This article has been written by Saanvi Singla, University Institute of Legal Studies, Panjab University and Sukriti Mathur. It discusses the rights which are available to children born out of a live-in relationship in India. 

Introduction

“Live-in relationship” in simple terms is a relationship in which both partners enjoy their individual freedom and live in a house together without being married to each other. It involves a stable and peaceful co-habitation between two partners without any responsibilities or accountability towards each other. In such a case, no law ties the two people who are living together, and they can leave any time they like without any consequences.

There is no proper legal definition of a live-in relationship and due to this reason the legal status of such a relationship is dubious. The Indian law does not provide any rights or obligations of the parties who are in a live-in relationship. The status of the children who are born as a result of such a relationship is also not clear and due to this reason the courts have provided a description to the concept of live-in relationships through various judgments in the past few years. The courts have liberally stated that any man and women who are cohabiting since a long time will be presumed to be legally married under the law unless it is proved to be contrary.

Laws of Live-In Relationship 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.

For a child born out of a live-in relationship, four rights are very important:

• Legitimacy
• Maintenance
• Property
• Custody

In this article, we will be discussing these four rights in detail.

Legitimacy Of the Child

The first and the foremost right for a child born in a live-in relationship is the right to legitimacy. This right will form the basis for all the other rights which are available to a child in our country.

In the case of SPS Balasubramanyam v. Sruttayan[1], the SC had said, “If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” This was a landmark case wherein the apex court for the first time upheld the legitimacy of the children born out of a live-in relationship. The court interpreted the statute of such a child to be in concurrence with Article 39(f) of the Constitution of India which lays down the responsibility of the State to provide the children with adequate opportunity to develop in a normal manner and safeguard their interests. 

In the modern days, cases like Tulsi v D[2] have held that a child born from such a relationship will no more be considered as an illegitimate child. The crucial pre-condition for a child born out of a live-in relationship to be not treated as illegitimate is that the parents must have lived under one roof and co-habited for a significantly long time for society to recognize them as husband and wife and “it should not be a “walk in and walk out” relationship, as the Supreme Court has pointed out in its 2010 judgment of Madan Mohan Singh and Ors v Rajni Kant & Anr[3]. The Courts in India have continued to support this interpretation of law in a manner to ensure that no child is “bastardized” for no fault of his/her own as it has been seen in the case of Bharata Matha & Ors. V.R. Vijaya Renganathan & Ors[4].  In this case, the Supreme Court had held that a child born out of a live-in relationship may be allowed to succeed in the inheritance of the property of the parents (if any) and subsequently be given legitimacy in the eyes of the law.

Maintenance

Maintenance is often explained as the obligation to provide for another person. It forms a very important aspect in the case of a child born out of a live-in relationship. Under the Hindu Adoptions and Maintenance Act, 1956, Section 21, a legitimate son, son of a predeceased son or the son of a predeceased son of a predeceased son, so long he is a minor or/and a legitimate unmarried daughter or unmarried daughter of a son or the unmarried daughter of a pre-deceased son of a pre-deceased son shall be maintained as dependants by his/her father or the estate of his/her deceased father. A child born out of live-in relationships had not been covered under this Section of the given Act and consequently had been denied the right to be maintained under this statute. 

The Indian judiciary used its power to achieve the ends of social justice in the landmark case of  Dimple Gupta v Rajiv Gupta[5] wherein the Supreme Court held that even an illegitimate child who is born out of an illicit relationship is entitled to maintenance under Section 125 of the CrPC (Code of Criminal Procedure, 1973) which provides maintenance to children whether they are legitimate or illegitimate while they are minors and even after such a child has attained majority if he/she is unable to maintain himself/herself. Even though there have been quite some cases that have upheld the maintenance rights of live-in partners where the statutes were interpreted in a very broad manner to include female live- in partners as “legally wedded wives”, however, in the case of Savitaben Somabhai Bhatiya v State of Gujarat[6] made an exception where the live-in partner had assumed the role of a second wife and was not granted any maintenance, whereas the child born out of the said relationship was granted maintenance.

The denial of providing maintenance to a child born out of a live-in relationship can also be challenged under Article 32 of the Constitution of India amounting to a violation of the fundamental rights which guarantees under Article 21 which provides for the Right to Life and Personal Liberty. Such a denial can deprive an individual of his/her right to lead his/her life with dignity, and this has been upheld by the Kerala High Court in PV Susheela v Komalavally[7].
The unequal treatment of a child born out of a live-in relationship and a child born out of a marital relationship even though both are perceived as legitimate in the eyes of law can amount to a violation of Article 14 which promises Equality before Law[8].

So we can see that the maintenance of a child born out of a live-in relationship is a very sensitive and a complex topic.

