Laws Regarding Live-In Relationship in India

Laws Regarding Live-In Relationship in India

By-: thelawiq.com

Author:- Aditi Choubey Student of KIIT School of Law, Bhubaneswar

Abstract

Live-in relationship, basically means living together as a couple without being married to each other. It was considered a taboo in India before but now the scenario is totally different, as it is considered to be a legally accepted and very recently, such relationships are being increasingly common in the society due to various reasons. In absence of any specific legislation, rules, or customs on this particular subject, the Supreme Court has issued certain guidelines in its few recent judgments in regards of such relationships. This article mainly revolves around the current legal provisions governing live-in relationships in India. Live-in relationship between two consenting adults is not considered to be illegal and if these couples present themselves to the society as husband and wife and live together for a significant period of time, this relationship is considered to be a relationship “in the nature of marriage” under the Prevention of Domestic Violence Act, 2005. And therefore, the female partners are entitled to claim maintenance under this new provision. Children who are born out of such relationships are considered legitimate and are entitled to get shares in the self-acquired property of their parents, though they are not entitled for a coparcenary share. Live-in relationships may enable the couple to know each other better, but such no-strings attached relationships have their own disadvantages too which is very well discussed in this article. The couple faces multiple social and logistic problems in day-to-day life. Experts say that from a mental health point of view, it is considered better to be engaged in a good quality with greater bonding, which is basically accepted by the society at large than living alone and having no relation at all.Introduction

In this modern fast changing world where every second and every minute’s  technological and industrial advancements are occurring at a very rapid pace for last few decades, which has brought revolution in every aspects of our lives. Globalization during last few decades has hastened the changes, affecting almost all aspects of our social life, like family structure, marriage, conjugal relationship, and so on, in a good way. Marriage is a legally and socially accepted form of relationship between couples. As social structure and bonding is believed to be stronger in our country  and therefore the institution of marriage holds a greater importance here. In a country like India living together without marriage is considered a taboo and is very rare. But recently, things are changing and couples have started living together under a single roof even without being married. Such relationships may be brief or may continue for a considerable period of time. If their bond continues for a prolonged period, it is termed live-in relationship.

There was no specific legislation and social rules,  in India regulating the matter of live-in relationships. Therefore, the Supreme Court has taken the authority to elaborate on this major concept through its judgment at different times and has issued guidelines and showed its judicial creativity for the purpose of dealing with such taboo. This article tries to make a review of the decisions of the apex court delivered at different times and also tries to figure out the current legal position regarding the live-in relationships. A brief review of psycho-social aspects of such relationship on every mind is also done.

Legality of Live-In Relationships

Live-in relationship between consenting adults is not considered illegal under the Indian laws. In 2006, in the case of “Lata Singh v. State of U.P,” it was held in this case that a live-in relationship between two consenting adults of opposite sex, though perceived as immoral, does not amount to any offence under the law.[1] In another important case “Khushboo vs Kanaimmal and another,” the Supreme Court observed “Though the concept of live-in relationship is considered immoral by the society, but is definitely not illegal in the eyes of the law.” It was also mentioned that living together is a right to life and therefore it cannot be held illegal in the eyes of law.[2]

If live-in relationships continue for a long period of time and the couple present themselves to the society as husband-wife, they get recognized as being legally married. In “Badri Prasad Vs Deputy Director Consolidation,” the court observation  that, if a man and a woman who live  together as husband and wife in the society are  hereby compelled to prove, after half a century of wedlock by eye-witness evidence that they were validly married fifty years earlier, only a few will succeed. A strong presumption arises in favor of wed-lock where the partners have lived together for a long span as husband and wife. Law leans in favour of legitimacy and frowns upon bastardy.”[3] Same observation was made in “SPS Balasubramanian Vs Suruttayan”, in which it was observed that where a man and a woman live together as husband and wife for long period of time, presumptions under the law would be in favor of their being legally married to each other unless proved to the contrary and children born out of such live-in relationship would be entitled for inheritance in the property of the parents.[4] If such relationship is only for sexual reasons, neither of the partners can claim benefits of a legal marriage. “Indra Sarma vs VKV Sarma” was another landmark case on this matter of live-in relationship in which implications of different types of relationships were examined.[5] If both the partners are unmarried and enter into a relationship mutually, it doesn’t constitute to any offence. Prior to 2018, domestic cohabitation of a wedded or unattached man with a wedded woman constituted as a criminal offence of “ infidelity,” but for the man only, under Section 497 of Indian Penal Code (IPC). But this section was annulled by the Supreme Court of India in the case of “ Joseph Shine vs Union of India” in September 2018, as the Court came to the conclusion that it was violative of the Composition 14 of the Constitution of India.

