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Live-In Relationship- A Legal Perspective

A Systematic Review
Law and Language

Submitted To: Dr. Uma Maheshwari Chimirala


Submitted By: Yash Jain
Roll No. 55
1st year, 1st semester

NALSAR University of Law, Hyderabad

Contents
Introduction..............................................................................................................................................................3
Historical and Cultural Background........................................................................................................................4
Legal Status.............................................................................................................................................................5
Succession and Maintenance Rights........................................................................................................................7
Analysis and Discussion..........................................................................................................................................8
Bibliography..........................................................................................................................................................10

Introduction
Marriages are made in heaven, goes the popular saying. India, A country with its great culture and rich social
values, has propagated the same ideology in its popular culture. Marriage was and is considered to be a divine
sacrament. But, a new trend called live-in relationship is penetrating this popular Indian culture since the
advent of 21st century. In simple terms, live-in relationship can be defined as A relation in which a man and a
woman enter into an agreement to cohabit/live together without finally getting married 1. In Veluswamy case,
court has decided following pre-requisites for live-in relationship to be a legitimate marriage.
1)
2)
3)
4)

The partners must be of legal age to enter into a legal marriage.


They should be otherwise qualified to enter into a legal marriage.
They must be voluntarily cohabited.
They must hold themselves akin to spouse in front of society.

Live-in relationship is not a novel concept for western societies, and they have a well developed legal system
complying with the same. But for India, which is slowly opening its gates for western ideas and philosophy, this
is a budding trend, and therefore the legal mechanism regarding the same is under development.
In this systematic review, the researcher has focused his analysis on legal developments related to live-in
relationships, and has used various research papers published in law journals as a foundational base along with
other journalistic sources. Live in relationship has various aspects, but the researcher has selected only the
sources which discussed legal aspects of live in relationships. The analysis of the selected research papers is
further divided into following sub themes.

Historical and Cultural Background


Legal Status, Succession and Maintenance rights
Analysis
Bibliography

1 Yuvraj Dilip Patil, Socio-Legal Perspective of Live-in-Relationship in India, SSRN Electronic Journal

Historical and Cultural Background


History and religion are a reliable and genuine source of information which provides for the believes of people
in the ancient times. It was not immoral for men to have relationships with women other than their wife.
Concubines or Avarudh stris were kept for mens relaxation, entertainment and pleasure. 2On the other hand, it is
considered to be a taboo and a sin. Indian theory considers marriage to be a permanent and indissoluble union,
not only for this life but for eternality3. It was also a code that a woman must preserve her chastity before
marriage and after her husbands death4
In 20th century feudal society also sexual relationship outside marriage was regarded as disgusting and
unacceptable as it is depicted in popular literature such as Anna Karenina by Leo Tolstoy, Madame Bovary by
Gustave Flaubert and also in many works of Bengali writer Sarat Chandra Chatterjee.
Tribal culture of India also provides excellent instances of live-in relationships. Garasiya tribe of Rajasthan has
a system called Dapa under which young boys and girls of the village can elope and thereafter live with his/her
partner without getting married. These live-in partners marry only when they are financially stable. 5 In Bastar
region of Chhattisgarh, a system called pethu is prevalent. In this system, a live-in couple marries only after
having a child. In the same region, under the name of ghotul system, boys and girls live together in temporary
pre honeymoon camps and get accustomed to their partner before their marriage6.

2Prof. Vijender Kumar, Live in relationship : Impact on family and marriage institutions,
3 Diwan Paras, Family Law, Allahabad Law- Agency, (Eight edition 2008) p-24
4 Yajnavalkya Smriti I, p-76
5 Marriage an alien notion for Indian tribe Aljazeera.com,
http://www.aljazeera.com/indepth/features/2014/06/marriage-an-alien-notion-indian-tribe2014617134343167160.html (last visited Sep 20, 2016)
6 In Bastar, tribal couples 'live in' without a fuss - Times of India The Times of India,
http://timesofindia.indiatimes.com/india/In-Bastar-tribal-couples-live-in-without-afuss/articleshow/46899876.cms (last visited Sep 22, 2016)

Thus we get colorful evidence from our history as well as culture, both in support of and also against Live-in
relationships.

