BEFORE THE HONOURABLE SUPREME COURT

OF INDIA

UNDER ARTICLE 136 OF CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION NO.XXX/2019

IN THE MATTER OF

YOGITHA……………………………………………………………………
……………………………………….PETITIONER

V/S

ABC…….
………………………………………………………………………………
…………………………..RESPONDENT

ON SUBMISSION TO THE HONOURABLE SUPREME COURT OF

INDIA

MOST RESPECTFULLY
SUBMITTED

MEMORANDUM ON BEHALF OF PETITONERS Page 1

COUNSELS APPEARING ON BEHALF OF YOGITHA

TABLE OF CONTENTS

1) List of abbreviations…………………………….. 3

2) Index of authorities………………………………. 4-5

3) Statement of jurisdiction……………………….. 6

4) Statement of facts………………………………... 7

5) Statement of issues………………………………. 8

6) Summary of arguments…………………………... 9-10

7) Arguments advanced………………………………11-24
Issue 1……………………………………………… 11-14
Issue 2……………………………………………….14-17
Issue 3……………………………………………….17-22
Issue 4……………………………………………….22-24

8) Prayer …………………………………………………... 25

MEMORANDUM ON BEHALF OF PETITONERS Page 2

 LIST OF ABBREVIATION
AIR All India Reporter
HC High Court
Ass. Association
Sec. Section
Mad. Madras
I.P.C Indian penal code
PC Privy council
Prop. Property
Co. Company
& And
Ltd. Limited
Ibid The same place
Vs. Versus
u/s Under section
S.C.J. Supreme Court Journal
EDU. Education

MEMORANDUM ON BEHALF OF PETITONERS Page 3

 INDEX OF AUTHORITIES
Sr.no CASE
CITATION
1) Nihal Singh & Ors vs State Of Punjab, AIR 1965 SC
26.
2) *Durga Shankar Mehta v. Thakur Raghuraj . . AIR 1954
Singh and Ors SC 520
*Associated Cement Companies Ltd v. P.N.
Sharma Jose Da Costa and (1965) 2
*Anr. v. Bascora Sadasiva Sinai Narcornim SCR 366
and Ors.
*Arunachalam v. P.S.R. Sadhanantham and (1976) 2
others SCC 917
*Anr. P.S.R. Sadhanantham v. Arunachalam
and Anr. (1979) (2)
*Union Carbide Corporation and Ors. v. SCC 297
Union of India and Ors.
(1980) 3
SCC 141

(1991) 4
SCC 584
3) Pritam Singh v. State AIR 1950 SC
169
4) Durga Shankar Mehta v. ThakurRaghuraj Singh AIR 1954 SC
and ors 520
5) State of Karnataka v. State of Tamil Nadu and Civil Appeal
Ors., No. 2453
of 2007
6) Barsay v. Bombay AIR 1961 SC
Banwari Lal v. Trilok Chand, 1762
Digvijay Singh v. Pratap Kumari AIR 1980 SC
Chettiar v. Chettiar 419
AIR 1970 SC
137
AIR 1968 SC

MEMORANDUM ON BEHALF OF PETITONERS Page 4

 915

7) Haryana State Industrial Corporation. v.Cork (2007) 8 SCC

Mfg. Co. 359
8) C.C.E v. Standard Motor Products AIR1989 SC
N Suriyakala v. A Mohan Doss 1298
& ors. (2007) 9 SCC
Narpat Singh v. Jaipur Development Authority 196

AIR 2002 SC
2036

9) Janshed Hormusji Wadia v. Board of Trustees, (2004) 3 SCC

Port of Mumbai 214
10) Sir Chunilal Mehta and Sons. Ltd. v. Century AIR 1962 SC
Spinning and Manufacturing Co. Ltd 1314
11) S.P.S. Balasubramanyam vs Suruttayan Alias AIR 1992 SC
Andali 756, 1992
Supp (2) SCC
304
12) Vidyadhari & Others v/s Sukhrana Bai & Others 575 of 2008
(Arising out
of SLP (C)
No.6758 of
2007
13) Tulsa v. Durghatiya [(2008) 4
SCC 520]
14) Madan Mohan Singh & Ors. v. Rajni Kant & Anr AIR 2010 SC
2933
15) Bharatha Matha v. R. Vijaya 2010 11 SCC
Renganathan Bharatha Matha v. R. Vijaya 483
Renganathan
16) Jane Antony vs V.M.Siyath MACA.No.
1324 of 2004

