By- Aashima Kakkar
The way the current generation in India views their relationships has changed dramatically. With society opening up about pre-marital sex and live-in relationships, the taboo that once surrounded partners in live-in relationships has begun to fade.
Freedom, privacy, profession, education, and globalization have all contributed to this improved mindset. Furthermore, for the majority of young people, it is a means of better understanding their partners and determining whether or not they are compatible.
A live-in relationship not only allows the couple to get to know each other without committing to a legally binding relationship, but it also eliminates the chaos of family drama and lengthy court procedures in the event that the couple decides to split up.
It entails the partners living together indefinitely without any responsibilities or obligations to one another. There is no law binding them together, and as a result, either partner can end the relationship whenever they want.
In the Case of Indra Sarma v. V.K.V. Sarma[1], the Supreme Court defined live-in relationships in five ways:
- A domestic cohabitation between an adult unmarried male and an adult unmarried female
- A domestic relationship between a married man and an unmarried adult woman (entered mutually). Domestic cohabitation between a married woman and an adult unmarried man (entered mutually).
- These are the two most difficult grey areas in recognizing a live-in relationship. Adultery, which is punishable under the Indian Penal Code, is the second type of relationship mentioned.
- Domestic cohabitation between an unmarried adult female and a married male that occurs unintentionally is also illegal under Indian law.
- Domestic cohabitation between two homosexual partners that cannot lead to a marital relationship in India because there are no anti-homosexuality laws in place.
The Appellant brought this case to the Supreme Court because she was aggrieved by the decisions of the Karnataka High Court. K.S.P Radhakrishnan, J., and P.C Ghose, J., sat on the bench. The topic at hand was the Domestic Violence Act of 2005 and how it applied to live-in relationships. To determine what constitutes a “relationship in the nature of marriage,” several distinctions were made.
A variety of foreign judgments and laws were examined in order to develop a set of guidelines that can be used to determine the true nature of a relationship. This decision went into great detail about the women’s status in the relationship, her rights and claims, and her locus standi in a civil suit against a married man.
The learned judges also decided whether the women in this case are eligible for the relief provided by the Domestic Violence Act. While passing judgement, the judge recognized the rights and interests of the married male’s wife and their children.
Live-in relationships around the world
- United Kingdom
The Civil Partnership Act of 2004 covers live-in relationships in the United Kingdom. Despite the fact that a man and woman living together in a stable sexual relationship are commonly referred to as “common law spouses,” the term is not entirely accurate in English and Welsh law.
According to the government, live-in partners owe each other more than that to be considered worthy of the term. Unmarried couples have no guaranteed rights to ownership of each other’s property, according to a 2010 note from the Home Affairs Section to the House of Commons.
When a cohabiting couple separates, the courts do not have the authority to override the strict legal ownership of property and divide it, as they do when a couple divorces. When their partner dies, unmarried partners do not automatically inherit their partner’s assets. For tax purposes, cohabiting couples are treated as unrelated individuals.[2]
- Scotland
For the first time, the Family Law (Scotland) Act, 2006, identified and, by default, legalized live-in relationships for over 150000 cohabiting couples in Scotland.
According to Section 25(2) of the Act, a court of law can determine whether a person is a co-habitant of another by looking at three factors: the length of time they lived together, the nature of their relationship during that time, and the nature and extent of any financial arrangements.[3]
- France
In France, live-in relationships are governed by the Civil Solidarity Pact, or PaCS, which was passed by the French National Assembly in October 1999. A “de facto stable and continuous relationship” between two people of different sexes or of the same sex living together as a couple is defined as cohabitation. The agreement establishes the relationship as a contract, with the couples involved as “contractants.” The contract binds “two adults of different sexes or of the same sex, in order to organize their common life,” and the contractants “may not be bound” by another pact, “by marriage, sibling, or lineage,” in order for the contract to be valid.[4]
- Australia
A “de facto relationship” can exist between two people of different or the same sex, according to the Family Law Act of Australia, and a person can be in a de-facto relationship even if legally married to another person or in a de-facto relationship with someone else.[5]
- United States of America
Prior to 1970, cohabitation was illegal in the United States, but it was later granted common law status, subject to certain conditions. Several consensual sex legislations were then passed in the United States, paving the way for living together contracts and their cousins, “prenuptial agreements.” Cohabitation was later institutionalized in the country, with cohabiting couples having essentially the same rights and obligations as married couples, similar to Sweden and Denmark. Those who share a home are not considered legal parents.[6]
- Canada
In Canada, living together is referred to as “common law marriage.” Under the federal law of the country, common law couples often have the same rights as married couples. A common law relationship gains legal sanctity if the couple has been in a conjugal relationship for at least 12 months, or if the couple has a child by birth or adoption, or if one of the parties has custody and control of the child.[7]
Difference between marriage and live-in relationships
Marriage
Marriage, also known as matrimony or wedlock, is a socially and ritually recognized union or contract between spouses that establishes certain legal rights and obligations. Due to India’s diverse culture, various laws have been enacted that establish procedures and guidelines for the proper execution of marriages in various religions. In different religions, marriage laws have been enacted to provide remedies for disputes arising from marriage. Individual Acts were drafted for each religion due to the various customs and traditions practiced by each. The Special Marriage Act will apply in the case of inter-cast marriages.
