Status of live-in relationship in India [2020]

Author: Snehal Tanaji Shirke | College: Parvatibai Jondhale Women’s Law College, SNDT University, Mumbai

Abstract

A live-in relationship exists when a couple lives together for a long term under the same roof without getting legally married. There is no legal definition on this concept and this emerging concept is not recognized by any statutory law in India. Such relationships are free from responsibilities, duties, and enjoy their freedom.

Though there is no law has enacted yet on this topic, the court has given various judgments. In some parts of the world, these types of relationships are valid but some countries are highly strict for accepting this concept. This concept is new but spreading rapidly.

Keywords

Live-in relationship, Marriage, Society, Maintenance, Rights of child.

Introduction

India is a country that focuses on customs, traditions, ethical values, beliefs, etc. but with the modern changes, India has started following the path of western culture’s Live-in relationship. However, In India marriage has always been considered as sacrament thus the society does not accept the fact that it is fine for the couple to stay with each other without getting married.

It is a westernized theory with less relevance to the Indian tradition. The basic intention of the couple to be in a live-in relationship is to test their compatibility, understanding for each other before any commitment. The practice of a live-in relationship in India is widely practiced in urban areas or metropolitan cities.

The man is not bound to maintain a woman nor the woman have any responsibility towards man. From the legal point of view, where a man and woman live together as a husband and wife for a long time, then the law will consider that they were legally married unless any contrary is proved.[1]

live-in relationship

Origin and History of Live-in relationship

Premarital relationships and live-in relationships exist from the ancient era

  • GandharvaVivah: The man and woman with mutual consent get married without involving the family and such rituals to solemnize the marriage.
  • Maitri Karar: The man and woman enter into an agreement of friends live together and look after each other.[2]

Person involved in this relationship

  1. An unmarried man and an unmarried woman
  2. A married man or unmarried woman
  3. An unmarried man and married woman
  4. Person of same-sex

Legal issues

  • In absence of responsibility, it may lead to misuse of the relationship and chances of switching the partner.
  • Status and rights of the children born out of the live-in relationship.
  • Protection to the aggrieved person in a live-in relationship.

Live-in relationship v/s marriage

  • A live-in relationship is less legal as well as a socially accepted concept whereas the marriage is considered as the most sacred relation.
  •  In a live-in relationship, the partners don’t have more responsibilities or obligations and have the freedom to live in their own way whereas in marriage the couples are bound or forced to accept their responsibilities.
  • In a live-in relationship, one can leave or stay whenever they want but in marriage, they meant to be together.
  • Marriage is known to have social and legal benefits for children. Even though the child born out of a live-in relationship is legitimate, however, the father in this scenario does not hold an obligation to support the child. Here, the mother is mostly considered to be the legal guardian.
  • According to the researcher’s people who are married have better mental as well as physical health as compare to unmarried couples.

Marriage and live-in relationships are choices and thus should be free from any pressure. No one should criticize the person on the decision she/he chooses to be in a live-in relationship.[3]

The mentality of Society

People have a different point of view on live-in relationships. Though we are moving towards modernization some people are not ready to accept such changes as they found it against their religious culture. Many Indian families are opposed to this concept as they always think about “what will people say?”.

Even the landlord will deny to give you the flat in certain cases. Some hotels mention that they only entertain “married couples only”. According to them, tradition is stronger than reality. They believe that living relationships are just a way to fulfill the sexual desire but they are not understanding the intention behind it.

Now the day’s couple wanted to know the behavior, understanding of his/her partner before entering into marriage and there is nothing wrong with it. It seems that even in the 21st century the 80% of people are not accepting this concept. Live-in is no problem its just thinking.

Pros and Cons of Live-in relationship

Pros:

  • A live-in relationship will help the couple to know the compatibility of the partner.
  • The partner can get enough time to know each other well.
  • The couple doesn’t have to give up any rights nor need to accept any responsibilities.
  • Both the partners are truly equal in terms of both security and freedom.
  • Rehearsal for married life: Live-in is the perfect rehearsal of married life. Partners know each other’s common interests and views on money, sex, religion, and politics.
  • Unlike married couples share responsibilities of family, finance, social duties the live-in relation partners will enjoy the freedom.
  • A live-in relationship completely eliminates the scope of legal hassles related to ending an unsatisfying and suffocating marriage.

