This article is written by R Sai Gayatri, pursuing BA.LLB from Post Graduate College of Law, Osmania University. This article deals with the concept of live-in relationships in India and the legal status of a child born in a live-in relationship.
Table of Contents
Introduction
A live-in relationship can be described as a relationship similar to that of marriage where both partners reside in a shared household without being legally married to each other. Though there is continuous cohabitation between the partners they are not obligated to have any kind of responsibilities towards each other as there is no legal binding. Subsequently, there is no restriction on either of the parties to quit the relationship whenever they want to. The Indian laws do not enumerate a precise definition of a ‘live-in’ relationship, therefore the legal status of live-in relationships is not clearly established yet. However, the High Court of Kerala in its recent judgment has finally cleared the fog creating ambiguity over the legal status of children born out of live-in relationships. This article will be dealing with the legal status of a child born in a live-in relationship.
Understanding live-in relationships through judicial approach
The Supreme Court of India looked into the matter of live-in relationships for the first time in 1978 through the case of Badri Prasad v Dy. Director of Consolidation. In this case, the partners involved in the live-in relationship were living together for approximately fifty years. The issue before the court was whether such a couple must be given the same status as that of a legally married couple or not. The Supreme Court pronounced its decision in favour of the live-in couple and granted legal status to their relationship of fifty years.
Further, the case of D.Velusamy v D.Patchaiammal in 2010 dealt with the pre-conditions that must be satisfied for a live-in relationship to be considered valid. It stated that the partners in a live-in relationship must portray themselves to society as being similar to spouses and must be competent to marry legally. Further, it must be the voluntary decision of such a couple to cohabitate and portray themselves as being similar to spouses in society for a significant period. The court also stated that the benefit of the Domestic Violence Act shall not be given to all such relationships that are in the nature of marriage. It was pointed out by the court that if a man keeps a woman as a servant, uses her for sexual purposes, and maintains her financially it would not be considered as a marriage under the law. Thus, to attain benefit, the requisites mentioned by the court must be fulfilled and proved through evidence. The court relied upon the concept of ‘palimony’ established by the California Superior Court in the case of Marvin v Marvin to deal with the grant of maintenance in live-in relationships.
In 2014, the Supreme Court in the case of S. Khushboo v Kanniammal & Anr dropped all the charges against the petitioner who was an actress hailing from South India. She was charged with defamation under Section 499 of the Indian Penal Code, 1860. It was further stated that she endorsed live-in relationships and pre-marital sex. The Apex Court, in this case, stated that even though living together without legal marriage is considered immoral in the conservative Indian society, it is not illegal in the eyes of Indian law. The court held that living together freely shall come under the aegis of Right to Life, thus it is not ‘illegal’ to be in a live-in relationship.
Live-in relationships were categorized into five types by the Supreme Court in the case of Indra Sarma v V.K.V. Sarma in 2013. These categories of live-in relationships shall be considered and proved by the courts. The said categories are as follows –
- A domestic relationship that includes an unmarried adult female and an unmarried adult male.
- A domestic relationship between an unmarried adult female and a married male entered knowingly.
- A domestic relationship between a married female and an unmarried adult male entered knowingly.
- A domestic relationship between same-sex partners.
Prior cases on children born in live-in relationships
In 2008, through the case of Tulsa & Ors vs. Durghatiya & Ors, the Supreme Court established legal status for children born in a live-in relationship. One of the important preconditions laid down by the court for a child born in a live-in relationship to be treated as legitimate is that its parents must have cohabited under one roof for a long period portraying themselves to society as being similar to husband and wife. In simple words, it must not be a ‘walk in and walk out’ relationship. The court further stated that a child born in a live-in relationship shall have rights over its parents’ property.
The Supreme Court in the case of SPS Balasubramanyam v. Suruttayan held that if a man and woman live together under one roof for a long time then they will be considered as husband and wife under Section 114 of the Indian Evidence Act. Thus, the children born out of such a live-in relationship shall be legitimate.
In the case of Bharatha Matha v R Vijaya Renganathan & Ors, the Apex Court held that a child born in a live-in relationship shall be considered as a legitimate child, consequently, he shall have the right to access his parents’ property which does not include ancestral undivided property.
Kerala High Court’s take on children born in live-in relationships
Brief facts of the case
The facts of the said case go back to 2018 when the state of Kerala was drastically affected by floods. During the time of emergency, various NGOs came forward to help the flood victims. John and Anita (names changed to maintain privacy), the live-in partners related to the present case were involved in working with the NGOs. While working with the NGOs, John and Anita fell in love and decided to live together. They wanted to get married, but their families opposed this decision as they belonged to separate religions. However, both of them were waiting for their families to agree with their marriage. Anita became pregnant in May 2019 and gave birth to a baby girl in February 2020. Consequently, the baby’s birth certificate had both Anita’s and John’s names written on it.
John also happened to be an artist due to which he had to travel to Karnataka for work purposes. Later, the relationship between Anita and John was strained due to the lack of communication, even after Anita repeatedly tried to maintain contact. The anxiety of being a single mother worried Anita, as a result, in May 2020 she contacted the Child Welfare Committee in Ernakulam. She surrendered the baby girl in June 2020. However, she had continuous contact with the said Child Welfare Committee and the Child Care Institution in which the baby girl was kept. The said committee considered Anita as an unwed mother and took her permission to keep the baby girl for adoption. It followed the procedure laid down in the Adoption Regulations, 2017 and the Juvenile Justice Act, 2015 for placing the baby girl for adoption. The baby girl was legally placed for adoption on 17th August 2020 as per Section 38 of the Juvenile Justice Act, 2015.
