In this blogpost, Priyanka Kansara, a law student from National Law School, Jodhpur writes on the legality of live-in-relationship and on the right to maintenance available to a woman in a live-in-relationship.

Unlike Marital Relationship, Live-in-Relationship is purely an arrangement between the parties; once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Hence, it is called as a walk-in & walk-out relationship.  Live-in-Relationship is neither a Crime nor a Sin; though it is unacceptable to the certain extent. In a country like India, where marriages are considered as a social foundation to legalize the relationship between a man and a woman; the concept of Live-in-Relationship has set up a new dimension in the arena of men-women relationship, though it is not a novel phenomena. Two adult people i.e. man and woman agree to live together without pushing them towards all the traditional formalities, but they have certain mutual duties towards each other. The question of legality of the Live-in-Relationship was raised in several cases, but the Live-in-Relationship poses a question before the Society i.e. how far can the Society accept it for Social Reformation.

Maitri Karar (friendship agreement) was a concept similar to the contemporary live-in-relationship and was practised in the state of Gujarat. It was a system in which a man and woman would live together and share an intimate relationship without being legally wedded; even during the lifetime of a married partner. The man was expected to provide financially for his companion who was in turn in a sexual relationship with him, even during the lifetime of his legal wife. This concept has menaced the society with the increasing possibility of Bigamy, which is illegal under Indian Law; though certain religions accept it by way of including the provision under their law i.e the Muslim Law, it could infringe the rights of the spouse.

Legality i.e. Legitimacy of Live-in-Relationship Concept-

A general principle was evolved in the case of A Dinohamy v. WL Blahamy[1], wherein the Privy Council stated that Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. The contrary opinion was stated in the case of Mohabbat Ali vs. Imran Khan[2]; on the same footing in the case of Gokul Chand and Pravin Kumari[3], it was held that cohabitation for a long time doesn’t guarantee to earn them legitimacy. The concept of Legitimacy was also discussed in the case of Badri Prasad vs. Dy. Director of Consolidation[4], Hon’ble Supreme Court has held that to acquire the Legitimacy, the couple has to Cohabit together for a long period and be known in society as husband and wife. This means either have children or get their names registered in some document, for example by property jointly as husband and wife; it means the Court left no evidence to allow anyone to defend their relationship.

In the Case of Alok Kumar vs. State[5], Hon’ble Delhi High Court held that Live-in-Relationship is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can also be terminated without the consent of the other party; one party can walk out on his will anytime. Those, who do not want to enter into this kind of relationship, they enter into a relationship of marriage, which has legal implications and obligations. Thus, people who chose to have ‘live-in-relationship’ cannot complain of infidelity or immorality as live-in-relationship are also known to have been between a married man and unmarried woman or between a married woman and an unmarried man.

In Tulsa & Ors vs Durghatiya & Ors[6] ( popularly known as Loli and Radhika case), Hon’ble Supreme Court held that if a man and woman live together and cohabit for a long period as husband and wife, there is presumption of a valid marriage between them and that child born out of such relationship would be legitimate and have inheritance and succession. In the same case the Supreme Court Bench consisting of Justices Arijit Parayat and P. Sathasivam declared the child born out of such relationship will no longer be called illegitimate.

Applicability of various Legal Provisions on the Live-in-Relationship-

The next question arises as to whether a live-in-relationship would amount to a relationship in the nature of marriage falling within the definition under Domestic Violence Act 2005 (hereinafter the Act 2005). The Act 2005 has been enacted to provide a remedy in Civil Law for the protection of women from being victims of domestic violence. Section 2 (f) of the Act 2005 defines Domestic Relationship, it is a relationship between two people who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Hon’ble Supreme Court in the case of D. Velusamy v. D. Patchaiammal[7] held that, a ‘relationship in the nature of marriage’ under the Act 2005 must also fulfil the following criteria: (a) The couple must hold themselves out to society as if they are spouses, (b) They must be of legal age to marry, (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(s) of the Act 2005.

