This article is written by Varchaswa Dubey from JECRC University, Jaipur. The article in hand consists of judgments of various High Courts and Supreme Court of India regarding live-in relationships in India.
A live-in relationship refers to a living arrangement in which an unmarried couple lives together in a long-term relationship that is similar to marriage but they are not tied by the sacred thread of marriage. The couples-only cohabit together, but they live like husband and wife.
Society and its laws are not strangers to one another, and they are both an important aspect of mankind, and therefore, with the ever-evolving society, the laws shall be evolving as well, or else the development of the society will be ceased by the outdated laws.
Various High Courts and Supreme Court of India have timely considered numerous aspects of live-in relationships and have tried to understand and explain the phenomenon of live-in relationship which is indeed an alien concept to the Indian society, where only marriage is considered as a sacred tie between a couple and the marriage is presumed to be a license to have sexual intercourse.
The Indian legal mechanism certainly lacks separate legislation regarding a live-in relationship, however, the Protection of Women from Domestic Violence Act, 2005 in its Section 2(f) is moderately concerned with the concept of live-in relationship, and states that live-in relationship falls within the ambit of a domestic relationship. Section 2 (q) of the 2005 Act protects women who are in live-in relationships.
Origins of live-in relationships
The concept of a live-in relationship is not new for society however, it has evolved a long way comparatively. The mention of live-in relationship can be traced back to the Vedas where we can find 8 types of marriages, one of them being the ‘Gandharva’ form of marriage where the marriage was in a form of union of a man and a woman with mutual consent, however according to Manu, it is a marriage between a man and an unmarried girl (usually a virgin) which arises out of lust. Although such a type of marriage does not directly fall within the meaning of a live-in relationship in some way, it is associated with the contemporary times’ concept of a live-in relationship.
In the case of Mohabbat Ali Khan vs Muhammad Ibrahim Khan (1929) the court was of the view that in cases where a man and woman have established to be living together as a couple, the law will pressure, until the contrary is proved, that such couple was cohabiting together as a valid marriage.
What are the issues pertaining to live-in relationships
The couples involved in live-in relationships face numerous challenges, some of these challenges are:
In India, live-in relationships are not only discouraged but also are not accepted by the members of society due to the sophisticated culture. The parents of a couple may also not allow for such a relationship, and may not allow the couple to reside in the same house. The couples also face issues when they seek residence on rent. Apart from the issue of the place of residence, the couple also faces issues at the workplace and other public places.
The issue of documents, especially in cases of a joint account holder, insurances, bank details, etc, the couple faces challenges due to the absence of a live-in relationship column.
Indian society is highly influenced by the culture and traditions to which it belongs, and since all the cultures and traditions were established a very long time ago, they do not encourage the concept of the live-in relationship which is continued in contemporary times. Cultural values play an important role in the acts, and thoughts of society, and since society is influenced by cultural values, live-in relationships are highly discouraged.
Succession and Inheritance challenges
The concept of a live-in relationship is comparatively new and therefore, there are no amendments regarding the right to succession and inheritance in cases of live-in relationship, since all the succession and inheritance laws were earlier primarily concerned with a married couple.
What are the reasons behind live-in relationships
The reasons behind opting for a live-in relationship are:
- The couple wants to determine the compatibility among each other before they enter into formal wedlock.
- Both the parties to a live-in relationship want to continue their relationship status as single and not married.
- In certain cases of a homosexual couple, or those who are already married, the laws do not allow such couples to enter into a wedlock.
- Parties to a live-in relationship may also want to avoid divorce and the procedure which follows, and rather opt for a simple ‘break-up’.
- The families of the couple may also not be in favor of the marriage, of either one partner or both the partners, especially due to inter-religion factors.
Supreme Court judgments regarding live-in relationships
What is the validity of live-in relationships
In the case of S. Khushboo vs Kanniammal (2010) the Supreme Court of India held that there is no legal provision where adults are voluntarily associated in sexual relationships other than marriage, and therefore it does not violate any law. The Court further referred to the case of Lata Singh vs State Of U.P. & Another (2006) where the Court held that a major girl is free to marry anyone she likes or may live with anyone she likes. The Court further held that no offence has been committed by the accused and the present case is an abuse of the process of the court and the administration mechanism.
In the case of Alok Kumar vs State (2010) the court held that in a live-in relationship, there are no strings attached, and such a relationship does not create any legal bond among the parties. The court, while referring to the live-in relationship as a walk-in and walk-out, held that those who do not wish to enter in such relations may enter in the bond of marriage, where the parties are not allowed to simply break the bond and have legal obligations. Individuals who are in live-in relationships cannot complain of infidelity or immorality since live-in relationships are usually between a married man and an unmarried woman or between a married woman and an unmarried man.
What is the presumption regarding live-in relationships
In the case of Badri Prasad vs Dy. Director Of Consolidation And Ors (1978) the Apex Court held that it is firmly presumed that a couple who have been living like husband and wife shall be husband and wife, but such presumption is rebuttable and the burden of proof lies on the part of the person who seeks to rebut such relationship to its legal origins. Similar views were taken in the case of S.P.S. Balasubramanyam vs Suruttayan (1993) where the Court ruled that where a man and a woman live together for a long period as husband and wife, there lies a presumption of legality of marriage between the couple, until the contrary is proved and a child born out of such relationship is also not illegitimate and is entitled to inheritance in the property of the man.
