LEGAL POSITION & LAWS RELATING TO LIVE- IN RELATIONSHIPS IN INDIA BY - YAALESWAR THIRUNAVUKKARASU
AUTHORED BY - YAALESWAR
THIRUNAVUKKARASU
Introduction:
In India, the legality of
live-in relationships is yet to be clearly understood and interpreted. Although
the term „live-in relationship? is difficult to define, it refers to domestic
cohabitation between two unmarried people[1]
It is generally disapproved in
Indian culture to a great extent. However with modernization and change in
social dynamics, there appears to be some favorable improvements. Marriage in
India is considered to be a
foundation of a man – women bond, and a very essential institution to make
a family, which is the basic unit of a society
While several youth population
and millennial argue favorably to it, large fraction of the population, finds
it culturally not appropriate and are hence opposed to it. Be it any religion
prevalent in India, Hindu, Muslim, Christianity, Jainism; none of them approve
live in relation between a man and woman. It must also be understood that, many
first world countries like Switzerland, have been a pioneer in legalizing such
relationships and making adequate laws to govern in effectively amidst the
contemporary world.
In a countries like India, where
marriages are seen as a societal foundation for legalising a man- woman
connection, the notion of a live-in relationship has added a new dimension to
the man- woman relationship. This gives rise a entirely new set of problems and
questions with respect to individual, social and legal factors, which must be
sort out by the way of legislation and interpretation. It is still considered to be a taboo in many parts of India which is why there are no defined laws laid down for it[2]. The paper further discusses about several legal aspect of live
in relationship in Indian context.
Understanding live in relationship
The meaning of live-in relation
is an arrangement whereby two people
decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term live-in relationship is most
frequently applied to couples who are not married[3]
The term 'wife'
should include live-in
partner too (according to Supreme Court)
The legal definition of live-in
relationship is “an arrangement of living under which the couple which is
unmarried lives together to conduct a long-going relationship similarly as in
marriage.
Today, cohabitation is a common
pattern among people in the Western world. There are a number of reasons behind
living together. These may include:-
·
Some couples may also
choose cohabitation because they see
their relationships as being private and personal matters, and not to be
controlled by political, religious or
patriarchal institutions
·
Wanting to test the compatibility
·
To establish financial
security before marrying.
·
It may also be because they are
unable to legally marry, for instance, if they
are of the same sex, some interracial or inter-religious marriages are
not legal or permitted.
·
living with someone
before marriage is an effort
to avoid divorce,
·
a way for polygamists or polyamorists to avoid
breaking the law,
·
a way to
avoid the higher income taxes paid by some
two-income married couples (in the
United States),
·
Philosophical opposition to the institution of marriage and seeing little difference
between the commitment to live together and the commitment to marriage.
Why
live in relationship is
opposed in India
Pre-marital sex, on the other hand, is frowned upon in Indian
society. As a result, couples living together before marriage are frequently regarded as culturally improper, unethical, and repugnant to societal standards[4]. Cultural aspect plays a key role in
people?s mind to oppose such relationships.
However, in Indian society,
pre-marital sex is highly looked down on.[5] Therefore,
couples cohabiting together before marriage is often deemed culturally
inappropriate, immoral and repulsive to societal norms[6]
Legal Issues with live-in
relationships
There are several
issues regarding live-in
relationships. These are as follows:
·
Is Indian culture ready to embrace such a new type of relationship?
·
What are the consequences of adopting or refusing such relationships for the continuation
and advancement of society?
·
Should new legislation be enacted in India
to govern such relationships?
·
What are the implications of legalising such a relationship for married couples?
·
Should current rules governing the maintenance,
guardianship, succession, and inheritance be changed to accommodate such
relationships?
·
What role
does the Indian judiciary play in the development of such
relationships?
·
So far, the Indian judiciary has been the most
constant in recognising such relationships. However, in terms of protecting
women?s claims in such relationships, the Indian judiciary stands ready to
provide justice to the most vulnerable members of society.[7]
What
makes a live-in relationship like a marriage
under the law?
