Introduction:
Live in relationship is a concept where couples are not married to each other but live together under the same roof that resembles a relation like marriage and this can also be called as cohabitation. Generally, it is a relation where both partners enjoy their individual freedom and live in a house together without being married to each other and considered as peaceful co-habitation without any responsibilities or accountability. There is no legal definition or law in relation with the status of live in relationships and due to this complexity, the legal status of live in relationships is arguable.
The main reason why people prefer live in relations is to check the compatibility before entering into a legal marriage and is also gives exemptions from the traditions, from the chaos of family drama and lengthy court procedures of divorce in case they need to break up in todays culture and society it is very evident that where marriage is considered to be sacred even though couples choose to have a live-in relationship. In our Indian culture marriage is treated as a sacrament and now this perception is changing. Live in relationship is basically a contract of living together which is renewed every day by the parties and can be terminated by either without consent of the other it is more considered as a drive for selfish interest also known as the choice based relationships where the will and consent of the parents are missing.
As there are no laws enacted in respect of the live-in relationships and the legality of such relations about the rights and commitments towards such couple and the status of child born out of couples who are in live in relationships. The Indian laws are silent and does not provide any rights and obligations to the live-in couples. Therefore, the court has clarified many aspects relating to the status and legality of the live-in relationship’s along with the rights and obligations, status of a toddler in the judicial precedents.
Various legislations were made in this respect some of them are – Domestic violence Act,2005 this act earlier was not applicable to women living in a live- in relation, but after the amendment made under the definition included the word “relationship in the nature of marriage”. Which eventually gave a protection to women who are in a live- in relationship. Similarly, the legislations such as code of criminal procedure, evidence act were also made applicable to such relations.
Legal Status of live-in relationships
The legality of live-in relations was discussed in various judgements, in the case Revanasiddappa v. Mallikarjun[1] in which justice A.K. Ganguly held that “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today”. The intention of the judiciary is to render justice to the partners of live-in relationships in case of any abuse that happens in such domain of relationship who, were earlier not protected by any statute. Judiciary is neither promoting such concept expressly nor prohibiting such relations.
Later in a judgement of Supreme Court in the case Badri Prasad v. Director of Consolidation[2] gave legal validity to a live-in relationship in the year 2010, the same was held in the case Payal Sharma v. Nari Niketan[3] where it was observed thata man and a woman can live together even without getting married if they wish to. This may be regarded as immoral in the view of society, but it is not illegal.
After the judgement of Indra Sarma v. V.K.V. Sarma[4] the Supreme Court requested the parliament to enact some legislation on the basis of guidelines that were provided by the Supreme Court and those were as follows-
- Duration of relationship
- Pooling of resources
- Shared households
- Domestic arrangements
- Sexual relationships
- Children
- Intention and conduct of the parties
These were the guidelines provided by the Supreme Court to make changes so as to protect the parties engaged in live-in relationship. Lately justice M.Y. Eqbal and Justice Amitava Roy in a judgement of supreme court living in live-in relationship will be presumed legally married and the woman in the relationship would be eligible to inherit the property in case of the death of the partner.
Status of Children born out of live-in relationships
The question of the legacy of child born out of a live- in relation arose after Supreme Court in the Malimath Committee report asked to amend the term wife under Section 125 of CrPC which shall after the amendment be defined as – any woman who was living with a man as his wife for a long period of time even when had a wife at that time from the first marriage. This was asked so because it would also give some rights to that women to claim alimony who was living with that man without marriage[5].
Decision on Legacy of such born children
Indian judiciary plays an important role in deciding various landmark judgements one of them is related to the child which creates thousands of questions in relation to the legality, custody, status and many other arguable points in case of live-in relationships. The landmark judgement was pronounced in the case Dimple Gupta v. Rajiv Gupta which stated that the children born to live-in parents are legitimate and have the same rights as in case of children born out from the valid marriage. Similar, judgement was made in the case S.P.S. Balasubramanian v. Suruttayan[6] in whichSupreme Court held that where a man and woman lives under the same roof and for some years it will be presumed under Section 114 of the Evidence Act that they are living as husband and wife and the child born out of them will not be considered as an illegitimate child even Article 39(f) of the Indian Constitution provides obligation to the state to provide adequate opportunity to children and to safeguard their interest. In the judgement of Tulsa v. Durghatiya[7] a condition was added to state the legacy of child in live-in relationships that the couple must live which means to cohabitate under the same roof for years and the society should recognise such couple as husband and wife, it must not be a walk in and out kind of relationship.
Legal Rights of such born children
The foremost rights of the children born out of live-in relations are Maintenance, property and custody, all these rights came into enforcement after providing the status of legitimate children in the eyes of law as these children were considered same as children born out from a valid marriage. The Indian judiciary passed various judgements to make such rights into effect to safeguard the interest of children.
Following are the rights that are provided to the children:
Maintenance
In general terms, maintenance means to look after or to take care of something be it be a living thing or a non-living thing so that it can last for years. similarly, family law and code of criminal procedure talks about maintenance in respect of wife and children. Maintenance is an obligation that is to be provided to the other person. The right to maintenance was the question of debate as under section 21 of Hindu Adoptions and Maintenance Act, 1956 only talked about the maintenance of the legitimate son and legitimate unmarried daughter.
