CHAPTER-4

ISSUES AND CHALLENGES INVOLVEDIN LIVE-IN

RELATIONSHIPS IN INDIA

4.1 MARITAL RELATIONSHIP BETWEEN MAN & WOMAN

“Let There Be Faithfulness To Each Other Until Death. This, In Short, Should

Be Known As The Highest Duty Of Husband And Wife. So Let Husband And

Wife Ever Strive Doing All Their Duties; That They May Not Be Separated

From Each Other, Wander Apart.”

-Manu Dharma Shastra

Centuries ago, civilized societies recognized and acknowledged the most basic

instincts of all – i.e., the need for companionship – and founded an honourable

institution known as marriage. Hindu ancestors set out some guidelines to make sure

that the institution is a permanent one capable of not only bringing happiness to two

young people but also providing a delicate balance so that the family enjoys the

fullness of life.

The first bond of society is marriage; the next, our children; then the whole family and

all things in common. Individuals constitute society. Individuals influence the society.

Relation between individual and society is an intimate and close one. Thomas

Hobbes, in his book ‗Leviathan‘ maintained that society was conceived to protect

man from his irresponsible and animal as well as egoistic tendencies. According to

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John Locke, in nature all men were born free and equal. Individual precedes society.

He has some right even outside society. Individuals made a mutual agreement and

created society giving it certain rights and authority. In this way, society is an

artificial creation and it has no right to dispossess the individual of his fundamental

rights. Society can exercise control over the rights of the individual only to the extent

to which it has been granted rights, to the extent to which authority has been vested in

it.

Society is a web of social relationships. Social relationships include social processes

and social interactions. In the words of Jones, ‗Social change is a term used to

describe variations or modifications of any aspect of social processes, social patterns,

social interactions, or social organization.‘ When human behaviour is in the process

of modification, this is only another way of indicating that social change is occurring.

Whatever apparent alteration in the mutual behaviour between individuals takes place

is a sign of social change.The form of family, marriage, state, culture and social

structure is always changing and being transformed. As a result a change occurs in the

life of individual and his relations with others.

Ever since the male & female came in close contact of each other upon this earth,

there has been mutual attraction due to certain biological and psychological causes

resulting in the establishment of intimate relationship. The mutual attraction of male

and female is a biological and psychological fact. Psychologically, they have so many

traits which are mutually complementary. These different traits make for their mutual

attraction. From the biological viewpoint the sexual intercourse between male and

female is necessary for physical pleasure and satisfaction and the birth of the progeny.

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Therefore, whenever the male and female come near each other it leads to certain

forms of activities such as talking, roaming and having entertainment together. It also

leads to mutual help in times of need. It is a common fact that most of the males are

spontaneously prepared to help the females in distress. The exchange of ideas further

strengthens this relationship. As it has been by Alexander Dumas, ―The chain of

wedlock is so heavy that it takes two to carry it -- and sometimes three‖.

Marriage is a more or less permanent association of one or more male with one or

more female for the purpose of giving social sanction to progeny, satisfaction of

biological and social needs and fulfillment of dharma. For centuries, jurists and legal

scholars have debated about the functions of law, viz., why do we need law, and what

does it do for society? More specifically, what functions does the law perform?

Though there may not be unanimity amongst the scholars of law on the precise

functions, it is widely recognized that the recurring theme of law includes; (i) social

control, (ii) disputes settlement and (iii) social engineering. Though there are many

methods of social control, law is considered one of the forms of former social control

by prescribing social norms within which individuals/members of the society have to

behave. Likewise, law discharges the functions of disputes settlement. Apart from

these, many scholars are of the view that principal function of law in modern society

is social engineering. It refers to purposive, application and direct social change

initiated, guided and supported by law.

The fundamental objective of the society is considered to be the fulfilment of various

obligations. There are number of sacramental obligations that are to be performed

during the course of human life. According to Manu, the marriage is the most

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important one.1 Though we do not come across several references to the world

―marriage‖ but they remain silent as to when it was conceptualised as an institution

and the only source which actually speaks of when marriage might have been

conceptualised is the Mahabharata. According to Manu, the main aim of marriage was

not the satisfaction of vernal desires but it was considered that a man is complete as

an individual only after he got married and the wife was described to be the other half

of man. The Mahabharata speaks that the discharge of one‘s duty towards the society

which requires the presence of a wife. Even in the Vedic period, the sacredness of

marriage was repeatedly declared and the woman on her marriage was at once given

an honoured position in the family.