Courts, through various cases,
have laid down certain conditions for live-in relationships to be considered as
relationships in the “nature of
marriage”. These are:
·
Duration of
the Relationship – The couple should have lived together for a
significant period of time, like months or
years. So, a few weeks, a weekend or
a one night stand, do not count as a live-in relationship.
·
Socialisation
in Public – The couple must socialize publicly with friends,
relatives and other people.
·
Age – The couple must at the time of entering into the live-in
relationship, be above the legally valid age of marriage i.e. 18 years.
·
Sexual
Relationship – A sexual relationship must be there between the
couple that includes emotional and intimate support.
·
Financial
Arrangement – The couple must have a financial arrangement similar
to that of a husband and wife. For example, pooling in resources together or
financially supporting each other, through shared bank accounts, assets in
joint names, long term business investments, etc.
·
Domestic
Arrangement – The couple must have a domestic arrangement. For
instance, running the household and doing domestic work – cleaning, cooking,
upkeep of the house, etc.
·
Intention
and conduct of the parties – Common intention of the couple as to what their
relationship is and their respective roles and responsibilities, primarily
determines the nature of that relationship.
·
Children – Having children is a strong indication that the nature
of the relationship is similar to that of a marriage, and that the participants
have a long-term view of the relationship.[8]
Current Legal status of live-in relationships in India
Though the law is still
ambiguous regarding the legality of such partnerships, a few rights have been
provided by analysing and altering the laws so that the parties can avoid
misusing such relationships. Several pieces of legislation are addressed below.
i.
Article 21- Legally, live-in relationships find roots in Article
21 of the Indian Constitution. The right and freedom of choice to either marry
or have a live-in relationship with an individual of one?s own will, thus,
emerges from this inalienable fundamental right[9]
ii.
The Protection of Women from Domestic
Violence Act, 2005-
A domestic relationship is defined in
Section 2(f) of the Domestic Violence Act, 2005 as a relationship „in the
nature of marriage? between two people residing in a shared home.
There
are certain circumstances in which courts have been asked to intervene in
live-in relationships. The courts, while pronouncing judgments on
live-in relationships, compare them to marriages to determine whether the
relationship has the characteristics of a regular marriage. If such relationships are considered in
the nature of marriage, the courts
have been known to uphold certain rights, such as, the right of the female
partner to file a domestic violence
case against her male partner
iii.
In Payal Sharma v. Nari Niketan,[10] the Supreme Court affirmed
that a man and woman could live
together upon their willingness even without getting married. Demarcating the
difference between law and morality, the Court expressed that even if live-in relationships are regarded as immoral by
society, it is neither illegal nor an offence. Two individuals cohabiting and staying in a
live-in relationship are not criminal
offenders.[11] It clarified that although socially unacceptable in
parts of India, live-in relationships are neither a crime nor a sin.
iv.
The Supreme Court first observed live-in relationships as legitimate in
the case of Badri Prasad v. Dy. Director of Consolidation (1978)[12]. The Court said that under Indian law, a live-in relationship between consenting
adults is legal if the requirements of marriage, such as legal age of marriage,
consent, and soundness of mind, are met. No rule permits or bans such
connections.
v.
Khushboo
case[13]. The argument of the prosecution was that the
comments of actress Khushboo allegedly endorsing pre-marital sex will adversely
affect the moral fabric of society. The court, while quashing the charges
framed on Khushboo, commented that there was no law which prohibits premarital
relationship. A three judges' bench comprising of Hon'ble chief Justice K.G.
Balakrishanan, Hon'ble Justice Mr. Deepak Verma and Hon'blke Justice Mr. B.S.
Chauhan observed “When two adult people
want to live together what is the offence. Does it amount to an offence”? The
court further said, “Please tell us what is the offence and under which
section. Living together is a right to life”, thereby referring to the
right to life guaranteed under Article 21. Though this was an obiter dictum, it provided a positive
impetus to live-in relationship.[14]
On the other side, Delhi High
Court, in a recent case, observed that a live-in relationship is a walk in and
walk out relationship. Hon'ble Justice S.N. Dhingra noted, “There are no legal strings attached to this relationship nor does this relationship create any legal-bond between the partners”. The court further added,
“People who choose to have live-in relationship cannot complain of infidelity
or immorality as live-in relationships are also known to have been between a 11
married man and unmarried woman or vice-versa”[15]
vi.
