Challenges of a live-in relationship: A study on rape laws and child

legitimacy

Authored by: Prof. Udiksha Chhikara 1

Introduction

With the advancements of thoughts and changing perceptions, Indian society has
undergone massive change in terms of accepting the concepts that were beyond the bounds
of Indian culture. One such concept is live-in relationship which has partially gained
acceptance but still a sizeable chunk of India’s population do not want to come to terms
with its existence. Live in relationship has an edge over marriage purely because of the
convenience and easy exit option unlike marriage where dissolution is a tiring and
disturbing process. Live-in relationship is a classic example of one of the social truths that
still awaits a whole hearted acceptance. One of the major reasons of such non acceptance
is the looking down of pre-marital sex which is regarded as immoral, inappropriate and
contrary to our societal norms.

When a live-in relationship fails or one of the partners decides to marry another person, it
doesn’t take too long for this sweet arrangement to turn sour. The partners go to the extent
of levying various kinds of allegations, commonest of them being the rape allegations,
where the women swears that she got intimate with the man solely on the basis of the false
promise of marriage. Such situation usually arises in cases where the live-in partner breaks
up or marries another person. The woman then files FIR against the man alleging he had
sexual intercourse after promising to marry and therefore levying rape charges. Another
issue that arises out of a failed live in relationship is the legitimacy of child born out of
such relationships. This chapter will focus on the two above mentioned problems that
needs judicial intervention.

Live-in Relationship and Rape laws

Section 375 Indian Penal Code defines the offence of rape and clause four conveniently
applies to live-in relationships which says “A man is said to commit “rape” who, except in
the case hereinafter excepted, has sexual intercourse with a woman under circu mstances -

1
Assistant Professor of Law, IILM University
with her consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes herself to be
lawfully married”.2

When a couple decides mutually to live together under one roof, it is naive to say that they
will never succumb to the temptation of an intimate relationship. It is also unsafe to
assume that live-in partners indulge in sexual activity only because woman believed that
she is his lawful wife. Therefore, it becomes pertinent to distinguish between consensual
sex in a live-in relationship and rape.

The courts have seen variety of cases in the recent past where women have filed such
cases. In Uday vs Karnataka 3, the supreme court discussed a chunk of judgements, where
couples who failed to convert their intense and physical relationship into marriage, and
thus resulted in filing of rape charges by the woman. The supreme court said, “…the
consensus of judicial opinion is in favour of the view that the consent given by the
prosecutrix (complainant woman) to sexual intercourse with a person with whom she is
deeply in love on a promise that he would marry her on a later date, cannot be said to be
given under a misconception of fact, A false promise is not a fact within the meaning of
the IPC. We are inclined to agree with this view, but we must add that there is no
straitjacket formula for determining whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a misconception of fact.” 4

The supreme court also said that it is not abnormal for couples who have promised to
marry each other to fall for weak moments at some time while they stay together. At this
juncture, it becomes important to differentiate between a mere breach of promise and not
fulfilling a false promise. Although the two situations look similar, there is a huge
difference of intention. If the promise has been made with the sole intention of inducing
the woman for indulging in sexual intercourse or had malafide motives, it will not only be
termed as rape but will also fall under cheating and deception.

In the case of Dr Dhruvaram Murlidhar Sonar v The State of Maharashtra & Ors 5, it was
held that “if a person had not made the promise to marry with the sole intention to seduce

2
Section 375 Clause 4 The Indian Penal Code,1860
3
2003 (4) SCC 46
4
Uday vs Karnataka2003 (4) SCC 46
5
Criminal Appeal No. 1443 of 2018
a woman to indulge in sexual acts, such an act would not amount to rape”.6 In cases where
the women agree to indulge in sexual intercourse completely on her own wish on account
of love and passion for the man, and not because of the promise he made, it cannot be rape
even if the marriage doesn’t take place for whatever reason.

