Author: S.Sujitha Student, School of Excellence in Law, Chennai
“When two people want to live together, what is the offence? Does it amount to an offence?” – A special three-Judge bench consisting of Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan observed.
As the Greek philosopher Heraclitus says, the only constant in life is change, the Indian society has undergone a string of social changes tending to adopt various social ideas having a tinge of western culture in the past decade. One among the prominent practices of western culture making strides lately in India is the novel concept of live in relationships. Live in relationship, unlike marriage, refers to the couples who aren’t married to each other but live under the same roof being in a relationship resembling marriage. It becomes evident that these changes engender a pressing need for the law to change itself to the changing needs of the society. Speaking on the legality of a live-in relationship in India, it is intact and lawful as recognized by the judiciary in a cantena of judgments, yet it continues to be taboo to a certain extent. The institution of marriage being considered ‘sacred’ in the conventional society like India, the doors may not open to such an idea readily. As a coin has two sides, this concept as well has its peaks and valleys.
Is a live-in relationship in India illegal?
In India, there is no common civil code and most marriages are controlled by the personal laws of each individual. Although the concept of live-in partnerships is not expressly recognized by law, Indian courts have maintained the validity of such relationships on several occasions, while differentiating morality from law and keeping in mind constitutional principles. The citizens of India have several fundamental rights and freedoms guaranteed under the Indian constitution. The Right to freedom of speech and expression, the right to reside and settle in any part of India’s territory under Article 19 and the Right to life under Article 21 are the milestone provisions in this regard. Hence, the above-mentioned rights govern one’s desire to live with a person of their choice and establish a sexual relationship. Next, let’s have a glance at the concerned cases.
In Badri Prasad v. Director of Consolidation [1], the Supreme Court upheld the legality of a 50-year live-in relationship. In Payal Sharma v. Nari Niketan[2], the Allahabad High Court ruled that “a man and a woman can live together even though they are not married if they wish. Although this is considered unethical by society, it is not prohibited. There’s a distinction to be made between law and morality.” The court in Lata Singh v. State of U.P [3], decided that, while a live-in relationship between two consenting individuals of the opposite sex is considered immoral, it does not constitute a legal offence. In the landmark case of S. Khushboo v. Kanniammal[4], the Supreme Court ruled that a living relationship falls under the scope of 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 criminal. In Alok Kumar v. State and Another [5], the court referred live-in relationship as a walk-in and walk-out relationship. Adding on, they said that the lack of conditions associated with relationship and a legal bond gives the chance for the parties to cancel the living-together contract without the approval of the other party creating an inability for them to complain infidelity or immorality. In D.Velusamy v. D.Patchaiammal[6] , the Supreme Court opined that a “relationship in the nature of marriage” is comparable to a “common law marriage.” Although not technically married, there exist certain requirements-
The couple must present themselves to the society as spouses;
They must be of legal age to marry; and must live together.
Or otherwise qualified to engage into a legal marriage, even being unmarried;
Or have willingly cohabited and presented themselves to the world as spouses for a significant period of time.
As a result, the Court came to the conclusion that a live-in relationship over the ambit of Common Law marriage would not be considered a “relationship in the nature of marriage.” The Supreme Court in Dhannulal v. Ganeshram[7] declared that an unmarried couple living under the same roof would now be presumed to be married, and the woman would be entitled to inherit any legal property if her partner dies. In Nandakumar and others v. The state of Kerala[8], Justice A.K. Sikri and Justice Ashok Bhushan upheld that a live-in relationship is recognised by the legislature and has its scope within the provisions of the Protection of Women from Domestic Violence Act, 2005. Subsequently, in the case of Ujjwal and Another v. State of Haryana and Others[9], the Punjab and Haryana High Court refused to extend protection to a live-in couple who had been threatened by the girl’s family since their elopement, stating that “if such protection as claimed is granted, the entire social fabric of the country would be upset.”
The role of other legislations in this regard
Domestic violence Act, 2005
The law has recognized live-in relationships for the first time in the Protection of Women from Domestic Violence Act, 2005 (Pwdva), by providing rights and protection to females who are not legally married but live with a male individual in a relationship that is in the concept of marriage, also akin to wife but not equivalent to wife. Domestic relationship is defined in Section 2(f) of the Domestic Violence Act of 2005 as “a relationship between two persons who live or have lived together in a shared household at any time, when they are related by consanguinity, marriage, or a relationship in the nature of marriage, adoption, or are family members living together as a joint family.” Though the Act does not absolutely define a live-in relationship, it is left to the courts to interpret. The court interpreted the phrase “relationship in the kind of marriage” in light of the aforementioned rule. Individuals who are in live-in relationships are now covered by the requirements of the Pwdva. Because the phrases nature of marriage and live-in relationship are on the same line and have the same meaning, courts assume that live-in relationships are within the scope of the expression. This allows women some basic rights to protect themselves from the abuses of forged marriages and extramarital affairs.