In 2010, the Supreme Court in Velusamy
Vs D Patchaimal[16] laid down criteria for live- in
relationships to be legal, which is the closest to the 'codification' of the
question of live-in relationship, in
the absence of any specific law on the subjects.
The Supreme
Court laid down the following criteria:
v The couple must hold themselves out
to society as being akin to spouses
v They must be of legal age to marry
v They must be otherwise qualified to enter into a legal marriage,
including being unmarried
v They
must have voluntarily cohabited and
held themselves out to the world as being akin to spouses for a significant
period of time
v Therefore, certain
live-in relationships, where two married persons or one married and another unmarried person are staying
together, do not have legal basis.[17]
Women
are also eligible for alimonies in live-in relationships, according to the 2016
Punjab High Court judgement in Ajay Bhardwaj Vs Jyotsana case.[18]
vii.
In 2006, the Supreme Court in Lata Singh Vs State of
UP ruled that two persons of opposite sex living together are not doing
anything illegal. In 2010, the SC in S. Khushboo Vs Kanniammal & Another.
reiterated the 2006 verdict and noted "A live-in relationship between two
consenting adults of heterogenic sex does not amount to any offense (with the
obvious exception of 'adultery'), even though it may be perceived as immoral".[19]
viii.
LEGAL
STATUS OF CHILDREN: The Supreme
Court in Tulsa v. Durghatiya[20] held that a child born out of such a relationship
would no longer be considered as an illegitimate child. The noteworthy
prerequisite for the same is that the parents must have lived under the same
roof and cohabited for a significant period which proves their sincerity
towards the relationship.[21]
The Supreme Court in
Revanasiddappa v. Mallikarjun approved the inheritance to the four children
born out of the live-in relationship by considering them as 'legal heirs'.
Therefore, the Court has guaranteed that no child may be denied their inheritance who are
born out of a live-in relationship of a significant period of time
ix.
MAINTENANCE: In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha,[22] the Supreme Court turned down the judgment of the
High Court which declared that appellant
wife is not entitled to maintenance on the ground that only legally married
woman can claim maintenance under Section 125 CrPC and awarded maintenance to
the wife (appellant) pronouncing that provisions of Section 125 CrPC must be
considered in the light of Section 26 of the PWDVA, 2005. 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.
According to the Justice Malimath Committee and the Indian Law
Commission, a female who has been in a live-in relationship for a long term
should be entitled to the spouse's legal privileges. Similarly, the Committee
proposed modifying Section 125 of the Criminal Procedure Code's definition of
"wife." The word "wife" has been redefined to comprise
women who had previously been in a live-in relationship. Now, against her will,
his accomplice has abandoned her in order to provide the position of wife to a
woman in a live-in relationship. And as soon as she is granted status, she is
given the right of maintenance under
section 125 of the CrPC, 1973.
Issue: However, there is a dispute that even if the wife's
position is offered
to women in a
live-in relationship, the partners cannot divorce since they are not legally
married. Therefore, how can women assert their right to be maintained under
Section 125 of the CrPC, 1973.[23]
x.
LGBT
couple: Commonly, society is indifferent towards providing benefits
to the LGBT community and unwilling to accept their relationship. Even, in any
laws and judgments of live-in relationship provision or discussion about for
LGBT couple is lacking. No matter
the Supreme Court has decriminalised consensual samesex intercourse by scraping Section 377 of
the Indian Penal Code, yet, India does not sex marriage and live-in
relationship. Despite such liberal interpretation by the honorable Courts in
the recent past, there is still lack of any marital law for the LGBT community
in the Indian framework[24]
xi.
The five sorts of live in relationship the SC court came across
in Indra Sharma
case[25] are as per the following:
·
The initial one is a domestic relationship between an
adult male and an adult female,? both unmarried. This is the most uncomplicated
kind of relationship.
