LIVE-IN RELATIONSHIPS

INTRODUCTION:

The world has evolved and so is the society. Earlier, cohabitation was the necessity for the
success of married life but with the continuous patterns of western influence, it has become
the arrangement whereby two people give consent to live together on permanent basis in an
emotionally and sexually intimate relationship, where, the people are not bound in any
marriage formalities. It has always been a common practice in the west and now it has
widely been adapted in the Asian societies as well. People tend to choose live-ins for several
reasons, like, to build and check compatibility, maintain their individuality and pursue their
personal goals without the legal and financial obligations of marriage.

Live-in relationships are the modern romantic partnerships in which the couples choose and
share a home and their lives without formalizing their commitment through marriage. This
arrangement offers a unique blend of independence and emotional connection, allowing
individuals to maintain their personal autonomy while nurturing a deep bond with their
partners. Live-in couples often navigate shared responsibilities like finances and household
chores, making decisions together.

While the legal recognition and societal acceptance of live-in relationships vary widely, they
have become an important part of the evolving landscape of the romantic partnerships,
offering an alternative to traditional marriage and allowing couples to define the terms of
their commitment on their own terms. Moreover, when talking about India, the live-in
relationships have gained popularity and visibility in recent years, although the continue to be
a topic of discussion and debate in the country due to its traditionally conservative social
norms.

Its important to note that India is a diverse country with a wide range of cultural and social
norms, and attitudes towards live-in relationships can differ greatly depending on the region
and the specific community. While live-in relationships are gaining acceptance and
recognition, it remains a personal choice, and couples need to navigate their unique
circumstances and
potential challenges.
Background History:
Live-in relationships aren’t a new concept in India existing for centuries. However, a formal
acknowledgement under Indian law is a recent development. The 2005 Protection of Women
from Domestic Violence Act1 extended legal protection to women in such relationships,
recognizing the need for remedies against domestic violence. In 2010, the Supreme Court, in
Khushboo v. Kanniammal2, declared live-in relationships lawful, asserting adults’ right to
cohabit without marriage.
In the recent times, the court has leaned on the liberal approach while giving the final verdicts
for the cases related to live-in relationships. In the Indra Sarma v. V.K.V. Sarma 3 case the
Supreme Court of India recognized live-in relationships and emphasized that they are neither
illegal nor immortal. The court highlighted the importance of an individual’s right to privacy
and the need to protect personal choices in matters of relationships. This case played a
significant role in establishing the legitimacy of living relationships in the legal context in
India.
In the D. Velusamy v. D. Patchaimmal 4 case, the Supreme Court of India laid down criteria to
define a live-in relationship as a valid domestic relationship. The court established that for a
relationship to be considered a valid domestic relationship, it must have the characteristics of
marriage, such as financial arrangements, domestic arrangements and more. This case
provided clarity on the legal recognition of living relationships in India, setting certain
criteria for determining their validity. It recognized long term live-in relationships as
potentially valid marriages, granting women entitlement to maintenance post-separation.
Therefore, while live-in relationships aren’t legally recognized unions in India, evolving legal
recognition provides some protection under the Indian law.

Challenges faced:
Couples in live in relationships encounter numerous challenges in India, both socially and
legally, as these relationships lack recognition under Indian law. Key challenges include:
1. Social Stigma – live-in relationships face societal disapproval, needing to stigma from
family, friends and society.
----------------------------------------------------------------------------------------------------------------
1. Came into force from October 26, 2006.

2. (2010) 5 SCC 600

3. AIR 2014 SC 309

4. (2010) 10 SCC 469

2. Legal Protection Gap - without legal protection and recognition, couples lack the
rights granted to married couples such as property rights, inheritance and maintenance
in case of separation.
3. Financial Instability - the absence of legal protection can result in financial instability,
leaving couples without legal claims to their partners property or assets upon
separation.
4. Domestic Violence Vulnerability - women in living relationships may be at risk of
domestic violence, often without legal protection against such incidents.
5. Social Security Exclusion - Unlike married couples, those in living relationships are
not entitled to social security benefits, including health insurance, pensions and other
perks.
6. Family Pressure - in India family influences significant couples in living relationships
may experience pressure to marry or conform to traditional societal norms.
Despite these challenges, the Supreme Court of India has offered some legal
protection under specific circumstances and societal acceptance of such relationships
is gradually improving.

