Introduction:
It is a concept in which two adults decide to live together as a couple without being married to each other. This has become a fairly common practice in the countries where it originated from but has been seen as a taboo in India. Live-in relationship is a western concept that has made its way to India.
In recent years this concept is also gaining traction in India and the legislature has to ensure that the rights of the parties involved in this relationship are protected. [1]The judiciary is also facing a similar kind of a problem as an increasing no. of cases have been reported where a dispute has erupted between the parties involved and they want to separate themselves from each other. This would create a legal issue as to what kind of rights and duties are present to the parties and what remedies are available to them which can be exercised in the court of law.
Position in India
The live-in relationship in India is considered valid although there is no such law present to regulate a marriage of this kind.[2] The supreme court was first to realize the popularity of the concept and legalized it in the country under the case law of [3]S.Khushboo vs. Kanniammal. In this case, the court took the view that the live-in relationships are to be categorized as “Domestic relationships”.
A domestic relationship is defined in the Protection of women from Domestic violence act, 2005 which states that it is a relationship that is in the “nature of marriage”. This however does not mean that the court recognizes the relationship as a marriage. It simply means that the parties involved must have a right and duty towards each other which has taken its legal recognition from the concept of marriage.
The court has laid down certain conditions in the case of [4]D. Velusamy vs. D. Patchaiammal to recognize the live-in relationship as in the “nature of marriage” which are as follows-
- The couple must represent themselves as a married couple to the society
- There should be no bar to the marriage if they would have been married in the normal course of action
- The cohabitation must be voluntary and must be for a significant period.
The rights and duties of the parties are similar to those in marriage but do not have complete power for the same. In the case a married person comes into a live-in relationship then that relationship would be considered void as the person’s first marriage was not legally dissolved. [5]Kusum vs. The state of U.P.
The children that are born out of such a relationship are considered legitimate in the eyes of the law as the relationship is not considered as invalid.[6]Even in the cases of void or voidable marriages, the children are considered legitimate but they can only acquire the separate self-acquired legal property of the parents. The same conditions apply in the case of live-in relationships. The children can only acquire the separate self-acquired legal property of their parents. They cannot be considered as coparceners in the Hindu undivided family and hence cannot obtain any kind of property from the same either.
The high courts in the country have been expressing different opinions on the question of law as some of them believe it is against the Indian traditions and beliefs to live with a partner without being married. These couples face a lot of social challenges as society is unable to accept this kind of relationship in India. Some believe that society is evolving and hence the tradition is no longer a viable source to base the laws upon.[7] The courts need to evolve with time to accept the changes and implement the laws that are relevant to society.
The court has taken a view keeping in mind the Indian tradition and providing the couples with the protection of the law. The couples who are in a live-in relationship for a long time and the society around them believes that the couple is married then they would be deemed to be married in the eyes of the law. This kind of verdict was given in the case-law of [8]SPS Balasubramanian v. Suruttayan.
The people who practice this kind of relationship are there to test the compatibility between themselves and assure themselves regarding the decisions they have made before making the life-changing decisions of marriage.[9]This also helps in reducing the divorce rates in the country as the parties can simply separate from each other if they feel that they cannot commit with the person for a lifetime. This reduces the burden on the state to initiate the proceedings of divorce.
The primary reason why society is unable to accept this kind of relation is premarital sex. This is also unacceptable according to Indian culture. This has been the root cause of debate for quite some time and the courts have a different point of view. Different courts have expressed their view in the affirmative or negative to their assent regarding the same and this has created confusion in the minds of the people regarding legal implications of the same. This further adds to the situation and thus the society starts to avoid the practice from fear of prosecution.
All of this has been taken up by the supreme court and they have come to conclusions regarding premarital sex.[10] If the woman was above 18 years of age and of sound mind and had given her consent for the same with her free will then she cannot at a later stage revoke her consent and prosecute the person.
This has been applied to premarital sex. After marriage, it is presumed that the consent for sexual intercourse is present between both parties and hence the court has not been able to distinguish it from the marital rape concept.