In another case of Shivashankar v. State of Karnataka & Anr.7, it was held

“In the facts and circumstances of the present case, it is difficult to sustain the charges
levelled against the appellant who may have possibly, made a false promise of marriage to
the complainant. It is, however, difficult to hold sexual intercourse in the course of a
relationship which has continued for eight years, as 'rape' especially in the face of the
complainant's own allegation that they lived together as man and wife8.”

In the most recent case of the Supreme Court in Sonu v. State of U.P.9, it was held “Where
the promise to marry is false and the intention of the maker at the time of making the
promise itself was not to abide by it but to deceive the woman to convince her to engage in
sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”.
On the other hand, a b reach of a promise cannot be said to be a false promise. To
establish a false promise, the maker of the promise should have had no intention of
upholding his word at the time of giving it.10”

Live-in relationship and legitimacy of child

The question of whether a child born is a male or female is secondary. The worldwide trend
and concern amongst all societies across the globe has always been as to whether the child
born is legitimate or illegitimate, and whether the child is born out of wed lock or
otherwise11. Determining the status of children clarifies their inheritance rights in the Indian
laws. In the given modern times, the concept of live-in relationship has been widely
witnessed to be practiced by unmarried as well as married couples. This chapter discusses
and focuses on the rights and status of children born in live-in relationships.12 In India, Hindu
Marriage Act, 1955, Section 16 talks about the legitimacy status of children 13. But, whether

6
Dr Dhruvaram Murlidhar Sonar v The State of Maharashtra & Ors
7 Criminal Appeal No. 504 of 2018,
8
Shivashankar v. State of Karnataka & Anr Criminal Appeal No. 504 of 2018,
9
2021 SCC OnLine SC 181
10
Sonu v. State of U.P 2021 SCC OnLine SC 181
11
Divya Singh, “Live-In Relationship- Legitimacy of Children and their Inheritance Rights”, Volume 10, May
2020, pg1, pg(1-12), ISSN 2581-5504, Pen Acclaims.
12
Ibid
13
Ibid
this law can be applied to the children born out of wedlock is to be examined. Since, there is
a lack of legislation on live-in relationship, there are many questions unanswered on how
these relationships are defined and what are the rights of the couples and the children.
Whether these relationships are legalised in India is a major question to be answered14.

Since the Constitution of India confers upon every individual the right to live with dignity in
Article 21 and how the Supreme Court has read through Article 21 of the Constitution of
India and categorised right to choose life partner one can determine that the rights of children
born out of such relationships shall also be looked upon 15. In light of these provisions and
legal standing, one can still certain lacunae which requires one’s undivided attention and
various questions which required to be answered even though Supreme Court and High Court
of various states have recognised live-in relationship amongst consenting adults16.

Judicial Approach towards live - in relationship & related issues

While addressing the issues arising out of live-in relationships, and with lack of legislation on
given subject matter, the judicial approach towards live in relationships can be very well
understood in the light of various judgements passed by the Apex Court as well as various
High Courts. The question of live-in relationships was brought before the Supreme Court in
the year 1978 through the case as, Badri Prasad v Dy. Director of Consolidation17. In this
given case, the question of live in relationships was brought wherein the couples were living
together for almost fifty years. The issue raised in the Court of Law was as to recognise such
couples living together for such long span of time as a legally married couple18. The Apex
Court holding a progressive approach recognised their relationships and granted them a legal
status as like a legally married couple.

In the SPS Balasubramanyam v. Suruttayan19, the Supreme Court clarified and held that if
two individuals decides to live together that is to say any male and female decide to live
together under one roof they shall be considered as married couples and be regarded as
husband and wife under Section 114 of the Indian Evidence Act, where the Court has certain

14
Manju Jamwal, “Live in Relationships in India: Legal moves and Judicial Attitude: Some
Observations”,RGNUL Law Review, Volume IV, No.1 , January – June 2014, ISSN 2231-4938, Pg 1, Pg 1-11,
RGNUL Law Review
15
Ibid, Pg, 2
16
Ibid
17
AIR 1978 SC 1557
18
Chaudhary Laxmi Narayan & et.al, “Live-in Relationships in India- Legal and Psychological Implication”,
3(1) 18–23, 2021, Pg 18, pg 18-23, Journal of Psychosexual health
19
1994 (1) SCC 460
discretionary powers to presume certains facts and thus if any progeny is obtained through
such relationships, such children shall also be considered as legitimate20.

