Live in Relationship-

Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a
long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is
most frequently applied to couples who are not married. In recent years, this concept has seen
steady growth throughout the world. It may also be because they are unable to legally marry, for
instance, if they are of the same sex, some interracial or inter-religious marriages are not legal or
permitted. Other reasons include living with someone before marriage in an effort to avoid divorce,
philosophical opposition to the institution of marriage and seeing little difference between the
commitment to live together and the commitment to marriage. Some individuals may also choose
cohabitation because they see their relationships as being private and personal matters, and not to
be controlled by political, religious or patriarchal institutions.

Legal Position in India-

There is no uniform civil code in India and marriages are mostly governed by the personal laws of
every individual. The concept of a live-in relationship is not expressly recognized by the legislature
however the courts have time and again upheld the validity of such relationships keeping in mind the
constitutional principles.

The Supreme Court first observed live-in relationships as legitimate in the case of Badri Prasad v. Dy.
Director of Consolidation1 the Court said that under Indian law, a live-in relationship between
consenting adults is legal if the requirements of marriage, such as legal age of marriage, consent, and
soundness of mind, are met. No rule permits or bans such connections. Additionally, if any third
party seeks to disprove such a presumption, a heavy burden lies on them.

Article 21 of the Constitution of India confers the Right to Life and Personal Liberty to every person.
One’s wish to reside with a partner of their choice and establish a sexual relationship is governed by
the above-mentioned rights and freedoms. However, it is to be kept in mind that such rights and
freedoms are not absolute. In the landmark case of S. Khushboo vs Kanniammal 2 the Supreme
Court held that a live-in relationship comes within the ambit of Article 21 of the Constitution of India.
The court further upheld that a live-in relationship is permissible and the act of two individuals who
have attained the age of majority living together cannot be considered illegal.

In the case of Lata Singh vs State of U.P. and Anr3. The Supreme Court observed that live-in
relationship between consenting adults of heterogeny sex does not amount to any offence even
though it may be perceived as immoral Similarly in Indra Sarma vs V.K.V. Sarma4 the Supreme Court
observed that Live-in relationship is neither crime nor a sin though social unacceptable in this
country.

Laws Applicable to Live-in relationship-

1
Badri Prasad vs Dy. Director of Consolidation 1978 AIR 1557

2
S. Khushboo vs Kanniammal (2010) 5 SCC 600
3
Lata Singh vs State of U.P. and Anr AIR 2006 SC 2522
4
Indra Sama vs V.K.V. Sarma (2013) 15 SCC 755
Even though, it is relatively easier to get into a live-in relationship, but the repercussions or the
aftermath of dissolution is still ambiguous. Since the law does not explicitly give women the legal
status of a ‘wife’ in live-in relationships, it makes it complicated to determine the judicial discourses
under which she can get relief. For example, the absence of an established law in the case of division
of joint property of a couple after their separation. Nevertheless, the Supreme Court through its
judgements in the following cases has made an attempt to provide clarity into the issue.

The Protection of Women from Domestic Violence Act, 2005 is intended to provide for protection of
rights of women who are victims of violence of any type occurring in the family. The Act was enacted
to achieve the constitutional principles laid down in Article 15(3), reinforced vide Article 39 of the
Constitution of India. Section 2(f) of the Act define domestic relationship - “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”.5 Live-in
relationships have the characteristics of marriage because the partners live together for a long period
of time and represent themselves as husband and wife. As a result, they fall under the purview of the
Domestic Violence Act, 2005, and therefore, a woman in a live-in relationship can seek protection
and maintenance under this Act. As a result, this Act legalises relationships other than marriage.