·
The second one is a domestic relationship between a
married man and an adult? unmarried woman, entered intentionally. This is a
tricky hazy area. This one can prompt a conviction under Indian Penal Code for
Adultery.
·
The third one is a domestic relationship between an
adult unmarried man and a married? woman, entered knowingly entered purposely.
·
The fourth one is a domestic relationship between an unmarried
adult female and a? married male, entered unknowingly.
·
The fifth one is a domestic relationship between two gay
or lesbian partners.
The Court has cleared
up that the above are simply illustrative not Exhaustive. A Landmark Judgment on 13 April 2015 by
the seat comprising of Justice MY Eqbal and Justice Amitava Roy, the Supreme
Court decided out that couples living in live in relationship will be presumed
legally married.[26]
Conclusion
Cohabitation or live in
relationship often tends to be a human rightist and individualistic approach.
Due to legislative ignorance, individuals? in live-in relationships are not
given protection under a prescribed set of rules or regulations. The current
Indian legal framework surrounding live-in relationships is primarily a result of a series of relatively progressive judicial precedents.
The Indian judiciary, on multiple instances, has delineated the difference between
social morality and
constitutional morality by legitimising live-in relationships and upholding
their rights.
The Supreme Court and various high
courts have read the legitimacy of live-in relationships within the scope of
statutes such as the Domestic Violence Act, Cr.P.C., Evidence Act. Thus, as per
the current legal position, women in live-in relationships are entitled to
maintenance and property.
While these judicial precedents
lay a framework for regulating and guiding legal affairs from live-in
relationships, they are not enough. Recent events have proven that the lack of
definite legislation and corresponding ambiguity has led to differing and
deviating judgements amongst the judiciary. Thus, the Legislature must consider
the prevalence of live-in relationships and enact a comprehensive law
delineating the rights and duties of parties.
END NOTES:
1.
Sepaha, Priya. (2021).
Live-in Relationship in India:
Laws and Challenges.
2.
LEGALITY OF LIVE-IN
RELATIONSHIPS A COMPARATIVE STUDY BETWEEN INDIA AND USA, Vol. 3 No. 2
(2020): Journal of Family
and Adoption Law
3.
Pragyaan : Journal
of Law" Volume
1 : Issue 1, December 2011
4. Rachit Garg, Are live-in relationships legal in India September 13, 2022
5. The Times of India.
Marriage vs. live-in relationship: Two different approaches to exploring love and companionship – Times of India.
6. Narayan CL, Narayan
M, Deepanshu M. Live-In Relationships in India—Legal and Psychological Implications. Journal of
Psychosexual Health. 2021;
7.
Are live-in relationships legal in India, https://blog.ipleaders.in/ , accessed on 25
December 2022
8.
Khushboo v. Kanniammal, (2010) 5 SCC 600; Nandakumar
v. State of Kerala, (2018) 16 SCC 602.
9.
UNDERSTANDING THE LAW ON LIVE IN RELATIONSHIPS IN INDIA, https://nyaaya.org/ , (25 December 2022)
10. Payal Sharma v.
Nari Niketan, AIR 2001
All 254.
11. Ramdev Food Products Ltd. v. Arvind bhai Ram bhai Patel,
(2006) 8 SCC 726.
12. 1978 AIR 1557, 1979 SCR (1) 1
13. JT 2010 (4) SC 478
14. Pragyaan : Journal of Law" Volume
1 : Issue 1, December 2011
15. Alok Kumar v. State Crl.M.C.No. 299/2009
16. D.Velusamy vs D.Patchaiammal on 21 October,
2010
17. Live-In Relationships In India: Legal But Do They Have Enough Safeguards?, https://www.outlookindia.com/ , 25 Dec 2022
18. Ajay Bhardwaj
vs Jyotsna And Ors on 23
November, 2016
19. Live-In Relationships In India: Legal But Do They Have Enough Safeguards?, https://www.outlookindia.com/ , 13 Jan
2022
20. (2008) 4 SCC 520
21. Sepaha, Priya. (2021). Live-in
Relationship in India:
Laws and Challenges. 1. 1-12.