The section treated men and women inversely as only the man and not the woman is subject to execution for infidelity. Also, it was only the hubby of the concerned woman who could make the man who was involved in the act and the woman can not prosecute her hubby for infidelity. Though infidelity is no longer a felonious offence, but the matter of cohabitation with any wedded man or woman may be a matter of civil issues constituting the ground of divorce. Also, cohabitation with sexual relations between two adult mates of same coitus also constitutes to crime of unnatural offence under Section 377 of IPC previous to 2018. But the position was reversed in “ Navtej Singh Johar vs Union of India”. The Supreme Court gave a major order in which it annulled the Section 377, insofar as it criminalized the homosexual sexual acts of two or further grown-ups in private who retain faculty to concurrence. It was nominated to be unconstitutional, illogical, unpardonable and arbitrary, and being violative of Articles 14, 15, 19, and 21 of the Constitution. Still, the Section 377 continues to be in the book of bills as fairly valid and applicable. Insofar as the Section 377 applies to the nonconsensual sexual acts between the two grown-ups, to the sexual acts against minors. Though consensual sexual acts of homosexuals were legalized, but the same coitus marriages are still not honored in India, although it isn’t banned anywhere moreover. To get honored as “ in the nature of marriage,” certain conditions were set and put forward by the Supreme Court in the case of “D. Velusamy andD. Patchaimal (5 SCC 600).”[6]

  1. The couple must hold themselves out to the society as being akin to consorts
    2. They must be of legal age to get wedded.
    3. They must be else good to enter into a legal marriage, including being unattached.
    4. They must have freely rented and held themselves out to the world as being akin to consorts for a significant period of time.
    In “ Indra Sarma vs VKV Sarma,” the Apex Court was of the view that all live-in connections aren’t connections in the nature of marriage. In this particular case, it was plant that the complainant, having been completely apprehensive of the fact that the replier was a wedded person, couldn’t have entered into a live-in relationship in the nature of marriage, because it has no essential or essential characteristics of a marriage, but a relationship other than in the nature of marriage. The Court further made following compliances in this case.
    1. Similar connections may last for a long period of time and can affect in a pattern of reliance and vulnerability, and adding number of similar connections calls for an acceptable and effective protection, especially to the woman and the children born out of that relationship.
    2. Legislature of course, can not promote adulterous coitus, however at times, similar connections are intensely particular and people may express their opinions, both for and against.
    3. Therefore, the Parliament has to consider over these issues, bring in proper legislation, or make a proper correction of the Act, so that women and the children born out of similar kinds of connections are defended, though similar relationship might not be a relationship in the nature of a marriage.
    It’s material to note then that the Sections 494 and 495 of IPC prohibits, any marriage of person within the continuance of her/ his hubby or woman and indeed makes it a punishable offence, unless it’s permitted by the particular law of the concerned person. Thus, a live-in relationship of a wedded man with a woman or of a wedded woman with a man cannot be honored as in the “ nature of marriage” as it’s expressly banned by law. Still, children born out of similar relationship, though not regarded as licit, would have all the rights within the parameters specified by law.

Grant of Alimony and Application of the Prevention of Domestic Violence Act, 2005