An interesting question of law was raised in Indra Sarma v. K.V. Sarma6 wherein the women had live
in relationship with respondent who was a married man with two children. The court herein
observed, “If we hold that the relationship between the appellant and the respondent is a
relationship in the nature of a marriage, we will be doing an injustice to the legally wedded
wife and children who opposed that relationship. Consequently, any act, omission or
commission or conduct of the respondent in connection with that type of relationship, would
not amount to “domestic violence” under Section 3 of the DV Act.” The court laid down that
the present case was not a "relationship in nature of marriage" because of lack or want of
characteristics of marriage. Even though the decision didn’t go in favour of the petitioner, the
court also observed that live-in or marriage like relationship is neither a crime nor a sin
though socially unacceptable in this country. The decision to marry or not to marry or to have
a heterosexual relationship is intensely personal.7

In D. Velusamy v. D. Patchaiammal8, the Supreme Court held that a 'relationship in the nature
of marriage’ under the Act of 2005, or to get the benefit of the Act of 2005, the case must
fulfill four conditions or requirements-

(a) The couple must present themselves as being akin to spouses in front of the society,

(b) They must be legally eligible to get married,

5
Section 2(f) The Protection of Women from Domestic Violence Act, 2005
6
Indra Sarma v. K.V. Sarma, AIR 2013 SC 755
7
Supra 4
8
D. Velusamy v. D. Patchaiammal, AIR 2005 SC 1809
 (c) They must be otherwise qualified to enter into a legal marriage or even remain
unmarried,

(d) They must have voluntarily lived together in a ‘shared household’ or cohabited and
presented themselves as being akin to spouses out to the world for a significant amount of
time, and these requirements must be proved by evidence.

Under Section 125 of CrPC a wife can claim maintenance from her husband if he refuses to
maintain her. If a woman is able to establish a relationship in nature of marriage then she is
entitled to claim maintenance from such a partner as a presumption can be raised by the court
that such a relationship is a marriage and the woman can be presumed to be a wife. This came
after the National Commission for Women 9 recommended to Ministry of Women and Child
Development made suggestion to include live in female partners for the right of maintenance
under Section 125 of Cr. P. C. This view was supported by the judgment in Abhijit Bhikaseth
Auti v. State Of Maharashtra and Others10. The positive opinion in favour of live in
relationship was also seconded by Maharashtra Government in October, 2008 when it
accepted the proposal made by Malimath Committee 11 and Law Commission of India which
suggested that if a woman has been in a live-in relationship for considerably long time, she
ought to enjoy the legal status as given to wife.12

13
In Chanmuniya vs Virendra vs Virendra Kumar Singh Kushwaha the Supreme Court
observed that in those cases where a man, who lived with a woman for a long time and even
though they may not have undergone legal necessities of a valid marriage, should be made
liable to pay the woman enjoying the advantages of a de facto marriage without undertaking
the duties and obligations. Any other interpretation would lead the woman to vagrancy and
destitution which the provision of maintenance in Section is meant to prevent. In the
Landmark case of Champaben vs State of Gujarat14, the respondent and petitioner started to
live in a live-in relationship after the respondent promised to marry the petitioner, After some

9
Satya Prakash, “NCW pleads case of Live-In Partners”, Hindustan Times, Dec. 26, 2006, available at: <
https://www.hindustantimes.com/india/ncw-pleads-case-of-live-in-partners/story-
QlUkFC76vsLYlsd1eAihUI.html>
10
Abhijit Bhikaseth Auti v State of Maharashtra, AIR 2007 SC 2218
11
Report of Justice Malimath Committee on Reforms of Criminal Justice System, MINISTRY OF HOME
AFFAIRS, http:// mha.nic.in/pdfs/criminal_justice_system.pdf, p.197
12
PTI, Maharashtra to Legalize `live-in' Relationships, India Today, Oct. 09, 2008, available at: <
https://www.indiatoday.in/latest-headlines/story/maharashtra-government-to-legalise-live-in-relationships-
31237-2008-10-08#:~:text=In%20a%20bold%20step%20to,the%20status%20of%20a
%20wife.&text=According%20to%20Section%20125%20of,to%20alimony%2C%20an%20official%20said.>
13
Chanmuniya vs Virendra vs Virendra Kumar Singh Kushwaha 2011 1 SCC 141
14
Champaben vs State of Gujarat SCA/11087/2011
time they had a baby, which the respondent refused to take care of. The petitioner sought
maintenance of her child under sec 125 CrPC. The matter after a couple of appeals went to
High court and the cout gave judgment in favour of the petitioner stating that the Respondent
is directed to pay the amount of maintenance to the petitioner based on the order passed by
the learned Magistrate and clear the arrears of maintenance within two months from that day.