Aside from personal laws, Section 125 of the Code of Criminal Procedure, 1973, also provides for maintenance when a wife is unable to support herself. According to Section 20(1)(d) of the Protection of Women from Domestic Violence Act, 2005, women can seek additional maintenance in addition to the maintenance they receive under any other law.
Live-in relationship
In simple terms, a live-in relationship is a marriage-like relationship in which both partners have individual freedom and live in a shared household without being married to each other. It entails the parties living together indefinitely without any responsibilities or obligations to one another. There is no law binding them together, so either partner can end the relationship whenever they want.
Because there is no legal definition of a live-in relationship, the legal status of such relationships is also unknown. The parties in a live relationship have no rights or obligations under Indian law.
The legal status of children born during such relationships is also unclear, so the court has used various judgments to clarify the concept of live-in relationships. Unless proven otherwise, any man and woman cohabiting for a long time are presumed to be legally married under the law, according to the court. The court determines the right to maintenance in a live-in relationship based on the Domestic Violence Act of 2005 and the facts of the case.
Though the average person is still hesitant to accept this type of relationship, the Protection of Women from Domestic Violence Act of 2005 provides for the protection and maintenance of an aggrieved live-in partner, as well as the right to alimony.
Legal Provisions in India
In India, there is no specific legislation governing live-in relationships. There is no legislation that specifies the rights and obligations of parties in a live-in relationship, as well as the legal status of children born to such couples. Because there is no legal definition of a live-in relationship, the legal status of such relationships is also unknown.
The parties in live-in relationships in India have no rights or obligations under Indian law. Various court decisions, however, have clarified the concept of a live-in relationship. Though the law is still unclear about the status of such relationships, a few rights have been granted by interpreting and amending existing legislations in order to prevent partners from misusing such relationships. The following sections go over various laws.
- Domestic Violence Act, 2005
The legislature has recognized live-in relationships for the first time in the Protection of Women from Domestic Violence Act, 2005 by providing rights and protection to females who are not legally married but are living with a male individual in a relationship that is in the concept of marriage, also akin to wife but 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.”[8]
Though the Act does not categorically define a live-in relationship, it is left to the courts to interpret. The court interpreted the phrase “relationship in the nature of marriage” in light of the aforementioned provision. Individuals who are in live-in relationships are currently covered by the provisions of this Act. Because the words nature of marriage and live-in relationship are on the same line and have the same meaning, courts assume that live-in relationships fall within the scope of the expression. This gives women some basic rights to protect themselves from the abuses of forged marriages and extramarital affairs.
Certain pre-requisites for a live-in relationship to be considered valid were established in Velusamy v. D. Patchaiammal[9]. It states that the couple must present themselves to society as spouses and that they must be of legal marriage age or qualified to enter into a legal marriage, even if they are unmarried. The couple must have voluntarily cohabited and presented themselves to the world as spouses for a significant period of time, according to the report.
The court determined that not all relationships are in the nature of marriage and thus qualify for the Act’s protection. It went on to say that if a man keeps a woman as a servant and supports her financially while primarily using her for sexual purposes, the relationship will not be considered marriage in a court of law. As a result, in order to receive such a benefit, the Court’s conditions must be met, and this must be proven through evidence.
