This article is written by Heba Ali, a BBA LLB student at Symbiosis Law School, Noida. This article talks about the Legal Status of Children Born Out of Live-In Relationship. It also discusses, in brief, the judicial pronouncements by the Supreme Court of India that had occurred over the years.

Introduction

A ‘live-in relationship’ is a kind of relationship where both the partners live-in under one roof without being married to each other. It can be termed as cohabitation between the two partners without any responsibility or accountability towards each other. So, it can be considered that there is no liability if one party decides to leave the other partner. But the status of children born out of live-in relationship has never been clarified by the court except on a few points. In the case of Tulsa & Ors vs. Durghatiya & Ors the Supreme Court provided that the child born out of cohabitation are not to be treated as illegitimate but there are certain pre-conditions which are like the parents must have cohabited for a considerable amount of time under one roof so that the society recognizes them as husband and wife. And same has been said by the court in other cases that if a man and a woman have been cohabiting for a long period of time then they will be presumed to be legally married unless proved contrary. So, in India, there is an urgent need for legislation on the live-in relationship.

The court stated that the live-in relationship is immoral in the eyes of our conservative Indian society but it is not illegal in the eyes of law. In 2008 National Commission for Women Report recommended that women in a live-in relationship must be given rights under Section 123 CrPC, 1973. But just spending the weekends or having a ‘one-night stand’ will not be considered as domestic relationships and in the nature of marriage. India is a country based on traditional values, culture and religion and this is the reason why the live-in relationship has not gained full recognition from the society and is still considered to be a taboo and has a social stigma attached to it because such kind of relationship is entered into without the sacrament of marriage. But, here are examples of a few countries who have recognized the live-relationships and has given legal status to it like Canada, China, the Philippines where cohabitation contract is made which is simply by registering themselves. But, countries like the United States of America has said that this cannot be equated to marriage.

The rights of a toddler born out of a live-in relation can be studied under following heads as given below-

(a) Legitimacy

(b) Preservation to the Child

(c) Right to Property

(d) Custody of the Child

But in a country like in India the law is still ambiguous about the place where such relationship stands in the eyes of law though some rights have been given to prevent the flagrant misuse of the relations between the two by any one of the partners. If the legislature decides and goes on to give live-in relations a legal status then totally a whole new set of laws will be required to be laid down and alter the existing law such as laws governing the Hindu Marriage. Laws will be altered because of the reason for governing this relationship like protection of the partner in case the other partner has deserted, cheated upon each other, maintenance, inheritance etc. It is when two individuals live in the same house and have a sexual relationship, but they are not married, then it is often referred to as live-in relationships. There are certain causes behind the live-in relationship and researches have also been done. But in today’s modern time people are opting live-in relationship due to the reason so that they could test the relationship between the two before marriage. They’re not able to marry as the law speaks and they also are not in favour of having long lasting relation. By this, it could be assumed that they want to dissolve the relations without being afraid of the consequences of things related to divorce.

When a marriage is achieved in steps by following the laws and as per the religious customs then it creates rights and obligations which cannot be blown away effortlessly. In live-in relations, people can come out of the relationship very easily as there is no bar which exists if you are married because then you are governed by certain laws and procedures. Thus, often it happens that one party feels cheated and so this is why court and legislator by making the law has come forward for the rescue. In live-in relationship when it creates some kind of laws and duties like in marriage then it is often termed as ‘common law marriage’ like in countries where it is recognised.  

Live-In Relationship and Laws in India

The practice of two individuals (man and women) staying together without being in a relationship of formally organized marriage has been in practice for a long time. It was considered as immoral back in the earlier days but was prevalent even then but in a different form than what it is practised now. Concubines were kept for men in earlier days for the sole purpose of entertainment and relaxation. But after India gained independence the society matured and then bigamy was outlawed. Then eventually women became much aware of their rights given by law. Now even though it is illegal then also it is in practice and people continue to violate the laws. However, the outlook of people has changed over the years especially the way the judges of the courts see them now and because of the verdicts given in different cases Lata Singh v State of UP in which live-in between two unmarried individuals has been recognized by the courts.

Unlike other foreign countries, India has still not recognized such kind of relationships because of the old and traditional values followed in the society and also because still, a large percentage of females are still dependent on male and so our country still considers marriage as the best forming part of the society. Live-in relationships can also be categorized in a manner like many times people are by choice or because of some situation. When people are living together by mistake or by fraud then they can be put into the category of the situation. But when they are living with each other by choice then they do not face any legal issues as it does not need any kind of recognition but the other one faces certain problems because of a misunderstanding of the status of marriage.