Therefore a woman living in a live-in relationship with a man is entitled to receive

maintenance from her partner. Also if such a couple gives birth to a child during this kind of
relationship it will be presumed that the couple was married and the man shall be liable to
maintain the child and the child arising out of such relationship will be considered to be a
legitimate child.

Also, the courts have not only protected the rights of the wives in a relationship against dowry but
also protected the live in partner. Dowry Prohibition Act, 196115 was an attempt to curb the menace
of dowry however it was given an extended meaning. In Koppisetti Subbharao Subramaniam v. State
of A.P.16 the defendant used to harass his live in partner for dowry. In the Supreme Court, Justice
Arjit Pasyat and Justice A.K. Ganguly while denying the contention of defendant that section 498A
does not apply to him since he was not married to his live in partner held that, “The
nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to a
demand of money in relation to a marital relationship”. Drawing parallels with the law which
recognises the legitimacy of children born of void and voidable marriages, it explained its stand
asking: “Can a person who enters into a marital agreement be allowed to take shelter behind a
smokescreen to contend that since there was no valid marriage, the question of dowry does not
arise”

Legitimacy and Inheritance rights of Children-

The first time when the Supreme Court held the legitimacy of children born out of live-in
relationships was in S.P.S. Balasubramanyam v. Suruttayan17, the Supreme Court stated 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.”

In the recent case on the legitimacy of children of such relationships, the Supreme Court in the case
of Tulsa v. Durghatiya18 has held that a child born out of a live-in relationship will no longer be
considered an illegitimate child in the eyes of law. The important precondition for the same should
be that the parents must have lived under one roof and cohabited for a significantly long time for the
society to recognize the couple as the husband and the wife and it should not be merely a “walk-in
and walk-out” relationship. In another case Bharatha Matha v. R. Vijaya Renganathan19, the
Supreme Court held that a child born out of a relationship that is not of a marriage like a live-in

15
Dowry Prohibition Act, 1961
16
Koppisetti Subbharao Subramaniam v. State of A.P, AIR 2006 SC 4496
17
Balasubramanyam v. Suruttayan AIR 1994 SC 133
18
Tulsa v. Durghatiya AIR 2008 SC 1193
19
Bharatha Matha v. R. Vijaya RenganathanAIR 2010 SC 2685
relationship, the child may be allowed to inherit the property of the parents and therefore be given
legitimacy in the eyes of law.

In the case of Revanasiddappa v. Mallikarjun20, it was remarked that irrespective of the relationship
between parents, the birth of a child from a live-in relationship has to be viewed separately from the
relationship of the parents. It is as clear as crystal that a child born out of such a live-in relationship is
innocent and is entitled to all the rights and privileges available as given to the children born out of
valid marriages.

The above-stated Judicial precedents are the classic examples that the Indian judiciary in the absence
of the special legislation for Live-in relationship, have been protecting the rights of the children by
giving the law a broader interpretation so that no child arises out of such live-in relationship where
no marriage has taken place is considered to be “bastard” for not fault his/her own.

Also in a landmark judgment of DhannuLal v. Ganeshram21 ,the Supreme Court decided that the
couples in live-in relationships will be presumed legally married as if their marriage has taken place
according to their rituals and traditions. The same will differ on the merits of the case. It was also
held that the woman in the live-in relationship would be eligible to inherit the property of her
partner after his death.

20
Revanasiddappa v. Mallikarjun (2011) 11 SCC 1
21
DhannuLal v. Ganeshram (2015) 12 SCC 301