SOCIAL AND LEGAL STATUS:

The social and legal status of living relationships in India is characterized by a complex
interplay of evolving attitudes and legal frameworks.
Social Status:
1. Stigma and Approval – live-in relationships often face social stigma in traditional
Indian society. While acceptance is growing in urban areas, conservative norms in
some regions may still disapprove.
2. Changing Attitudes - urbanization and evolving mindsets have contributed to a
more accepting view of live-in relationships, especially among the younger
generation.
3. Family Dynamics - family expectations and societal norms can exert pressure on
individuals in live-in relationships, influencing decisions and perceptions.

Legal Status:
 1. Recognition – live-in relationships are not formally recognized as marriages under
Indian law. However, the Supreme Court has acknowledged their legitimacy and
granted legal protection in certain cases are seen in judgments like D. Velusami v. D.
Patchaiammal. 5
5. (2010) 10 SCC 469.

2. Legal Rights- couples in live-in relationships do not enjoy the same legal rights as
married couples. They may lack entitlement to proper rights, inheritance or
maintenance in the absence of specific legal provisions.
3. Domestic Violence Protection - the protection of women from Domestic Violence
Act ,2005, extends legal protection to women in live-in relationships, addressing
concerns of domestic violence.
4. Evolving Legislation – over time, legal perspectives on live-in relationships have
evolved, but comprehensive legislation, specifically addressing the rights and
responsibilities of partners in such unions, is still developing.
In summary, live-in relationships in India exist in a dynamic space where social
attitudes are gradually shifting, and legal frameworks are adapting, albeit with
complexities and variations across regions.

CONTRACT MARRIAGES
“Contract marriages” typically refer to marriages where the primary motivation is a legal
arrangement, rather than a genuine intent for a marital relationship. Such arrangements might
involve predetermined terms and conditions often for specific benefits or legal
considerations. It is important to note that the concept of contract marriages raises ethical,
legal and societal concerns in many jurisdictions. Marriages based solely on contractual
agreements without genuine consent or commitment may not be legally recognized.
Additionally, engaging in such arrangements could potentially lead to legal consequences and
societal disapproval. Contract marriages can take various forms, but they generally involve
individuals entering into a marital union for reasons other than genuine commitment or
affection.
Here are some key points about contract marriages:
1. Motivation-
 Participants may enter into a contract marriage for legal financial and
immigration benefits.
  Some may choose this arrangement to fulfill cultural and societal expectations
without a genuine desire for a long-term commitment.

2. Legal Recognition-
 In many Jurisdictions, marriages found solely on contractual agreements
might not be legally recognized.
 Legal systems often require marriages to be based on genuine consent, mutual
commitments and the intention to form a lifelong partnership.

3. Duration and Terms-

 Contract marriages may have predetermined durations or specific terms
outlined in a legal agreement.
 Terms could include financial arrangements, property rights or conditions for
dissolution.

4. Social and Perspectives-

 Contract marriages may be viewed negatively in many societies where the
institution of marriage is traditionally associated with love, commitment and
family.
 Societal disapproval might lead to challenges in social relationships and
community acceptance.

5. Ethical Considerations-
 From an ethical standpoint, contract margins raise questions about the
authenticity and integrity of the marital institution.
 The lack of genuine commitment may impact the emotional well-being of
those involved.

6. Legal Consequences-
 Engaging in contract marriages with the primary purpose of gaining legal
benefits might lead to legal consequences. Immigration authorities, for
instance, often scrutinize marriages to ensure their authenticity.
 7. Cultural and Religious Implications-
 In cultures where marriage holds significant religious and cultural importance,
contract marriages might be inconsistent with these values.
8. Changing Dynamics-
 In some cases, individuals may transition from contract marriages to more
genuine relationships overtime.
 Changing circumstances or emotional connections may alter the dynamics of
the arrangement.

