Live-In Relationship And Indian Judiciary

Introduction

It is being truly said that the only thing which is constant in this world is change. The Indian society has observed a drastic change in its living pattern in the past few years. People are slowly and gradually opening their minds towards the idea of pre-marital sex and live-in relationships. However, this change has been continuously under criticism and highly discussed as such concepts lack legality and acceptance by the society. Unlike marriage, in live-in relationships couples are not married to each other but live together under the same roof that resembles a relation like marriage. In other words, we can say it is a cohabitation. In India, only those relations between a man and a woman is considered to be legitimate where marriage has taken place between the two based on existing marriage laws otherwise all other sort of relationships are deemed to be illegitimate.

The reason behind people choosing to have a live-in relationship is to check the compatibility between couples before getting legally married. It also exempts partners from the chaos of family drama and lengthy court procedures in case the couple decides to break-up. Whatever the reason, it is very evident that in a conventional society like ours, where the institution of marriage is considered to be “sacred” an increasing number of couples choose to have a live-in relationship, even as a perpetual plan, over marriage. In such circumstances, many legal and social issues have arisen which have become the topic of debate. With time many incidents have been reported and seen where partners in live-in relationships or a child born out of such relationship have remained vulnerable for the very simple reason that such relationships have been kept outside the realm of law. There has been gross misuse by the partners in live-in relationships since they do not have any duties and responsibilities to perform. This article seeks to analyse the judicial response to the concept of live-in relationships so far. It also talks about the rights available to live-in partners in India and also, what is the status of children born out of such relationships.

Live-in Relationship and Law in India

There is no particular law regarding the matter of live-in relationship in India. There is no enactment to lay down the rights and commitments for the parties in a live-in relationship, and for the status of children born to such couples. There is no legal definition of live-in relationship and in this way the lawful status of such sort of connections is likewise unverified. The Indian law does not give any rights or obligations to the parties of live-in relationships. However, court has clarified the concept of live-in relationship through various judgments. Though law is still unclear about the status of such relationship yet few rights have been granted by interpreting and amending the existing legislations so that misuse of such relationships can be prevented by the partners. Various legislations are discussed below—

Domestic Violence Act, 2005

For the very first time in Protection of Women from Domestic Violence Act, 2005 (Pwdva), the legislature has acknowledged live-in relationships by giving rights and protection to those females who are not legally married, but rather are living with a male individual in a relationship, which is in the idea of marriage, additionally akin to wife, however not equivalent to wife.

Section 2(f) of the Domestic Violence Act, 2005 defines:

Domestic relationship means a relationship between two persons 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.[1]

Though live-in relationship is not categorically defined in the Act but left to the courts for interpretation. By virtue of aforementioned provision, the court interpreted the expression “relationship in the nature of marriage”. The provisions of Pwdva are presently made applicable to the individuals who are in live-in relationships. Courts presume live-in relationships to be covered under the ambit of the expression as the words nature of marriage and live-in relationship stand on the same line and meaning. This gives women some basic rights to protect themselves from the abuse of fraudulent marriage, bigamous relationships.

Criminal Procedure Code, 1973

… Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor children/old age parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.[2]

In November 2000 the Malimath Committee i.e. the Committee on Reforms of Criminal Justice System, was set up. In 2003 when the Malimath Committee submitted its report, it made several recommendations under the head “offences against women”[3]. One of its recommendations was to amend Section 125 CrPC so as to alter the meaning of “wife”. Owing to this alteration, a revision was made and now the expression “wife” incorporates the ladies who were previously in a live-in relationship and now her accomplice has abandoned her at his will so a lady in live-in relationship can now get the status of a wife. Basically, it expresses that if a female has been in a live-in relationship for a sensible period of time, she ought to have the legitimate privileges as that a of a spouse and can claim maintenance under Section 125 CrPC. Where partners live together as husband and wife, a presumption would arise in favour of wedlock.[4] However, in a debate it was recently observed that it is a divorced wife who can be treated as wife under Section 125 CrPC and can claim maintenance and as for partners when they are not legally married, they cannot give divorce to each other and hence cannot claim maintenance under this section.

Evidence Act, 1872

The court may presume the existence of any fact which it thinks likely to have happened, regard being given to the common course of natural events, human conduct and public and private business, in a relation as to the facts of the particular case. Therefore, where a man and a lady live respectively for a long spell of time as a couple then there would be an assumption of marriage.[5]

Judicial Response to Live-in Relationships

With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”

— Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun[6]

Indian judiciary has taken a lead to fill the gap that was created in absence of any specific statute relating to live-in relationships. It may be considered immoral in the eyes of society but it is not at all “illegal” in the eye of the law. The intention of Indian judiciary is to render justice to the partners of live-in relationships who, were earlier not protected by any statute when subjected to any abuse arising out of such relationships. Judiciary is neither expressly promoting such concept nor prohibiting such sort of relationships. It is, however, just concerned that there should not be any miscarriage of justice. Therefore, while deciding various cases, the judiciary has kept in mind various factors including both societal norms and constitutional values.