Cons:

  • Our society is yet to accept this concept, still, it considered as a taboo, especially by the old age people class.
  • Women are in the worst situation if live-in relation fails to work out. Ultimately they are being suffered mentally, physically, financially, etc.
  • Children born out of live-in relationships also affected by it. Such a child has no right to claim his/her father’s inheritance.
  • A long time into a relationship there is chances that one of the partners may feel suffocated in the relationship due to the lack of personal space.
  • Less respect in Indian society is another major disadvantage faced by such couples.

Rights of Child born out of a live-in relationship

The child born in live-in relationship has 3 major rights-

  • Legitimacy – The child born in a live-in relationship will be given the same attention as given to the child born out of marriage. Such a child has the right to grow in a healthy environment.
  • Maintenance – Under section 125 of CrPC, maintenance will be allowed irrespective of legitimate or illegitimate when they are minors and also in case of an adolescent.
  • Property – According to the succession Act, both the sons and daughters have equal shares of the property. The court has ensured that the child born in a live-in relationship should not be neglected the right to inheritance.

Rights of the female partner

  • Maintenance right – Section 125 of CrPC altered the meaning of wife and also included the women who were in a live-in relationship. This proves that her financial needs were taken care of by the partner if she is not able to maintain herself.
  • Protection – If any type of abuse takes place the woman has the right to file a case under the Domestic Violence Act, 2005. It may include physical, mental, emotional, etc. though the live-in relationship is not categorically defined in the act but left to the courts for interpretation.
  • Property – Hindu Succession Act gives the same rights as a son to ancestral property whether she is married, unmarried, or in a live-in relationship.[4]

Legal provisions on live-in relationship

No special law is provided in India for a live-in relationship and to protect the legality. Though there is no specific law some benefits are given to the women from other Acts or law such as:

  • Protection of women from Domestic Violence Act, 2005

The female live-in relationship has economic rights under the protection of women from the Domestic Violence Act. It also provides protection and maintenance to women.

Section 2(f) defines the domestic relationship – “Relationship between 2 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 like marriage, adoption or are family members living together as a joint family.

  • Article 21 of Constitutional Law

A live-in relationship may not be accepted by some people but Article 21 grants the right to life and personal liberty which means the person is free to live the way he/she wanted to live. Though it is improper to the society it is legal in the eyes of law.

  • Section 125 of Criminal Procedure Code, 1973

While determining whether a live-in partner would be entitled to get maintenance under section 125 of CrPC, it was held by the court that, where partners live together as husband and wife then the presumption would arise in favor of wedlock.

  • Section 114 of Indian Evidence Act, 1872

Lays down that where independent evidence of solemnization of marriage is not available, it will be presumed to be valid marriage by continuous cohabitation between the parties unless the contrary is proved.

  • Maharashtra Government Proposal, 2008

The Maharashtra Cabinet approved the proposal suggesting a woman involved in such a relationship for a reasonable period then should get the status of wife. This proposal is based on the recommendation of the Justice Malimath committee which is of the view that if a man and woman are living together as a husband and wife for a longer time, the man shall be deemed to be married to the woman according to the customary rights of either party.

  • Recommendation for National Commission for Women, 2008

A recommendation was made by the National Commission for Women in 2008 to the Ministry of Women and child development to bring in harmony the laws dealing with the protection of women from domestic violence and also to put the status of live-in couples at par with that of a legally married couple.

  • Malimath Committee

Justice Malimath Committee and additionally the Law Commission of India expresses that if a female has been in a live-in relationship for a sensible period, she ought to have the legitimate privileges of the spouse. The Committee likewise prescribed the alteration of the meaning of “wife” under Section 125 of the Criminal Procedure Code and a revision is made and now the expression “Wife” incorporates the ladies who were prior in a live-in relationship and now his accomplice has abandoned her at his will so that a lady in live-in-relationship can get the status of a wife.

Live-in relationship

Global perspective for Live-in relationship

Different countries have a different stand on live-in relationships;

  • United States of America

The American legal history was then a witness to several consensual sex legislations, which paved the way for living together contracts and their cousins, the “prenuptial agreements“.  Cohabitation was considered illegal prior to 1970 but subject to certain requirements wen on to gain status as a law.