17) Parayan Kandiyal Eravath Kanapravan Kalliani 1996 AIR

Amma (Smt.) & Ors. vs. K. Devi and Ors 1963, 1996
SCC (4) 76
18) P.V. Susheela vs Komalavally I (2000) DMC
376

MEMORANDUM ON BEHALF OF PETITONERS Page 5

19) Revanasiddappa v. Mallikarjun (2011) 11
SCC 1
20) Mohabbat Ali Khan vs Muhammad Ibrahim Khan (1929) 31
BOMLR 846
21) Payal Sharma v. Nari Niketan
22) S. Khushboo vs Kanniammal & Anr 2010 (4)
SCALE 467
23) Indra Sarma v. V.K.V. Sarma (2013) 15
SCC 755
24) Dhannulal v. Ganeshram (2015) 12
SCC 301

MEMORANDUM ON BEHALF OF PETITONERS Page 6

 STATEMENT OF JURISDICTION

The petitioner humbly submits to Hon’ble Supreme Court of India and

that the court is empowered to hear this case by the virtue of Article
136 Of the

Constitution of India,1950.
The Article read as:

Special leave to appeal by the Supreme court

(1) Notwithstanding anything in this Chapter , the SUPREME COURT

may ,in its discretion, grant special leave to appeal from any
judgement, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of
India.

(2) Nothing in clause (1) shall apply to any judgement , determination

,sentence Or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.

The present memorandum sets forth the facts,

contentions and arguments in the

present case.

MEMORANDUM ON BEHALF OF PETITONERS Page 7

 STATEMENT OF FACTS
(1) Md. Yusuf , a deceased Muslim was working in a company as a
managing director and fallen in love with Yogitha ,a Hindu who was
also working in the same company. Both of them had gotten married
without converting their religion.

(2) First they married according to the Islam rituals that of Nikah and
later married according to the Hindu rituals by performing sapthapadi.
After the marriage they practiced their own religion and Yogitha did
not changed her name too.

(3) After the five yrs of marriage , they gave birth to male child. Md.
Yusuf had purchased 5 acres of agricultural land and a 30’*40’
residential plot from his earnings before the marriage, parents were in
possession of the same residential land continue to posses the same.

(4) After the marriage Yogitha quit the job and became a house wife.
All these things were not liked by the parents of Yusuf and they were
living separately.

(5) After few days yusuf died because of illness and without making
any will. Yogitha claimed succession to his property to herself and on
behalf of the minor child. But the parents of deceased refused to give
a share as they disputed the validity of the marriage with Yusuf and
child as illegitimate.

(6) As a last resort , a case was filed before the trial court by
Yogitha before which she pleaded that she was in “ live-in
relationship” with her deceased partner. She also pleaded that they
lived like husband and wife. The trial court dismissed the suit.

(7) Afterwards, an appeal was filed before the High Court by Yogitha .
High Court rejected her succession plea. Against the dismissal of
High Court , she filed an appeal before the Supreme Court of India.

MEMORANDUM ON BEHALF OF PETITONERS Page 8

 Statement of issues
1) Whether the special leave petition brought before
this court is maintainable
2) Whether the live in relationship in modern Indian
society is legal
3) Whether the child is legitimate and entitled to the
property of his father
4) Whether Yogitha is entitled to the property of her
partner Yusuf.

MEMORANDUM ON BEHALF OF PETITONERS Page 9

 SUMMARY OF ARGUMENTS
1) Whether the special leave petition brought
before this court is maintainable
It is humbly submitted to this Hon’ble Court that under Article 136
of the Constitution of India, any person, aggrieved by any order or
decision of any court in India can approach the Supreme Court
through a Petition for Special Leave. The Petitioner has the locus
standi to approach the Hon’ble Supreme Court as civil appeals not
covered by Article 133 can be brought to the apex court under Article
136. Furthermore, the jurisdiction of Supreme Court can always be
invoked when a question of law of general public importance arises.
Also, in case at hand the ‘substantial’ questions of law are involved.
The jurisdiction conferred under Art. 136 on the SC is a corrective
one and not a restrictive one. The question of concept of live in
relationship in India, status of partners of live in relationship in India,
status of children born out of such relationships and property right of
such children are substantial question of law and of general public
importance. Hence Article 136 can be invoked for the same is
maintainable