22. (2011) 1 SCC 141.
23.
LIVE-IN – RELATIONSHIP: A STUDY ON LEGAL ACTIONS Ms. Anupama
Yadav, Dr. Anand kumar,
International Journal of Creative Research Thoughts (IJCRT), pg e402 www.ijcrt.org
24. Sepaha, Priya.
(2021). Live-in Relationship in India: Laws and Challenges. 1. 1-12.
25. Indra
Sharma Vs. VKV Sharma, Criminal Appeal No. 2009 of 2013 arising out of Special Leave
Petition (Criminal) No. 4895 of 2012
26. Sakshi
Kansal & Shubham Bhargava, JUDICIAL INTERPRETATION AND CHANGE IN STATUS OF
LIVE IN RELATIONSHIP IN INDIA, Journal on Contemporary Issues of Law Volume 3
Issue 4 , pg 7.
[1] Sepaha, Priya. (2021). Live-in Relationship
in India: Laws and Challenges.
[2] LEGALITY OF LIVE-IN RELATIONSHIPS A
COMPARATIVE STUDY BETWEEN INDIA AND USA, Vol. 3 No. 2
(2020): Journal of Family
and Adoption Law
[3]
Pragyaan: Journal of Law"
Volume 1: Issue 1, December 2011
[4]
Rachit Garg, Are live-in
relationships legal in India September 13, 2022
[5] The Times of India. Marriage vs. live-in
relationship: Two different approaches to exploring love and companionship –
Times of India.
[6]
Narayan CL, Narayan M,
Deepanshu M. Live-In Relationships in India—Legal and Psychological Implications.
Journal of Psychosexual Health. 2021;
[7]
Are live-in relationships
legal in India, https://blog.ipleaders.in/
, accessed on 25 December 2022
[8]
Khushboo v. Kanniammal,
(2010) 5 SCC 600; Nandakumar v. State of Kerala, (2018) 16 SCC 602.
[9] UNDERSTANDING THE LAW ON LIVE IN
RELATIONSHIPS IN INDIA, https://nyaaya.org/ ,
(25 December 2022)
[10] Payal Sharma v. Nari Niketan, AIR 2001
All 254.
[11]
Ramdev Food Products Ltd.
v. Arvind bhai Ram bhai Patel, (2006) 8 SCC 726
[12]
1978 AIR 1557, 1979 SCR
(1) 1
[13] JT 2010 (4) SC 478
[14] Pragyaan : Journal of Law" Volume
1 : Issue 1, December 2011
[15] Alok Kumar v. State Crl.M.C.No. 299/2009
[16] D.Velusamy vs D.Patchaiammal on 21
October, 2010
[17]
Live-In Relationships In
India: Legal But Do They Have Enough Safeguards?, https://www.outlookindia.com/ ,
25 Dec 2022
[18]
Ajay Bhardwaj vs Jyotsna
And Ors on 23 November, 2016
[19] Live-In Relationships In India: Legal
But Do They Have Enough Safeguards?, https://www.outlookindia.com/
, 13 Jan 2022
[20] (2008) 4 SCC 520
[21] Sepaha, Priya. (2021). Live-in Relationship
in India: Laws and Challenges. 1. 1-12.
[22]
(2011) 1 SCC 141
[23] LIVE-IN – RELATIONSHIP: A STUDY ON
LEGAL ACTIONS Ms. Anupama Yadav, Dr. Anand kumar, International Journal of
Creative Research Thoughts (IJCRT), pg e402 www.ijcrt.org
[24] Sepaha, Priya. (2021). Live-in Relationship
in India: Laws and Challenges. 1. 1-12
[25] Indra Sharma Vs. VKV Sharma, Criminal
Appeal No. 2009 of 2013 arising out of Special Leave Petition (Criminal) No.
4895 of 2012
[26]
Sakshi Kansal & Shubham
Bhargava, JUDICIAL INTERPRETATION AND CHANGE IN STATUS OF LIVE IN RELATIONSHIP
IN INDIA, Journal on Contemporary Issues of Law Volume 3 Issue 4, pg 7.