It’s crucial to recognize that the specifics of contract marriages can vary widely, and legal
implications depend on the jurisdiction. Engaging in such arrangements without considering
legal, ethical and cultural aspects may lead to complications and societal repercussions.

Contract Marriages in India: In India, the concept of contract marriages is not legally
recognized or endorsed. The legal framework for marriages in India is based on the personal
laws that vary depending on an individual’s religion. Marriages are expected to be
solemnized with genuine consent, commitment and the intention to create a lifelong union.

1. Legal Recognition - Marriages in India generally recognized when conducted

according to the rituals and customs of a specific religion. And they require
registration under the relevant laws.
2. Legal Consequences - Marriages entered into for the primary purpose of gaining legal
benefits, without genuine commitment or consent, may be subject to legal scrutiny.
3. Personal Laws - Different religious communities in India follow their own personal
laws regarding marriage, divorce and other family matters. For example, Hindu
marriages are governed by the Hindu Marriage Act6, while Muslim marriages are
regulated by Islamic laws7.
4. Cultural and Societal Norms- The cultural and societal norms in India places a strong
emphasis on the sanctity of marriage as a union based on love, commitment and
family values.
5. Immigration Implications- In cases where individuals enter into marriages for
immigration benefits, immigration authorities may scrutinize the authenticity of the
marriage.
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passed on May 18, 1955.
6.
 Muslim Personal Law (Shariat) Application Act, 1937.
7.

It’s important to note that any attempts to use marriage as a mere contractual arrangement,
especially for obtaining legal or immigration advantages, can have serious legal
consequences. Authorities in India and other countries closely examine the authenticity of
marriages to prevent misuse.

Individuals contemplating marriage in India should adhere to the legal and cultural norms
governing marriages, ensuring that they align with the principles of genuine commitment and
mutual consent.

Positive Side of Contractual Marriages:

While contractual marriages may carry certain legal and practical challenges, there are
perspectives that some individuals consider positive in certain contexts-

1. Legal Arrangements- Contractual marriages can offer a structured legal framework for
various aspects such as property rights, financial responsibilities and conditions for
potential dissolution. This can provide clarity and reduce ambiguity.
2. Pragmatic Considerations- In some cases, individuals may enter into contractual
marriages for practical reasons, such as securing immigration benefits, managing
financial matters or addressing specific legal concerns.
3. Flexibility- Contractual agreements may allow couples to customize the terms of their
relationship, tailoring it to their specific needs and preferences.
4. Gradual Commitment- Some individuals view contractual marriages as a way to start
a relationship with less pressure, allowing them to assess compatibility gradually
before making a more traditional, emotionally driven commitment.

It’s important to note that these potential benefits are subjective and depend on the
context and the specific needs and values of the individuals involved, while some may see
contractual marriages as a practical solution. Others emphasize the importance of
emotional commitment and genuine connection in a marital relationship. Additionally,
legal recognition and societal acceptance of such arrangements can vary widely.
In conclusion, contract marriages while presenting certain legal considerations and pragmatic
advantages in specific contexts, remain a complex and debated topic. The legal, ethical and
societal implications call for careful examination of individuals, motivations and the broader
consequences as perspectives evolve, its crucial to acknowledge the varied opinions
surrounding contractual marriages and the need for ongoing legal and societal discussions to
address these nuanced issues.