In English law when a man and a woman live together as husband and wife without

being married to each other, they are said to ―cohabit‖ and they are referred as

―cohabitees‖. As the society moves on and increased recognition has been given to

cohabitation resulting in its gaining a particular status as well and the facts of life

being as they are, law confers rights and imposes obligation on the cohabitees. As

Professor Parry puts it that ―the legal consequences of cohabitation have developed

on an ad-hoc basis depending upon the context in which the relationship falls, to be

considered and the nature of the cohabitation. This development has taken place under

the general umbrella of family law thereby reflecting an acceptance that those who

cohabit as husband and wife can properly be described as members of a family,

provided that the relationship is of sufficient permanence and stability.2

1 Manusmriti, Part 3, 20
2 Martin L. Parry, The Law Relating to Cohabitation (2ndEdn.)

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4.2 ALTERNATIVE TO MARRIAGE

Whether it would be desirable or not to abolish legal marriage altogether and replace

it with a new legal status, open to all individuals who want to register their

commitments to an intimate partner. In this world, marriage would continue as a

religious sacrament and institution, of course, but not as a legal status.

Some feminists have argued for abolition to extinguish an out-dated family form that

is defined by its history as an oppressive patriarchal institution. Marriage has been a

source of oppression to women who continue to be disadvantaged by gendered

marital roles that shape the behaviour of contemporary spouses. Beyond the harm that

marriage inflicts on women who marry, the exclusive status of marriage as the only

legally sanctioned family form has harmed individuals in non-marital families. This

was so, historically, both because the tangible benefits of marriage were not available

to other families, and because the law explicitly sanctioned non-marital families.

The legal definition of live in relationship is ―an arrangement of living under which

the couples which are unmarried live together to conduct a long-going relationship

similarly as in marriage.‖ Live-in-relationship is the arrangement in which a man and

a woman live together without getting married. This is nowadays being taken as an

alternative to marriage especially in the metropolitan cities. Currently the law is

unclear about the status of such relationship though a few rights have been granted to

prevent gross misuse of the relationship by the partners.

The concept of live-in relationship, the freedom and liberty it offers to partners and

most importantly, the fact that an increasing number of urban couples in India are

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choosing to ‗live-in‘ rather than marry is a new development that has turned the

traditional Indian marriages on its head. The law on its part must adapt to these

developments. This is however going to be a slow process as it may involve practical

difficulties and face opposition from conservative section of society. Live-in partners

have no means of recognition as such.

However, the law does have a concept called ―presumption of marriage‖ which could

be used to recognise such relationships. A presumption is available if a man and

woman are living under same roof and cohabit for a number of years.3 Continuous

and prolonged cohabitation raises a presumption in favour of marriage and against

concubinage.4 This is in accordance with Section 50 and Section 114 of the Indian

Evidence Act, 1872.

Live-in relationship does provide a remedy for a carefree life free from the hassles of

responsibility and commitment which is the very prerequisite of the institution of

marriage. Marriage promotes adjustment while in live in relationship the emphasis is

on individual freedom. However, Indian society is changing, and this change has been

reflected and recognized by Parliament by enacting The Protection of Women from

Domestic Violence Act, 2005. Society need to be change, it is dynamic process all is

accepted but the point here is that he change should not be inflated one which will

3 Gurubasawwa v. Irawwa, (1997) 1 HLR 695 (Karn.)

4 Gokul Chand v. ParvinKumari, AIR 1952 SC 31; Mohabbat Ali Khan v. Mohd. Ibrahim Khan,
(192829) 56 IA 201 : AIR 1929 PC 135; RanganathParmeshwarPanditrao Mali v.
EknathGajananKulkarni,
(1996) 7 SC 681; SobhaHymavathi Devi v. SettiGangadharaSwamy, (2005) 2 SCC 244

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disturb the functioning of the societal body. Therefore the overall development is

necessary to maintain the balanced development.

Legalizing live-in relationship means that a totally new set of laws need to be framed

for governing the relations including protection in case of desertion, cheating in such

relationships, maintenance, inheritance etc. Litigation would drastically increase in

this case.

The Fundamental right under Article 21 of the Constitution of India grants to all its

citizens ―right to life and personal liberty‖ which means that one is free to live the

way one wants. Live-in relationship may be immoral in the eyes of the conservative

Indian society but it is not illegal in the eyes of law.