Live-in relationships on the other hand have very different kinds of approaches the courts had to consider whether the consent is to be presumed or it was to be individually present for every intercourse. This would mean that the parties had to consent to every intercourse and would become too difficult for the court to decide upon the matter if the parties involved decided to separate themselves from each other.
Since there is no law to regulate live-in relationships in India it creates a grey area for homosexual couples. Same-sex relationships have recently received legality in India and this has paved the way for same-sex couples to enjoy the right of live-in as well. This is not an absolute right as some high courts have only granted this permission in some states.[11] The Odisha high court in the case-law of Chinmayee Jena vs. the State of Odisha took the stand that same-sex Live-in relationships are valid and couples can enjoy some rights together.
Conclusion
Live-in relationships are a fairly new concept in India with a lot of taboos associated with them. The traditional Indian society has always found it difficult to adjust to the western culture and lifestyle but eventually, both of them have managed themselves and helped in improving the Indian society.[12] This is not going to be very different. Eventually, this too will become a common practice in India as society is progressing at a very fast pace.
The legislature must ensure that the rights and duties of both the parties that are involved in the relationship are well defined with a clear picture of the law. This would help in improving the situation in India and help in adopting the practice. Live-in Relationships are not illegal in India as they have been recognized by the courts and both parties are given rights against each other. It is still considered immoral in India but with the advancement in society, it shall become a part of the same and become mainstream in a couple of decades.
References:
[1] Alekhya Sattigeri, Legal Status of Live-in relationships in India: Mapping India’s jurisprudence, Academike (July 26, 2021), https://www.lawctopus.com/academike/live-in-relationships-in-india/ (Last visited on November 13, 2021)
[2] Aditya Manubarwala & Bhavyata Kapoor, Live-in relationships vs morality: A case for strengthening Domestic Violence Act, The week magazine (July 07, 2021), https://www.theweek.in/news/india/2021/07/07/live-in-relationships-at-cross-roads-with-morality.html (Last visited on November 13, 2021)
[3] S.Khushboo vs. Kanniammal [CRIMINAL APPEAL NO. 913 of 2010]
[4] D. Velusamy vs. D. Patchaiammal [D. Velusamy and D. Patchaimal (5 SCC 600)]
[5] Kusum vs. The state of U.P [WRIT – C No. – 53503 of 2016]
[6] Choudhary Laxmi Narayan, Mridula Narayan & Mridula Deeptanshu, Live-in Relationships in India- Legal and Psychological Implications, SAGE Journals (March 19, 2021), https://journals.sagepub.com/doi/full/10.1177/2631831820974585 (Last Visited on November 13, 2021)
[7] Apoorva Goel, Are live-in Relationships Legal in India?, Latest Laws (July 04, 2021), https://www.latestlaws.com/articles/are-live-in-relationships-legal-in-india/#_edn6 (Last Visited on November 13, 2021)
[8] SPS Balasubramanian v. Suruttayan [1994 AIR 133]
[9] Immoral, But not Illegal’: Fate of Live-in Relationships in India Lies in the Hands of Judiciary; Here’s How (August 07, 2021), https://www.news18.com/news/india/immoral-but-not-illegal-fate-of-live-in-relationships-in-india-lies-in-the-hands-of-judiciary-heres-how-4056416.html (Last visited on November 13, 2021)
[10] Amrita Chakravorty, Live-in relationships in India, India Filings, https://www.indiafilings.com/learn/live-in-relationships-in-india/ (Last visited on November 14, 2021)
[11] Tripaksha Litigation, Legality of Live-in relationships in India, Tripaksha Litigation (April 14, 2020), https://tripakshalitigation.com/legality-of-live-in-relationship-in-india/, (Last visited on November 14, 2021)
[12] Gopal Swathy, Live-in relationship-it’s position in India and abroad-pros and cons-legitimacy of child-inheritance of property, Legal Services India, http://www.legalservicesindia.com/article/211/Live-in-Relationships.html, (Last visited on November14, 2021)
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