Children Born To Live-In Parents and married Parents

Live-in parents are more visible now than it was 20 years back and this is because of the reason that pay scale has gone up across the race and especially the income across the groups. It is seen that the children who are born to married couples show better signs of social and emotional development. Also, research suggests that apart from this they even show better cognitive development as well than those who are born to cohabiting couples. The differences which we are comparing here are relatively less in number when compared it is compared with other differences such as between children born to couples with a high and low level of education or even in a high and low level of income groups.

Research also suggests that children born to cohabiting couples are usually at a higher risk of having poor results in future when compared to children of married parents in a slight manner because cohabiting couples have lesser socio-economic resources and this is mostly because of the reason of unstable living situations. According to the research it was seen that average live-in parents relations last for about 3-5 years with even less-than-half of them ending in marriage. Once the couple is married formally the live-in parents have a much higher risk of dissolution of marriage than the individuals who did not live together prior to getting married and this is what research tells us about over the years.

There has been a lot of debates about the significance of marriage and whether initiating individuals to formally marry rather than going for live-in will give a better environment and upbringing to the children born out of such relations. Things in case of live-in situations changes and differ because of reasons like ethnicity of the group, level of education, status and also the past history of relationship stability and the quality of relationships parents share among them and with the child when he/she is at a very young age.

The very first case in which the Supreme Court dealt with live-in relationships recognized the live-in relationship as a valid marriage was in Badri Prasad v. Dy. Director of Consolidation where the court had declared and held legally valid the 50-year old live-in relations between the two individuals. The Supreme Court took another step in the year 2010 which had given some clarity to thousands of such type of relationships with reference to Indian legal context and the judgement was declared by Justice Markandey Katju and Justice TS Thakur.

In India, the individuals are granted with the fundamental right under Article 21 and by taking this article into account it could be said that live-in relationships may be immoral in the eyes of conservative Indian society where we live but it is not the same or is not illegal in the eyes of law. For example, in the case of Khushboo vs Kanniammal & Anr where the criminal appeals were filed against the women because she endorsed pre-marital sex and live-in relationship. Then the Supreme Court had quashed it by saying how this could be illegal when there are two consenting adults involved and so by the reason, it is not illegal. The court even quoted the example of Radha and Krishna in support of the decision given. Again in a case like A. Dinohamy vs W.L Blahamy where the privy council declared that when it is proved two individuals (man and women) are living together happily like a man and wife then the law will presume that they were living in the consequence of a valid marriage unless the contrary is proved.

Then in the case of Indra Sarma v. V.K.V Sarma, the Supreme Court stated that live-in or marriage-like relationships is neither a sin nor a crime though it may not be acceptable in some societies. So, it can be said that it is legally valid and because of the support from the society which is involved in the institution of marriage it helps to create the likely condition that the child would be stable because of the love, attention from both the parents, resources, support from the relatives, friends and society there would be a healthy growth and environment.

It is also important and in the best interest of everyone that to maintain a polite and cooperative relations with the child’s other parent, if they still are present and in the picture. This is so because courts have all the powers to modify and change the custody given. Then it is important to hereby follow the order given by the court. Courts would be modifying the order when there has been significant changes in situations like-

• When one of the parents violates the order given by the courts.
• There is evidence of child abuse in the home
• When there is evidence of domestic violence in the home
• One of the parents is not in the condition to maintain the needs and take care of the child
• When the requirements of the c changed and the current order of the court is suitable because of such changes.

In order to get the child custody order modified one needs to first file a petition with the appropriate court. But, the procedure related to the changes in the child’s custody differs from state to state.

The legitimacy of Children Born in Case of Live-In Relationships

Marriage is also referred to as wedlock and is socially and by rituals is regarded as a union or a contract between the two that goes on to establish certain rights and legal obligations towards one another. As per the existing law and social framework it is only children who are born to the married couple are legally entitled and recognized in the society. Marriages in Islam is considered very significant as it is a civil contract between the two parties and marriage is considered good not only for the individuals but for the good of the family as well. But, living without marriage has not been recognized till date.

The Supreme Court in Malimath Committee report there it had defined the word ‘wife’ in Section 125 of CrPC and asked to be amended to also include 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. Again in Protection of Women from Domestic Violence Act, 2005 certain amendments were done so as to guard women who were involved in live-in relationships that went on and defined the term “domestic relationship”. Indian judiciary has played a very important role in many ways by giving landmark judgements, such as in case of Dimple Gupta v. Rajiv Gupta where social justice was given by pronouncing that even the illegitimate child that is born out of illicit relationship was entitled to maintenance when they are minor and after they had turned major and where he/she is not able to maintain himself/herself. By this, the court had stated that children born to live-in parents are legitimate and have the same rights as in case of children from the valid marriage. Again, in case of SPS Balasubramanyam v. Sruttayan that if a man and a woman are living under one roof for some years, then it will be presumed under Section 114  Evidence Act that they live as a husband and wife and children born to them are not illegitimate.