Legal Status
India is a land of diverse religions and culture. Owing to this diversity, we have different forms of regulations
for marriage, divorce and inheritance. Marriage in Islam is regulated by Muslim personal law, whereas others
are covered broadly by legislations like the special marriage act, 1954 and The Hindu marriage act, 1955. 7
There is a dearth of a specific regulation for live-in relationships, and thus at present judiciary is searching for
answers in existing laws and statutes. The protection of women from domestic violence act, 2005 partially
serves the same purpose.
Section 2(f) of the act defines Domestic relationship as a relationship between two 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 in the nature of marriage, adoption or are family members living together as a joint
family
Sec. 2(a) of the same act defines Aggrieved Person as any women who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the
respondent.
In pre independence cases like A Dinohamy v. W Blahamy8 and Mohamad Ali v Mohamad Ibrahim
Ali9 it was held that where a man and a women are proved to have lived together as a man and wife, the law
will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid
marriage and not in a state of concubinage.
After independence first case dealing with Live-in relationship was Badri Prasad v. Dy Director of
Consolidation10 where the honorable Supreme Court declared a 50 year old relationship between a man and a
woman as valid and legal in the eyes of law.
7 Yuvraj Dilip Patil, Socio-Legal Perspective of Live-in-Relationship in India, SSRN Electronic Journal
8 (1928) 1 MLJ 388 (PC)
9 AIR 1929 PC 135
10 AIR 1978 SC 1557

In Payal Sharma v. Superintendent, Nari Niketan, and others 11 Justice Markindey Katju and Justice R.B.
Sharma of the Allahabad high court opined that, A man and a women, even without getting married, can live
together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference
between Law and Morality.
In Patel and others v. Secretary of State for the Home Department 12 and Tulsa v. Durghatiya13,
honorable judges held that long term relation in the form of cohabitation without a formal marriage is
equivalent to a marriage, and is not illegal under any law.

But the most popular judgment in this context was passed by honorable Supreme Court on March 23 rd, 2010 in
S. Khushboo vs Kanniammal & Anr14. In this case, a popular Tamil actress Khushboo publically expressed
her free views on free notions sex and virginity. Almost 23 criminal complaints were filed under sections 4 and
5 of the indecent representation of women (prohibition) Act of 1986 in addition to section 505,500 and 499 of
Indian Penal Code. After high court rejected her request to reject the complaints, she approached Supreme Court
of India with a special leave petition mentioned under article 136 of Indian Constitution. It was alleged by her
opponents that such comments promoting pre-marital sex would adversely affect the moral fabric of society and
especially young people which would ultimately lead to decay of moral values and country rich culture. But
such argument are mere speculations and did not deny any provision of any existing law and therefore Justice
K.G Balakrishnan, Justice Deepak Verma and Justice B.S Chauhan held that Living together is not an offence.
Infact it is an extension of right to life mentioned under article 21 of Indian constitution. All the 23 criminal
complaints against khushboo were rejected and this case in turn served as obiter dicta which became a
foundation of numerous other cases.
Contrastingly, the Delhi high court in Alok kumar v. State and Anr15 held such live-in relationships to be a
walk in and walk out relationship and thus it does not create any legal relationship between the partners. Court
11 2001 (3) AWS 1778
12 (2006) 8 SCC 726
13 (2008) 4 SCC 520
14 JT 201 (4) SC 478
15 M.C. No. 299/2009

further added that, people who choose live-in relationships cannot complaint infidelity or immorality as it often
includes a partner with a legal and subsisting marriage.
Thus the question regarding the legal status of such relationship is to the some extant solved by the courts,
however, there is a lack of a clear cut transparent image and mutual consensus for the same and therefore the
answer remains blur.

Succession and Maintenance Rights


Right to property is one of the rights that are essential rights of a human being. This property can either be
acquired or inherited. The recent judgments declaring live-in relationship as not illegal has stirred up a new
debate regarding succession and inheritance in case of live-in partners and their children.
In Marvin v Marvin16, the supreme court of California opined that courts should weigh the facts from case to
case to provide succession through the doctrines of Quantum merit or constrtuctive trust. Same is applicable to
Indian context also. In Indian cases like Bharata Matha v. R. Vijaya Renganathan 17 court went further and
declared that child born out of such live-in relationships is legitimate, which is also in coherence with the Hindu
marriage act of 195518. In such cases, the child may inherit the property of its parents, but has no claim in the
coparcenery Hindu ancestral property of the family. Countering this issue, in Revanasiddappa v.
Mallikarjun19, the Supreme Court felt the need to amend section 16(3) of the Hindu marriage act so as to
occupy the claims of such children in the inheritance of ancestral property. The supreme court of India in
Vidhyadhari v. Sukhrana bai20 provided a succession certificate to a live-in partner, who was nominated for
the same by the deceased.
In Abhijit Bhikaseth Auti v. State of Maharashtra 21, the Bombay high court stated that, to claim
maintenance under section 125 of Cr.P.C, it is not necessary to establish a marriage. In Chanmuniya v.
Virendra Kumar Singh Kushwaha22 court opined broader interpretation of meaning of wife under section
16 18 Cal.3d 660 (1976)
17 C.A. No. 7108/2003 MANU/SC/0400/2010, (S.C. May 17, 2010).
18 Section 16 of Hindu Marriage Act, No. 25 of 1955, INDIA CODE
19 (2011) 11 SCC 1
20 C.A. No. 575/2008 MANU/SC/0629/2008, (S.C. Jan. 22, 2008).
21 Crl. W.P. No. 2218 of 2007
22 SLP (Civil) No. 15071/2009 MANU/SC/0807/2010, (S.C. Oct. 7, 2010).