In US, the term “palimony” is used for granting relief in the live-in relationships. The term “palimony” was conceived during a famous celebrity divorce case of “Marvin vs Marvin” in California, US. In this case, the complainant was living with the man in a live-in relationship for a long period of time and thereafter she approached the Court to get financial compensation from her partner for breaking up with her.9 The word “palimony” is a combined form of worlds “pal” and “alimony.” Though the particular suit was unsuccessful, the courts found that “in the absence of an express agreement, courts may look to a variety of other remedies to divide property equitably.”[7] It was observed that if there is cohabitation agreement for the couple before moving in together, the Court may consider grant of palimony. In India, the need for such relief was felt by Malimath Committee on Criminal Justice which recommended amendment in the definition of the word “wife” in Section 125 of the Criminal Procedure Code (Cr. P.C.) so as to include women who are living with the man as his wife for a reasonably long period of time.[8] Section 125 of the Cr. P.C. provides for claiming maintenance by wives, children, and parents from a person on which they are dependent and are unable to maintain themselves. Though the amendment was not incorporated in the Cr. P.C., such relationships were brought into ambit of domestic relationship. Section 2(f) of Prevention of Domestic Violence Act, 2005 (PDV Act, 2005) defines domestic relationship as “a relationship between two persons who live or have lived together, at any point of time, 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.” According to this definition, live-in relationships which are in a nature of marriage, that is, the couples are living for a long period of time and presenting themselves as husband and wife come under the ambit of the PDV Act, 2005. Therefore, the woman in live-in relationship can take protection under Protection of Women from Domestic Violence Act, 2005 and can claim for maintenance also (D. Velusamy vs D. Patchaiammal).The question of application of the PDV Act, 2005 to the live-in relationships came into the consideration of the Supreme Court in the case of “Lalita Toppo vs State of Jharkhand.” It was held that the victim, that is, the estranged wife or the live-in partner would be entitled relief under the Act in a shared household.[9] While referring to this report in “Ajay Bhardwaj vs Jyotsna”, the court awarded alimony under the PDV Act, 2005 to a woman in a live-in relationship.[10] But it is only the woman who can claim maintenance under the PDV Act, 2005. Relief under the PDV Act, 2005 is not available to men in live-in relationships. In this connection, it is pertinent to mention that in the case of “Khushboo vs Kanniamal” the Court observed that “a live-in relationship is invariably initiated and perpetuated by men.”

What are the Rights of Children Born Out of Live-In Relationship?

In “Tulsa vs Durghatiya,”[11] the Supreme Court, while granting right of property to a child, observed that children born from live-in relationship would not be treated as illegitimate if their parents would have lived under one roof and cohabited for a considerably long period of time so as to be recognized as husband and wife and it must not be a “walk in and walk out” relationship. Section 16 of the Hindu Marriage Act, 1955 and Section 26 of the Special Marriage Act, gives legitimacy to children born out of void and voidable marriages by providing that children born out of marriage, which is null and void or where a decree of nullity is granted in respect of voidable marriage, shall be legitimate or deemed to be legitimate, respectively. But according to subsection (3) of the same sections of the Act, right of inheritance of such children is limited to the property of the parents only. Therefore, such children do not have the coparcenary rights in the property of the Hindu undivided family (HUF), if their parents are not legally wed to each other. Thus, the provisions of these sections of the Act have been applied to provide right of inheritance to the children born out of live-in relationship in the self-acquired property of the parents. But if their parents are not legally married to each other, they cannot claim the coparcenary rights in the property of the HUF of their father. Claiming maintenance under the Section 125 of the Cr. P.C is well within the rights of a dependent children born out of the live-in relationships, as the section itself expressly mentions “both legitimate and illegitimate child.” In the matter of deciding for the guardianship, mother is regarded as the natural guardian of such children.

Psychosocial Implications of Live-In Relationship

In the recent years, our country has witnessed drastic changes in the matter of relationships between opposite sex. The present generation perceives such relationships in a way different from what was perceived earlier. In the context of our sociocultural values, it was considered to be taboo for men and women to live together under the same roof without being legally married to each other. Similarly, the idea of having premarital sex was considered to be highly immoral. But these beliefs and taboos are gradually fading away and the society is opening up about the idea of premarital sex and live-in relationships. Freedom, privacy, profession, education, globalization, and other factors are responsible for this change in mindset. Points put in favor of such relationships are that such relationships are a way to understand each other in a better way and to check if the partners are compatible for each other or not. Present generation, unlike their predecessors, consider it necessary for them to understand each other in a fairly reasonable way before entering into a formal wedlock. Once someone enters into a formal wedlock, the break up becomes very cumbersome, lengthy, complicated, and troublesome to all concerned if the partner finds that they are not at all compatible for each other. But living together for some time without entering into a legal marriage gives them opportunity for an easy break up without the need of taking recourse to cumbersome legal procedures. But such relationships are without any duties and obligations attached it has it’s own disadvantage as well. Such relationships are not binding upon the partners, whereas in a typical marriage, the partners are provided certain rights and bestowed with obligations and duties to be performed by both of them. The woman is often in a disadvantageous position in live-in relationships. A bench of Rajasthan State Human Rights Commission, in September 2019, even termed such relationship against the dignity of woman and made a recommendation to enact a Law against it. But the decision received widespread protest and criticism from human rights activists.