On 2nd February 2021, the baby girl was adopted by a couple by order of the Family Court of Ernakulam. Post the legal adoption of the baby girl, Anita and John decided to take back their child. Subsequently, on 10th February 2021, Anita and John filed a petition in the High Court of Kerala.
Issues before the Court
Based on the fact that the Child Welfare Committee in Ernakulam considered Anita as an unwed mother and took permission only from her to keep the baby girl up for adoption without John’s consent raised two issues before the court –
- Whether a live-in relationship couple must be given the same status as a married couple for juvenile justice?
- Whether the procedure to be followed for the surrender of a child is properly followed in the present case or not?
Judgment of the Case
For this case, the bench comprising Justice A Muhammed Mustaque and Justice Kauser Edappagath emphasized the interpretation of Section 38 of the Juvenile Justice Act, 2015. The said section elucidates the procedure of freeing a child for legal adoption. Before an abandoned child or an orphan is declared free to be legally adopted, the Child Welfare Committee must try its best to look for the child’s parents or guardian. In case it is proved that the child is abandoned or orphaned, then such child will be declared free for legal adoption.
Section 35 of the Juvenile Justice Act, 2015 states that if the parents of a child are seeking to surrender the child due to physical, social, or emotional reasons which cannot be controlled by them, then such a child can be surrendered to the Child Welfare Committee. The parents or guardians of such a child are given counseling and a time of 60 days to consider their decision. Section 35 of the Juvenile Justice Act, 2015 alone deals with the surrender of a child by a single parent or both the parents.
Rule 7 of the Adoption Regulations, 2017 states that if a married couple desires to surrender their child, then it is mandatory for both the parents to agree to such surrender. In case any one of them is dead, then the death certificate must be produced. If only one biological parent desires to surrender the child where the other parent is missing, then such child will be considered as an abandoned child. If an unwed mother decides to surrender her child she may do so in presence of a female member belonging to the committee of surrender procedure.
From the above-mentioned information, it can be concluded that a child must be protected by the Child Welfare Committee in two conditions – if the child is abandoned or orphaned and if the child has been surrendered. The condition of a surrendered child has been further classified into surrender by a married couple and surrender by an unwed mother. In the present case, Anita and John were not a legally married couple, however, in the birth certificate of the baby girl both Anita’s and John’s name was mentioned. This led to further reconsideration by the court.
The Kerala High Court stated that if a female becomes a mother accidentally by rape or sexual assault, or does not want her child to be identified by its biological father’s name she will be considered an unwed mother. However, if a female gives birth to a child in a live-in relationship and acknowledges and identifies the biological father of the child then such female will be considered as a married woman concerning juvenile justice.
It depends on the mother whether she gives recognition to the father of the child or not. In case she gives recognition then the father can exercise full authority over his child and such father’s rights cannot be denied based on the concept of legal marriage. Any such denial would result in a violation of the right of choice. The Juvenile Justice Act, 2015 only denies the rights of those fathers who become fathers without a woman’s consent. Thus, it can be said that a child born out of a live-in relationship must be treated like a child born to a married couple.
The court further stated that the child’s name was mentioned in the birth certificate along with Anita’s and John’s names. The child’s name bore its father’s surname. The court stated that the birth certificate of a child is of significant importance to prove whether it was born to a married couple or not. It is not the duty of a Child Welfare Committee to inquire about the legal status of marriage and it is not a qualified authority to perform such duty.
Further, the court considered the reasons mentioned by Anita for surrendering her child. It stated that a single mother having no social or financial support will certainly feel emotionally challenged. Society subjects her to ill-treatment and not much support is provided to her from the system. In the present case, Anita did not try to give up the child rather she went through the pain of giving birth to a child. Though she cared for the child, she felt that without the support of a man she would not be able to survive. The court outrightly stated that if a woman thinks that she cannot survive without the support of a man then it portrays the failure of the system. In the present case, the father of the child has expressed his desire to take care of his child, thus the committee must agree to the rights of the father. The committee was instructed to return the child to its biological parents within one month as per the law.
The Indian Constitution states that every individual has a right to live with dignity. Based on Article 14 and Article 21 of the Indian Constitution the High Court of Kerala has established that a child born in a live-in relationship will be considered a legitimate child. Such a child shall be vested with rights such as the right to property, right to maintenance, and so on. This decision of the Kerala High Court upheld various prior decisions of the Supreme Court in the matter of children born out of a live-in relationship.
Conclusion
Hence, in India, a live-in relationship is considered taboo. The conservative Indian society considers the concept of live-in relationships immoral but the Indian law is liberal enough to not view them as illegal relationships. The Supreme Court of India has played a significant role in establishing a legal basis for the children born out of live-in relationships through its pronouncements. Recently, the Kerala High Court also took a step forward in eliminating the uncertainty revolving around the legal status of a child born in a live-in relationship. A child born in a live-in relationship must be given the same status as that of a child born to a married couple. Such a child will be considered as a legitimate child in the eyes of the law.
References
- https://timesofindia.indiatimes.com/city/kochi/if-a-woman-feels-shes-nothing-without-a-mans-support-its-systems-failure-kerala-hc/articleshow/82007573.cms
- https://www.theleaflet.in/child-born-in-a-live-in-relationship-must-be-treated-as-a-child-born-to-a-married-couple-for-purposes-of-adoption-under-juvenile-justice-act-kerala-hc/
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