In June, 2008, The National Commission for Women 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 AbhijitBhikaseth Auti v. State of Maharashtra and Others 5. 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 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. However, recently it was observed that it is divorced wife who is

treated as a wife in context of Section 125 of Cr.P.C and if a person has not even been

married i.e. the case of live in partners, they cannot be divorced, and hence cannot

claim maintenance under Section 125 of Cr.PC.

5 Cri. W. P. No.2218/ 2007

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First time by Protection of Women from Domestic Violence Act, the legislator has

accepted live-in relationship by giving those female who are not formally married, but

are living with a male person in a relationship, which is in the nature of marriage, also

akin to wife, though not equivalent to wife. This proviso, therefore, caters for wife or

a female in a live in relationship.

It has been commented upon by Supreme Court in S. Khushboo v.

Kanniammal&Anr.6, when we apply living relationships to an average class of people,

we find it less prevalent as this class is scrutinised more in the society. On the

contrary both the high income group and the lower income group are in a position to

readily accept newer kinds of relationships. A girl from a poor family that is in need

of shelter without much hesitation can consider no harm in living with a man of a

slightly higher financial status without marrying him. Now-a-days even parents have

slowly started giving sanctions to living arrangements for the sake of happiness of

their children. From analyzing the relationships, it becomes evident thatlive-in

couples are still largely from professions like entertainment, advertising, modeling

and media.

4.3LEGALITY OF MARRIAGE & LIVE-IN RELATIONHSIP

No law at present deal with the concept of live-in-relationships and their legality. Still

even in the absence of a specific legislation on the subject, it is praise-worthy that

under The Protection of Women from Domestic Violence Act, 2005, all benefits are

bestowed on woman living in such kind of arrangement by reason of being covered

within the term ―domestic relationship‖ under Section 2(f). If we propose to enact a
6 AIR 2010 SC 3196

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law to regulate live-in-relationships, though it would grant rights to parties to it but at

the same time it would also impose obligations on them.

The status of the female partner remains vulnerable in a live-in relationship given the

fact she is exploited emotionally and physically during the relationship. The Domestic

Violence Act provides protection to the woman if the relationship is ―in the nature of

marriage‖. The Supreme Court in the case of D. Velusamy v. D. Patchaiammal 7held

that, a ‗relationship in the nature of marriage‘ under the 2005 Act must also fulfill

some basic criteria. Merely spending weekends together or a one night stand would

not make it a ‗domestic relationship‘. It also held that if a man has a ‗keep‘ whom he

maintains financially and uses mainly for sexual purpose and/or as a servant it would

not, in our opinion, be a relationship in the nature of marriage‘.

To consider of enacting a law on the lines of provisions in other countries may not be

successful as their relationships are granted sanction mainly to legalize gay

relationship. In India, since it would not be socially permissible to have relationship

between persons of same sex, the law enacted for them by the countries cannot act as

guiding force. The Supreme Court in KameshPanjiyar v. State of Bihar 8 held that

marriages are made in heaven, is an adage. She leaves behind not only her memories,

7
2010 AIR SCW 6731
8
(2005) 2 SCC 388: 2005 SCC (Cri.) 511

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but also her surname, gotra and maidenhood. Therefore, she becomes sapinda-gotraja

of husband‘s family.7

The Supreme Court held that if a man and woman are living under the same roof and

cohabiting for a number of 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.8 Again in Tulsa v. Durghatiya9, the Supreme Court held that

when a man and woman live together for a long spell there would be presumption in

favour of their having been married, unless rebutted by convincing evidence. This

decision suggests that the law treats long live-in relationships as good as marriages.

This decision was made in a case where marriage of a couple was challenged by

claimants to the property rights of the husband and wife as opposed to their children.

4.4 ISSUES AFFECTING LIVE-IN PARTNERS

There are wide range of legal and practical rules that affect opposite-sex unmarried

couples living together—from sharing money and property (contract law) to owning a

house together (real estate law) or sharing an apartment (landlord tenant law) to

having a child with your partner (family law) to writing a will (estate planning). When

you understand the law, you and your partner can make informed decisions about how

to structure your life, finances, property ownership, and family relationships to best

meet your needs.

7 TahiraKaranjawala&ShivaniChugh, ―The Legal Battle against Domestic Violence in India:

Evolution and Analysis‖, (2009) 23(3) International Journal of Law, Policy and the Family, 289-308 at

p. 294

8 S.P.S Balasubramanyam v. Suruttayan (1994) 1 SCC 460

9 (2008) 4 SCC 520

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The Supreme Court of India has granted the legal status to live-in relationship,but

what happens if one partner decides to walk out. Could the other partner be left

homeless? Will the children born into live-in relationship be recognized by the law?

