“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today”. [1]
Notion of legitimacy in an evolving society is absolutely volatile. Live-in relationship is a revolutionary change that infiltrated the popular consciousness of Indian society over time. A survey conducted by Centre for socio-legal research in India revealed that about 80% of our population support live-in relationships.[2] This is the new-normal that we witness today and this is also a proof that live-in bonds are no more an urban-egalitarian experiment. Even though the constitutional and legal position of the arrangement is still under development, the concerns of moral turpitude involved are completely removed now. However, people who choose to be in an open relationship to avoid the clutches of procedural complications and attachment burdens are still overloaded by the superimposition of marital notions on to this novel relationship status. At the same time, increasing concerns of domestic violence issues mandates a responsible state to call for mandatory registration. In such a complex scenario where juxtaposition of a responsible but no-strings attached relation is constantly subjected to restructuring, each judicial pronouncements are highly significant in shaping its figure in entirety.
JUDICIAL EVOLUTION
The first trace of judicial recognition of live-in relation can be traced back to 1927, where the Privy Council recognised a presumption of legitimacy as opposed to concubinage when a man and a woman are living together as spouse, unless proved otherwise.[3] In the case of Mohabbat Ali Khan v. Md Ibrahim Khan[4] also the court took a similar stand.
In the post-independence era, the Allahabad High Court was the first to held that a man and woman living together without getting married is not illegal.[5] Further, the hon’ble Supreme Court recognised a 50-years old live-in relationship in the case of Badri Prasad v. Director of Consolidation[6] keeping the presumption rebuttable. In Ramdev Food Productes (P) Ltd v. Arvindbhai Rambhai Patel[7] court reminded that two people in Live-in relationship without formal marriage are not criminal offenders. However, court refused to consider live-in relationships that continued for a long period as ‘walk-in and walk-out’ relation and imposed a presumption of marriage.[8] Live-in relationship was read within the ambit of Article 21 in S Kushboo v. Kanniammal[9] and this case set a landmark in precedence.
However, the legal position of live-in relationships in relation to other statutes are still in a complicated status. People who choose to have live-in cannot later complain of infedility or immorality.[10] If a man has a ‘keep’ whom he maintains financially and uses principally for sexual reasons or potentially as a slave, it would not be considered as a relationship in the nature of marriage.[11] For a live in relationship, the partners should have willingly cohabited and kept themselves out of the world as being akin to partners for a considerable amount of time.[12] A woman who is aware of the fact that man with whom she is living is already married, is not entitled to reliefs available to legally wedded wife under protection of Women from Domestic Violence Act, 2005.[13] In Vimala v. Veeraswami[14] hon’ble Supreme Court held that a female partner in a live-in relation comes within the definition of wife and can claim maintenance. A man and woman living under the same roof has a presumption of marriage under S. 114 of Indian Evidence Act, 1872.[15] A lady in live-in relation has complete right to claim the support of S. 125 CrPC.[16] Recently, hon’ble Supreme court also recognised the right of trans-persons to enter into a live-in relationship.[17] In Supriya Chakraborthy and Anr v. Union of India[18] homosexual person’s right to enter into a union was upheld.
RIGHT OF A CHILD BORN OUT OF LIVE-IN RELATIONSHIP
Previously the child born out of live-in relationships had to carry the shame of illegitimacy. In Tulsa v. Durhhatiya[19] hon’ble Supreme court held that child born out of such a relation is not illegitimate. A child born out of a live-in relation is a legitimate child and it has to be viewed separate of the relationship of the parents.[20] In the same case court held that regardless of the legitimacy of the relationship between parents, the child born out of that relationship must be regarded separately from the relationship between his/her parents. It was remarked by Justice AK Ganguly that the child born from such a relationship is innocent and has the right to get all the privileges and rights which are available to those children who are born out of valid marriages. In Vidhyadhari v. Sukhrana Bai[21] it was observed that even if a person entered into a second marriage during the subsistence of his first marriage the child born out of the relationship would still be legitimate though the marriage is void.
The child also has right to inherit the parent’s property.[22] However this is not absolute. It is limited to self-acquired property of the parents and not to Hindu ancestral coparcenary property. Even though the Hindu Marriage Act, 1955 does not directly recognize the live-in relationship, S. 16 of the Hindu Marriage Act indirectly provides legitimacy to such children and grants them the right of inheritance. In Vidyadhari v. Sukhrana Bai[23] it was held by the Supreme Court that as per section 16 of the Hindu Marriage Act children born out of a live-in relationship should be given the status of legal heirs and are entitled to the right to inherit the property of both the parents.
A child from live-in relationship do not enjoy right of maintenance under the Hidnu Adoption and Maintenance Act, 1956. However S 125 of CrPC provides maintenance to children whether legitimate or illegitimate while they are minors and after they attain majority where such child is unable to maintain himself. However in Dimple Gupta v. Rajiv Gupta the could held that regardless of the relationship status of the parents a minor child is entitled to maintenance. [24] Even a child born out of illegal relationship has the right to maintenance under S 125 of CrPC. [25]
Section 2(2) of the Children Act, 1960 states that where the father and the mother of the child was not married to each other before the birth of the child, that is if it was a live in relation, the mother has the parental responsibility for the child. But as Section 2(2)(b) of the Act states, the unmarried father can acquire parental responsibility in the following ways: (a) by subsequently marrying the child’s mother, (b) upon taking office as a formally appointed guardian of the child, (c) by making a parental responsibility agreement with the mother, (d) by obtaining a parental responsibility order under the Act, and (e) by obtaining a residence order in which case a separate parental responsibility orde must be made. Section 6(a) of the Hindu Minority and Guardianship Act, 1956 provides the father as the natural guardian of his minor legitimate children and Section 6(b) provides mother as the natural guardian for illegitimate children. Even though a child born out of live-in relation is considered legitimate, the ambit of application of it with regard to the specific case of guardianship is unanswered.