- Criminal Procedure Code, 1973
Section 125 CrP.C was enacted to protect a wife, minor children, or elderly parents from vagrancy and destitution, and it has now been extended to live-in partners by judicial interpretation.[10]
The Malimath Committee, or Committee on Criminal Justice System Reforms, was established in November 2000. The Malimath Committee made several recommendations under the heading “offences against women” when it submitted its report in 2003[11]. One of the committee’s recommendations was to change the definition of “wife” in Section 125 of the Criminal Procedure Code. A revision was made as a result of this change, and now the term “wife” refers to women who were previously in a live-in relationship and whose partner has abandoned her at his will, allowing a woman in a live-in relationship to gain the status of a wife.
Essentially, it states that if a woman has been in a live-in relationship for a reasonable period of time, she has the same legal rights as a spouse and is entitled to maintenance under Section 125 CrP.C. A presumption in favour of Wedlock arises when partners live together as husband and wife.
However, it was recently pointed out in a debate that a divorced wife can be treated as a wife under Section 125 CrP.C and claim maintenance, whereas partners who are not legally married cannot give each other a divorce and thus cannot claim maintenance under this section.
The Supreme Court held in Chanmuniya v. Virendra Kumar Singh Kushwaha[12] that in cases where a man has lived with a woman for a long time and even though they may not have met the legal requirements for a valid marriage, he should be held liable for her maintenance if he deserts her. The man should not be allowed to take advantage of legal loopholes by enjoying the benefits of a de facto marriage without taking on the responsibilities and obligations that come with it. Any other interpretation would lead to the woman’s vagrancy and destitution, which is precisely what Section 125’s provision of maintenance is intended to prevent.
However, if we consider/presume that any long-term live-in relationship is in the nature of a marriage, a problem may arise because such a marriage may be barred by personal laws or other legislation. A presumption of marriage cannot be made where a Hindu male who is already married begins living in a live-in relationship with someone for a long time because it would legalize a subsequent marriage, which is prohibited under the Hindu Marriage Act.
Can a live-in partner also seek relief under other laws such as Section 125 and the Domestic Violence Act? As a result, in this case, the Supreme Court’s division bench referred certain questions to the larger bench, which have yet to be decided.
- Whether a man and woman living together as husband and wife for a significant period of time raises the presumption of a valid marriage between them, and whether such a presumption entitles the woman to maintenance under Section 125 CrP.C?
- In light of the provisions of the Domestic Violence Act, 2005, is strict proof of marriage required for a claim of maintenance under Section 125 CrP.C.?
- Would a marriage performed according to customary rites and ceremonies, but not strictly meeting the requirements of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law, entitle the woman to maintenance under Section 125 of the Criminal Procedure Code?
Case laws that shaped Live-in relationships in India
The Indian judiciary has taken the lead in filling the void left by the lack of a specific statute governing live-in relationships. It may be morally wrong in the eyes of society, but it is not “illegal” in the eyes of the law. The Indian judiciary’s goal is to provide justice to the partners in live-in relationships who were previously unprotected by any statute when they were subjected to abuse as a result of such relationships.
The judiciary is neither explicitly encouraging nor prohibiting such relationships. However, it is only concerned that there be no miscarriages of justice. As a result, the judiciary has taken into account a variety of factors when making decisions, including both societal norms and constitutional values.
A presumption for couples living together without getting legally married has existed since the time of the Privy Council. This can be seen in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy[13], where the Privy Council stated that “where a man and a lady are proved to have lived separately as spouse, the law will presume, unless the contrary be clearly demonstrated, that they were living respectively in result of a legitimate marriage, and not in a condition of concubinage”. In Mohabbat Ali Khan v. Md. Ibrahim Khan[14], the court held the marriage to be valid because both partners had lived together as spouses for a long time.
Later, in Badri Prasad v. Director of Consolidation[15], the Supreme Court upheld the legality of a 50-year live-in relationship. However, the Supreme Court stated in the same case, “The presumption was rebuttable, but the person seeking to deprive the relationship of legal origin bears a heavy burden of proof to show that no marriage took place. Legitimacy is favored by the law, and a bastard is frowned upon.” Even though it may be tempting to assume a marriage-like relationship, certain unusual circumstances may force the Supreme Court to rebut such a presumption, as was said in Gokal Chand v. Parvin Kumari[16].
The Allahabad High Court recognized the concept of a live-in relationship in Payal Sharma v. Nari Niketan[17], where the Bench of Justice M. Katju and Justice R.B. Misra stated, “In our opinion, a man and a woman can live together even if they are not married. Although society may consider this to be immoral, it is not illegal. There’s a distinction to be made between law and morality.” Following that, in Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel[18], the Court held that two people who live together but are not legally married are not criminals. This decision was then applied to a variety of other cases.