Will it empower women with the Right to Inheritance, Right to maintenance, and

Right to demand Alimony? Will the law give the same standing status to live-in

relationship as that of Marriage? Answers to these questions are changing on a regular

basis.

4.4.1 Maintenance rights of live-in partners

The culture of India refers to the religions, beliefs, customs, traditions, languages,

ceremonies, arts, values and the way of life in India and its people. Indian culture is

changing in consonance with changing time. Of course, change is the Rule of the

nature & Survival is optional. Changes are occurring in every corner of the society,

from home to international plane. Laws, meant for the regulation of human behaviour

should also mould according to the changing diversities in the behavioural pattern of

the society at large. Culture of marital relation in the form of family is one of the age

old and cultured conceptions of Hindu society. The world has accepted it as the notion

of advanced prudence. However, according to some social thinkers, it is now showing

a dilapidated trend in India.

The term "maintenance" is no longer remains as the term of pity but it has acquired

new face. Various statutory and personal laws pertaining to "claim of maintenance"

are taking due notice of changing facets of marital relationship. Here the author has

tried to put forth the changing Indian attire with changing time with special reference

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to Law relating to maintenance in live in relationship. It is a beginning of new cultural

crisis in India which has to be focused and studied by scholars & social thinkers from

different perspectives. The first bond of society is marriage; the next, our children;

then the whole family and all things in common.

―Maintenance‖ is defined in Section 3(b)(i) of the Hindu Adoptions and Maintenance

Act, 1956 and includes: ‗in all cases, provisions for food, clothing, residence,

education and medical attendance and treatment‖ whereas section 18of the Act confers

a right on a Hindu wife to be maintained by her husband, although there is no

provision for vice versa. Interestingly, concubines who come within the definition of

an ―avarudhstri‖ were previously eligible under Shastric Hindu Law for

maintenance, but the Act of 1956 did not include them in the list of persons to be

maintained.

Muslim women too derive their right to maintenance from the Shariat and the Muslim

Women (Protection of Rights on Divorce) Act, 1986. Parsis, Christian, etc. have no

specific maintenance law except provisions for interim and permanent alimony given

in divorce cases. There are uniform provisions for maintenance available to all

married persons of any religion under section 125 of Code of Criminal Procedure,

1973.

With special reference to Law relating to Maintenance, the concept of "maintenance"

in India is covered both under Section 125 of the Code of Criminal Procedure, 1973

(Section 125) and the personal laws. This concept further stems from Article 15(3)

reinforced by Article 39 of the Constitution of India, 1950 (the 'Constitution'). Under

Indian law, the term "maintenance" includes an entitlement to food, clothing and

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shelter, being typically available to the wife, children and parents. It is a measure of

social justice and an outcome of the natural duty of a man to maintain his wife,

children and parents, when they are unable to maintain themselves. The object of

maintenance is to prevent immorality and destitution and ameliorate the economic

conditions of women and children. Maintenance can be claimed under the respective

personal laws of people following different faiths and proceedings under such

personal laws are civil in nature. Proceedings initiated under Section 125 however,

are criminal proceedings and, unlike the personal laws, are of a summary nature and

apply to everyone regardless of caste, creed or religion. The object of such

proceedings however, is not to punish a person for his past neglect. The said provision

has been enacted to prevent vagrancy by compelling those who can provide support to

those who are unable to support themselves and have a moral claim to support.

Maintenance can be claimed either at the interim stage, i.e, during the pendency of

proceedings, or the final stage.

There is a spate of judicial precedents on the issue of maintenance. Until recently, the

term "wife" was interpreted in a narrow manner, since the intention of the judiciary

was to protect destitute and harassed women. The Indian courts held that only a

legally married woman was entitled to claim maintenance. The change in perception

vis-a-vis social relationships and the growing trend of live-in relationships has

influenced the Indian mind-set.

The ―wife‖ so defined in Explanation (b) of Section 125(1) includes ―one who has

obtained a divorce provided she is not remarried‖. It is this word ―wife‖ and its

definition in Section 125 of the Code of Criminal Procedure that has brought alive the

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issue of live-in relationships and the rights of partners which need to be discussed in

the changed circumstances in society where live-in relationship is getting prominence

over formal marriage.

The maintenance of a woman marrying a Hindu male during the subsistence of his

first marriage is the moot question that has been debated and confronted upon

amongst various jurists, lawyers, courts, social workers and judicial forums. Several

conflicting decisions have been passed by various courts on this issue and no fixed

position has been accorded.