2) Whether the live in relationship in modern Indian

society is legal
The counsel most humbly submits that in modern society, the
status of live in relationship is very liberal as to the older times. If
seen in earlier times, live in relationship was given narrow scope
and considered immoral, but never illegal. Legislation and judicial
precedents over the time have given validity to the live in
relationship. Although live in relationships have not been granted
legal status or recognition, this concept is slowly emerging and is
visible in recent legal developments. In 2003, the Supreme Court
set up the Malimath Commission for reforms in the Criminal
JusticeSystem. The report submitted by this Commission

MEMORANDUM ON BEHALF OF PETITONERS Page 10

mentioned that-“The definition of the word ‘wife ‘in Section 125
CRPC should be amended so as to include a woman who was
living with the man as his wife for a reasonably long period, during
the subsistence of the first marriage.”

The legislature has acknowledged live-in relationships by giving

rights and protection to those females who are not legally
married, but rather are living with a male individual in a
relationship, which is in the idea of marriage, additionally akin to
wife, however not equivalent to wife.
Section 2(f) of the Domestic Violence Act, 2005 defines:
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.
3) Whether the child is legitimate and entitled to the
property of his father
It is humbly submitted by the counsel on the behalf of the
appellant that her son is entitled to the property of her live in
partner on the basis of the following arguments. The appellant
denies all the contentions of the respondents questioning her
marriage and the legitimacy of her son. Appellant takes the
following pleas.
It is humbly submitted that Children are the most fundamental
unit of a modern day progressive society and their fate is often
determined by the social relations governing every sphere of
their lives. In light of this, couples involving in any form of
relation and subsequently engaging in procreation leading to
the birth of such children significantly decides the placement of
such newly born individuals in the society.
4) Whether Yogitha is entitled to the property of her
partner Yusuf

MEMORANDUM ON BEHALF OF PETITONERS Page 11

It is humbly submitted by counsel, that the appellant is entitled
to the property of her partner Yusuf, as they had been living
with each other for a considerable amount of time and
performing of rituals of marriage with each other shows the
intention of them to live as husband and wife.
The hon’ble SC has provided in various of its judgments and
decisions over the time, that the partners having live in
relationship with each other would be considered as a married
couple given certain conditions being fulfilled and the
spouse(petitioner) would be entitled to the right of maintenance
and property of the other spouse.

MEMORANDUM ON BEHALF OF PETITONERS Page 12

 ARGUMENTS ADVANCED
1) WHETHER THE SPECIAL
LEAVE PETITION BROUGHT
BEFORE THIS COURT IS
MAINTAINABLE OR NOT.
It is humbly submitted that the Special Leave Petition against the judgment
of Hon’ble HC is maintainable under Article 136 of the Constitution of India.
Article 136 empowers the Supreme Court to grant in discretion Special
leave to Appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the
territory of India.1

It is humbly submitted that powers under Article 136 can be exercised

against any kind of judgment or order which is causing injustice to
any party, and to serve the need, the power under Article 136 is
unfettered2. This SLP is maintainable as, firstly the petitioner has
locus standi to approach the honorable SC , secondly the matter
involves question of general public importance involving a substantial
question of law.

1 Art. 136, Constitution of India, 1950

2 Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520; Associated Cement
Companies Ltd v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai
Narcornim and Ors. (1976) 2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC
297; P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and
Ors. v. Union of India and Ors. (1991) 4 SCC 584
.
MEMORANDUM ON BEHALF OF PETITONERS Page 13
 THE PETITIONER HAS LOCUS STANDI TO APPROACH THE
HONOURABLE SUPREME COURT
It is humbly submitted before this Honorable SC that the appellant has locus standi to
approach the Honorable SC in the present case. Article 136 of the Constitution is couched in
the widest phraseology3 This Court's jurisdiction is limited only by its discretion4.
. It is
pertinent to note that the scope of Article 133 providing appeals to the
SC in civil matters is limited whereas Article 136 is very broad-based
& confers discretion on the court to hear “in any cause or matter5”.
The plenitude of power under Article 136 of the Constitution has been
authoritatively stated by the Constitution Bench.
in Durga Shankar Mehta v. ThakurRaghuraj Singh and Ors6
. and the exercise
of the said power by the Court cannot be curtailed by the original
constitutional provision or by any statutory provision7 Therefore, civil appeals may be
..
brought to the SC under article 136 when these are not covered by Article 1338.