INHERITENCE RIGHTS OF LIVE-IN PARTNER
Partners in a live-in relationship are not automatically provided with right of inheritance. It is pertinent to note that Hindu Succession Act, 1956 does not give succession rights even to a mistress living with a male Hindu. However concubines who come within the definition of an ‘avaudh stri’ were previously eligible under shastric Hindu law for maintenance.[26] In Vidhyadhari v. Sukhrana Bai[27] the hon’ble supreme court held that persons who have been in a live in relation for a reasonably long period of time can receive property in inheritance from live-in partner. In Ravanasiddappa v. Mallikarjun the property of a Hindu male was given to his live-in partner upon his death, even though his legally wedded wife was alive.[28] Finally in Dhannulal v. Ganeshram the legal position was settled. It held that a woman in live in relation has the right to inherit the property of the male partner after his death.[29]
EXTEND AND APPLICATION OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Protection of Women from Domestic Violence Act, 2005 covers live-in relationships also. Section 2(f) defines ‘domestic relationship’ as those who have ‘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”. In Indra Sarma v. K V Sarma[30] the Supreme Court stated that the word domestic relationship means a relationship that has some inherent or essential characteristics of marriage though not a marriage that is legally recognized. Live-in relations come under the term ‘relationship in the nature of marriage’ and hence given the protection of the statute. Protection of Section 17 that gives the right to reside in the shared home from where the man cannot evict them in retaliation is critical for the safety of female counterparts in live-in relations.
In M palani v. Meenakshi[31] claim for maintenance was put forward by the female. In the case the madras High Court held that even though the partners have not lived together at any point of time and had only indulged in consensual sexual intercourse as friends for pleasure without intention of marriage, claim of mainetence could be sustained. For that court read down the definition of ‘domestic relationship’ in Section 2(f) and observed that “atleast at the time of having sex by them, they shared household and lived together”.
The correct interpretation of definitions including the right to live in “shared household” would be that words “live” or “have at any point of time lived” would include within its purview “the right to live”.[32]
CONCLUSION
Although live-in relationships are gaining increased acceptance in the socio-legal arena, there are still significant areas that are left unattended by the judiciary. Custodial rights of the child born out of live-in relationship when the partners decide to break-up has no legally settled position. It’s important to consider how legal frameworks that prioritize marriage presumption impact homosexual couples when they’re granted the right to enter into a union in order to live together. State of Uttarakhand has mandated registration of live-in relations in their new Uniform Civil Code. Although it is necessary for an accountable society, imposition of formal procedures challenging the basic concept of a no-strings attached relationship.
Hence, it’s high time for the judiciary to address the multitude of unanswered questions concerning the legal acknowledgment of live-in relationships.
[1] Revanasiddappa & Anr v. Mallikarjun & Ors, (2011) 11 SCC 1.
[2] Center for Socio-Legal Research, Research Report on Live-in Relationships in India, Vol. 1, CSLR p.10 (2021) https://hcommons.org/deposits/objects/hc:45416/datastreams/CONTENT/content
[3] Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy, AIR 1927 PC 185.
[4] AIR 1929 PC 135.
[5] Payal Sharma v. Nari Niketan, AIR 1952 SC 23.
[6] AIR 1978 SC 1557.
[7] (2006) 8 SCC 726.
[8] Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209.
[9] (2010) 5 SCC 600.
[10] Alok Kumar v. State, 2010 SCCOnline Del 2645.
[11] D Velusamy v. D Patchaiammal, (2010) 10 SCC 469.
[12] Ibid
[13] Indra Sharma v. VK Sharma, (2013) 15 SCC 755.
[14] (1991) 2 SCC 375
[15] S P S Balasubramaniam v. Suruttayan, AIR 1994 SC 133.
[16] Abhijit Bhikaseth Auti v. State of Maharashtra and Ors, AIR 2006 SC 2522.
[17] Chinmayee Jena @ Sonu Krishna Jena v. State of Odisha, 2020 SCCOnline Ori 602.
[18] 2023 INSC 920
[19] (2008) 4 SCC 520
[20] Revanasiddappa & Anr v. Mallikarjun & Ors, (2011) 11 SCC 1; Tulsa v. Durghatiya, (2008) 4 SCC 520.
[21] (2008) 2 SCC 238
[22] Bharatmatha & Ors v. R Vijayarenganathan & Ors, (2010) 11 SCC 483
[23] (2008) 2 SCC 238
[24] Dimple Gupta v. Rajiv Gupta, AIR 2008 SC 239.
[25] Ibid
[26] Bai Nagubai v. Bai Monghibai, (1925-26) 53 IA 153.
[27] (2008) 2 SCC 238
[28] Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1
[29] Dhannulal v. Ganeshram, (2015) 12 SCC 301.
[30] (2013) 15 SCC 755.
[31] AIR 2008 Mad 162
[32] Vandhana v. T. Srikanth, 2007 SCC OnLine Mad 553.
Author: Gouri C V
Juris Centre 