In SavitabenSomabhaiBhatiya v. State of Gujarat10the Supreme Court went further to

the extent of observing the fact that the respondent was treating the appellant as his

wife is really inconsequential because it is the intention of the legislature which is

relevant and not the attitude of the party. Even the plea that the appellant was not

informed about the respondent‘s earlier marriage, when she married him is of ―no

avail‖ because the principle of estoppel cannot be pressed into service to defeat the

provisions of Section 125, there is no escape from the conclusion that the expression

―wife‖ refers only to the ―legally wedded wife‖. Hence, The court granted

maintenance to the child and not to the second wife. However, under the law a second

wife whose marriage is void on account of the survival of the first marriage is not

legally wedded wife, and is, therefore, not entitled to maintenance under this

provision.11

10 (2005) 3 SCC 636: 2005 SCC (Cri.) 787

11 Vimalav. Veeraswamy, (1991) 2 SCC 375

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In Narinder Pal KaurChawal v. Manjeet Singh Chawla 12 the Court took the liberal

view and stated that the second wife has a right to claim maintenance under the Hindu

Adoptions and Maintenance Act, 1956. In this case the husband had not disclosed the

facts of his first marriage and married the appellant and maintained a relationship for

14 years as husband and wife. The court also took support from the provisions of the

Protection of Women from Domestic Violence Act, 2005, and held that if we do not

give maintenance to the second wife it would amount to giving premium to

respondent for defrauding the appellant.

In Suresh Khullar v. Vijay Kumar Khullar13 the respondent (husband), who was a

divorcee entered into wedlock with the appellant. After sometime he threw out the

appellant from the matrimonial home and filed for divorce. The respondent also filed

a petition under Section 18, 20 and 22 of the Hindu Adoptions and Maintenance Act,

1956. However, during the divorce proceedings it was disclosed that the divorce

decree against the first wife was not set aside. The Court held that the respondent

committed fraud on the appellant by not disclosing the fact of his first marriage and

considered the appellant to be the ―legally wedded wife‖ of the respondent. Thus, the

maintenance was granted to her.

The Supreme Court in RameshchandraRampratapjiDaga v.

RameshwariRameshchandraDaga14 tried to distinguish between ―legality‖ and

―morality‖ of relationships. Where the Supreme Court observed that keeping into

consideration the present state of the statutory law, a bigamous marriage may be
12 AIR 2008 Del 7
13 AIR 2008 Del. 1
14 (2005) 2 SCC 33

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declared illegal being in contravention of the provisions of the Hindu Marriage Act,

1956 but it cannot be said to be immoral so as to deny even the right of alimony or

maintenance to spouse. The Supreme Court in Vidhyadhari v. SukhranaBai15 has

given partial relief to the second wife without deciding her status and leaving her

status in ambiguity, who was duped in a bigamous relationship. The second wife was

granted the succession certificate and was ordered to protect the share of the first

wife, who was recognised as the ―legally wedded wife‖.

The increasing incidents of live-in relationships, especially those which occur ―by

circumstance‖, however ensured that the need for reforms was recognised. In 2003,

the Malimath Committee Report on ―Reforms in the Criminal Justice System‖

suggested an amendment of the word ―wife‖ in Section 125 of the Code of Criminal

Procedure to include a woman who is living in with a man for a ―reasonable period‖.

The MaharashtraGovernment approved such an amendment to the Code of Criminal

Procedure as applicable to the State of Maharashtra, but it is awaiting assent from the

President of India as the matter comes under the Concurrent List of the Constitution

of India. Ironically, back in 1985, the Supreme Court in Sumitra Devi v.

BhikanChoudhary16 has held that where a man and woman were cohabitating for a

long time and were treated by society as husband and wife, marriage is to be

presumed for awarding maintenance. However, the courts have not extended this

principle to include purported live-in partners. Significantly, the Protection of Women

from Domestic Violence Act, 2005 became the first statute to give live-in partners the

15 (2008) 2 SCC 238 : (2008) 1 SC (L&S) 451

16 (1985) 1 SCC 637

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same recognition as married couples. The protection under this Act does not qualify

live-in partners to get same benefits under personal laws.

According to the Hindu Marriage Act, 1956, second marriage is invalid. The Supreme

Court reserved its verdict on the question whether a woman in a live-in relationship or

under the mistaken belief of being the wife of an already married man was The

National Commission for Women recommended on 30th June, 2008

AbhijitBhikasethAuti v. State of Maharashtra and Others 17 entitled to maintenance.

