SAKSHI.

S
K.L.E. SOCIETY’S LAW COLLEGE,
BENGALURU.

COHABITATION IN INDIA
KNOW YOUR RIGHTS IN A LIVE- IN RELATIONSHIP
India being a rustic full of cultural values, rituals and ceremonies, its customs and
traditions have seen a lot of dynamism and great inspiration from the western
countries; and one in every of it’s the live- in relationships. While India considers
marriage as a sacred ceremony, is it able to accept live- in relationships?
This paper talks about one in all controversial topics: live- in relationships. This idea
is not new in the western countries, but it is making a place for itself in the east.
Lately, cohabitation is preferred over marriage to check each other’s compatibility and
also to avoid the lengthy legal procedure of divorce if they decide to breakup.
What is a live- in relationship? What does the Indian Judiciary have to say about
individuals’ inhabitancies without marriage? What are the rights of partners in
cohabitation?
COHABITATION, is a state or condition of living together in a conjugal relationship
without being married. 1 There is no legal definition to live- in relationship. It is an
arrangement of individuals/ couples living together unmarried to have a long going
relationship similar to marriage. It is purely an arrangement of two parties; when
either of the party decides to walk out of the relationship, it comes to an end. And
hence it is walk-in and walk- out relationship.
In Madan Mohan Singh v. Rajni Kant, the Court held that, the live-in
relationship if continued for a very long time, cannot be termed as a “walk-in
and walk-out” relationship and that there is a presumption of marriage between
the parties. By this approach of the Court, it can be clearly inferred that the
Court is in favour of treating long-term living relationships as marriage instead
of making it a brand-new concept like live-in relationship.2
In India, marriage is taken into account as a sacred form of matrimony. In a marriage,
both the individuals are given certain rights and duties to perform and they are
governed and protected by various personal laws like Hindu Law, Muslim Law etc.
Live- in relation being an alien concept to the Indian Legislature not expressly
recognized does not have a Uniform Civil Code, however, over and over again,
distinguishing morality from law, Indian Courts have protected the rights of partners
through various laws like the Domestic Violence Act, Evidence Act, CrPC, etc. Indian
judiciary has taken a step that was created in absence of any specific statute relating to
live-in relationships. It may be considered immoral in the eyes of society but it’s not
in the least “illegal” within the eyes of the law. The intention of Indian judiciary is to
render justice to the partners of live-in relationships who, were earlier not protected by
any statute when subjected to any abuse arising out of such relationships.
Live-in relationships were legally considered void-ab-initio. But during a judgement
in 1978, such relationships are valid for the first time, thanks to the Supreme Court. If
the requisites of a wedding like mental soundness, the fulfilment of the legal status of
marriage, consent, etc. are all satisfied, the couple is taken into account to be in a

1 Collins dictionary: https://www.collinsdictionary.com/dictionary/english/cohabitation

2 SCC Online.
legal live-in relationship. The couple is additionally regarded as married if they live
together for a considerably long period until proven otherwise.
The Constitution of India provides and guarantees Fundamental Rights and Freedom
to people. Article 21 of the Indian Constitution confers the Right to life to every
person. One’s wish to reside with a partner and have relationship is governed by the
mentioned Fundamental Rights and Freedom, although they are not absolute.
In landmark case of S. Khushboo v. Kanniammal, the Supreme Court held that
a living relationship comes within the ambit of right to life under Article 21 of
the Constitution of India. The Court further held that live-in relationships are
permissible and the act of two major living together cannot be considered
illegal or unlawful.3
The Supreme Court in Indra Sarma vs. V.K.V. Sarma defined live-in
relationships in five distinct ways:
1. A domestic cohabitation between a major unmarried female and a major
unmarried male. It is considered as the simplest kind of relationship
between all.
2. A domestic cohabitation between that was entered mutually by a major
unmarried woman and a married man. A domestic cohabitation between
that was entered mutually by a major unmarried man and a married
woman.
3. These two are the most acknowledged type of live-in relationship in
India. Moreover, adultery is a type of relationship, and it is punishable
under the Indian Penal Code, 1860.
4. A domestic cohabitation between that was entered unknowingly by a
major unmarried woman, and a married man is also punishable under
Indian Penal Code, 1860.
5. A domestic cohabitation between partners who are homosexual, cannot
lead to a marital relationship. As in India, any matrimonial law for
homosexuality is not defined yet.
It was held that Live- in type of relationship is neither a crime nor a sin,
even though it is morally unaccepted. Honourable Supreme Court of India,
held that a live-in relationship requires effective and adequate protection,
especially the female partner and the children born out of such
relationships, as it may sustain for a long time and can result into
vulnerability and dependency.4