SURROGACY

Surrogacy is a reproductive arrangement when a woman carries and gives birth to a child
for another individual or couple who are typically the intended parents.8 Surrogacy stands as
a significant assisted reproductive technology, where women carry the pregnancy for another
couple. Globally, numerous couples seek surrogacy services for diverse reasons. Despite its
perceived benefits, the practice is entangled with intricate social, ethical, moral and legal
considerations. These complexities have led to the unpopularity of surrogacy in many
regions. In India, surrogacy underwent a transformative journey, gaining popularity as a
surrogacy hub since 2002, but facing constraints with the introduction of the Surrogacy
(Regulation) Bill 20119. For couples facing challenges in conceiving, surrogacy serves as a
vital medical solution. To ensure the harmonious practice of surrogacy, addressing its delicate
issues requires well- crafted laws that safeguard the rights of surrogate mothers, intended
parents and the children born through surrogacy.

Types of Surrogacy:

 Traditional Surrogacy: The surrogate is also the biological mother of the child, as her
egg is used for fertilization.

 Gestational Surrogacy: The surrogate carries a child conceived using the eggs and
sperm of the intended parents or donors.

 Altruistic Surrogacy: The surrogate receives no financial gain beyond medical

expenses.

 Commercial Surrogacy: Involves payment to the surrogate beyond medical costs.

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https://www.betterhealth.vic.gov.au
8.
Repealed in 2016, 2019, and 2021.
9.

Surrogacy in India:

Surrogacy in India has experienced significant developments, both in terms of popularity and
regulatory changes.

 Historical Context-
The historical context of surrogacy in India traces back to the early 2000s, marking a
period when the country gained recognition as a prominent destination for surrogacy
services. Several factors contributed to the emergence and popularity of India as a
surrogacy hub during this time:

1. Affordability and Accessibility- India offers surrogacy services at a significantly

lower cost compared to many Western countries, making it an attractive option for
couples facing fertility challenges.

2. Medical Expertise- the country boasted a pool of skilled medical professionals and
state-of-the-art fertility clinics, providing high quality reproductive technologies
and services.

3. Global Demand- International couples, particularly those from countries with

restrictive surrogacy laws or high costs, sort alternatives leading to a surge in
global demand for Indian surrogacy services.

4. Legal Ambiguity- At the outset, India lacked specific and comprehensive

regulations governing surrogacy, contributing to a relatively permissive
environment for the practice.

5. Growing Industry- The surrogacy industry in India experienced a rapid growth.

with numerous fertility clinics and agencies catering to the increasing demand
from both domestic and international clients.
 6. Ethical and Commercial Concerns- The popularity of surrogacy in India also
brought about ethical concerns, particularly related to the commercial aspects of
the practice. There were instances of exploitation and lack of proper legal
safeguards.

7. Regulatory Response- In response to these concerns and to address the ethical

dimensions and potential exploitation, India introduced the Surrogacy
(Regulation] Bill in 201610, proposing significant changes to the surrogacy
landscape.

The historical context underscores the evolution of India as a destination for surrogacy
services marked by both positive contributions to the assisted reproductive technology field
and challenges that prompted regulatory responses. The subsequent regulatory changes aims
to strike a balance between providing accessible surrogacy options and addressing ethical
considerations within the industry.

The Surrogacy (Regulation) Bill, 2019 11

It being a legislative proposal in India that was aimed at regulating surrogacy practices in the
country. Here are the key aspects of the bill-

Objectives:

1. Prevention of Commercialization - One of the primary goals of the bill was to prevent
the commercialization of surrogacy.
2. Protection of Surrogate Mothers - The bill sought to ensure the well-being and
protection of surrogate mothers by prohibiting commercial surrogacy and limiting it
to altruistic surrogacy.
3. Rights of the Child - emphasis was placed on the rights of the child born through
surrogacy, aiming to safeguard their interests and ensure legal recognition.
4. Eligibility Criteria for Intended Parents - The bill outlined eligibility criteria for
intended parents, including Indian Citizenship and a specific period of marriage.
5. Close Relatives as Surrogates - Altruistic surrogacy was limited to “close relatives”,
as defined in the bill.
6. Regulatory Authority - The proposal included the establishment of a National
Surrogacy Board and State Surrogacy Boards to regulate surrogacy are the national
and state levels.
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10. Repealed in 2019.
11. Repealed in 2021.