The court reserved its order in a case where D. Velusamy has challenged an order of

the Madras High Court directing him to pay maintenance of Rs.500 per month to his

'second wife' D. Patchaiammal. Velusamy allegedly married Patchaiammal when his

first marriage was still intact, further long-term relationship valid to claim alimony.18

4.4.2 Inheritance Rights of live-in partners

Hindu Law gives the widow of a male Hindu the status of a class I heir giving her

right to one share with absolute ownership over her deceased husband‘s property, if

he dies intestate. Likewise, a husband would have the right to inherit a share of his

wide‘s property upon her death. In Muslim law, a widow having children is entitled to

one-eighth of her deceased husband‘s property and one-fourth of it, if they are

childless. A husband would similarly inherit three-fourth of his wife‘s property in

case of the former and half otherwise, upon his wife‘s death.

Partners in a live-in relationship do not enjoy an automatic right of inheritance to the

property of their partner. The Hindu Succession Act, 1956 does not specify

17 Cri. W. P. No.2218/ 2007

18 https://indialawyers.wordpress.com/2010/10/08/rights-of-women-in-live-in-relations-undercourt-
lens/

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succession rights to even a mistress living with a male Hindu. However, the Supreme

Court in Vidhyadhari v. SukhranaBai19 created a hope for persons living-in together

as husband and wife by providing that those who have been in a live-in relationship

for a reasonably long period of time can receive property in inheritance from a live-in

partner. In this case property of a Hindu male, upon his death (intestate), was given to

a woman he enjoyed a live-n relationship, even though he had a legally wedded wife

alive.20

The Supreme Court held that a child born out of a live-in relationship is not entitled to

claim inheritance in Hindu ancestral coparcenary property (in the case of an

undivided joint Hindu family) and can only claim a share in the parents‘ self-acquired

property. The Bench set aside a Madras High Court judgment, which held that

children born out of live-in relationships were entitled to a share in ancestral property

as there was a presumption of marriage in view of the long relationship.

A child can only make a claim on the person's self-acquired property, in case the child

is illegitimate. It can also be interpreted in a way in which a child could lay a claim on

the share of a parents‘ ancestral property as they can ask for that parents‘ share in

such property, as Section 16 permits a share in the parents‘ property. Hence, it could

be argued that the person is not only entitled to self-acquired property but also a share

in the ancestral property. The Apex Court also stated that while the marriage exists, a

spouse cannot claimthe live-in relationship with some other person and seek

inheritance for the children from the property of that other person.

19 (2008) 2 SCC 238: (2008) 1 SCC (L&S) 451

20 Revanasiddappav. Mallikarjun, (2011) 11 SCC 1: (2011) 3 SCC (Civ) 581

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4.4.3 Domestic Violence and live-in partners

It took until 2006 for persons in a marriage and those in a live-in relationship to be

treated absolutely alike by a statute. This happened with the introduction of the

Protection of Women from Domestic Violence Act, 2005. The existing laws to protect

a woman from cruelty by a husband were limited 21, being part of criminal law that too

in the circumstances mentioned therein. A need for reformed that offered protection,

economic and other tangible reliefs for battered women were felt. This was brought

about through this civil legislation. It offered a range of remedies to women facing

violence, including compensation, protection orders, restraining orders, right to reside

in the shared household. Etc. The definition of domestic violence has been made wide

enough to include all forms of physical, sexual, emotional and even economic abuse.22

But the most interesting reform brought in this law was the protection offered to all

women and children. This also included women in a live-in relationship. Section 2 (a)

defines an ―aggrieved person‖ as ―any woman 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‖. The term ―domestic relationship‖, defined in

Section 2(f), which covers those who have ―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‖.

A live-in partner, being in a relationship in the nature of marriage and sharing the

household comes within this definition. They thus have a right to all remedies which

may be available to a wife under this Act. This includes monetary relief either as

21 Section 498-A of the Indian Penal Code, 1860

22 Section 3, The Protection of Women from Domestic Violence Act, 2005

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damages, compensation, maintenance or any other name that suits the duty-right

situation of the man and woman. They enjoy the right to reside in the shared home

and the man cannot evict them in retaliation. Further, Section 18 of the Act provides

for preventive measures where Magistrates may pass restraining orders, etc. to protect

the woman from ―acts that are likely to take place‖. The man may also be liable for

up to one year‘s imprisonment and/or fine up to Rs. 20,000.

In M. Palani v. Meenakshi23the respondent had filed a claim for maintenance of Rs.