JURISDICTION OF SUPREME COURT UNDER ARTICLE

136 CAN ALWAYS BE INVOKED WHEN A QUESTION OF
LAW OF GENERAL PUBLIC IMPORTANCE ARISES.
The jurisdiction conferred under Art. 136 on the SC are corrective one and not a restrictive one 9
.
A duty is enjoined upon the SC to exercise its power by setting
right the illegality in the judgments is well-settled that illegality
must not be allowed to be perpetrated and failure by the SC to
interfere with the same would amount to allowing the illegality
to be perpetuated .It has been held in plethora of cases that
when the question of law of general public importance arises,
the jurisdiction of SC can be invoked by filing special leave
petition. In the present case, the issue involves matter of
General Public Importance and substantial question of law].

3 Nihal Singh & Ors v. State Of Punjab, AIR 1965 SC 26.

4 Ibid
5 Pritam Singh v. State, AIR 1950 SC 169
6 AIR 1954 SC 520
7 State of Karnataka v. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007 decided on December

9, 2016
8 Barsay v. Bombay AIR 1961 SC 1762; Banwari Lal v. Trilok Chand, AIR 1980 SC 419; Digvijay Singh v.

Pratap Kumari, AIR 1970 SC 137; Chettiar v. Chettiar, AIR 1968 SC 9158
9 Haryana State Industrial Corporation. v. Cork Mfg. Co. (2007) 8 SCC 359

MEMORANDUM ON BEHALF OF PETITONERS Page 14

 B.1 The Matter Involves Question Of Law Of General Public
Importance And Hence, Entitled To Be Maintainable.
It has been held by this Hon’ble Court that when a question of law of general public importance arises, or a
decision shocks the conscience of the court, its jurisdiction can always be invoked. Article 136 is the
residuary power of SC to do justice where the court is satisfied that there is injustice10 The principle is that
.
this court would never do injustice nor allow injustice being perpetrated for the sake of upholding
technicalities 11
. In the case at hand, rights of thousands of unmarried
couple lives together under the same roof in a long term relationship
that resembles a marriage known as a live- in-relationship are in
question. Also, the implementation of law on live- in-relationship will
have an impact on public at large. The live-in-relationship is no longer
a novelty to Indian society. It has come to stay. Live in relationship
couples are multiplying in number; at the same time institution of
marriages stays unaffected. Time was when institution of marriage
was sine qua non of Indian society but not now. Emergence of live in
relationship seems to pose a challenge to the solid rock on which
institution of marriage has been built up and nurtured. Break up of
joint family system has given rise to satellite families. Spread of edu.
of women has led to formation of an army of Indian woman who are
earning and ably assisting their husbands resulting into emergence of
double income families. As an impact of globalization, families are
broken up and life partners are bound to stay alone in different
countries of the world away from their life partners. May be that this
societal change has given rise to the growth of live-in-relationship.
Phenomenon of live in relationship is digging deep into the social
fabric of India, as if it is posing a bold challenge to the institution of
marriage. The law in every country has to keep pace with the
changing times. Hence, the matter concerned is a matter of public
interest and national importance. Hence, it is humbly submitted
before this court that the matters involves question of law of general
public importance and therefore, the appeal is maintainable under
article 136 of the Constitution of India.

10
C.C.E v. Standard Motor Products, AIR1989 SC 1298; N Suriyakala v. A Mohan Doss & ors.
(2007) 9 SCC 196; Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036
11
Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214

MEMORANDUM ON BEHALF OF PETITONERS Page 15

 B.2. The Matter Involves Substantial Question Of Law And Hence Entitled
To Be Maintainable.

The expression "substantial question of law" is not defined in any

legislation. Nevertheless, it has acquired a definite connotation
through various judicial pronouncements. A Constitution Bench of the
Apex Court, while explaining the import of the said expression,
observed that: “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the sense that it
is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty

.” In the present case, the question of law

or calls for discussion of alternative views12

involved in appeal is regarding the concept of live in relationship in

india, status of partners of live in relationship in india ,status of
children born out of such relationships and property right of such
children. The definition of live in relationships is not clear and so is
the status of the couples in a live in relationship. There is no specific
law on the subject of live in relationships in India. There is no
legislation to define the rights and obligations of the parties to a live in
relationships, the status of children born to such couples. Live-in
Relationship in India is often seen as a taboo; however, it is not very
uncommon to find people in big metros staying together as husband-
wife without any formal marriage. None of the statutes dealing with marriage such as the Hindu Marriage
Act, 1955, the Special Marriage Act, 1954, Parsi Marriage and Divorce Act, 1936 and Christian Marriages
and Divorce Act, 187213
recognize “live-in” relationship directly. Protection of Women
from Domestic Violence Act, 2005 is considered as the first legislation that recognized the right of protection
of a person in “relationship in the nature of marriage14
The questions raised by the
Appellants involve substantial questions of law, as would be shown in
the subsequent submissions, and the same requires to be
adjudicated by this Hon’ble Court. Hence, the case involves the
matter of general public importance and it directly and substantially
affects the rights of the parties as the order is erroneous and

