Wisdom Crux

Live In Relationship as a new form of Family

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[Volume 2; Issue 11]

Author- Chakshu Thakral, LL.B, Bharati Vidyapeeth University, Pune .

Co-Author- Amit Chouhan, LL.B, Bharati Vidyapeeth University, Pune.

Abstract

The “Live in relationship” is an arrangement in which two people decide to live together under the same roof without getting married. It’s a conduct of long-term relationship which is similar to marriage. The term live in relationship is the kind of relationship which is free from commitments and responsibilities unlike traditional marriage. It is not recognized by The Hindu Marriage Act, 1955 or by any other statutory laws. The Supreme Court of India recognized live in relationship as legal relationship and is not considered as prohibited relationship. This Article is divided into six parts (i) Introduction (ii) aim and objective of research paper (iii) legal status of live-in relationship (iv) Rights of female partner in live in relationship (v) status of children born out of live in relationship (vi) Live in relationship in other countries.

Key words:  Status of live in relationship in India and other countries, maintenance to female partner in live in relationship, and rights of children born out of live-in relationship.

Introduction

In India, traditional marriages are considered as sacramental.  This legally entitles both the persons to cohabit. The traditional form of marriage is based upon commitments and responsibilities, but with the changing times no one wants to be entangled into the responsibilities of marriage and with that people seek other rational choice. Lately, the live in relationships has become alternate to marriage as it avoids the obligation of traditional marriage. Live-in relationship is an arrangement by the man and woman to live together as a couple under same roof, by which the person can enjoy the benefit of cohabiting together. Such relationships are notably increasing in metropolitan cities. The Supreme court in:

Indra Sarma v. V.K.V. Sarma[2] held that, “Live in marriage like relationship is neither a crime nor a sin though socially unacceptable in this country.

It has been duly observed by the apex that if the couple decides to live together, it is well within their Right to life. Referring to Article 21, this guarantees right to life and liberty as a fundamental right.

The PWVA 2005 is the first legal act which recognized the “live in relationship”. It also provides protection and maintenance and thereby grants the right to alimony to live-in partner.

Aim and Objective

  1. To know the legal status of live in relationship in India.
  2. To compare the status of live in relationship with status of married couples with the help of Judicial decisions in India
  3. To know about the Rights of Female partner in live-in relationship
  4. To know about the Rights of children born out of live in Relationship
  5. To study the status of live-in relationship in other countries

Legal status of Live-in Relationship

There are following requirements to fulfill the criteria of live-in relationship

  • Legal age to marry
  • Qualify to enter legal age
  • Must be unmarried
  • Voluntary cohabitation should be considerable period of time
  • Shared household
  • Pooling of resources and financial arrangement between parties
  • Domestic arrangements
  • Children
  • Socialization of relation in public

Live-in relationships are walk in walk out relationship, which is an alternative to the marriage. In such kind of relationship Couples are free from legal bond of the parties. Comprehensively the concept of legal relationship was recognized to test the compatibility of the person before entering into any legal commitments or to establish financial security before marrying. It can also be consider the way for polygamists to avoid breaking the law and also gets easier for non-recognized relationships such as LGBT couples to live in together than to marry. In India, live-in relationships are considered as the social taboo, pre-marital sex or live in relationship has generated the hideous debate across the country, however the scenario is no longer alike in metro cities. There is no specific law defined for live-in relationship in India. But courts have given recognition to such relationship in certain case. The first case recognized by Supreme Court of India of live-in relationship as a valid marriage was:

Badri Prasad vs. Dy. Director of Consolidation [3] in which the court upheld the legal validity to 50 years live-in relationship. It was duly remarked b justice Krishna Iyer that, A strong Presumption arises in favor of wed-lock where partners have lived together for a long spell as a husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favor of legitimacy and frowns upon bastardy [4]

In another case, S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and others [5] Supreme Court ruled that if man and women living together under the same roof and cohabiting for a number of years, there would be “presumption of marriage” U/s 114 of  The Evidence Act 1872.

A note worthy judgment in context of live in relationship was passed by, The Allahabad High Court in case of

Payal Sharma alias Kamla Sharma alias Payal katara v. Superintendent, Nari Niketan, Kalindri Vihar Agra and others[6]

The court observed that the lady of 21 years of age is major, has right to anywhere and can live with anyone. This may regarded immoral but it’s not illegal.

In the case of D. Velusamy v. D. Patchaiammal [7] The Supreme Court ruled that, merely spending weekends together or a one night stand would not considered as the “Domestic relationship”. The court also made clear that if the man is in live-in arrangement with a woman for sexual reasons, then none of the partner can claim for the legal benefits of the marriage.

Living together a part of Right to Life, not an offence-SC [8]

On 28th April 2010, The Supreme Court observed in the case of Khushboo v. Kanniammal and Anr [9] observed that, a man and a woman living together are not illegal in the eyes of law, even it may be considered immoral by the society. The court observed that “Morality and Criminality” are not co-extensive. So, it was duly stated by the court that living together is ‘Right to life” and is not illegal.