10,000 for food, clothes, shelter and other basic necessities from the plaintiff, who

had been in a live-in relationship with her. The said application was filed under

Section 20 read with section 26 of the Protection of Women from domestic Violence

Act, 2005. The petitioner contended that the respondent was not entitled to any

maintenance since they had not lived together at any point of time. They had only

indulged in consensual sexual intercourse sometimes as friends, without any thought

of marriage. He contended that mere proximity at some time for the sake of mutual

pleasure could not be called a ―domestic relationship‖ to invite the application of the

Protection of Women from Domestic Violence Act, 2005. The Madras High Court

looked into the definition of ―domestic relationship‖ as given in Section 2(f) of the

Protection of Domestic Violence Act, 2005 which did not specify that the couple

should have lived together for a particular period for the relationship to be domestic

relationship. The Court held that ―at least at the time of having sex by them, they

shared household and lived together‖. The Courtfurther held that the provisions of the

Actwould apply even in such a case; hence, maintenance claim under the act was

upheld.

23 AIR 2008 Mad. 162

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4.4.4 Divorce (Break-Up) between Live-in Partners

Divorce is ―dissolution of a valid marriage in law‖, in a way other than the death of

one of the spouses, so that the parties are free to remarry either immediately or after a

certain period of time. The concept of divorce was introduced in India in the latter

part of the 19th century among two classes of Christians. It was introduced for Hindus

in 1955 in the form of the Hindu Marriage Act, 1955. Before the commencement of

the Hindu Marriage Act, 1955, there were Acts in some of the Statesproviding for

divorce in certain circumstances viz. the Bombay Hindu Divorce Act, the Madras

Hindu (Bigamy, Prevention and Divorce) Act, and the Saurashtra Hindu Divorce Act.

These Acts were repealed by Section 30 of the Hindu Marriage Act, 1955. At present,

―divorce‖ is governed by different Acts among different communities in India. All

these aforementioned matrimonial laws do not recognise and protect live-in

relationships at present in the country.

In case of live-in relationship, it is not possible to have formal divorce in law among

partners. The careful scrutiny of the existing matrimonial laws indicates that unless

this kind of relationship is not recognised in law the partners cannot be allowed to

separate formally. It looks that it is easy to get into live-in relationship whether ―by

choice‖ or ―by circumstance‖ but difficult to get out of this relationship left

unanswered in law.

4.4.5Status of children from Live-in relationships

Thereis an interesting trend of couples entering into live-in relationships, not as a

precursor but rather a substitute of a formal marriage. Such long-term commitments

often include procreation of children. In live-in ―by circumstance‖, the partner may

procreate believing that he/she is legally married. Either ways various legal issues

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arise about the status and rights of such children in comparison to those born in

marriages. Following are the key issues for consideration.

(a) Legitimacy of children: section 112 of the Indian Evidence Act, 1872 provides

that legitimacy of a child is proved only if he/she was born during the continuance of

a valid marriage between his mother and father. Mohammedan law too recognises

only those children, who are the offspring between a man and his wife as legitimate

children, who are offspring between a man and his wife as legitimate children. Thus

children born from a live-in relationship were ―illegitimate‖ in the eyes of existing

law. However the Supreme Court in Tulsa v. Durghatiya 24 held that children born out

of such a relationship will no more is considered illegitimate. Again in Vidhyadhari v.

SukhranaBai25 the Supreme Court held that even if a person has contracted second

marriage during the subsistence of his first marriage, children born out of such second

marriage would still belegitimate through the second marriage would be void.

Whereas in Mohd. Bauker v. ShurfoonNissa Begum 26 the Privy Council had held that

legitimacy of children of Mohammedan parents may be inferred without any direct

proof of marriage, if there is prolonged and continuous cohabitation. Thus, in a case

where a couple has lived together for a long time, there shall be presumption of

marriage and a child born from such a relationship shall enjoy all the rights of a

legitimate child.

In PylaMutyalamma v. PylaSuriDemudu27 the Supreme Court held that having

considered the contradictory versions of the contesting parties and deliberating over

24 (2008) 4 SCC 520

25 (2008) 2 SCC 238: (2008) 1 SCC (L&S) 45
26 (1859-61) 8 MIA 136
27 (2011) 12 SCC 189: (2012) 1 SCC (Cri.) 371

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the arguments advanced by them in the light of the evidence and circumstances,

which clearly led to the irresistible conclusion that the High Court wrongly exercised

its jurisdiction while entertaining the revision petition against an order granting

maintenance to the appellant wife under Section 125, Code of Criminal

Procedure.The Court, therefore, set aside the decision and order the High court and

restored the order passed by the Magistrate in favour of the appellant granting her

maintenance.