In the case of Tulsa & Ors vs Durghatiya (2008), while referring to Section 114 of the Indian Evidence Act, 1872 the court held that the provisions under the said section refer to a common course of natural events, human conduct, and private business. The court shall presume the existence of facts that are likely to have happened. While interpreting Sections 50 and Section 114 of the Indian Evidence Act, 1872 combinedly, it is evident that the act of marriage is to be presumed from the view of the common course of natural events.
Issue of lack of legislation
In the case of Indra Sarma vs V.K.V.Sarma (2013) the Supreme Court of India held that live-in relationships may last for a considerable time can lead to standards of dependency and vulnerability, and with the increase in the number of live-in relationships, there must be sufficient protection, especially for women and those children who are born out of such relationship. The law cannot promote pre-marital sex, and live-in relationships are personal and people can give their opinion in favor or against it. The legislature must consider this issue and enact separate legislation so that protection for women and children born out of live-in relationships can be provided.
Whether maintenance can be obtained in a live-in relationship
The suggestions of Justice Malimath Committee in the year 2003 was one of the first instances wherein the committee suggested that the definition of Section 125 of the Code of Criminal Procedure, 1973 must be amended accordingly to including a woman who was living with a man as his wife for a significant period during the subsistence of the first marriage.
In the case of D.Velusamy vs D.Patchaiammal (2010) the Supreme Court while bestowing the difference between live-in relationships, and relationships like marriage laid down the conditions under which a woman in a live-in relationship can claim maintenance under Section 125 of The Code of Criminal Procedure, 1973. The conditions required to get maintenance out of the live-in relationship are:
- The couple must represent themselves to the society similar to being each other’s spouses.
- Both the parties to the relationship must be of legal age to marry.
- Both the parties to the relationship must have qualified to enter into a legal marriage, including being unmarried.
- Both the parties to the relationship must be cohabited voluntarily and must hold themselves similar to being each other’s spouse for a significant period.
In the case of Ajay Bhardwaj vs Jyotsna And Ors (2016) the Punjab and Haryana High Court held that the jurisdictions of Section 125 of CrPC were formed to prevent any unsettled residence and poverty of wife, or minor children, or old age parents, and the jurisdictions of same has also been lengthened by judicial interpretation to the partners in a live-in relationship, however, the nature of such relationship must be considered while deciding the maintenance. The primary question which arose, in this case, was whether a woman is entitled to maintenance under Section 125 CrPC on account of a live-in relationship, not being a wife, and the same question was answered in the case of Chanmuniya vs Virendra Kumar Singh Kushwaha & Ors (2010) where the Apex Court ruled that in circumstances where partners live together as husband and wife, there lies a presumption in favor of wedlock, and consequently the High Court in the Ajay Bhardwaj case ruled that women in live-in relationships are entitled to maintenance akin to legally-wedded wives.
Protection of women from domestic violence
In the case of Lalita Toppo vs The State Of Jharkhand (2018), the Supreme Court of India held that under the jurisdictions of Protection of Women from Domestic Violence Act, 2005 the female live-in relationship partner will be allowed to relieve more than what is bestowed under Section 125 of Code of Criminal Procedure, 1973.
In the case of D.Velusamy vs D.Patchaiammal (2010) the Apex Court, while phrasing the Acts of parliament by drawing a difference between marriage and a relationship in the nature of marriage held that in both the cases a person who is into such a relationship is entitled to protection under Protection of Women from Domestic Violence Act, 2005, however, the Court also mentioned conditions under which an individual can seek protection under the 2005 Act, and further held that not all live-in relationships will get the benefit of the 2005 Act, and to get the benefit of the 2005 Act, the conditions mentioned must be satisfied.
What are the rights of children born out of live-in relationships
The Supreme Court of India in the case of Tulsa & Ors vs Durghatiya (2008) granted the right to property to the child born in a live-in relationship and held that such child shall not be treated as illegitimate in cases where the parents of such child have cohabited for a considerable period.
Section 16 of Hindu Marriage Act, 1955 and Section 26 of Special Marriage Act, 1954 reserves the rights of the legitimacy of the child or children born in a void or voidable marriage, and a live-in relationship falls within this ambit. A child or children born in a live-in relationship are equally entitled to the rights of inheritance as compared to a child or children born out of a lawful wedding, however, such rights are very limited in scope and extend only to the property of the parents and such rights do not extents to the coparcenary rights in a Hindu Undivided Family. Similar views were taken in the case of Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors (2010) where the Supreme Court of India held that a child born in a void or voidable marriage is not entitled to claim inheritance rights in the ancestral property however such child may claim a share in any self-acquired property.
The Supreme Court of India in the case of Revanasiddappa & Anr vs Mallikarjun & Ors (2011) considered the right to property as a Constitutional right to the illegitimate child and upheld the right to inheritance of the children who were born out of a live-in relationship.
From the above judgments of various High Courts and Supreme Court of India, it can be concluded that the Indian judiciary has most of the time practiced interpretation of laws while protecting the rights of women and children associated with live-in relationships and certainly the Indian legal mechanism lacks separate legislation which must deal with the cases of live-in relationship and must provide with codified laws, and punitive measures.
One of the reasons why India lacks such laws is the moral and societal values dominated by the sophisticated culture of India, however with time revolving, there is an urgent need to enact new laws, and therefore, the legislature must enact a separate law regarding the same.
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