In the case of PV Susheela v Komalavally21, the Kerala High Court also took a progressive
approach and while recognising right to live with dignity under Article21 of the Constitution
of India, includes the right to claim and attain maintenance from spouses as well individuals
in a live-in relationships22.

In 2008, again the Apex Court while deciding the case of Tulsa & Ors vs. Durghatiya &
Ors23, clarified the legal status of children born in live-in relationships by reiterating that this
status shall only be conferred to such offsprings, only if the couples living together have
cohabited wilfully and have been living together for a significant period of time24. A one
night stand shall not be categorised as live-in relationship. In other words, it must not be a
casual on and off relationship. The court also explained that once the status of legitimacy is
conferred upon such children, they also shall have the inheritance rights in the parental
property25. On the similar lines in 2010, the case of Bharatha Matha v R Vijaya Renganathan
& Ors26, was decided by the Supreme court wherein the court reiterated the decision of Tulsa
v Durghatiya stating that the children born from live in relationships are legitimate and
therefore have the right of inheritance from their parental property as well. However, this
inheritance does not include the ancestral undivided properties of their parents27.

The question of the right to inherit from parental property was looked into by the Apex Court
in Vidyadhari v. Sukhrana Bai28, the Supreme Court made a highlighting judgement by
conferring inheritance rights and granting the children born in live-in relationships the right
to inherit from their parental property29.

20
Supra Note 8, Pg 19
21
I (2000) DMC 376.
22
Supra Note 4, Pg 6
23
2008 ALL SCR 700
24
Supra Note 4, Pg. 6
25
Ibid
26
AIR 2010 SC 2685
27
Supra Note 8, Pg. 19
28
(2008) 2 SCC 238
29
Supra Note 1, pg, 8
In a landmark case which was decided by the Supreme Court was D. Velusamy v. D.
Patchaiammal30, wherein the Apex Court quoted that live relationships are relationships in
the nature of marriages and thus elaborated certain requisites which shall be considered to
categorise any relationship as a live-in relationships. The requirements are such that the
couples in the relationship must in the society be similar to living spouses for a significant
span of time, they must be bearing the majority age to legally get married, and must have
wilfully cohabited with eachother.

Another landmark case in 2014, changed the views on live-in relationships and their related
issues wherein the Supreme Court in S. Khushboo v Kanniammal & Anr31. It was a case
wherein the petitioner, a South Indian actress was charged with defamation under the Indian
Penal Code, 1860. The Apex Court held that living together without a marriage is immoral
but not illegal if considered in the conservative society32. However, while understanding the
Right to live with dignity in Article 21 of the Constitution states that recognition to people’s
choices to live together should also be addressed even if it is against the morality standards, it
shall be legal to enter into such relations and one needs to accept and understand the
legitimate live-in relationships.

The need for legislation on live-in relationships was addressed by the Supreme Court in the
case of “Indra Sarmavs v. KV Sarma33” whereby the Court observed and opined that the live-
in relationships are a frequent occurrences in the modern society and even though these
relationships are not marriages like, these relationships exist and must be accepted in their
original form and further protecting the rights of the women and children in such
relationships is also crucial aspect which is to be considered34.

Rights of a child born in a live-in relationship

In light of the judicial approach towards the issues arising out of live in relationships,
following rights can be summed up for the children born in live in relationships since the lack
of legislation on the subject matter is yet to be filled up by the Parliament. The precedents of
Apex Court shall be considered as guiding principles on the subject matter until the
legislation is enacted.