 Key Provisions:
1. Ban on Commercial Surrogacy - The bill proposed ban on commercial surrogacy,
allowing only altruistic surrogacy, where the surrogate is not paid beyond medical
expenses and insurance.
2. Eligibility Criteria for Surrogates – The bill outlined criteria for women to qualify
as surrogates, including age limits and previous childbirth experiences.
3. Insurance Coverage for Surrogates – Surrogates were to be provided with
insurance coverage during the surrogacy period.
4. Criminalization of Unlawful Practices – The bill included provisions for the
criminalization of practices like abandoning the child born through surrogacy.

Impact on the Industry –

The Surrogacy (Regulation) Bill, 2019 had significant implications for the surrogacy industry
in India. It aims to address ethical concerns, prevent commercial exploitation and provide
legal clarity to surrogacy practices.

Landmark Judgements

Several cases have played a role in shaping the legal landscape and regulations surrounding
surrogacy in the country. Here are the few notes worthy cases.

1. Jan Balaz v. UOI 12- The Delhi High Court, in this case, allowed German couple to
take custody of twins born through surrogacy in India. The court emphasized the
importance of the best interests of the child and the fulfillment of the intended
parents’ wishes.
2. Baby Manji Yamada13 – This case involved a child born through surrogacy in India to
a Japanese couple who later divorced. The case raised complex legal and citizenship
issues, emphasizing the need for clear regulations and international cooperation.
3. Japanese Baby 14– In this case, a Japanese couple faced difficulties obtaining a
passport for their child born through surrogacy in India. The court ruled in favor of
the couple, emphasizing the child’s rights to citizenship.
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12. 2009 SCC OnLine Guj 3956.
13. (2008) 13 SCC 518.
14. (2008) SCC Online SC 1470.
15
4. Dr. Mrs. Kaushal Kadam & Ors. v. UOI & Ors - It limited surrogacy services to
Indian married infertile couples only are not to foreigners.
16
5. Sri H Siddaraju v. UOI – Through this case, it was stated that, even though the
biological parents are not physically able to bring up the child, this would not mean
the they would abandon the child or leave it at the mercy of anybody else.

The Surrogacy (Regulation) Act, 2021

According to the 2021 Surrogacy Regulation Act, a woman aged 35 to 45, who is
either widowed or divorced, or a legally married couple can opt for surrogacy if a
medical condition necessitates this choice. The law strictly prohibits commercial
surrogacy imposing severe penalties including. Including a 10 year imprisonment
term and a fine of up to 10 lakhs altruistic surrogacy is permitted exclusively when
there is no monetary transaction involved and the surrogate mother is genetically
related to the individual seeking to have a child.

This act consists of eight chapters and 54 sections that deal with the regulation of
surrogacy in India. The Surrogacy (Regulations) Act, 2021, received the President’s
ascent on 25th December 2021.

Definition Clauses:

The definition clauses outlined in Section 2 of the act are as follows:

 Section 2(b) elucidates, the concept of altruistic surrogacy, stipulating that only
medical expenses insurance coverage and other specified costs shall be provided to
the surrogate mother, excluding any additional charges, expenses, fees, remuneration
or monetary incentives.
 Section 2(g) provides the definition of commercial surrogacy and compassing the
offering of any form of monetary incentives, whether in cash or kind. However, the
practice of commercial surrogacy is explicitly prohibited.
 Section 2(h) clarifies the meaning of couple as a legally married pair with the
stipulation that the man and woman must be aged above 21 years and 18 years,
respectively.
 Section 2(r) interprets the term intending couple as couples aspiring to become
parents through surrogacy, specifying an age range of 23 to 50 years for females and
26 to 55 years for males according to section 4(iii)(c)(l).
 Section 2 (s) delineates the meaning of intending women and compassing women
aged 35 to 45 years who are either widowed or divorced and intent to undergo
surrogacy.
 Section 2(d) defines ‘surrogacy’ as a procedure wherein a woman carries and gives
birth to a child for an intending couple, subsequently handing over the child to the
intending couple after birth.