Property

Property rights refer to the inheritance rights of children. Under the Hindu Succession Act, 1956, a legitimate Child, both son and daughter form the Class-I heirs in the Joint Family Property. On the other hand, an illegitimate child under Hindu Law inherits the property of his/her mother only and not the putative father.

Legitimacy has always formed a pre-requisite for the inheritance rights under Hindu law. Consequently, the Courts have always ensured that any child who is born from a live-in relationship of a reasonable period should not be denied the right to inheritance and this practice is in sync with Article 39(f) of the Constitution of India. The Supreme Court in Vidyadhari v Sukhrana Bai[9] passed a landmark judgment where the Court granted the right of inheritance to the children born from a live-in relationship and ascribed them with the status of “legal heirs”.

Justice Ganguly in his criticism of the Bharata Matha case deliberated on the issue of live-in relationships and property rights of a child born out of such a relationship. He stated that the legislature has used the word “property” in Section 16(3) of the HMA, 1955 and is actually silent on whether such a property is meant to be an ancestral or a self-acquired property and in light of such an uncertainty, the concerned child’s right to property cannot be arbitrarily denied.

Clauses (1) and (2) of Section 16 expressly declare that such children should be deemed as legitimate children in the eyes of the law. Thus, such discrimination against them and unequal treatment of other legitimate children who are legitimately entitled to all the rights in the property of their parents, both self-acquired and ancestral will amount to an amendment made to this section. Consequently, the Judge stated in Parayan Kandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. vs. K. Devi and Ors[10] wherein it was held that the HMA, 1955, a beneficial legislation, has to be interpreted in a manner which advances the objective of the law.

The intention of the HMA, 1955 with respect to Section 16 and the subsequent amendment eliminating the distinction between children born out of valid/void/voidable marriages is to bring about social reforms and conferment of the social status of legitimacy on innocent children which would actually be undermined by imposing restrictions on rights guaranteed under the said section.

Therefore, the researcher finds it more logical that children born out of such relationships will have the right to whatever becomes of the property of their parents whether self-acquired or ancestral in light of the laws of equity and lack of clarity with respect to the concerned sections of the specified statutes.

Custody

The issue of custody is a significant legal barrier faced by people who are in a live-in relationship in comparison to married couples. Due to the lack of legislation, it is easy to get into such a relationship, but it is very hard to get out. Custody issues on a child born out of a live-in relationship usually arising at the time of separation are dealt in a similar manner as in the case of marriage due to the absence of specific laws for such a scenario.

In Hindu law, the Hindu Minority and Guardianship Act, 1956 clearly states in Section 6 that the father is the natural guardian of his minor legitimate children as it has been laid down in the case of Gita Hariharan v Reserve Bank of India. The mother becomes the natural guardian in the absence of the father which means when the father is not capable of acting as the child’s guardian. 

However, 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 of children born out of illegitimate relations.

Consequently, if we make a positive interpretation of the law, it can be concluded that in the case of a break-up between the live-in the partner by being the natural guardian of a legitimate child, the father will acquire the custodial rights of the concerned child.

Section 13 of Hindu Minority and Guardianship Act, 1956 goes on to talk about the welfare of the concerned minor to be of paramount consideration and thereby to negate the effect of previous provisions if they are in contravention of the said section.

In Shyam Rao Maroti Korwate v Deepak Kisan Rao Tekam[11], it was held that 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 child as a capable and independent individual.

Important Cases on Child Born In 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 Article14 ( 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 HMGA1956 ( 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 critical to keep in mind that the law needs to be changed and reformed with the evolution of the society. Even though certain verdicts given by various courts have recognized live-in relationships, an equal number of judgments have done the exact opposite. Hence, it is for the law to take a firm stance on this emerging form of a relationship whose pace is increased by the booming economy and modernization of culture in India. Once this is dealt with, the key issue of the impact of live-in relationships on children must be properly analyzed.

To avoid all these confusions and loopholes, clear laws should be made, and amendments should be made to the ambiguous terms in present laws. They should grant clarity on the status and rights of children born out of a live-in relationship. This will ensure uniformity and will help the establishment of emotional, mental and physical security for such a child.

References

[1] 1994 AIR 133, 1994 SCC (1) 460

[2] 2008 SC 1193

[3] AIR 2010 SC 631

[4] AIR 2010 SC 2685

[5] AIR 2010 SC 239

[6] AIR 2005 SC 1809

[7] (2000)DMC376

[8] Bharata Matha & Ors. V R. Vijaya Renganathan & Ors AIR 2010 SC 2685

[9] AIR 2008 SC 1420

[10] (1996) 4 SCC

[11] 2010 (10) SCC 314