Such relationships lead to multiple social as well as logistic problems in day-to-day living. They face legal hurdles of multiple types like opening a joint bank account, visas, insurance, visitation to hospitals, and so on. Children born out of the wedlock are exposed to mental trauma and have problems of smooth inheritance in property of the parents. As stated above, they have the rights of inheritance in their parents’ properties, but they do not have coparcenary share in the HUF property. Two instances are described here to illustrate the difficulties faced by couples in live-in relationship without being legally wed. International chess player Anuradha Beniwal was peacefully living in with her partner in a live-in relationship without any objection from the family members, though the response of the society was like some sort of silent disapproval. Sometime later, her partner received a job offer at London and she decided to move along with him. Visa problem was anticipated as they were not married to each other in a legally acceptable way. To avoid these troubles, they had to get married in a rush.[12] A couple in Kerala remained in live-in relationship for 40 years. They were against the social institution of marriage, holding the views that love did not need approval by the society and the sanctity of marriage. They had made the decision to live together forever and did it precisely for 4 decades of their life. But after such a long stint of live-in relationship, they decided to legalize their relationship, not out of personal compulsion but only to avoid legal and administrative problems faced by their grandchildren.14

Importance of Good Quality Relationship

Association between good-quality relationship and mental health cannot be overemphasized. Having good-quality, close, and positive relationships gives us a sense of purpose, meaning, and belongingness. Conversation with a good and empathetic listener in a face-to-face interaction helps in relieving stresses and also helps to process our emotions, including the uncomfortable ones. Interactions with a loved one leads to a range of pleasurable and positive experiences. People in good-quality relationship and social connectivity to family, friends, and the community are happier and have few mental health problems. Isolation and loneliness lead to multiple psychological problems and also poor physical health. Holt-Lunstad et al[13] in their meta-analytic study made important observation about the influence of lack of good-quality social relationship on the risk of death. It was found to be a significant risk factor comparable to some other well-established risk factors such as smoking and alcohol and it was even greater than some other risk factors like physical inactivity and obesity. Stable and good-quality relationship has demonstrable benefit on both physical as well as mental health. Lower morbidity and mortality were found among those who were in stable and good-quality marital relationship.[14] A long-running study on human behavior was conducted at Harvard University to find out what makes people healthy.

These days, social media has come to play important role in our life. People have started to devote their substantial time in online interactions via social media. But these online interactions, friendships, and relationships cannot have the same effect as those happening in the real life. Social media interactions cannot have the same healthy psychological and emotional response that happens in the real-life relationships. Face-to-face and real-life interactions between people always remain a satisfying and healthy means of communication and relationship, which contributes to a sense of belongingness and well-being. Moreover, online interaction via social media can also be damaging as it blurs the line between real friends and virtual friends and exposes people to unhealthy communications as well leading to developing prejudices and biased opinions, which may get rectified on witnessing things in real life. Therefore, it may be concluded that live-in relationship in a compatible couple is better than no relation at all. Living alone or remaining trapped in an unhappy marriage may lead various types of psychological problems.

Marriage as an Institution

The social importance of marriage cannot be overemphasized and it is one of the most important institutions in human civilization. Even greater significance is attached to it in the context of Indian culture. It not only serves to satisfy the fundamental biological need of sexual gratification through a socially acceptable way but also helps the individual to achieve a higher level of personality maturation.19 For most women in India, marriage is a onetime event in life, which is glorified and sanctified and is associated with much social approval. It is also the ultimate fulfilment for most women. The celebration of a marriage gives rise to moral and legal obligations as well, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. One of the most important consequence of marriage is reciprocal support and responsibility of maintenance of a common household. Various types of obligations and duties flow out of marriage and it has its importance in the matter of inheritance of property, succession-ship, and so on. Marriage also provides strong familial and social support to the couple in different aspects of their life, be it physical, emotional, or economical support. Entering into a marriage, either through the Hindu Marriage Act, 1955 or Special Marriage Act, 1954 or any other personal laws applicable to the parties, is entering into a relationship of “public significance,” since marriage being a social institution, many rights and liabilities flow out of legal relationship. The concept of marriage as a “civil right” has been recognized by various courts all over the world. A married couple has to discharge legally various rights and obligations, unlike the case of persons having live-in relationship or marriage-like relationship or de-facto relationship. In our country, non-solemnization of a relationship as marriage is regarded as social stigma. Social values, customs, traditions, and even legislation have attempted to ensure stability of marriage. It cannot be denied that problems occur in marriages and there may be unequal relationships in which one partner, most commonly women, is in a disadvantageous position. It is also true that on breaking down of relationships through marriage women suffer in far greater terms, especially in Indian context. But the importance of marriage as an institution cannot be denied.