In the case of Lata Singh V. State of U.P., the Supreme Court of India
observed that live- in relationship between two consenting adults of

3 https://frontline.thehindu.com/other/article30180466.ece

4 https://www.indiafilings.com/learn/live-in-relationships-in-india/
 heterogenous sex doesn’t amount to any offence, with the clear exception of
adultery, even though it maybe perceived as immoral. 5
However, Supreme Court has decriminalised Adultery by its judgement in
Joseph Shine’s Case.

Through references from the Malimath Committee in 2003, Section 125 was
incorporated within the Criminal Procedure Code to modify the meaning of ‘wife’ and
expand it to incorporate women who were in an exceedingly live-in relationship. This
ensured that her financial needs were taken care of by the partner if she was unable to
sustain herself or if the relationship became estranged. Similarly, protection against all
forms of abuse is covered under the Domestic Violence Act, 2005, as it is for married
women.

RIGHTS IN A LIVE-IN RELATIONSHIP.

• MAINTENANCE:
is available to each wife/ wives under the private Laws. None of religions in
India have considered or accepted the concept of live- in relationships, the
rights haven't been guaranteed. And hence, Indian Courts have widened the
scope of maintenance under the Criminal Procedure Code.
Consequently, Section- 125 of the Criminal Procedure Code has been
provided to offer a right of maintenance to lady partners in or out of a
wedding.
In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha, where High Court
declared that appellant wife is not entitled to maintenance on the ground that
only legally married woman can claim maintenance under Section 125 CrPC.
But the Supreme Court turned down the judgment delivered by the High Court
and awarded maintenance to the wife (appellant) saying that provisions of
Section 125 CrPC must be considered in the light of Section 26 of the
PWDVA, 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. 6

• DOMESTIC VIOLENCE.

5 https://lawtimesjournal.in/lata-singh-vs-state-of-u-p-anr/

6 Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 2 SCC (Cri) 666 : (2011) 1 SCC
(Civ) 53, 07-10-2010: http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=99999999&do_pdf=1&id=20197
 THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT,
2005 (ACT NO. 43 OF 2005)
An Act to provide for more effective protection of the rights of women
guaranteed under the Constitution who are victims of violence of any kind
occurring within the family and formatters connected therewith or incidental
thereto.
Section 2(f) of the said act defines the term “domestic relationship” - means 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. 7

• CHILDREN BORN: THEIR RIGHTS AND INHERITENCE.

As per the Guidelines Governing the Adoption of Children as notified by the
Central Adoption Resource Authority, couples in a live- in relationship are not
allowed to adopt kids.
Section- 16 of the Hindu Marriage Act mentions the Inheritance rights of
children. The children born through live- in relationships enjoy the same rights
of succession and inheritance as of the children born to couples through
marriage under the Hindu Marriage Act.
The position of maintenance of children through marriage varies according to
the personal laws. Under the Hindu Marriage, the father has to maintain the
child. But under the Muslim Law, the father is not obligated to do the same.
And hence, for those children who are unable to entitlement maintenance under
the Personal Laws, Section 125 of the CrPC, provides a legal right of
maintenance.