Since from the time of Privy Council, a presumption for couples living together without getting legally married had begun. This fact can be seen in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy[7] here the Privy Council took a stand that, “where a man and a lady are proved to have lived respectively as spouse, the law will presume, unless the opposite be obviously demonstrated that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage”[8]. This same view was also taken in Mohabbat Ali Khan v. Md. Ibrahim Khan[9] wherein the court held the marriage to be legitimate as both the partners have lived together as spouse.

Later the Supreme Court in its judgment in Badri Prasad v. Director of Consolidation[10] gave legal validity to a 50-year live-in relationship. But in the same case the Supreme Court observed that, “The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon a bastard.”[11] Even though it may tempt to presume the relationship in the nature of marriage, certain peculiar circumstances do occur which may force the Supreme Court to rebut such a presumption.[12]

The Allahabad High Court again recognised the concept of live-in relationship in Payal Sharma v. Nari Niketan[13], wherein the Bench consisting of Justice M. Katju and Justice R.B. Misra observed that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.”[14] Thereafter, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel[15], the Court observed that two people who are in a live-in relationship without a formal marriage are not criminal offenders. This judgment then was made applicable to various other cases.

In Madan Mohan Singh v. Rajni Kant[16], the Court held that, the live-in relationship if continued for long time, cannot be termed as a “walk-in and walk-out” relationship and that there is a presumption of marriage between the parties. By this approach of the Court it can be clearly inferred that the Court is in favour of treating long-term living relationships as marriage rather than giving making it a new concept like live-in relationship.

In landmark case of S. Khushboo v. Kanniammal[17], the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

In later part of 2010 the Delhi High Court decided Alok Kumar v. State[18] which also was related to live-in relationships. The complainant was in a live-in relationship with the petitioner, who had not even divorced his previous wife and had a child of his own. The complainant also had a child of her own. The Delhi High Court, therefore, tagged the nature of such relationship as a walk-in and walk-out relationship with no legal strings attached. It is a contract of living together “which is renewed everyday by the parties and can be terminated by either of the parties without consent of the other party”. Those who do not want to enter into such relationships enter into a relationship of marriage which creates a legal bond that cannot be broken by either party at will. Thus, people who choose to have “live-in relationships” cannot later complain of infidelity or immorality.

In another leading case of Koppisetti Subbharao v. State of A.P.[19], the Supreme Court held that the classification “dowry” has no magical charm. It alludes to a request of cash in connection to a conjugal relationship. The court has not accepted the contention of the defendant that since he was not legally married to the complainant, Section 498?A did not make a difference to him in a stage ahead in shielding the lady from badgering for dowry in a live-in relationship.

In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha[20] where High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the Pwdva, 2005.[21] The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.[22]

A relationship like marriage under the 2005 Act must consent to some basic criteria. It provides that the couple must be of legal age to marry or should be qualified to enter into a legal marriage. It was also stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Every kind of live-in relationships should not be covered under the Act of 2005. Simply spending a week together or a one night stand would not make it a household relationship. It additionally held that if a man has a “keep” whom he maintains financially and uses principally for sexual reasons or potentially as a slave then it would not be considered, as a relationship in the nature of marriage.[23]

Lately, in a landmark case, Supreme Court dealt with the issue of live-in relationships in detail and also laid down the conditions for live-in relationship that can be given the status of marriage. On 26-11-2013 a two-Judge Bench of the Supreme Court constituting of K.S.P. Radhakrishnan and Pinaki Chandra Ghose, JJ. in Indra Sarma v. V.K.V. Sarma[24] held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage” as per provisions of Pwdva, 2005. But in this case, the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relationships.[25] Therefore, the Supreme Court emphasised that there is a great need to extend Section 2(f) which defines “domestic relationships” in Pwdva, 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.

Following are the guidelines given by Supreme Court:

“(1) Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

(2) Shared Household

The expression has been defined under Section 2(s) of the DV Act and, hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

(4) Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

(6) Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.

(7) Socialisation in Public

Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

(8) Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.”[26]

Lately, a landmark judgment on 8-4-2015[27] by the seat comprising of Justice M.Y. Eqbal and Justice Amitava Roy, the Supreme Court decided out that couples living in live-in relationship will be presumed legally married. The Bench also added that the woman in the relationship would be eligible to inherit the property after the death of her partner[28].

Legal Status of Children Born Out of Live-in Relationship

The first time when the Supreme Court held the legitimacy of children born out of live-in relationship was in S.P.S. Balasubramanyam v. Suruttayan[29], the Supreme Court 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.”[30] Further, the court interpreted the status and legislation to an extent that it shows conformity from Article 39(f) of the Constitution of India which sets out the obligation of the State to give the children adequate opportunity so that they develop in proper manner and further safeguard their interest.