The Court held in Madan Mohan Singh v. Rajni Kant[19] that a long-term live-in relationship cannot be called a “walk-in and walk-out” relationship, and that there is a presumption of marriage between the parties. It is clear from the Court’s approach that the Court prefers to treat long-term living relationships as marriage rather than creating a new concept such as a live-in relationship.
The Supreme Court of India held in the Landmark case of S. Khushboo v. Kanniammal[20] that a living relationship falls under Article 21 of the Indian Constitution’s right to life. The Court went on to say that live-in relationships are legal and that the act of two adults living together is not illegal or unlawful. The Supreme Court made the remark while deferring a decision on a Special Leave Petition filed by Khushboo, a well-known South Indian actress, seeking to have 22 criminal cases against her dismissed after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.
The Delhi High Court decided Alok Kumar v. State[21] in late 2010, which was also about live-in relationships. The petitioner, who had not even divorced his previous wife and had a child of his own, was in a live-in relationship with the complainant. The complainant was also the mother of a child. As a result, the Delhi High Court classified such a relationship as a walk-in, walk-out relationship with no legal ramifications. It is a living-together contract that is “renewable by the parties on a daily basis and can be terminated by either party without the consent of the other.” Those who do not want to be in such relationships enter into a marriage relationship, which creates a legal bond that neither party can break at will. As a result, people who choose to be in “live-in relationships” cannot later accuse each other of infidelity or immorality.
The Supreme Court held in the case of Koppisetti Subbharao v. State of A.P.[22] that the classification “dowry” has no magical charm. It alludes to a cash request in the context of a romantic relationship. The court did not accept the defendant’s argument that because he was not legally married to the complainant, Section 498A made no difference to him in protecting the lady from dowry badgering in a live-in relationship.
Under the 2005 Act, a relationship, such as marriage, must agree to some basic criteria. It stipulates that the couple must be of legal marriageable age or qualified to enter into a legal union. It was also stated that the couple must have cohabited voluntarily for a significant period of time and presented themselves to the world as spouses. The Act of 2005 should not apply to any type of live-in relationship.
A household relationship cannot be established by simply spending a week together or having a one-night stand. It also stated that if a man has a “keep” whom he financially supports and uses primarily for sexual purposes or as a slave, it would not be considered a slave, then it would not be considered under the relationship called marriage. (Given in the case of D. Velusamy v. S. Patchaiammal[23])
Guidelines of Supreme Court regarding Live-in relationships
The Supreme Court after the landmark case of Indra Sarma v. V.K.V. Sarma[24] gave the following guidelines:
- Duration of Period of Relationship
The phrase “at any point in time” is used in Section 2(f) of the Domestic Violence (DV) Act to mean a reasonable period of time to maintain and continue a relationship, which can vary from case to case depending on the facts.
- Shared Household
The expression is defined in Section 2(s) of the DV Act and thus does not require further explanation.
- Pooling of Resources and Financial Arrangements
Supporting each other financially, or any one of them, by sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term business investments, shares in separate and joint names, and so on, in order to maintain a long-term relationship, could be a guiding factor.
- Domestic Arrangements
Entrusting the responsibility of running the home, doing household activities such as cleaning, cooking, maintaining or upkeep the house, etc. to the woman is an indication of a marriage-like relationship.
- Sexual Relationship
Marriage, like any other relationship, refers to a sexual relationship that is not just for fun, but also for emotional and intimate reasons, such as procreation of children, emotional support, companionship, and material affection, among other things.
- Children
The presence of children is a strong indicator of a marriage-like relationship. As a result, the parties intend to have a long-term relationship. Sharing the burden of raising and supporting them is also a strong point.
- Socialisation in Public
Holding out to the public and socialising with friends, relatives, and others as if they are husband and wife is a powerful circumstance to maintain the relationship.
- Intention and Conduct of the Parties
The nature of a relationship is primarily determined by the parties’ common intention as to what their relationship should be and include, as well as their respective roles and responsibilities.
What happens to children borne out of a live-in relationship?
In S.P.S. Balasubramanyam v. Suruttayan[25], the Supreme Court 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 no longer be considered children.”
Furthermore, the court interpreted the status and legislation in such a way that it shows conformity with Article 39(f) of the Indian Constitution, which states that the state must provide adequate opportunities for children to develop properly and further.