In Bharata Matha & Ors. V. R. Vijaya Renganathan & Ors. Case, the SC
has also ruled that Child born out of a live-in-relationship may be
permitted to inherit parent’s property, but does not have any right to
claim against Hindu Ancestral Coparcenary Property. 8

During a decision of seminal significance, the Kerala Judicature has

held that a child born out a live-in relationship and acknowledged so by
the mother of the child, would have to be treated as a child born to a
married couple for the purposes of surrendering a child for adoption

7 https://legislative.gov.in/actsofparliamentfromtheyear/protection-women-domestic-violence-act-2005

8 https://lawstreet.co/judiciary/child-born-out-of-live-in-relationship-not-entitled-to-claim-inheritance-in-
ancestral-property/
 under Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ
Act).9

In a landmark case, Supreme Court dealt with the issue of live-in relationships in
detail and also laid down the conditions for live-in relationship that can be given the
status of marriage.
Following are the guidelines given by Supreme Court:

1. Dura on of Period of Rela onship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point
of time’, which means a reasonable period of time to maintain and continue a
relationship which may vary from case to case, depending upon the fact situation.
2. Shared Household
The expression has been defined under Section 2(s) of the DV Act.
3. Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank accounts,
acquiring immovable properties in joint names or in the name of the woman, long-
term investments in business, shares in separate and joint names, so as to have a long-
standing relationship, may be a guiding factor.
4. Domes c Arrangements
Entrusting the responsibility, especially on the woman to run the home, do the
household activities like cleaning, cooking, maintaining or upkeeping the house, etc.
is an indication of a relationship in the nature of marriage.
5. Sexual Rela onship
Marriage like relationship refers to sexual relationship, not just for pleasure, but for
emotional and intimate relationship, for procreation of children, so as to give
emotional support, companionship and also material affection, caring, etc.
6. Children
Having children is a strong indication of a relationship in the nature of marriage.
Parties, therefore, intend to have long-standing relationship. Sharing the
responsibility for bringing-up and supporting them is also a strong indication.
7. Socialisa on in Public
Holding out to the public and socialising with friends, relations and others, as if they
are husband and wife is a strong circumstance to hold the relationship is in the nature
of marriage.
8. Inten on and Conduct of the Par es

9 https://www.barandbench.com/news/litigation/adoption-jj-act-child-live-in-relationship-treated-as-child-
married-
couple#:~:text=In%20a%20decision%20of%20seminal,under%20Juvenile%20Justice%20(Care%20and
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 Common intention of parties as to what their relationship is to be and to involve, and
as to their respective roles and responsibilities, primarily determines the nature of that
relationship. 10

The Supreme Court held that if an unmarried couple is living together as

husband and wife, then they would be presumed to be legally married and the
woman would be eligible to inherit the property after death of her partner. “It is
well settled that the law presumes in favour of marriage and against concubinage,
when a man and woman have cohabited continuously for a long time. However,
the presumption can be rebutted by leading unimpeachable evidence. A heavy
burden lies on a party who seeks to deprive the relationship of legal origin,” the
bench said.11

• EVIDENCE ACT, 1872:

The court may presume the existence of any fact which it thinks likely to
possess happened, regard being given to the common course of natural events,
human conduct and public and personal business, in a very relation on the facts
of the actual case. Therefore, where a person and an adolescent live
respectively for a protracted spell of your time as a pair then there would be an
assumption of marriage.
In Tulsa & Ors. V. Durghatiya & Ors., the Supreme Court gave a legal validity
to a 50 year live- in relationship. It was held that with reading Sections 50 and
114 of Evidence Act together, it is clear that the act of marriage can be
presumed from the common course of natural events.

Even though cohabitation is morally not accepted in the eyes of society, it is not
illegal in the eyes of law. Live- in relationships have made a topic of discussion and
debate in the Indian society. There is no legality to the topic, as there's no separate
legislation for the provisions of a live-in in India. Although the concept of a live-in
relationship may be a subject of morality in India, it’s not illegal in line with the laws.
Honourable Supreme court held that two major people habitation is their right to life,
and hence, it can't be considered illegal. In order to bring justice to those females who
are the victims of live-in relationships Indian judiciary took a step, brought
interpretations and made such arrangements valid. In India, there is no actual legal
status given to this kind of relation. But to protect one’s Rights and Freedoms, various
laws have come into picture. Keeping morality and law different, the Indian Courts
have made a place for cohabitation in the country. Though it is still not accepted by
religions and society, live- in relationships are not considered illegal. With society

10 SCC Online.

11 h ps:// meso ndia.india mes.com/india/Couple-living-together-will-be-presumed-married-Supreme-

Court-rules/ar cleshow/46901198.cms
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accepting various other western influences, we can have a hope that even cohabitation
makes a permanent respectful place in the eyes of the society.