This article is written by Sukriti Mathur and Mayank Raj Maurya.

Introduction

We are living in the era of developing thoughts and culture, a country like India is totally based on the traditional values, culture and religion. Sometimes this generation gap of thoughts or the difference between the old traditions and new culture gives birth to the new concept. Live-in relationship is one of those concept which stands on the line of the generation gap. India, where marriage is seen as a sacramental institution where if a woman and a man want to live together, they have to get themselves tied in the institution of marriage. The concept of the live-in relationship has to come out of its closet and gain full recognition by a larger Section of the society. 

In simple words, the live-in relationship means a kind of a relationship where both partners live-in under one roof without being married to each other with their own will. They are free from any type of the responsibility and accountability towards each other. So, it is also resanable to consider that there is no liability if one person wants to leave the other partner. But this thing will change when a child is born in a live-in relationship. The legal status of a child born in live-in relationship is not clear and because of this reason many courts provided a description on the concept of the live-in relationship through various judgments. 

In a case name, Tusla and Ors v. Durghatiya and Ors.(see here).The Hon’ble Supreme Court said that the “child born in a live-in relationship are not be treated as illegitimate but in that case, there are certain pre-conditions which are like the parents must have cohabited for a considerable amount of time under a roof, so that society recognizes them as husband and wife.” There are many rights also given to the child who born in a live-in relationship, but that’s not enough, there is still urgent need for proper legislation on the live-in relationship. 

Laws governing Live-in Relationships in India

As of now in India, there are no specific laws related to live in. The top echelons in Indian culture are increasingly accepting of live-in partnerships, but the middle class remains under cultural expectations, and the same cannot be seen in this strata of society. While some countries have recognized the concept of a live-in relationship and given it legal legitimacy by creating the concept of “registration” of a live-in relationship, which is nothing more than a cohabitation contract, others have not. Countries such as Canada and China use this technique.

Despite the fact that live-in partnerships do not have legal status or recognition, this concept is slowly gaining traction and is reflected in recent legislative advancements. The Malimath Commission for Criminal Justice Reform (see here) was established by the Supreme Court in 2003. According to the report submitted by this Commission: “The definition of ‘wife’ in Section 125 should be changed to include a woman who lived with the man as his wife for a reasonable period of time during the first marriage’s subsistence.”

A female live-in partner has the right to demand alimony as a result of this. In 2008, a report from the National Commission for Women reaffirmed the same requirement in order to protect women in live-in relationships.

The Protection of Women from Domestic Violence Act of 2005 (see here), which included Section 2(f) (see here) to protect women in live-in relationships, brought about a reform to protect women in live-in relationships. The aggrieved person who can seek protection is defined in Section 2(a). This has heightened issues of live-in partners and provided them with legal protection. In addition, the Maharashtra government passed a petition in 2008 that stated that a woman who has been in a live-in relationship for a “reasonable length” should be granted legal wife status.

In the Indian context, it is critical to identify such relationships by legislation that empowers both parties with rights and establishes obligations and responsibilities, thereby limiting the scope of such relationships.

Rights of a child born in a live-in relationship

A toddler who is born out of a live-in relationship, have four very important rights:

• Legitimacy of the Child– When a child is born in a live-in relationship, where couples are not married in that situation the legitimacy of the child is in danger. But now the first and the foremost right of a toddler born in a live-in relationship is to have the right to legitimacy, this right will form the basis for all others rights which are available to a toddler in India. In a landmark judgment SPS Bala Subramanyam v. Sruttayan (see here), the Hon’ble Supreme Court said, “If a woman and a man are living together or cohabiting some years without marriage, there will be a presumption under Section 114 of the Evidence Act (see here), that they live as Husband and Wife and the toddler born to them is legitimate.” This was a very first case where the Supreme Court upheld the legitimacy of the child born in a live-in relationship. 

Article 39(f) of the Indian Constitution (see here), which lays down the responsibility of the state to provide children with adequate opportunity to develop in a normal manner and safeguard their interests.

• Custody of the Child– Due to the lack of legislation, the issue custody of the child is ambiguous in comparison to married couples. This issue arising, at the time of separation is dealt in a manner as in a case of marriage due to the absence of specific laws. In Hindu Law, the Hindu Minority and Guardianship Act, 1956 (see here)  clearly said in Section 6, “the male or the father is the natural guardian of his minor legitimate children” as it has been laid down in the case name Githa Hariharan v. Reserve Bank of India (see here). In case the male or the father is not capable of acting child guardians then mother will be the natural guardian of that child. Section 6(b) of the same act seems to deal with live-in relationships in an indirect manner as it grants the custodial rights to the mother in case toddler born in illegitimate relations. Section 13 of the Hindu Minority and Guardianship Act, 1956 (see here)  which talks about “the welfare of the concerned minor to be of utmost consideration.” In a case name Shayam Rao Maroti v Deepak Kisan Rao Tekam (see here) respected Court held, “the word ‘welfare’ used in Section 13 of the act has to be inferred literally and must be taken in its broad sense. Such an interpretation is in unanimity with the development of the toddler as a capable and independent individual.