Right to Property

Right to Property is when there is an inheritance right to the person concerned. Under Hindu Succession Act,1956 it gives right and tells that a legitimate child has the right including both son and daughter from Class-I heirs in the Joint Family Property. But in Hindu Law, the child which is illegitimate could only inherit the property from his/her mother’s side and not the alleged father. The legitimacy of a child has always been a topic of debate and legitimacy has always been considered a major factor while considering the inheritance rights under Hindu Law. Courts have but always said that a child born out of the live-in relationship will not be denied the inheritance of property when born after a reasonable period of time. In case of Vidyadhari vs Sukhrana Bai where a landmark judgement was passed where the court granted the right of inheritance to the child born out of live-in relationship and granted him legal status.

Many judges have criticized the idea of giving legal status to children born out of the live-in relationship. Justice Ganguly while criticizing the Bharat Mata vs Union of India case talked on the issue of live-in relationship and their rights to the property. He said that the legislature has used the word “property” in Section 16(3) of HMA, 1955 and has been silent on the topic that whether the property in question should be ancestral or self-acquired property. In such situations, the court has decided not to deny the child the right to property in an arbitrary manner.

Maintenance which is often talked about with respect to the rights of the live-in partners and to the child born out of such relationship. Under Section 21 of Hindu Adoption Act, 1956 that a son whether legitimate or illegitimate till the time he is minor and so long the daughter is unmarried she shall be entitled to maintenance by his/her father or from his estate of his/her deceased father.

If there is denial of maintenance rights to children born out of live-in then it could be challenged under court of law who has appropriate jurisdiction for violation of fundamental right under Article 21 and such type of denial of rights will lead to depriving the individual the right to live with dignity and was upheld by the Kerala High Court.  There has always been unequal treatment of children born out of live-in relations and marital relations even it is now said and proven by the courts that they are treated equally. The children who are born out of live-in are treated as equally even after so many pronouncements to not to treat them differently and if done then there would be a violation of Article 14. Thus even after so many judicial pronouncements the rights of children has been and remains a topic of debate.

Custody Of Child

This is one of the core issues faced by both the partners in a live-in relationship as compared to the married couples and this is so because there is no law or legislation regarding this issue. To decide upon this problem of custody courts have referred to Section 13 of Hindu Minority and Guardianship Act, 1956 which tells us about the welfare of the concerned minor to be of utmost consideration. In the case of Shyamrao Maroti Korwate case held that the word ‘welfare’ is needed to be taken and inferred literally and in a broad manner. Apart from this, there are certain acts like Guardianship and Wards Act, 1890 and these acts are to be read together and then it is to be implemented in case of a child case for custody. Then there should be the appointment of a guardian for the minor in a proper manner.

So, even though there might be the case in live-in relation where the court gives the custody of the child to the male partner, however, interpretation should be done in favour of the child only and nobody else. It is to be kept in mind that evolves as the society grows and even though there have been cases where the court gave the verdict and supported the live-in relationships then also there has been an equal number of verdicts that have done the opposite. So, the law needs to keep in mind that there has been an emerging form of relationship because of the fast pace of growth in the economy and also because of the modernisation of culture in India. In the end, the impact of the live-in relationship on children must be analysed and kept in mind as this is the crucial part.

Under Muslim law, there is no obligation as such to maintain the child born out of live-in as it is the case under Hindu Law. The first and foremost right to the have the custody of the child belongs to the mother and she cannot be deprived of her rights till the something contradictory is proven. The mother will have all the rights of custody of the child in all case and this right under Muslim law is known as hizanat and it could be used against the father of the child or any other individual.

Conclusion

The best way to conclude and understand this issue is to read and go through the interpretation of the courts and various landmark cases which I have cited above, this is so because courts have considered and gone through all the aspects to conclude that even though judgement differs because each case has different facts and issues. So, to avoid any problem in future clear laws should be laid down and amendments should be made to the terms which are not interpreted clearly and are vague in-laws. In the end, a clear view on the status and rights of children born out of live-in relationship is to be given by the courts and legislature. As this will ensure uniformity and will help to secure the future of such children.

But the society prefers and recommends to have children to be born out of the marriage so that they are entitled to and could claim the right to ancestral property also the right to acquire the self-acquired property. Also, there has been steady growth of live-in round the world and not just in India because of the impact of globalization and because families have broken up and the life partners have to stay outside and alone in different cities of different countries around the world away from their partners. And this is the reason why there has been the growth of live-in relations around the world as well as in India.