  • Australia

Section 4AA of the Family Act 1975, includes the de facto relationship as the person who is not legally married to each other and the person are not related by family and also with regard to all circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

  • Scotland

Family Law Act 2006, for the first time identified and in the process by default, legalized a live-in relationship of over 150000 cohabiting couples in the country.

Section 25(2) of the act states that a court of law can consider a person as a cohabitant of another by checking on three factors as –

The length of the period during which they lived together, the nature of the relationship during that period, and the nature and extent of any financial arrangements.

  • France

The live-in relationship is governed by the civil solidarity pact in France. The civil solidarity pact is a contract binding two adults of different sexes or of the same sex, in order to organize their common life and allows them to enjoy the rights accorded to married couples in the areas of income tax, housing, and social welfare. The pact defines the relationship as contractions. The contract binds 2 adults of different sexes or same of same-sex in order to organize their common life.

  • Canada

Section 54 (1) of the Family Law Act, 1990 says that two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, includes the Ownership in or division of property, Support obligations, The right to direct the education and moral training of their children, but not the right to custody of or access to their children. Further, if the couple marries with each other on agreement deemed to be a marriage contract.

  • China

Couples signs a contract to be in a live-in relationship. If any child born out of such a relationship will enjoy the same inheritance and succession rights as enjoyed by the children of a married couple. While entering into a contract they have to ensure the rights of such children.

  • Ireland

A live-in relationship is legally recognized in Ireland. Public demands for legislation that will provide rights such as maintenance, share in the property, etc. to the separated couples. The Government with the help of legislation intends to provide legal and financial protection for the financially dependent partner.[5]

live-in relationship

Judicial pronouncement

  • Badri Prasad vs. Dy. Director of consolidation [1]

It is the landmark judgment given by the Hon’ble Supreme Court that gave the validity to 50-year live-in relationship. The Court observed that such a condition is a rebuttable presumption and the burden of proof lies on that person who seeks to deprive the relationship to prove that no marriage took place.

  • Khusboo vs. Kanniammal[2]

The apex court held that live-in relationship comes within the ambit of under Article 21 of the constitution – Right to life. Also further held that live-in relationships are permissible and living together will not be considered as illegal.

  • Indrasarma vs. V.K.V. Sarma[3]

In this case, the Supreme court has illustrated 5 categories where the concept of live-in relationship will be considered –

  1. Relationship between unmarried male and unmarried female
  2. The relationship between a married man and an adult unmarried woman entered knowingly.
  3. The relationship between an unmarried man and a married woman entered knowingly.
  4. The relationship between an adult female and married male entered unknowingly.
  5. Relationship between same-sex partners.
  • Tulsa and ors vs. Durghatiya and ors[4]

The Hon’ble Supreme court provided legal status to the child born out of a live-in relationship and held that such a child should not be treated as illegitimate. The couples who are living under one roof for a long time the society will recognize them as a husband and wife and thus it should not walk in and walk out relationships. Further, the court held that such a child has the right to property, maintenance, etc.

Conclusion

It can be concluded that we are living in the 21st century and moving towards modernization. This is not a new trend for societies all over the world and its a change that is being accepted all over India. The live-in relationship in India still considered as a taboo most of the Indian culture is based on their traditions, customs, and people who have faith in it. There are so many confusions in the mind of people regarding live-in relationships.

However, there is a need to formulate and make the laws to remove all such confusions and loopholes. On the other hand, Judiciary has taken efforts to safeguard the interest of such couples and it is not illegal in the eyes of the law. It should not be denied that our culture does need a legislature to regulate the relationship which is likely to grow.

Citations of Cases

[1] (1978) 3 SCC 527; AIR 1978 SC 1557

[2] (2010) 5 SCC 600

[3] (2013) 15 SCC 755

[4] (2008) 4 SCC 520


References

[1] https://www.thebetterindia.com

[2]https://www.dailyo.in/lifestyle/live-in-relationships-vedas-marriage-rape-prostitution-supreme-court/story/1/3361.html

[3]https://timesofindia.indiatimes.com/life-style

[4]www.helplinelaw.com

[5]https://shodhganga.inflibnet.ac.in/bitstream/10603/214286/11/chapter%20ii_live-in%20relationships%20in%20international%20perspective.pdf

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