Rights of Female Partner in Live in Relationship

A man and woman living together in a live in relationship are partners and not given any status of husband and wife. Without any status of marriage, one cannot claim any rights, such as property rights, maintenance rights, religious rights, conjugal rights, etc. such rights are absent in the term of live in relationship, so various committees have recommended the equal rights for the women in live in relationship as of married women.[10]

In 2008, The National commission of India recommended The Ministry of Women and Child Development to include female live in partner for the right of maintenance under section 125 of CrPc 1973. It was supported by the judgment in Abhijit Bhikaseth Auti v. State of Maharashtra and others [11]. The objective of recommendation was to combine other sections of laws with the protection of women from Domestic Violence Act 2005. It was observed by the Malimath committee that, if man and woman are living together as a husband and wife for considerably long period of time, then the women ought to enjoy the legal status of married women.

In Indra Sarma v. V.K.V. Sarma, 2013 [12]  it was observed that, Section 2(f) of Domestic Violence Act 2005 is defined as domestic relationship which means, relationship between the two persons who lived together, shared same house hold, or when they are related by consanguinity which is in the nature of marriage. Thus, domestic relationship not only includes relationship of marriage but also includes the relationship in nature of marriage and in case if there is any domestic violence that will fall under Section 3 of Domestic Violence Act.

In the case of chanmuniya vs. Virender kumar Singhl,  [13] it was held that a man, who lived with a woman for a long time, though they may haven’t gone under any legal necessities of a valid marriage, should be liable to pay women maintenance if he deserts her. It was further declared by the court that a woman in live-in relationship is entitled to claim any maintenance or relief under protection of women from Domestic Violence Act, 2005.

The Supreme Court observed that not all live-in relationship will amount to Relationship in nature of marriage under the Protection of Women under Domestic Violence Act, 2005. To get such benefit conditions must be satisfied and this has to be proved by evidence. “If a man has a keep” that he maintains financially and uses for sexual purpose or as a servant it would not be considered relationship in nature of marriage.

Status of Children born out of Live-in Relationship

As there is no specific laws that recognize the status of couple in live-in relationship.  Hence the law to the status of children born out of live-in relationship is also extremely uncertain. Under The Hindu Marriage Act 1955

For a child born out of live in relationship there are four rights important which are [14]

  • Legitimacy
  • Custody
  • Maintenance
  • Property

In the case of Bharta Matha & Ors vs. R. Vijaya Renganathan & Ors [15] Supreme Court held that child born out of live in relation is entitled to inherit the property of parents. But the child doesn’t claim right against Hindu Ancestral Coparcenary Property.

In the case of SPS Balasubramanyam v. Scruttayan, [16] the Supreme Court laid down that if man and woman are living together in live in relationship and cohabiting from some years, it will be presumed as per Section 114 of Evidence act that they were living together as Husband and Wife, and the child born to them will be illegitimate.

In case of Dimple Gupta v. Rajiv Gupta [17] it was held by the Supreme Court that an illegitimate child which is born out of illicit relationship has also right to get maintenance under Section 125 of CrPc, 1973.

Live In Relationship in Other Countries [18]

Scotland: The Family law Act 2006, for the first time legalized the Cohabitation in Scotland, at that stage of time there were 150000 cohabiting couples in the country. Section 25(2) of the Act stated that court will consider three basic things to identify the couples co-habiting; the length of the period during which they were staying together, the nature of relationship in that period, and nature of any financial arrangements. In such a case if the relationship breaks, then the cohabitant has right under Section 28 to apply for the financial support.

France: In France live in relationships are governed by the Civil Solidarity Pact of ‘pacte civil de solidarite’ passed by the French National Assembly in October, 1999. The term Cohabitation in France is defined as a “de facto stable and continuous relationship between two persons of same sex or of different sex living together as a couple, and allows them to enjoy the rights accorded to married couple.

United States: Live in relationships used to be illegal in The US prior 1970. However, soon it was accepted as common law of subject to certain requirements.

Canada: in Canada living together is recognized as “common law marriage”. In many cases, common law couples enjoys the same rights as married couples, the couple gets legal sanctity if they have lived together for 12 consecutive months or have given birth to a child.

Australia: The Family Law Act of Australia states that any “de facto relationship can exist between two people of different or of same sex. The person can also be in a de facto relationship even if married with another person.

Ireland: though live in relationship is legally recognized in Ireland. Public opinion is strictly against the legislation made for the cohabiting couples demanding maintenance. They do not possess the same legal rights and obligations as married couple or civil partnership in civil law.

Philippines: Philippines provide that a man and a woman who are capacitated to marry each other, or are in live-in relationship with each other, but without the benefits of marriage. In such a situation, property acquired by both the spouses and the income earned by both of them are shared equally.

Conclusion

Live-in relationship in India is still considered taboo. Though certain verdicts given by many courts have recognized live-in relationship, but still majority of people in India considered it immoral. Live-in relationship is evolved and determined by Supreme Court in many cases. However, there is no such legislation that lays down the provisions regarding Live-in relationship. As we know, India is known for its cultural values, the concept of live-in relationship is considered improper by the society, but is not illegal in the eyes of law. It was considered very unambiguous concept by the majority of people. Later, Supreme Court of India stated that live-in relationship is Right to Life and cannot be held illegal. However, there is need to formulate and make laws clear, all the confusions and loopholes should be removed to give status to the relationship and rights to the parties, children born out of the live-in relationship, which is an utmost need to secure the future of such children. The court also tried to improvise the condition of women borne out of live-in relationship by defining their status under Domestic Violence Act, 2005. For clarity of their status various amendments should be made. The judiciary’s effort to safeguard the interest of such couples and children is a welcome step to the gradual social changes.

[References]