Criminal procedure code, 1973
The Section 125 CrPC was enacted to protect wife, small children, or elderly parents from vagrancy and destitution, and it has since been extended to live-in partners by judicial interpretation. The Malimath Committee, or Committee on Criminal Justice System Reforms, established in November 2000, made several recommendations under the heading “offences against women” in 2003. One of the committee’s recommendations was to expand the definition of “wife” in Section 125 of the Criminal Procedure Code. Eventually the correction was made, 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. However, it was recently pointed out in a debate that a divorced woman can be recognized as a wife under Section 125 CrPC and claim maintenance whereas the partners, who are not legally married, cannot give each other a divorce and hence cannot claim maintenance under this section.
Evidence Act, 1872
The interpretation of section 50 and 114 of the Evidence act justifies the court having the authority to presume the occurrence of any fact that it believes is likely to have occurred, considering the normal course of natural events, human behaviour, and public and private business, in relation to the circumstances of the case. As a result, where a man and a woman live together for an extended period of time, there is a presumption of marriage. [10]
Are the children born out of such relationships illegitimate?
When a child is born from a live-in relationship, the first and most important concern is whether or not he is legitimate. Inspite of the growing trend of couples living together, the children born from these unions are subject to substantial legal consequences. In S.P.S. Balasubramanyam v. Suruttayan[11], the Supreme Court declared “If a man and woman are living in 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 be legitimate”. Furthermore, the court construed the status and regulations in such a way as depicted in the Article 39(f) of the Indian Constitution, which states that the state must provide adequate opportunities for children to develop properly and further preserve their interests. And the Courts have consistently held that a child born in a live-in relationship is entitled to inheritance of property if born after a reasonable period of time. In the case of Vidyadhari vs Sukhrana Bai[12], a historic decision was made in which the court awarded the child was born out of a live-in relationship the right to inherit and legal status. According to Section 21 of the Hindu Adoption Act 1956, irrespective of the legitimacy, a son who’s a minor and the daughter who isn’t married are entitled to maintenance from his/her father or from his/her deceased father’s estate . Even after a plethora of judgments ruled in the light of equality given to children were born out of a live-in relationship, still various instances of inequality pops up resulting in the breach of Article 14 of the Constitution.
Conclusion
As Our Country is founded on the traditional values, culture, and religion, the live-in relationship has yet to be fully accepted by society. It is still regarded a taboo and been a social stigma since such a relationship is entered into without the sacrament of marriage. With the evolution of human beings, there has been a significant rise in live-in relationships and with the flow of time, people’s mindsets as well as thinking have greatly shifted. This transformation is unfolding all across the world, and India is no exception. This urges the need for a distinct legislation dealing with this present situation to safeguard the rights of living partners, children born out of such relationship, and anybody else who may be harmed by such a relationship, and it should be made explicit to convey a clear notion so as to eliminate all the confusions and loopholes. At the same time, live-in couples should be aware of the legal implications of their living arrangement as well.
References
[1] Badri Prasad v. Director of Consolidation, 1978 AIR 1557
[2] Payal Sharma v. Nari Niketan, AIR 2001 All 254
[3] Lata Singh v. State of U.P, (2006) 5 SCC 475
[4] S. Khushboo v. Kanniammal, (2010) 5 SCC 600
[5] Alok Kumar v. State and Another, 2010 SCC OnLine Del 2645
[6] D.Velusamy v. D.Patchaiammal, AIR 2011 SC 479
[7] Dhannulal v. Ganeshram, (2015) 12 SCC 301
[8] Nandakumar and others v. The state of Kerala, (2018) SCC Online SC 492
[9] Ujjwal and Another v. State of Haryana and Others, CRWP-4268 of 2021 (O&M)
[10] Tulsa & Ors vs. Durghatiya & Ors, AIR 2008 SC 1193
[11] S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460: AIR 1994 SC 133
[12] Vidyadhari vs Sukhrana Bai, AIR 2008 SC 1420
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