12
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962
SC 1314
13
Sec 11 of the Hindu Marriage Act, 1955; S. 4of Parsi Marriage and Divorce Act, 1936; Sections
4-9 of Christian Marriages and Divorce Act, 1872
14 ”14
Sections 2(a),12 read with Sections 18, 19, 20, 21 and 2(f) Domestic Violence Act,2005;
“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

MEMORANDUM ON BEHALF OF PETITONERS Page 16

prejudicial to the interest of the petitioners. It is humbly submitted that
substantial and grave injustice has been done to the rights of the
petitioner and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against.

2) WHETHER THE LIVE IN

RELATIONSHIP IN MODERN
INDIAN SOCETY IS LEGAL?

1) The counsel to the hon’ble court respectfully submits that both the
legislature and judiciary has acknowledged live in relationship and
has given validity to this relationship as par with the marriage. The
appellant and her partner lived as spouse and performed the rituals of
marriage which showed their intention to cohabitate as husband and
wife. In Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige
Blahamy

PC took a stand that, “where a man and a lady are proved to have
lived respectively as spouse, the law will presume, unless the
opposite be obviously demonstrated that they were living respectively
in result of a legitimate marriage, and not in a condition of
concubinage”.This same view was also taken in Mohabbat Ali Khan
v. Md. Ibrahim Khan

wherein the court held the marriage to be legitimate as both the

partners have lived together as spouse.

2) R.B. Misra observed that, “In our opinion, 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 it is not illegal. There is a
difference between law and morality.”Thereafter, in Patel and others

MEMORANDUM ON BEHALF OF PETITONERS Page 17

case, the SC observed that two people who are in a live-in
relationship without a formal marriage are not criminal offenders. No
Legislation has ever been enacted by Indian parliament which
denounces any live in relationship as illegal. This judgment then was
made applicable to various other cases.

3) In Madan Mohan Singh v. Rajni Kant, the Court held that, the live-
in relationship if continued for long time, cannot be termed as a “walk-
in and walk-out” relationship and that there is a presumption of
marriage between the parties. By this approach of the Court it can be
clearly inferred that the Court is in favour of treating long-term living
relationships as marriage, rather than making it a new concept like
live-in relationship.

4) In landmark case in 2010, of S. Khushboo v. Kanniammal, the

Supreme Court held that a living relationship comes within the ambit
of right to life under Article 21 of the Constitution of India. The Court
further held that live-in relationships are permissible and the act of
two major living together cannot be considered illegal or unlawful.

5) In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha where

High Court declared that appellant wife is not entitled to maintenance
on the ground that only legally married woman can claim
maintenance under Section 125 CrPC. But the Supreme Court turned
down the judgment delivered by the High Court and awarded
maintenance to the wife (appellant) saying that provisions of Section
125 CrPC must be considered in the light of Section 26 of the Pwdva,
2005.The Supreme Court held that women in live-in relationships are
equally entitled to all the claims and reliefs which are available to a
legally wedded wife

A relationship like marriage under the 2005 Act must consent to some
basic criteria. It was stated that the couple must have voluntarily
cohabited and held themselves out to the world as being akin to
spouses for a significant period of time. The counsel submits to the
honʼble court that the petitioner and her partner cohabited for

MEMORANDUM ON BEHALF OF PETITONERS Page 18

considerable amount of time and through performing rituals of
marriage, they held themselves out to the world as being spouses.

6) In France, a ―Civil Solidarity Pacts‖ known as “pacte civil de

solidarite (PACS pronounced: [paks]))‖ passed by the French
Parliament in November 1999 that allows couples to enter into a
union by signing before a court clerk. It is a contractual form which
binds “two adults of different sexes or of the same sex, in order to
organize their joint life” and allows them to enjoy the rights accorded
to married couples in the areas of income tax, housing and social
welfare. The contract can be revoked unilaterally or bilaterally after
giving the partner three months‘ notice in writing.63 As of 2013, PACS
remains available to both- same and opposite sex couples after
marriage and adoption rights were made legal for same-sex couples.