Dealing with the recent case on the legitimacy of children of such relationships, Supreme Court in Tulsa v. Durghatiya[31] has held that a child born out of such relationship will no longer be considered as an illegitimate child. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognise them as husband and wife and it should not be a “walk-in and walk-out” relationship.[32]

In another case Bharatha Matha v. R. Vijaya Renganathan[33], the Supreme Court held that a child born out of a live-in relationship may be allowed to inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian judiciary in the absence of specific legislation have been protecting the rights of the children by giving law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.

On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi, Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun[34] remarked that irrespective of the relationship between parents, birth of a child out of such relationship has to be viewed independently of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages. This is the crux of Section 16(3) of the amended Hindu Marriage Act, 1955.

Conclusion

Live-in relationship has always been the focus of debates as it possess threats to our basic societal framework. It is not considered as an offense as there is no law until the date that prohibits this kind of relationship. In order to bring justice to those female who are the victims of live-in relationships Indian judiciary took a step, brought interpretations and made such arrangements valid. Still India has not legalised it, legalising means having special legislation for it. As of now, there is no legislation or statute that specifically governs matters related to succession, maintenance, guardianship in regards to live-in relationships. However, for Protection of Women from Domestic Violence Act, 2005 legislature has acknowledged the right of partners living in a live-in relationship to get protection. It has recognised live-in relationships through various judgments so that individuals of the relationships can be protected from abuse. At the same time, courts frequently declined to make any kind of positive steps towards legalising such practise by allowing any compulsory agreements between unmarried couples as this could conflict with the general society strategy. It ends up plainly obvious that the Indian judiciary is not prepared to treat all kind of living relations as akin to marriage. Only stable and reasonably long period of relations between the couples are given the advantage of the 2005 Act. It is the duty of the judiciary to ensure that law has to accommodate with the changing scenario of the society. Though courts through various judgments and case laws attempted to get a clear picture regarding the status of live-in relationships, yet it remains unclear on various aspects, where there is an urgent need for having different sets of rules and regulation and codification with regards to such kind of relationship.

In the author’s view, there must be a separate statute dealing with this current issue so that rights of living partners, children born out of such relationships and all those people who are likely to get affected by such relationship should be protected. Not all live-in relationships should be given legitimate status, but only those which satisfy certain basic requirements. At the same time, there should also be awareness among live-in partners regarding the legal consequences arising out of such living arrangement.

    [1]  S. 2(f) of the Domestic Violence Act, 2005.

    [2]  Ajay Bhardwaj v. Jyotsna, 2016 SCC OnLine P&H 9707.

    [3]  Justice V.S. Malimath Committee Report, available at <https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf>, pp. 181-194.

    [4]  Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.

    [5]  S. 114 of the Evidence Act, 1872.

    [6]  (2011) 11 SCC 1 : (2011) 2 UJ 1342.

    [7]  1927 SCC OnLine PC 51 : AIR 1927 PC 185.

    [8]  Id., 187.

    [9]  1929 SCC OnLine PC 21 : AIR 1929 PC 135.

  [10]  (1978) 3 SCC 527 : AIR 1978 SC 1557.

  [11]  Ibid.

  [12]  Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, 333.

  [13]  2001 SCC OnLine All 332.

  [14]  Ibid.

  [15]  (2006) 8 SCC 726.

  [16]  (2010) 9 SCC 209.

  [17]  (2010) 5 SCC 600.

  [18]  2010 SCC OnLine Del 2645.

  [19]  (2009) 12 SCC 331.

  [20]  (2011) 1 SCC 141.

  [21]  Ibid, para 39.

  [22]  (2011) 1 SCC 38, para 38.

  [23]  D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469 : AIR 2011 SC 479.

  [24]  (2013) 15 SCC 755.

  [25] Ibid.

  [26]  Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, available at <http://www.indiatvnews.com/news/india/historic-supreme-court-approves-live-in-relationships-asks-par-30912.html?page=3>.

  [27]  Dhannulal v. Ganeshram, (2015) 12 SCC 301.

[28]  Available at <https://timesofindia.indiatimes.com/india/Couple-living-together-will-be-presumed-married-Supreme-Court-rules/articleshow/46901198.cms>.

  [29]  (1994) 1 SCC 460 : AIR 1994 SC 133.

  [30]  Ibid.

  [31]  (2008) 4 SCC 520 : AIR 2008 SC 1193.

  [32]  Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209 : AIR 2010 SC 2933.

  [33]  (2010) 11 SCC 483 : AIR 2010 SC 2685.

  [34]  (2011) 11 SCC 1 : (2011) 2 UJ 1342.

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