried to define the concept firstly as a walk-in and walkout relationship where neither any strings are attached, nor does it creates any legal bond between the parties that is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party and one party can walk out at his/her own will at any time. Though initially, the judiciary had termed live-in relationship a relationship with no strings attached however in later decisions Indian judiciary seems to protect the vulnerable sections of the society and extending various existing laws to protect women and children in live-in relationships. But at present, there is a need to formulate a law that would clarify the concept and the rights & duties of parties and children of live-in couples.
References:
[1] Associates, A. N. (n.d.). Right of Maintenance to Women in Live-in Relationships. Www.Legallyindia.Com. Retrieved August 25, 2020, from https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
[2]Auroshree. (2019, January 23). Live-In Relationship And Indian Judiciary. SCC Blog. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/
[3] Family Law (Scotland) Act 2006. (2011). Legislation.Gov.Uk. https://www.legislation.gov.uk/asp/2006/2/section/25
[4] Ibid.
[5] Ibid
[6] Ibid
[7] Gopal, S. (n.d.). Live-in Relationships. Www.Legalservicesindia.Com. Retrieved August 25, 2020, from http://www.legalservicesindia.com/article/211/Live-in-Relationships.html
[8] AIR 1978 SC 1557
[9] (2006) 8 SCC 726
[10]Helplinelaw. (n.d.). Status of live in relationships in India. Www.Helplinelaw.Com. Retrieved August 26, 2020, from http://www.helplinelaw.com/family-law/SLRI/status-of-live-in-relationships-in-india.html
[11] 2010 (4) SCALE 462
[12] Crl.M.C.No. 299/2009
[13] Sarika. (n.d.). hindu law reseach guide | Marriage | Kinship And Descent. Scribd. Retrieved August 26, 2020, from https://www.scribd.com/document/429175469/hindu-law-reseach-guide
[14] Gautam, S. P. (n.d.). Status of live in relationships in India | Cohabitation | Marriage. Scribd. Retrieved August 26, 2020, from https://www.scribd.com/document/377822514/New-Microsoft-Word-Document-2
[15]Helplinelaw. (n.d.). Status of live in relationships in India. Www.Helplinelaw.Com. Retrieved August 26, 2020,
from http://www.helplinelaw.com/family-law/SLRI/status-of-live-in-relationships-in-india.html
[16] Soolegal. (n.d.). Rights of Women in Live-in Relationship. SoOLEGAL. Retrieved August 26, 2020, from https://www.soolegal.com/roar/rights-of-women-in-live-in-relationship-1
[17] (1994) 1 SCC 460 : AIR 1994 SC 133
[18] Ibid.
[19] (2008) 4 SCC 520 : AIR 2008 SC 1193.
[20] Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209
[21]AIR 2010 SC 2685
[22] (2011) 11 SCC 1
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