The Family Law (Scotland) Act 2006 introduced new rights and
an obligation concerning cohabiting couples (The live in relation).69
Section 25 (2) of the Act postulates that a court of law can
consider a person as a co-habitant of another by checking on
three parameters; (a) the length of the period during which they
lived together, (b) the nature of the relationship during that period
and (c) the nature and extent of any financial arrangements,
subsisting or which subsisted during that period. In case of
breakdown of such relationship, under Section 28 of the Act, a
cohabitant has the right to apply in court for financial provision on
the termination of the cohabitation ―otherwise by reason of
death‖ – i.e. separation. If a partner dies intestate, the survivor can
move the court for financial support from his estate within 6
months.
Canada recognizes live in relationship as ―Common Law
Marriage‖. A recent ruling in B.C. that grants common-law partners
the same fundamental rights as married couples after two years of
cohabitation has cast a light on how common-law couples are
treated. The presence of children can significantly affect the way a
common-law relationship is viewed in the eyes of the law in other
provinces.
MEMORANDUM ON BEHALF OF PETITONERS Page 19
7) The counsel on the behalf of petitioner, humbly submits to the
honʼble court that the Indian society or the society, in general, is
becoming more open to the concept of pre-marital sex and live in
relationship. This is leading to slowly lifting-off the taboo surrounding
it.

There are various factors acting as a reason for this drastic change in
the mindset, as far as Indians are concerned towards live in
relationship such as:

Improved education

Globalization

Freedom and Privacy

3)WHETHER THE CHILD

IS LEGITIMATE AND
ENTITLED TO THE
PROPERTY OF HIS FATHER?

It is humbly submitted that the son of my client for

which she is asking a share in the property of her
deceased partner, in this case, father of the son also,
is legitimate in the eyes of law and appellant denies all
the allegations of the respondents regarding the
illegitimate status of her son. On the behalf of
appellant, the counsel wants to base the arguments on
the following major case laws.

1) It is being humbly submitted that the first and the

foremost right for a child born in a live-in relationship is
the right to legitimacy, since a child born with no

MEMORANDUM ON BEHALF OF PETITONERS Page 20

relation with the relationship that his parents hold in the
society and among themselves. This right will form
the basis for all the other rights which are available to a
child in our country. We would like to supplement our
argument with some of the landmark judgments in this
behalf by the Hon'ble Supreme Court of India.

In the famous case of SPS Balasubramanyam v.

Sruttayan, the SC had said, “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.” This was a landmark case wherein the
apex court for the first time upheld the legitimacy of the
children born out of a live-in relationship. As also in the
case in hand, my client and her last be in partner lived
like husband and wife and have fulfilled all the
necessary requirements of a live in relationship as
given by he Court in the case of Vidyadhari vs.
Sukhrana.

2) It is submitted that the courts have always

interpreted the statute of such a child to be in
concurrence with Article 39(f) of the Constitution of
India which lays down the responsibility of the State to
provide the children with adequate opportunity to
develop in a normal manner and safeguard their
interests. 

3) It is humbly contended that the Hon'ble Supreme

Court, in the modern days, cases like Tulsa v
Durghatiya have held that a child born from such a
relationship will no more be considered as an
illegitimate child. The crucial pre-condition for a child
born out of a live-in relationship to be not treated as
illegitimate is that the parents must have lived under
one roof and co-habited for a significantly long time for
society to recognize them as husband and wife and “it
should not be a “walk in and walk out” relationship, as

MEMORANDUM ON BEHALF OF PETITONERS Page 21

the Supreme Court has pointed out in its 2010
judgment of Madan Mohan Singh and Ors v Rajni Kant
& Anr. In our case such requirements are also fulfilled
as the appellant and her deceased partner lived under
one roof and had shared their resources and have
been living together for significantly long time.

4) It is humbly submitted that The Courts in India have

continued to support this interpretation of law in a
manner to ensure that no child is “bastardized” for no
fault of his/her own as it has been seen in the case
of Bharata Matha & Ors. V.R. Vijaya Renganathan &
Ors. In this case, the Supreme Court had held that a
child born out of a live-in relationship may be allowed
to succeed in the inheritance of the property of the
parents (if any) and subsequently be given legitimacy
in the eyes of the law. Since, in our case the son is
born after five years of live in relationship it can no way
be said to be a "walk in and walk out" relationship,
which gives a legal acknowledgment to the relationship
by the courts and therefore to the son.