In the recent case of Tulsa v. Durghatiya[26], the Supreme Court held that a child born out of such a relationship is no longer considered an illegitimate child. The parents must have lived under one roof and cohabited for a significant period of time for society to recognise them as husband and wife, and it must not be a “walk-in and walk-out” relationship.
The Supreme Court held in Bharatha Matha v. R. Vijaya Renganathan[27] that a child born out of a live-in relationship may be allowed to inherit the parents’ (if any) property. As a result, legal legitimacy will be granted. We have seen how, in the absence of specific legislation, the Indian judiciary has protected children’s rights by giving the law a broader interpretation, ensuring that no child is “bastardised” for no fault of his or her own.
In Revanasiddappa v. Mallikarjun[28], a Special Bench of the Supreme Court of India, consisting of G.S. Singhvi and Asok Kumar Ganguly, stated that regardless of the relationship between parents, the birth of a child out of such relationship must be viewed independently of the relationship between the parents.
A child born out of such a relationship is as innocent as a child born out of a valid marriage and is entitled to all of the rights and privileges available to children born out of valid marriages. Section 16(3) of the amended Hindu Marriage Act, 1955, is all about this.
Conclusion
The court’s actions are pragmatic in nature and a positive step toward social acceptance of live-in relationships. Individual freedom is provided by live-in relationships, but laws are required to mitigate their disadvantages, which include insecurity. Even though a live-in relationship is recognized by the courts, it is still frowned upon by society and remains taboo.
Proper legislative enactments are required not only to protect the rights and interests of the partners in such relationships, but also to determine the various other rights that may arise as a result of such relationships, such as property rights, child custody rights, and so on.
Recently in an order by the Punjab and Haryana High Court the court refused to give protection to a live in couple when the man was 21 years old and the woman was 18 years old, stating that it cannot be morally accepted by the society. This was overturned by a higher bench stating that-
“An individual has the right to formalize the relationship with the partner through marriage or to adopt the non-formal approach of a live-in relationship and that Right to life and liberty enshrined in the constitution also includes the right of an individual to the full development of his/her potential in accordance with his/her choice and wish and for such purpose, he/she is entitled to choose a partner of his/her choice.”[29]
- Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 ↑
- Living together and marriage: Legal Differences available at: ↑
- Cohabitation rights in Scotland available at: thorntons-law.co.uk↑
- French cohabiting unmarried couples are ‘more equal’ available at: .connexionfrance.coml ↑
- Evidence of relationship available at: immi.homeaffairs.gov.au/ ↑
- Marriage and Cohabitation in the US available at: pewresearch.org ↑
- Assessing a common law relationship available at: canada.ca↑
- Section 2(f) of the Domestic Violence Act, 2005 ↑
- Velusamy v. D. Patchaiammal 2010 (10) SCC 469 ↑
- Ajay Bhardwaj v. Jyotsna 2016 SCC OnLine P&H 9707 ↑
- Justice V.S. Malimath Committee Report, available at: Pages 181-194 mha.gov.in↑
- Chanmuniya v. Virendra Kumar Singh Kushwaha 2011 1 SCC 141 ↑
- Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy 1927 SCC OnLine PC 51; AIR 1927 PC 185 ↑
- Mohabbat Ali Khan v. Md. Ibrahim Khan AIR 1929 SC 138 ↑
- Badri Prasad v. Director of Consolidation AIR 1978 SC 1557 ↑
- Gokal Chand v. Parvin Kumari AIR 1952 SC 231,333 ↑
- Payal Sharma v. Nari Niketan 2001 SCC Online ALL 332 ↑
- Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel (2006) 8 SCC 726 ↑
- Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209 ↑
- S. Khushboo v. Kanniammal (2010) 5 SCC 600 ↑
- Alok Kumar v. State 2010 SCC OnLine Del 2645 ↑
- Koppisetti Subbharao v. State of A.P. (2009) 12 SCC 331 ↑
- D. Velusamy v. S. Patchaiammal AIR 2011 SC 479 ↑
- Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 ↑
- S.P.S. Balasubramanyam v. Suruttayan AIR 1994 SC 133 ↑
- Tulsa v. Durghatiya AIR 2008 SC 1193 ↑
- Bharatha Matha v. R. Vijaya Renganathan AIR 2010 SC 2685 ↑
- Revanasiddappa v. Mallikarjun (2011) 11 SCC 1 ↑
- Punjab and Haryana HC: Live in Couples and married couples entitled to equal protection available at: .lawinsider.in ↑