Are Live-in Relationships Legal in India ?

The Author, Apoorva Goel is a final-year LL.B student at Bharati Vidyapeeth (Deemed to be ) University, New Delhi.

Introduction

A live-in relationship between two people gets the “approval” of the society when they are legally married else the relationship is morally or legally not acceptable; but thankfully, the Indian Judiciary doesn’t think like that. A live-in relationship is a continuous cohabitation for a longer period between two people who are not legally married to each other but share a common household. Thus, despite being married they live like a couple. In India, no specific legislation or customs is governing the same. Thus, the Supreme Court has elaborated the concept of live-in relations through its Judgments and has issued guidelines to deal with such relationships.

This article discusses all the major decisions of the apex court regarding the live-in relationships, the status, and rights of children born out of such relationships, and various provisions indirectly covering such relationships in its ambit. Further, the recent Punjab & Haryana High Court different point of views regarding such relationships and the recent order of the Supreme Court on one of the Judgments of the P&H High Court is also discussed in this article.

The legality of a live-in relationship

Live-in relationship between consenting adults is legal under the Indian law if the requisites of marriage such as legal age of getting married, consent, and soundness of mind are fulfilled. No law allows or denies such relationships. The Supreme Court first time observed live-in relationships valid in the case of Badri Prasad v. Dy. Director of Consolidation[i].

In the case of Lata Singh v. State of U.P[ii], the Court held that though live-in relationships are perceived as immoral it is not an offence under the law.

In another famous case of Khushboo v. Kanaimmal and Anr[iii]. the Supreme Court held that living together is a right to life covered under Article 21 of the Indian Constitution; thus, despite being considered immoral by society it is not an offence in the eye of law.

The Apex Court in the landmark Judgment of Indra Sarma vs VKV Sarma[iv] observed that if both the partners are unmarried and entering into a mutual relationship, it does not constitute any offence.

In the case of Badri Prasad v. Deputy Director Consolidation[v], and another case of SPS Balasubramanian v. Suruttayan[vi] a similar observation was made that if a man and a woman have lived together for a long period then the law will presume them to be legally married unless the contrary is proved. A strong presumption is in favor of wedlock, though it is rebuttable and a heavy burden lies on the person rebutting the same. Further, children born out of such a relationship would be entitled to inheritance in the property of the parents but if such relationship is only for sexual purposes, the partners cannot claim the benefits of a legal marriage.

Legitimacy and rights of children born from a presumed marriage

Section 16 of the Hindu Marriage Act, 1955 and Section 26 of the Special Marriage Act, confers legitimacy to children born out of the void and voidable marriages. But as per sub-section (3) of the same sections of the Act, the 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 and cannot claim their ancestral property as their parents were not legally wed to each other when they were born.

In the case of D.Velusamy v. D. Patchaiammal[vii], A has lived in a relationship with B after his wife’s death and their relationship continued till the death of A. The respondents and 4 daughters were born from this relation. The Supreme Court held that law presumes in favor of marriage and against concubinage. When a man and woman have cohabited for a continuous long period then a presumption under section 114 of the Indian Evidence Act lies that the couple is living as husband and wife and the children born to them are legitimate. However, such presumption can be rebutted.

In another case of Tulsa v. Durghatiya[viii], the Supreme Court observed that the children born out of live-in relationships are not illegitimate if their parents have cohabited with each other under one roof for a long period so they are presumed in the eyes of law as husband and wife and it must not be a walk in and walk out relationship. Further, such children were given right over their parents' property.

Laws covering live-in relationships in their ambit

Protection of women from Domestic violence Act, 2005- Section 2(f) PWDV 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.” [ix]

Live-in relationships are in the nature of marriage, as the couples are living together for a long period and presenting themselves as husband and wife. Thus, they come under the ambit of the PDV Act, 2005, and the woman in a live-in relationship can take protection under this Act, 2005, and can also claim maintenance. Thus, this Act gives legal recognition to relations outside marriage.

Code of Criminal Procedure,1973- Under Section 125 of the Cr. P.C the children born out of such relationships can claim maintenance as the section itself expressly mentions “both legitimate and illegitimate child.”

Earlier the view was that the woman in a live-in relationship is not legally married to the man and is not entitled to claim maintenance under Section 125 Cr. P.C but can only claim maintenance under Section 20(3) of the Protection of woman from Domestic Violence Act, 2005 if she proves that she was in a domestic relationship with the man like marriage.

However, in 2000 the Committee on Reforms of Criminal Justice System was set up by the Supreme Court called the Malimath Committee. One of its recommendations was to amend Section 125 Cr. P.C and to alter the meaning of “wife”. Thus, a revision was made and now the expression “wife” incorporates women who were previously in a live-in relationship and now her partner has abandoned her at his will so the woman in a live-in relationship can now get the status of a wife. Therefore, if a female has been in a live-in relationship for a long period, she can claim maintenance under Section 125 Cr.P.C. as where partners live together as husband and wife, a presumption would arise in favor of wedlock unless the contrary is proved.