125 of Cr.P.C and also claimed that man should not be allowed to take an undue advantage of loopholes in the
definition.
Thus we can safely conclude that there is a dearth of a legislation regarding maintenance and succession rights
in case of live in relationships and the decisions regarding the same is left only on the discretion of the judiciary.

Analysis and Discussion


The attitude of youth has changed drastically with respect to their prior generations. In the present era, couples
are focused on their professional life and career expansion, rather than investing their time and efforts in setting
up of marriage as an institution. With increased parity in both sexes, gone are the days when women used to be
home-makers. Thus Live-in relationships or Cohabitation is gaining immense popularity in modern couples due
to following reason23 :

To test their compatibility prior to be tied by a legal union.


To avoid the complexities and responsibilities which come as a part and parcel of marriage.
To maintain Single status on their documents so as to avail tax benefits and other financial benefits.
Existing marriage is unsuccessful and there is a difficulty in separation due to social or legal

complexities.
To ensure financial stability before marriage.

This list is not exhaustive and there are endless factors which contribute to the decision of cohabitation of
partners. There is definitely a consensus that such relationships genuinely endorse Right to liberty, Right to
privacy and Right to life. But negative factors need to be realized which include:

Breakdown of Marriage as an institution Marriage is a social union based in trust and sacrifices. it not
only bonds a man and a woman, but is also ensures security of children. Live-in relationship has

weakened the importance of marriage as an sacred institution.


Lacks commitment and responsibility - Live in relationship is just like a civil contract which is renewed
everyday and can be terminated by the whims and fancies of a single party. Traditional marriage
promotes growth of love whereas foundation of live in relationship is commercial give and take

relationship. Feeling of compromise and tolerance is found to be absent in such relationships.


Malicious motives Live in relationships bring both the parties at a vulnerable position. There are
increasing instances sexual exploitation, domestic violence against women in such relationships. On the

other hand, many men have faced false rape and sexual harassment charges after breaking apart.
Critical social positions- Live in relationships are seldom accepted by family members as well as
society. This leads to conflict of ideas and opinions with the family as well as society. The same problem
is faced by off-springs of the live-in couple.

23 Dr. Swarupa N. Dholam, Socio Legal Dimensions of 'Live-in relationships' in India,

Legal hurdles- As mentioned earlier, law dealing with live in relationships is under development in
India, and therefore partners have to face a hard time in dealing with issues like divorce, maintenance,
succession and inheritance.

Recommendations:

Definition of wife should be amended in section 125 of Cr.P.C so as to make women in live-in
relationship to be eligible for claiming maintenance. A part of these women includes domestic home
makers as well, and therefore, this step is necessary so that these women do not face economic

deprivation after spending a long part of her life with her partner.
Live in relationships should be given a legal status after passage of certain pre-decided time. This will
empower both partners as well as children to efficiently and legally claim maintenance, inheritance and
succession. Law and society are reflections of each other and therefore law cannot afford to be static

after rapid and dynamic changes in society.


There is a need to check the legal system regarding bigamy, as in many cases, either one or both the
partners are withstanding a legal marriage. In such cases, they take the shelter of live-in relationship.

Such relationship involving one or more married parties should be covered under the ambit of offence.
There is an urgent need to generate awareness regarding these relationships especially among teenagers.
Such practices providing freedom of pre-marital sex and removing other restrictions, can often result in
teenage pregnancies, propagation of Sexually transmitted diseases and other psychological as well as
emotional traumas.

Thus at the end of the systematic review we are left with the following questions:

What are the socio-cultural implications of live in relationship?


What is the status of live in relationship in the eyes of the law?
What are the maintenance rights that can be claimed by female partner upon separation?
What are the laws of Succession and inheritance in case of live in relationships?

The answer to all these questions can only be speculated or estimated. We lack concrete evidences in forms of
specific laws, statues and other legal procedural mechanisms. With increase in the cases of live in relationships,
it is the need of the hour to develop mechanisms that are similar to other western and European countries, lest
the rights and duties of people adopting this new trend will remain a grey area.

Bibliography
Research Papers and Scholarly Articles:

Succession rights in case of live-in relationships: An Analysis in the Indian Context by Amartya Bag
Socio-legal perspective of live-in relationship in India by Yuvraj D. Patil
Socio-legal Dimensions of live in relationships in India by Dr. Swarupa N Dholam
Live-in Relationship: The Legality of Unconventional in India by Alok Kumar Yadav and Santosh

Kumar Agarwal
Live in relationship and Its Impact on marriage and family institutions by Prof. Vijender Kumar
Judicial Approach to live in relationship in India and Its impact on other related statutes by Sonali

Abhang
Law and live in relationship in India by Anuja Agarwal
Live in relationship : Recent developments and challenges in India by Dr. Kalpana V Jawale