30
(2010) 10 SCC 469
31
AIR 2010 SC 3196
32
Supra Note 14
33
AIR 2014 SC 309
34
Supra Note 8, Pg. 20
 1) Legitimacy of the Child– When two consenting adults decide to live together under
one roof and that too for a significant period of time that it is akin to living spouses35.
If a progeny is born out of such relationships, the legitimacy shall be conferred to
such children irrespective of the fact as that they are children born out of an immoral
relationship. This also stands in consonance to the Article 39(f) of the Constitution of
India, which mentions that it is the responsibility of the State to provide with all
adequate opportunities to develop in a manner to all children36.

2) Custody of the Child – Since there is no legislation which regulates and pertains to
live in relationships and its related issues, the custody of children born out of such
relationships is dealt in a similar manner as the issues related to children are addressed
in the separation matters of Hindus37. Under the Hindu Minority and Guardianship
Act, 1956, “the male or the father is the natural guardian of his minor legitimate
children38” and in case the father is not willing, then the mother shall be given the
guardianship rights. In Hindu Minority and Guardianship Act, 1956, Section 13
focuses on the welfare of the minors as the priority. The Court shall be very careful in
delivering such judgements until any law is enacted on the subject matter by
upholding the religion of the couples and how the child has been brought up and the
welfare of the child shall be the basis for any decision39. This ambiguity and
application and interpretation of existing laws certainly requires to be addressed by
the Legislature and the Judiciary.

3) Maintenance – Due to lack of any legislation on the subject matter, no specific

personal law can be applicable to the children born in live-in relationships. The
maintenance rights for such children may fall within the ambit of Section 125
criminal procedure Code, which provides that, “that any person having sufficient
means to maintain himself cannot refuse the maintenance to the wife, children, and
parents if they are unable to maintain themselves”40. Through the case of

35
Devina Row, “Children born in live in relationships have rights too!”, Volume 1 Issue 3, May 2021, pg1, pg
1-6, ISSN 2582-7782, Dejure Nexus Law Journal
36
Supra Note 25, Pg 1
37
Ibid
38
Section 6 of the Hindu Minority and Guardianship Act, 1956
39
Supra Note 25, Pg 2
40
Code of Criminal Procedure, 1973
 Revanasiddappa & Anr. v. Mallikarjun & Ors.41 where Supreme Court kept the
children born out of wedlock on an equal footing as to the children born in live in
relationships and remarked that nevertheless of the relationship between two
individuals in a live in relationship, birth of a child out of such relationship has to be
viewed separate of the relationship of the parents and therefore, children born out of
such relations are entitled to all rights as are open to children born out of valid
marriages42.

4) Right to Property– It is now recognised as a constitutional right. Post 2005 Hindu

Succession Act, 1956, provided an equal share to daughters as on the same footing as
the sons in Joint Family property. Due to lack of clarity in the laws pertaining to live
in relationships, the custody of children is to be dealt in within the ambit of existing
laws that is, the inheritance right exists but not in the ancestral property of the parents.
However, this position can certainly be well clarified by legislation or judicial
decisions.

Conclusion
Since there is a no specific legislation governing live-in relationships in India, the role played
by existing laws and Indian judiciary becomes of paramount importance. The society has
undoubtedly become open to the idea of live in relationship more than ever and thus we need
a law dealing all the issues arising out of live-in relationship.
As discussed, the implications of a live-in relationship may involve sexual relations which
results in rape allegations and questioning the legitimacy and rights of children born out of
such relations. This chapter has laid emphasis on the importance of demarcating the concept
of consensual sex from rape. It has been established through various supreme court
judgements that intention of the partner plays an important role in determining whether the
sexual act was out of love and consent or was shadowed by malafide motives. Another
consequential scenario of sexual intercourse is a child, his legitimacy and rights. The courts
have clearly time and again recognised the legitimacy of such children. They are entitled to
all the rights equivalent to the right of children born out of wedlock. Although precedents are
set in favour of live-in relationship, the importance of a proper legislation cannot be under
estimated.

41
2011(2)UJ 1342(S.C.)
42
Supra Note 4, Pg 5