In the case of Chanmuniya v. Chanmuniya Kumar Singh Kushwaha[x], the High Court declared that the appellant's wife is not entitled to maintenance as she is not the legally married wife and thus, cannot claim maintenance under Section 125 CrPC. However, the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the PWDV Act, 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

The live-in Couples are not allowed to adopt children according to the Guidelines governing the Adoption of Children.

The ambiguity caused by the different orders on live-in couples of different Judges of the Punjab and Haryana High Court

On 12 May 2021, the Punjab and Haryana High Court dismissed a plea –protection filed by a young live-in couple where the girl is 18 years old and the boy is 21 years old and claim the protection of life and liberty from the relatives of the girl.

The bench headed by Justice Kshetarpal observed that if protection is given to the runaway couples in a live-in relationship then the social fabric of our society would get disturbed.

.In the case of Kamini Devi v. State of UP[xi], the Allahabad High Court granted protection to a live-in couple stating that when a major boy and a girl decide to live together nobody, including their parents have the right to interfere in their living conditions and such arrangement between them is not an offence and if anyone interferes with their peaceful living then that will be a violation of their fundamental right to life and liberty under Article 21

In another similar case, the bench of P&H High Court The bench of Justice Madaan heard the matter and observed that the petitioners are seeking approval of their live-in relation under the garb of filing petition and that is socially and morally unacceptable. Thus, he dismissed the petition.

In 2020, in the case of Priyapreet Kaur v. State of Punjab[xii], the P&H High Court held that the parents cannot force their children to live their lives on their terms. The girl and boy, in this case, were 18 and 19 years old respectively. The fact that both the petitioners were major they can decide to live their lives their ways.

On Tuesday on 18 May 2021 in another noteworthy ruling, the bench of Justice Jaishree Thakur of P&H High Court observed that a relationship may not be acceptable to all, but it will not constitute an offence. Further, an individual has the right to have a relationship with the partner through marriage or to agree to the non-formal approach of a live-in relation under Article 21 of the Constitution. This important observation came days after the P&H High Court refused to grant protection to a live-in couple.

Such different opinion of Judges of different or the same High Courts puts many questions regarding the legality and acceptability of live-in relationships in India. Though the Supreme Court has given various Judgments on the legality of such relations, still a complete acceptance regarding the same can be achieved only when there is a law recognizing it.

Recently, a bench consisting of Justice Navin Sinha & Justice Ajay Rastogi of the Supreme Court while hearing an appeal against Gurwinder Singh v. State of Punjab[xiii] Judgment of the Punjab & Haryana High Court ordered protection to be given to the live-in couple who were earlier denied any relief by the bench of Justice H.S Madaan of the Punjab &Haryana High Court. The Court directed the Police officials to act quickly in view of the threats which are being received by the couple as it is an issue of life and liberty.

Thus, it can be inferred from the Apex Court’s order that the more important issue here is that, the couple’s fundamental right to life and liberty protected under Article 21 of the Indian Constitution is being violated and the question that whether the marital status is to be seen while giving protection of life and liberty to a person is not a primary question.

Conclusion

Despite any legal marriage ceremony or civil marriage contract some countries in the world recognize common law marriage, called de facto marriage. In India the views are diverse, the society never recognizes such relationships as legally or ethically correct and even the Judges of the same High Courts have a very different point of view. The Supreme Court has time and again given Judgments in favor of such relationships still new progressive laws should be made with the changing society.

The Rajasthan Human Rights Commission, in 2019, termed such a relationship against the dignity of women and recommended making a law against it. This decision received protest and criticism from human rights activists. The Government of Maharashtra even recommended giving the woman in the live-in relationship the status of a wife if they have lived for a reasonable period and such period is to be calculated from the facts and circumstances of each case. Other Countries like in U.K living relationship is governed by Civil Partnership Act,2004; in the U.S.A, live-in relationships are governed by prenuptial agreements and common law; in Australia, Family law Act recognizes live-in relations; in Canada, such relations are termed as common-law marriages; but in India, such relationships lead to multiple social as well as logistic problems. Thus, it is high time to enact proper laws or provisions covering such relationships. By providing them legal status the couple seeking protection will get a proper remedy against any threat and will feel free to live their lives without any immaterial disapproval and opinion of the society.

References:

[i]1978 AIR 1557.

[ii] (2006) 5 SCC 475.

[iii] AIR 2010 SC 3196.

[iv] (2013) 15 SCC 755.

[v] Supra note 1at 1

[vi] 1994 AIR 133

[vii] (2010) 10 SCC 469

[viii] AIR 2008 SC 1193

[ix] Protection of Women from Domestic Violence Act, 2005,(No.43 of 2005), s 2(f)

[x] (2011) 1 SCC 141

[xi] (2006) 5 SCC 475