On the other hand in Islam Law, there is no obligation as such to maintain the toddler who born in a live-in relationship. The custody of the child belongs to the mother and she can’t deprived of her rights of custody of the child in all cases and this right under the Islam Law is known as Hizanat and it could be used against the father of the toddler.

• Maintenance– Maintenance of a child who born in a live-in relationship is a big question because the guardians are not married. It is a very important aspect in the case of live-in relationship. Under the Hindu Adoptions and Maintenance Act, 1956 (see here), Section 21,(see here) “a legitimate son, son of a predeceased son of a predeceased son, so long he is a minor or a legitimate unmarried daughter of a son or the unmarried daughter of a predeceased son of a pre-deceased son shall be maintained as dependants by his or her father or the estate of his or her deceased father. A toddler who born in a live-in relationship had not been covered under this Section of the given act and subsequently had been denied the right under this statue. 
• Right to Property– This right is also given to the toddler who born in a live-in relationship. Hindu Succession Act, 1956 (see here) says, “a legitimate child has the right including both son and daughter from Class-I heirs in the Joint Family Property”. On the other hand in Hindu Law, “the illegitimate child could only inherit the property from his or her mother’s side and not be alleged father.” 

Important Cases on Child Born In a Live-in Relationship

As there is no explicit statute that acknowledges the status of couples in live-in relationships, the law governing the status of children born to such couples is equally ambiguous. In a rights-based world where protecting children’s rights are at the top of every legislator’s agenda, the necessity to determine their status becomes even more critical. It is for this reason that by the following judgments we can understand the rights of these children.             

The Supreme Court of India held in Bharata Matha & Ors. V R. Vijaya Renganathan & Ors. (see here) that a child born out of a live-in relationship may be allowed to succeed inheritance in the parents’ property, if any, and thus given legal legitimacy. In the case it was found that the differential treatment of children from live-in relationships and marital partnerships, even though both are viewed as legal, can amount to a violation of Article 14 (see here), which guarantees equality before the law.

In a historic decision, Dimple Gupta v Rajiv Gupta (see here), the Indian judiciary used its power to establish social justice, holding that even an illegitimate child born out of an unlawful connection is entitled to maintenance under Section 125 of the CrPC (see here). And it is from this decision that it can reasonable said that child born from live in relations are entitled to maintenance. Denial of maintenance rights to children born out of live-in relationships can also be contested under Article 32( see here ) as a breach of the Constitution’s fundamental rights. In PV Susheela v Komalavally (see here), the Kerala High Court recognized Article21 (see here), which gives the right to life and personal liberty, and that rejection to maintenance can deprive such individuals of their right to live their lives with dignity.

Property rights are also an important matter of discussion in this regard In Vidyadhari v Sukhrana Bai (see here), the Supreme Court made news by granting inheritance to children born from the live-in relationship in question and granting them the status of “legal heirs.” In light of the current situation, it is reasonable to infer that, while certain laws, such as Section 16 of the Hindu Marriage Act 1955 (see here), offer legitimacy to children born out of live-in partnerships, their rights to ancestral property and maintenance remain contested and vary from case to case. This is in violation of Article 39 (f), and the existing situation is uncertain. Similarly, despite the presence of Section 6(b) of the HMGA, 1956 (see here), custody of a child born out of a live-in relationship is up to interpretation. With the current legal situation, it is possible to assume that the kid of a live-in relationship would face a lack of consistency in life regarding his or her legal status, origin, and eventual rights. 

The Supreme Court ruled in “Indra Sarmavs V. KV Sarma” (see here) that all live-in partnerships are not marriage-like. The Court further made following observations in this case.

• Such a commitment can last a long time and lead to a pattern of reliance and vulnerability, and the growing number of such relationships necessitates proper and effective protection, particularly for the woman and children born from the live-in relationship.
• Of course, the legislature cannot advocate premarital sex, while such relationships can be intensely personal at times, and people are free to express their views on both sides.
• As a result, the Parliament must consider these concerns, introduce appropriate legislation, or amend the Act to ensure that women and children born from such partnerships are protected, even if the connection is not in the type of a marriage.

It is crucial to highlight that Sections 494 (see here)  and 495 of the IPC (see here) declare any marriage of a person during the lifetime of her or his husband or wife illegal and penal unless the marriage is permitted by the concerned individual’s personal law. As a result, a live-in relationship between a married man and a woman, or a married woman and a man, cannot be considered in the “nature of marriage” because it is specifically forbidden by law. Children born from such a relationship, while not considered legitimate, would be entitled to all of the same rights as other children.

Conclusion

It is very important to change or reform the laws with the evolution of the culture or society. In India, we can see many problems not only in live-in relationships but also when a toddler born in this type of relationship. To avoid all these types of problems and loopholes, clear laws and amendments should be made. Legislative and Judiciary should grant clarity on the status of child born out of live-in relationships. To prevent this, explicit legislation should be enacted, as well as changes to ambiguous words in existing laws, to provide clarification on the identity and rights of children born in a live-in relationship. This will maintain consistency and help the youngster create emotional, mental, and biological stability.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: