A Prospectus of Live-in Relationships in India

The Author, Tanvir Rathi, is a 5th-year, BALLB (H) student at Bennett University.

LEGALITY OF LIVE-IN RELATIONSHIPS

A live-in relationship between consenting adults is not considered illegal under Indian law. In 2006, in the case of “Lata Singh v. State of U.P,” it was held 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. In another important case, “Khushboo vs Kanaimmal and another,” the Supreme Court observed, “Though the concept of live-in relationship is considered immoral by society, it is definitely not illegal in the eyes of the law. Living together is a right to life, and therefore, it cannot be held illegal.

If live-in relationships continue for a long period of time and the couple present themselves to society as husband and wife, they get recognised as being legally married. As early as 1978, in “Badri Prasad Vs Deputy Director Consolidation,” observation was made that “If man and woman who live as husband and wife in society are compelled to prove, after half a century of wedlock by eye-witness evidence that they were

validly married fifty years earlier, few will succeed. A strong presumption arises in favour of wed lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy. 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 time, presumption under the law would be in favour of their being legally married to each other unless proved to the contrary and children born out of such a live-in relationship would be entitled for inheritance in the property of the parents. If such a relationship is only for sexual reasons, neither of the partners can claim the benefits of a legal marriage. “Indra Sarma vs VKV Sarma” was another landmark case on the matter of live-in relationships in which the implications of different types of relationships were examined. If both the partners are unmarried and enter into a relationship mutually, it does not constitute any offence. Prior to 2018, domestic cohabitation of a married or unmarried man with a married woman constituted a criminal offence of “adultery,” 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 Article 14 of the Constitution of India. The section treated men and women unequally as only the man and not the woman is subject to prosecution for adultery. Moreover, it was only the husband of the concerned woman who could prosecute the man who was involved in the act and the woman cannot prosecute her husband for adultery. Though adultery is no

longer a criminal offence, but the matter of cohabitation with any married man or woman may be a matter of civil issues constituting a ground of divorce, in which case it would be gender neutral. Similarly,

cohabitation with sexual relations between two adult partners of same sex also constituted crime of unnatural offence under Section 377 of IPC prior to 2018. But the position was reversed in “Navtej Singh Johar vs Union of India”. The Supreme Court annulled the Section 377, insofar as it criminalized the homosexual

sexual acts of two or more adults in private who possess competency to consent. It was termed to be

unconstitutional, irrational, indefensible and arbitrary, and being violative of Articles 14, 15, 19, and 21 of

the Constitution. However, the Section 377 continues to be in the statute book as legally valid and applicable insofar as the Section 377 applies to the nonconsensual sexual acts between the two adults, to the sexual acts against minors and all acts of bestiality. Though consensual homosexual sexual acts were legalized, but the

same sex marriages are not recognized in India, though performing a symbolic same sex marriage is not prohibited either.

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 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 on break up. The word “palimony” is a combined form of worlds “pal” and “alimony.” Though the 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.” 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 was living with the man as his wife for a reasonably long period of time. 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 the 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 a live-in relationship can take protection under the Protection of Women from Domestic Violence Act, 2005 and can also claim maintenance (D. Velusamy vs D. Patchaiammal). The question of application of the PDV Act, 2005, to live-in relationships came into 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 to relief under the Act in a shared household. 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. 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.

Rights of Children Born Out of a Live-In Relationship

In “Tulsa vs Durghatiya, the Supreme Court, while granting the right of property to a child, observed that

Children born from a live-in relationship would not be treated as illegitimate if their parents had lived under one roof and cohabited for a considerable period of time, so as to be recognised 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, bestow legitimacy to children born out of void and voidable marriages by providing those children born out of marriage, which is null and void or where a decree of nullity is granted in respect of a 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 were 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 for such children.

PHYSICAL IMPLICATIONS OF LIVE-IN RELATIONSHIP.

In 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 society is opening up about the idea of premarital sex and live-in relationships. Freedom, privacy, profession, education, globalisation, and other factors are responsible for this change in mindset. Points put in favour of such relationships are that such relationships are a way to understand the partners in a better way and to check if the partners are compatible to each other. The present generation, unlike their predecessors, considers 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 to each other. But living together for some time without entering into a legal marriage provides for an easy break-up without the need to resort to cumbersome legal procedures. But such a relationship without any duties and obligations attached has its disadvantages 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 the Rajasthan State Human Rights Commission, in September 2019, even termed such a relationship against the dignity of women 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 logistical problems in day-to-day living. They face legal hurdles of multiple types, like opening a joint bank account, visas, insurance, visiting 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 a coparcenary share in the HUF property. Two instances are described here to illustrate the difficulties faced by couples in a 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.14 A couple in Kerala remained in a live-in relationship for 40 years. They were against the social institution of marriage, holding the views that love did not need approval by 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.

IMPORTANCE OF GOOD QUALITY RELATIONSHIP

The association between a good-quality relationship and mental health cannot be overemphasised. Having good-quality, close, and positive relationships gives us a sense of purpose, meaning, and belongingness. A conversation with a good and empathetic listener in a face-to-face interaction helps in relieving stress 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 relationships and social connectivity to family, friends, and the community are happier and have fewer mental health problems. Isolation and loneliness lead to multiple psychological problems and also poor physical health. Holt-Lunstad, in their meta-analytic study, made an important observation about the influence of a lack of good-quality social relationships 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. A long-running study on human behaviour was conducted at Harvard University to find out what makes people healthy. The study started in 1938 and continued for several decades with findings published in 2012. The result of the study showed that happiness and health are not the result of wealth, fame, or working hard, but come instead from our relationships. For persons with disabilities too, social relationships play important role and have been demonstrated to have beneficial effect on their mental health and well-being. In another meta-analytic review, it was found that poor-quality or unhappy relationships have a higher negative influence on physical and mental health than not being in a relationship. 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 real life. Social media interactions cannot have the same healthy psychological and emotional response that happens in 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.

Significance of 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. 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 consequences 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 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 must 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, no 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 the breakdown of relationships through marriage, women suffer in far greater terms, especially in the Indian context. But the importance of marriage as an institution cannot be denied.

CONCLUSION

Live-in relationships provide couples a greater opportunity to know each other better, together with the freedom to end the relationship as per their wish. But they have to face many social and legal hurdles. Such a relationship often puts women at a disadvantage. The Supreme Court has issued guidelines for regulating such relationships and also for protecting the rights of women involved in the relationship and children born out of it, which has been described above. Social values and norms have changed for the new generation. A live-in relationship may be ok in some circumstances, but the importance of the institution of marriage for maintaining the social order cannot be denied. From a psychiatrist's point of view, what is more important is to get engaged into a positive, lovable, and meaningful relationship than to remain alone or

remain trapped in an unhappy, negative, and troublesome relationship. To conclude, it is pertinent to say that there is always some madness in love. But there is also always some reason in madness. —Friedrich Nietzsche.

REFERENCES AND SOURCES :

1. 1. Lata Singh vs State of U.P. & Another (AIR 2006 SC 2522). Indian Kanoon website. 2006. https://indiankanoon.org/doc/1364215/. Accessed January31, 2021.

2. Khushboo vs Kanaimmal and another in 2010 (5 SCC 600 2010). Indian Kanoon website. 2010. https://indiankanoon.org/doc/1327342/. Accessed January 31, 2021.
3. Badri Prasad vs Deputy Director, Consolidation and other. (AIR 1978 SC 1557). Indian Kanoon website. 1978. https://indiankanoon.org/doc/215649/. Accessed January 31, 2021.
4. SPS Balasubramanyam vs Suruttayan (AIR 1992 SC 756). Indian Kanoon website. 1993. https://indiankanoon.org/doc/279063/. Accessed January 31, 2021.
5. Indra Sarma vs VKV Sarma (15 SCC 755). 2013. https://indiankanoon.org/doc/192421140/.
6. Joseph Shine vs Union of India (SCC Online 1676). 2018. https://www.scconline.com/blog/post/tag/joseph-shine/. Accessed January 31, 2021.
7. D. Velusamy vs. D. Patchaiammal (10 SCC 469). 2010. https://indiankanoon.org/doc/1521881/.
8. Marvin vs Marvin. OneLBriefs website. 1976. http://onelbriefs.com/cases/property/marvin_marvin.htm. Accessed January31, 2021.
9. Dr. Justice V.S. Malimath Report. Committee on Reforms of Criminal Justice System. Government of India, Ministry of Home Affairs. Report Vol I; March 2003. https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf. Accessed July25, 2020.
10. Lalita Toppo vs State of Jharkhand. Indian Kanoon website. https://indiankanoon.org/doc/6354756/. 2018. Accessed January 31, 2021.
11. Ajay Bhardwaj vs Jyotsna (SCC Online P&H 9707). Indian Kanoon website. https://indiankanoon.org/doc/182660125/. 2016. Accessed January 31, 2021.
12. Tulsa & others vs Durghatiya and others (4) SCC 520). https://indiankanoon.org/doc/988131/. 2008. Accessed January 31, 2021.
13. Anand A. The complete guide to live-in relationships in India. Quartz India. https://qz.com/india/303608/the-complete-guide-to-live-in-relationships-in-india/. 2014. Accessed January 31, 2021.