5) It is submitted that In the case of Jane Antony vs. M

Siyath, it was held that child born out of live in
relationship are legitimate and entitled to succeed to
the estate of deceased. And since the status of live in
relationship has been established to be legal by our
prior arguments it can be easily said that the son was
legitimate and entitled to inherit his father's property.

Right to property
It is humbly submitted by the counsel on the behalf of
the appellant that the son of the appellant is entitled to
get the prop of her deceased partner, also the father of
the son in the present case. Counsel wants to back his
arguments on the following major pleas.

1) It is humbly submitted that here we come to the

MEMORANDUM ON BEHALF OF PETITONERS Page 22

Rights of a Child born out of a live in relationship. A
child rather a baby has no idea whether he or she is
born in or out of a wedlock. A child does not ask the
parents to bring him/her into the world. And keeping all
of this in mind our law makers and implementers have
ensured as best possible, that no child should be
‘bastardised' by anyone.
Prop rights refer to the inheritance rights of children
and Legitimacy has always formed a pre-requisite for
the inheritance rights, and in the present case the
counsel has already proved the legitimacy of the son.

2) It is submitted that Consequently, the Courts have

always ensured that any child who is born from a live-
in relationship of a reasonable period should not be
denied the right to inheritance and this practice is in
sync with Article 39(f) of the Constitution of India which
clearly states that," it is the responsibility of the state to
provide the children with adequate opportunity to
develop in a Normal manner and safeguard their
interests."

3) It is submitted that the Supreme Court in Vidyadhari

v Sukhrana Bai passed a landmark judgment where
the Court granted the right of inheritance to the
children born from a live-in relationship and ascribed
them with the status of “legal heirs”. So in the present
case since Mohm Yusuf had no other children so being
the only blood child of the deceased partner of
appellant, son is the only legal heir of his father's prop
and court also recognize him as the legally entitled
hier.

4) It is humbly pleased that here the counsel wants to

refer to the legal provision as given under section 16 of
the Hindu Marriage Act, 1955. Courts earlier had
objections that the legislature has used the word
“property” in Section 16(3) of the HMA, 1955 and is
actually silent on whether such a property is meant to
be an ancestral or a self-acquired prop and in light of

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such an uncertainty, the concerned child’s right to prop
cannot be arbitrarily denied.
Clauses (1) and (2) of Section 16 expressly declare
that such children should be deemed as legitimate
children in the eyes of the law. Thus, such
discrimination against them and unequal treatment of
other legitimate children who are legitimately entitled to
all the rights in the property of their parents, both self-
acquired and ancestral will amount to an amendment
made to this section. Since in our case the legitimacy
has been proved to the satisfaction of the court the
counsel feels obliged if the court also takes a look at
the actual right of the son on property of his deceased
father. Here the counsel takes the plea under the
Hindu Law as the appellant is Hindu by religion. But
still, the mention of the. Hindu Laws have been made
only for the sake of reference, the counsel still
bases his case on the precedents.

5) It is humbly contended that, even the courts have

liberated the literal sense of the words used in the
legislation and have interpreted it in such a manner to
widen it's scope as much as possible and to extend its
benefits to maximum number. Consequently, the
Court stated in Parayan Kandiyal Eravath Kanapravan
Kalliani Amma (Smt.) & Ors. vs. K. Devi and
Ors wherein it was held that the HMA, 1955, a
beneficial legislation, has to be interpreted in a manner
which advances the objective of the law. So, children
born out of live in relationship will have the right to
whatever becomes of the property of their parents
whether self acquired or ancestral. So even the
Supreme Court has narrated that child born would be
legitimate and therefore the son is legitimate and such
child is fully entitled to get share in his father's property
and therefore the son, in present case the appellant's
son is completely entitled to his father's property.

6) It is submitted that the subsequent amendment

eliminating the distinction between children born out of

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valid/void/voidable marriages is to bring about social
reforms and conferment of the social status of
legitimacy on innocent children, the son in the present
case must be given his right, and should be allowed to
take share of his deceased father.

7) It is humbly contended that children born out of live

in relationships have the equal rights under
the Constitution of India as said in the case law of PV
Susheela vs. Komalavally, as was held by the Hon'ble
Supreme Court that Right to Life and Liberty under
Article 21 of the Constitution confers upon same rights
to every child and also under Article 14, Right to
Equality, every child has equal right towards their
parents. Differentiating between the children born out
of live in relationship and proper marriage relationship
would hinder their right to Equality and violates Article
14.

