In this blog post, Saanvi Singla, University Institute of Legal Studies, Panjab University discusses the rights which are available to children born out of a live-in relationship in India.
“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.
The right to maintenance of a woman in a live-in relationship is decided by the court to be in accordance with the Protection of Women from Domestic Violence Act, 2005 and will be given on the basis if the individual facts of the case.
Though the common man is still skeptical in accepting this kind of relationship, the Protection of Women from Domestic Violence Act, 2005, provides protection and maintenance to a woman thereby granting the right of alimony to an aggrieved live-in partner.
For a child born out of a live-in relationship, four rights are very important:
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, 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 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. 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. 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 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 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 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.
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.
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 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 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 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.
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, 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.
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.
 1994 AIR 133, 1994 SCC (1) 460
 2008 SC 1193
 AIR 2010 SC 631
 AIR 2010 SC 2685
 AIR 2010 SC 239
 AIR 2005 SC 1809
 Bharata Matha & Ors. V R. Vijaya Renganathan & Ors AIR 2010 SC 2685
 AIR 2008 SC 1420
 (1996) 4 SCC
 2010 (10) SCC 314