The statue was silent about the maintenance in regard to child born out of live-in relationships however, it clearly denied the right of maintenance of such children[8]. This situation was unfair for the children and the society and thus to overcome this Indian Judiciary under a landmark case Dimple Gupta v Rajiv Gupta[9] held that under section 125 of CrPC whether a child is legitimate or illegitimate or born out of an unlawful or immoral relationships are entitled to maintenance while they are minors or even after attaining majority, if they are unable to maintain themselves.
The denial of maintenance of such children can be challenges under Article 32 of the Indian Constitution as it amounts to violation of Article 21 of the constitution which provides right to life and personal liberty. Unequal treatment of a child born out of a live-in relationship and a child born out of a marital relationship even though both are legitimate in the eyes of law can amount to a violation of Article 14 which states Equality before Law.
Right to Property
Property rights are the inheritance right of the children. The Hindu Succession Act, 1956 provides the right of inheritance of property only to the legitimate child be it a daughter or son from the class -1 heirs in the joint Hindu family and in case of an illegitimate child under Hindu law the child only inherits property from the mother. Legitimacy under Hindu law is always a question of debate. Therefore, in a landmark judgement of Vidyadhari v Sukhrana Bai[10] the Supreme Court held that the child born out of live-in relation will be granted inheritance rights by providing a legal status and the inheritance of property would not be denied to such child when born after a reasonable period of time.
On this judgement justice Ganguly raised criticism by stating that under Section 16(3) of the Hindu Marriage Act,1955 the legislature has used the property which is silent in respect to whether such a property is meant to be an ancestral or a self-acquired property which is uncertain in case of child born out of live-in relationships. Further, in this context the judge in the case of Parayan Kandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. vs. K. Devi and Ors[11] held that the Hindu Marriage Act,1955 shall be interpreted in a manner according to the changes in the modern culture which advances the objective of the law. Thus, it was held that the child born out of a live-in relationship will have the right of inheritance of property of their parents whether self-acquired or ancestral which brings equity before law.
Custody of Child
This is the basic issue that is faced by the live-in couples as compared to the married one that with whom the custody of the child will be held in case of walking out from such relationship as there is no legislations made in this regards which makes this issue complex in nature. The issue of custody in case of child born out of a live-in relation usually arise at the time of separation.
Section 6 of the Hindu Minority and Guardianship Act, 1956 states that the father is the natural guardian of the minor legitimate children which was held in the case Gita Hariharan v Reserve Bank of India and the mother becomes natural guardian only in case when the father is not capable of so. By considering a logical and positive approach an interpretation can be made that in case of break-up between a live-in couple it can be concluded that being natural guardian of a legitimate child, the custodial rights will be acquired by the father.
While solving the custodial conflict between the parties the court must keep in mind the utmost priority in favour of the child. It is to be kept in mind that there has been an emerging form of relationship due to modernisation of culture in India. Thus, the impact of the live-in relationship must be analysed and kept in mind as analysed in favour of children.
Conclusion
It is well observed that no legislation is made till date in respect of live-in relationships all the decisions were made by the judiciary depending on the nature and scenario of the conflicts be it be immorality of live-in relations or the status of child born out of such relations. Even though various judgements were passed to safeguard the interest of women and children and to bring justice to those females who are in such relationships. Various judgements were pronounced by the Indian judiciary that bought interpretations in this regard. Even though the concept of live-in relationship is not legalised, it will be said to legalised when any legislation will be made for such but it is not even illegal. Even today there is no legislations or enactments that govern the matter of succession, inheritance, maintenance or custody of child in live-in relationships. The judiciary has to ensure that law has to accommodate with the modernization and day to day changing scenario of the society.
However, for Protection of Women and children were taken into consideration by the judiciary. It has recognised live-in relationships through various judgments to protect the interest of individuals as stated under our Constitution. Even a clear judgement was passed in respect of the child welfare by stating the rights of children born out of live-in relationship which will ensure uniformity and secure the future of such children.
Thus, to avoid conflicts and to bring uniformity a separate statue must be made to protect the rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship which would also create awareness among the partners living in such relationship and the legal consequences as well.
References:
[1] (2011) 11 SCC 1
[2] AIR 1978 SC 1557.
[3] 2001 SCC Online All 332
[4] (2013) 15 SCC 755
[5]Joshi, K. (2019, May 23). Legal Status of Children Born Out of Live-In Relationship. https://blog.ipleaders.in/legal-status-of-children-born-out-of-live-in-relationship/
[6] AIR 1994 SC 133.
[7] AIR 2010 SC 2933
[8] Furtado, R. (2016, July 13). Rights Of Child Born Out Of A Live-in Relationship. https://blog.ipleaders.in/rights-child-born-live-relationship/
[9] AIR 2010 SC 239
[10] AIR 2008 SC 1420
[11] (1996) 4 SCC
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