On the Contrary, in the case of Indra Sarma vs. V K V Sarma[8], a two-judge bench in the Apex Court has stated that Domestic relationship between an unmarried adult woman and an unmarried adult male, who lived or, at any point of time lived together in a shared household, will fall under the definition of  Section 2 (f) of the Act 2005 and in case, there is any domestic violence, the same will fall under Section 3 of the Act 2005 and the aggrieved person can always seek reliefs provided under Chapter IV of the Act 2005.

Whether a woman in a live-in relationship has the right of maintenance

After the establishment of a ‘domestic relationship’ between two adults in the context of Live-in-Relationship, another question arises of whether a woman in a Live-in-Relationship has a right to be maintained under Section 125 of the Criminal Procedure Code, 1973. In the case of Chanmuniya vs. Virendra Kumar Singh Kushwaha[9], the Supreme Court observed that in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage
without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent. Justice Malimath Committee as well as the Law Commission of India in its Report in 2012[10] stated that if a woman has been in a Live-in-Relationship for a reasonable time, she should enjoy the legal rights of a wife.

Furthermore, in the case of Varsha Kapoor vs. UOI[11] the Delhi High Court while taking the assistance of the Supreme Court’s Verdict in Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh[12] in the context of section 498A of the Indian Penal Code, held that female living in a relationship in the nature of marriage has right to file complaint not only against husband or male partner, but also against his relatives.

Author’s Remark

While discussing this issue in the Parliament on December 15, 2008, the then Union Law Minister has stated that if Live-in-Relationships are acceptable by Society, then the Government can make laws. Laws are made keeping in view the trends prevailing in the Society. But, just to counter Hon’ble Minister’s argument on not to make Legal Provisions on Live-in-Relationship, the Author would like to state that if the Parliament makes Law by looking into the Social Stigma and needs, then why has the Parliament not taken any step for the deterrence of the Honour Killing. Unless a substantive Law in the realm of marriage deals with this question comprehensively is included, it would be futile to interpret and apply certain Legal Provisions deal with the concern subject matter on this Live-in-Relationship issue.

It would be an inconvincible argument to counter the Concept of Live-in-Relationship that it could infringe the sanctity and the dignity of marital rites, because Marriages can be established not by way of marital sacraments but by way of mutual respect. One negative aspect of this relationship with the lack of proper Legal Provision could be that it could inflate the cases of Bigamy, as earlier discussed also in the Maitri Karar; it could also pose a threat on the rights i.e. Conjugal Rights of the other Spouse.  On the similar subject matter, Hon’ble Supreme Court in the case of S. Khushboo vs. Kanniammal & Anr.[13], placing reliance upon its earlier decision in Lata Singh vs. State of U.P. & Anr.[14], held that live-in-relationship is permissible only in unmarried majors of heterogeneous sex. In case, one of the said person is married, he may be guilty of the offence of adultery and it would amount to an offence under Section 497 of Indian Penal Code.

A proper Legislative Rule can make a difference by giving a different and legal status to this relationship; for that purpose, the Parliament need not to rely on the Social trends or the societal thinking; In the Metropolitan areas, the Concept of Live-in-Relationship is kept flourishing nowadays. If two persons want to live together without binding themselves into any societal knot; it is the Fundamental Rights of the Person under Article 21 of the Constitution of India to live as they want to.

In the lack of proper Legal sanctions, the person can be deserted in the mid of the relationship. A balanced approach is needed to ensure the protection of the Fundamental Rights.

[1]  (1928) 1 MLJ 388 (PC).

[2] AIR1929 PC 135.

[3] AIR 1952 SC 231.

[4] AIR 1978 SC 1557.

[5] Cri. M.C. No. 299/2009 (Del. H.C. (Aug. 9, 2010)).

[6] (2008) 4 SCC 520.

[7] AIR2011SC479.

[8] 2013 STPL(Web) 944 SC.

[9] (2011) 1 SCC 141.

[10] Abhijit Bikaseth Auti vs. State of Maharashtra, (Criminal Writ Petition No. 2218 of 2007), 2009 CriLJ 88.

[11] WP (Crl.) No. 638 of 2010; Del. High Court.

[12] AIR 2009 SC 2684.

[13] JT 2010 (4) SC 478.

[14] AIR 2006 SC 2522.