The Author, Shweta Pathania, is a 5th year BA LLB student at Faculty of Law College, Uttaranchal University, Dehradun. She is currently interning with LatestLaws.com.

Introduction

Even in a live-in relationship, a couple acknowledges mutual rights and obligations. Legally, live-in relationships find roots in Article 21 of the Indian Constitution. The right and freedom of choice to either marry or have a live-in relationship with an individual of one’s own will, thus, emerges from this inalienable fundamental right.[1]

Understanding the Concept of Living Relationship

In Alok Kumar v. State & Another (9th August 2010), the Delhi High Court while dealing with the validity of live-in the relationship held that "a 'live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, and neither does this relationship create any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without the consent of the other party and one party can walk out at will at any time."

In Indra Sarma v. V.K.V. Sarma[2] is a noteworthy case wherein the Supreme Court extensively deliberated on the subject of live-in relationships. The judgment delivered in this case serves as a basic framework or rulebook for matters of live-in relationships. In the case above, the bench held that "the word relationship like marriage encompasses within itself live-in relationships".

Supreme Court in its decision of D.Velusamy v. D. Patchaiammal[3] considered live-in relation similar to marriage provided it fulfils the requirements referred to as follows:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period.

Legitimacy of Children Born of Living Relationship

In S.P.S Balasubramanyam v. Suruttayan,[4] the Supreme Court for the first time considered the question of the legitimacy of children born from live-in relationships. It was held that “If a man and woman are living under 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 not be illegitimate."

Later in Revanasiddappa v. Mallikarjun[5] It was held by the court 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.

                     Before 2010, children born out of a live-in relationship were considered ‘illegitimate’ for legal purposes. However, the Supreme Court in Bharata Matha v. R. Vijaya Renganathan[6] held that "children born out of the live-in relationship are legitimate and upheld their inheritance right in the property". Even though the Hindu Marriage Act, 1955 does not directly recognize the live-in relationship, section 16 of the Hindu Marriage Act indirectly provides legitimacy to such children and grants them the right of inheritance. In Vidyadhari v. Sukhrana Bai [7] 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.

Women’s Rights in Live-in Relationships

  1. Maintenance rights and property rights of women: In the year 2003, after the suggestions of the Malimath Committee, Section 125 was fused in the CrPC (Criminal Procedure Code) to adjust the meaning of 'wife' and extend it to include women who were in a live-in relationship. This guaranteed that her Financial Needs were taken care of by the partner if she was not able to maintain herself or if the relationship got alienated. After the amendment in 2005, the women’s right to ancestral property is secured by the Hindu Succession Act, 1956. So, whether a woman is married or in a live-in-relationship, the right to parental property will accrue to her by birth, while the property acquired by oneself will be divided according to the will.
  1. Children’s Inheritance Rights: In Bharata Matha & Ors. v. R. Vijaya Renganathan & Others, the Supreme Court has also ruled that a Child born out of a live-in-relationship may be permitted to inherit a parent’s property but does not have any right to claim against Hindu Ancestral Coparcenary Property.

Rights of Children Born Out of Live-in Relationships

  • Legitimacy
  • Maintenance
  •  Property
  •  Custody

1) Legitimacy: The Indian judiciary used its power to achieve the ends of social justice in the landmark case of Dimple Gupta v. Rajiv Gupta[8] wherein the Supreme Court held that even an illegitimate child who is born out of an illicit relationship is entitled to maintenance under Section 125 of the CrPC (Code of Criminal Procedure, 1973). The unequal treatment of a child born out of a live-in relationship and a child born out of a marital relationship even though both are perceived as legitimate in the eyes of law can amount to a violation of Article 14 which promises Equality before Law.[9] The Supreme Court in Vidyadhari v. Sukhrana Bai[10] passed a landmark judgment where the Court granted the right of inheritance to the children born from a live-in relationship and ascribed them with the status of “legal heirs”.

