DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
(2017-2022)

FAMILY LAW-I

Topic:
LIVE-IN RELATIONSHIP - A LEGAL PERSPECTIVE

Submitted to : Submitted by :

Mrs. Samreen Hussain Sheetal Kanojiya

Associate Professor (Law), Roll no.: 170101128

Dr. Ram Manohar Lohiya National Law B.A. LL.B. (Hons.), II Year
University, Lucknow III Semester
 METHODOLOGY
The methodology adopted by me is doctrinal research and literature review wherein I have
taken help of already done and existent data to draw the conclusions. My research is mainly
based upon secondary means in which I have taken help of books, magazines, articles, law
journals and online database to form my opinions.

OBJECTIVE
To determine the validity and legality of Live-In Relationships in the Indian context.

RESEARCH QUESTIONS
 What are the socio-cultural implications of Live-In Relationships?

 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?
 INTRODUCTION
In India, marriage has always been considered a sacrament. 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
Veluswamy2 case, court has decided following pre-requisites for live-in relationship to be a
legitimate marriage.

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

2) They should be otherwise qualified to enter into a legal marriage.

3) They must be voluntarily cohabited.

4) 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.

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 men’s relaxation,
entertainment and pleasure. On 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 eternality. 3 It was also a code that a woman must preserve her chastity before marriage
and after her husband’s death.

1
Yuvraj Dilip Patil, “Socio-Legal Perspective of Live-in-Relationship in India”, SSRN Electronic Journal
2
(2010) 10 SCC 469
3
Paras Diwan, Family Law, Allahabad Law Agency, (Eight edition 2008) p-24
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. 4 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 marriage 5.

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 Hindu
Marriage Act, 1955 and The Special Marriage Act, 1954. 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.”

4
Marriage an alien notion for Indian tribe, http://www.aljazeera.com/indepth/features/2014/06/marriage-an-
alien-notion-indian-tribe-2014617134343167160.html (last visited Oct 28, 2018)
5
In Bastar, tribal couples 'live in' without a fuss - The Times of India, http://timesofindia.indiatimes.com/india/In-
Bastar-tribal-couples-live-in-without-a-fuss/articleshow/46899876.cms (last visited Oct 28, 2018)
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 Blahamy”6 and “Mohamad Ali v.

Mohamad Ibrahim Ali”7 it was held that “where a man and a woman 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 Consolidation”8 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.

In “Payal Sharma v. Superintendent, Nari Niketan, and others”9 Justice Markindey Katju
and Justice R.B. Sharma of the Allahabad high court opined that, “A man and a woman, 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”10 and “Tulsa v.
Durghatiya”11, 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 23rd, 2010 in “S. Khushboo v. Kanniammal & Anr”12. In this case, a popular Tamil
actress Khushboo publicly 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

6
(1928) 1 MLJ 388 (PC)
7
AIR 1929 PC 135
8
AIR 1978 SC 1557
9
2001 (3) AWS 1778
10
(2006) 8 SCC 726
11
(2008) 4 SCC 520
12
JT 201 (4) SC 478
ultimately lead to decay of moral values and country’s 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. In fact, 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 Anr”13 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 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. Marvin”14, 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
constructive trust. Same is applicable to Indian context also. In Indian cases like “Bharata
Matha v. R. Vijaya Renganathan”15 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 195516. In such cases, the child may inherit the property of its parents, but has no
claim in the coparcenary Hindu ancestral property of the family. Countering this issue, in

13
M.C. No. 299/2009
14
18 Cal.3d 660 (1976)
15
C.A. No. 7108/2003 MANU/SC/0400/2010, (S.C. May 17, 2010).
16
Section 16 of Hindu Marriage Act, No. 25 of 1955, INDIA CODE
“Revanasiddappa v. Mallikarjun”17, 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 Bai”18
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”19, 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 Kushwaha”20 court opined broader
interpretation of meaning of “wife” under Section 125 of Cr.P.C and also claimed that a 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
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 reason:

 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.

17
(2011) 11 SCC 1
18
C.A. No. 575/2008 MANU/SC/0629/2008, (S.C. Jan. 22, 2008).
19
Crl. W.P. No. 2218 of 2007
20
SLP (Civil) No. 15071/2009 MANU/SC/0807/2010, (S.C. Oct. 7, 2010).
  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 also ensures security of
children. Live-in relationship has weakened the importance of marriage as a 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.

 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.

As of now, 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

Books

 Diwan Paras, Family Law, Allahabad Law Agency, (Eight edition 2008)

Websites

 http://www.aljazeera.com/indepth/features/2014/06/marriage-an-alien-notion-indian-
tribe-2014617134343167160.html accessed Oct 28, 2018

 http://timesofindia.indiatimes.com/india/In-Bastar-tribal-couples-live-in-without-a-
fuss/articleshow/46899876.cms accessed Oct 28, 2018

Journals

 Prof. Vijender Kumar, “Live in relationship and its impact on marriage and family
institutions”

 Yuvraj Dilip Patil, “Socio-Legal Perspective of Live-in-Relationship in India”