Recent events happening related to the concept of Live-in Relationship

“On live-in relationship, not for us to judge couple’s decision”,Punjab and Haryana high court.

The court was informed that after knowing about the relationship between the girl and her partner, her parents wanted her to marry a person of their choice, after which the girl left her parents home and went to live with her partner. They decided to live together till the time they are legally allowed to solemnise their marriage, they submitted.

The Punjab and Haryana high court has refused to mediate in a couple’s decision to stay together in a live-in relationship without the sanctity of marriage stating that if a couple has decided to live together, it isn’t for the courts to judge or decide on their choice.”The pleaders herein have taken a decision to live together without the sanctity of marriage and it isn’t for the courts to judge them on their decision,”the bench of Justice Sant Parkash observed while hearing the plea filed by a 17- time-old girl and a 20- time-old boy from Bathinda in Punjab. They had moved to court seeking protection from the family members of the girl. The order was passed by the bench on June 3.
On denying protection to people who choose for live-in connections with dire consequences, the court said,”It would be a travesty of justice in case protection is denied to people who have determined to dwell together without the legal bond of marriage and similar people have to face dire consequences at the hands of persons whom protection is sought.”
“In case, such a course is adopted and protection denied, the court would also be failing in their duty to give its citizens a right to their life and liberty as elevated under Composition 21 of the Constitution of India to uphold to the Rule of Law,”the court observed.
Spotlighting the killings by families in the name of’ honour’, the court said,”At this stage bone can not lose sight of honour killings which are current in northern corridor of India, particularly in corridor of states of Punjab, Haryana, Rajasthan and Uttar Pradesh.”
” Honour payoff is a result of people marrying without their family’s acceptance, and occasionally for marrying outside their estate or religion. Once an individual, who’s a major, has chosen his/ her mate, it isn’t for any other person, be it a family member, to object and beget a handicap to their peaceful actuality. It’s for the State at this juncture, to insure their protection and their individual liberty,” the bench said.
The apex court in its order on June 4, 2021 granted protection observing, “ Dispensable to state that since it concerns life and liberty, the Superintendent of Police is needed to act expeditiously in agreement with law, including the entitlement of any protection to the pleaders in view of the apprehensions/ pitfalls, uninfluenced by the compliances of the High Court.”

Conclusion

Live- in relationships give the couples a higher room to know each other better. And also gives them freedom to end the relationship as per their want. But they’ve to face numerous social and legal hurdles. Such relationship puts women frequently in a inimical position. The Supreme Court has issued guidelines for regulating similar connections and also for guarding the rights of the women involved in the relationship and also the children born out of it, which has been described over. Social values and norms have completely been changed for the new generation. Live-in relationship may be normal in some circumstances but the significance of the institution of marriage for maintaining the social order cannot be denied. From a psychiatrist point of view, what’s more important is to get engaged into a positive, sweet, and meaningful relationship than to remain alone or remain trapped in an unhappy, negative, and toxic relationship. Also we all very well know that the generation is changing the mindset is changing and people need to change consequently. The change should always be positive and should always be for a good cause.

Bibliography

Acts referred

  1. The Code of Criminal Procedure, 1973.
  2. The Hindu Marriage Act, 1955.
  3. The Domestic Violence Act, 2005.
  4. Guidelines covering the Adoption of Children, 2011.
  5. The Constitution of India.

Articles and Reports referred

  1. Chandra Lekha, SC orders Protection to the live in couple who were denied by the P&H HC, Law Times Journal, June 7, 2021.
  2. Social acceptance of live-in relationship on rise: HC grants Haryana couple protection, The Indian Express, May 20th, 2021
  3. Live-in Relationships- it’s position in India and abroad, pros and cons, legitimacy and inheritance of child etc.

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