2) Maintenance: In the landmark case of Dimple Gupta v. Rajiv Gupta (12th October 2007) the Indian judiciary used its power to achieve social justice goals. Even an illegitimate child born out of an illegal relationship is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973, which provides maintenance to children, whether legitimate or illegitimate when they are minors and even after they have reached a majority if they are unable to support themselves. Section 125 of the Code of Criminal Procedure 1973 forms the model of progressive legislation aiming to protect child rights in a situation where the people subjected to such laws are at no fault of their own as noted in Captain Ramesh Chander Kaushal v. Mrs Veena Kaushal (AIR 1978 SC 1807) However, “the right to maintenance is a condition to the fatherhood of the child being established.”

3) Property: When it comes to legitimacy it has always been a prerequisite for inheritance rights. As a result, the courts have always ensured that any child born after a fair time of live-in partnership is not denied the right to inherit, which is consistent with Article 39(f) of the Indian Constitution. In Vidyadhari v. Shukrana Bai,[11] the Supreme Court made history by granting the right of inheritance to children born from a live-in partnership and assigning them the status of valid heirs. In Balasubramanyam v. Suruttayan[12] children born out of live-in relationships received the legal status of legitimacy for the first time. The Supreme Court said that if a man and woman live under the same roof and cohabit for considerable years, there will be a presumption of marriage under Section 114 of the Evidence Act. Therefore, the children born to them will be considered legitimate and rightfully entitled to receive a share in ancestral property.

4) Custody: Hindu Minority and Guardianship Act, 1956 clearly states in Section 6[13] that "the father is the natural guardian of his minor legitimate children, the mother becomes the natural guardian in the absence of the father which means when the father is not capable of acting as the child's guardian". However, Sub-Section (6) of Section 6 of the same Act seems to deal with live-in relationships in an indirect manner as it grants custodial rights to the mother in case of children born out of illegitimate relations.[14]

Though there is a lack of clarity on the application of these personal laws to the child born out of live-in relations, however, in the case of D. Velusamy v. D. Patchaiammal[15] the term relationship in nature of marriage' has been interpreted by the court as follows: "Relationships like marriage are akin to a Common Law Marriage". Common Law Marriages[16] require that although not being formally married:

 (a) The couple must hold themselves out to society as being akin to spouses

(b) They must be of legal age to marry

 (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period.

When it comes to custodial rights it has been observed that special legislation is needed for an hour that could cover the custodial-related aspect of children born out of a live-in relationship. The issue of custodial rights[17] emerges when a couple decides to split. If any such issue of custody is brought before courts, then, because there is no special legislation concerning live-in relationships, courts may either decide these cases as the child of a married couple or as the child of an unmarried single mother.

Conclusion

Thus, it can be concluded that the judiciary has acknowledged the status of live-in relations in numerous noteworthy decisions such as in the case of Dimple Gupta v. Rajiv Gupta(12th October 2007) where social justice was given by pronouncing that even the illegitimate child that is born out of an illicit relationship was entitled to maintenance when they are minor and after they had turned major and where he/she is not able to maintain himself/herself. Recently, the Kerala High Court has recognised that a child born in a live-in relationship would have to be treated as a child born to a married couple to surrender a child for adoption.[18]

The need is to have a separate legislation to avoid the ambiguity that leads to contrasting and deviating opinions and judgments. There must be amendments to ambiguous terms in present laws to enable us to have transparency on the status and rights of children born out of a live-in relationship.


[1] Khushboo v. Kanniammal, (2010) 5 SCC 600; Nandakumar v. State of Kerala, (2018) 16 SCC 602

[2] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.

[3] (2010) 10 SCC 469

[4] 1994 AIR 133, 1994 SCC (1) 460.

[8] AIR 2010 SC 239

[9] Bharata Matha & Ors. V R. Vijaya Renganathan & Ors AIR 2010 SC 2685

[10] AIR 2008 SC 1420

[12] Balasubramanyam v. Suruttayan, AIR 1992 SC 756.

[13] Hindu Minority and Guardianship Act, 1956 Section 6.

[14] The Hindu Minority and Guardianship Act, 1956,  Section 6(b).

[15] AIR 2011 SC 479

[17] IBD

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Shweta Pathania