The Supreme Court on an earlier occasion, while deciding a case involving the

legitimacy of a child born out of wedlock has ruled that if a man and a woman are

involved in a live-in relationship for a long period, they will be treated as a married

couple and their child would be legitimate. Also, the recent changes introduced in law

through the Domestic Violence Act, 2005 gives protection to women involved in such

relationships for ‗reasonable long period‘ and promises them the status of wives. A

Supreme Court Bench headed by Justice ArijitPasayat declared that children born out

of such a relationship will no more be called illegitimate. ―Law inclines in the

interest of legitimacy and thumbs down ‗whoreson‘ or ‗fruit of adultery.28

(b) Maintenance rights of children: A legitimate son, son of predeceased son or

the son of predeceased son of predeceased son, so long as he is minor and a legitimate

unmarried daughter or unmarried daughter of son or the unmarried daughter of a

predeceased son of predeceased son, so long as she remains unmarried shall be

maintained as dependants by hi/her father or the estate of his/her deceased father. But

children from live-in relationships do not enjoy this right under the Hindu Adoptions

and Maintenance act, 1956. Whereas Section 125 of Code of Criminal Procedure
28 BharathaMatha&Anr.v. R.VijayaRenganathan&Ors. 2010 STPL(Web) 406 SC

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provides maintenance to children whether legitimate or illegitimate while they are

minors and after they attain majority where such child is unable to maintain himself.

However, the right to maintenance of children born from a live-in relationship was

upheld in 2007, in Dimple Gupta v. Rajiv Gupta29.

(c) Guardianship and Custodial Rights: In English common law, the husband

enjoys a profitable guardianship right over the person and the property of the wife. An

English husband is entitled to custody of his minor wife. The position of the English

wife has also undergone considerable change. Equity has to some extent protected

and recognised her proprietary rights even on the face of the principles of unity of

person under the English Common Law, which has undergone further process of

amelioration under different legislations like the Matrimonial Causes Act, 1957; Law

of Property Act, 1925; Law of Reforms (Married Women and Tortfeasors) Act, 1935.

In R v. Leggatt30 the Court held that the right of custody of the husband is not

analogous to that of a parent in respect to his child.

In Hindu Law, after the marriage the husband is the legal guardian of the minor wife‘s

person and is entitled to the custody of his wife, and the mere fact that she is a minor

will not disentitle her from claiming such custody to the exclusion of her parents.

Section 2(2) of the Children act, 1960 provides that where the father and the mother

of the child was not married to each other before the birth of the child, the mother and

not the father has the parental responsibility for the child. But as Section 2(2)(b) of

the Act states, the unmarried father can acquire parental responsibility in the

following ways:

29 (2007) 10 SCC 30: (2008) 1 SCC (Cri.) 567

30 (1852) 18 QBD 781

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(i) by subsequently marrying the child‘s mother,

(ii) upon taking office as a formally appointed guardian of the child,

(iii) by making a parental responsibility agreement with the mother,

(iv) by obtaining a parental responsibility order under the Act, and

(v) by obtaining a residence order in which case a separate parental responsibility

order must be made.

While deciding a matter on custody, the court takes into account the welfare, age, sex

of the child as well as his own wishes and those of his parents where welfare of the

child shall be the paramount consideration. Hence, even in custody cases involving

children from live-in relationships, the welfare of the child would be the paramount

consideration for the court.

(d) Inheritance rights of children: Under Hindu Law an illegitimate child inherits the

property of his mother only and not putative father whereas under Shia law, such a

child cannot even inherit from his mother. If children from a live-in relationship were

to still be considered ―illegitimate‖, inheritance from the father‘s estate would be

barred. In fact, where the live-in relationship has not subsisted for a reasonable period

of time, the courts would not consider a child from such relationship to be legitimate,

thereby barring his inheritance. However, where the live-in satisfies this condition, a

child being ―legitimate‖ can inherit from both the parents. In Vidhyadhari v.

SukhranaBai31, the Supreme Court granted the inheritance to the four children born

from the woman with whom the man shared a live-in relationship, calling them ―his

legal heirs‖. The Court has thus ensured that no child born from a live-in relationship

of a reasonable period may be denied their inheritance.

31 (2208) 2 SCC 238: (2008) 1 SCC (L&S) 451

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