8) It is humbly submitted that On 31-3-2011 a Special

Bench of the Supreme Court of India consisting of G.S.
Singhvi, Asok Kumar Ganguly
in Revanasiddappa v.Mallikarjun remarked that
irrespective of the relationship between parents, birth
of a child out of such relationship has to be viewed
independently of the relationship of the parents. It is as
plain and clear as sunshine that a child born out of
such relationship is innocent and is entitled to all the
rights and privileges available to children born out of
valid marriages. So the counsel is of he opinion that
the son has passed all the tests of being entitled to the
property that therefore is entitled to be given the orders
accordingly. In this landmark judgement, the Hon'ble
Supreme Court held that child born out of live in
relationship is innocent and should not be connected
with the legality of his parents relationship. He is
entitled to ancestral and self acquired property of his
parents. This judgment also clarifies the confusion that
whether the child born out of live in relationship entitled
to only succeed the self acquired property of the father

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or to succeed the complete property, by saying that the
child is entitled to the whole property, whether acquired
or inherited by father, so as to give such children an
equal status to the children born to legally wedded
couples, as otherwise their right to Equality would be
infringed, with no fault of theirs.

9) Therefore, it is humbly submitted that the counsel

finds it more logical that children born out of such
relationships will have the right to whatever becomes
of the property of their parents whether self-acquired or
ancestral in light of the laws of equity and lack of clarity
with respect to the concerned sections of the specified
statutes.Therefore, keeping all of the above in mind, it
would not be far from the truth to say, that a child,
whether born from a marriage or a live in relationship,
is treated as legitimate by the law to a great extent. So,
the son of the appellant is entitled to the property of his
deceased father, the deceased partner of appellant.

It is humbly submitted that it would be a welcome

change to see the society to follow the footsteps of
Courts. How accurately has this been summed up in
the lines that follow,

“ The essence of our effort to see that every child has

a chance must be to assure each an equal opportunity,
not to become equal, but to become different – to
realize whatever unique potential of body, mind and
spirit he or she possesses. ”

The counsel shall be humbly closing his arguments by

again repeating that the appellant and her son are
entitled to the property of deceased Md. Yusuf, as per
the leading case laws stated above.

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 4) Whether Yogitha is
entitled to the property of
her partner Yusuf
The counsel humbly submits to the hon’ble court, that the
petitioner is entitled to all the benefits which arise out of a legal
marriage, as SC from time to time has given guidelines for
protecting the interest of women in live in relationship and held
this relationship as par with marriage

Women's right to property in live in relationship as maintained by the SC

In Indra Sarma v. V.K.V. Sarma

Following are the guidelines given by Supreme Court in this case:

“(1) Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at
any point of time’, which means a reasonable period of time to maintain and
continue a relationship which may vary from case to case, depending upon
the fact situation.

(2) Shared Household

The expression has been defined under Section 2(s) of the DV Act and,
hence, need no further elaboration.

(3) Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank

accounts, acquiring immovable properties in joint names or in the name of
the woman, long-term investments in business, shares in separate and joint
names, so as to have a long-standing relationship, may be a guiding factor.

(4) Domestic Arrangements

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Entrusting the responsibility, especially on the woman to run the home, do
the household activities like cleaning, cooking, maintaining or upkeeping the
house, etc. is an indication of a relationship in the nature of marriage.

(5) Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure,
but for emotional and intimate relationship, for procreation of children, so as
to give emotional support, companionship and also material affection,
caring, etc.

(6) Children

Having children is a strong indication of a relationship in the nature of

marriage. Parties, therefore, intend to have a long-standing relationship.
Sharing the responsibility for bringing-up and supporting them is also a
strong indication.

(7) Socialisation in Public

Holding out to the public and socialising with friends, relations and others,
as if they are husband and wife is a strong circumstance to hold the
relationship is in the nature of marriage.

(8) Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to

involve, and as to their respective roles and responsibilities, primarily
determines the nature of that relationship.”

In the case in hand all the above conditions are fulfilled which entitles both
the appellant and her son to the separate property of deceased husband.

Dhannulal v. Ganeshram,
The Bench stated that the woman in the relationship would be eligible to
inherit the property after the death of her partner

In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha

where High Court declared that appellant wife is not entitled to maintenance
on the ground that only legally married woman can claim maintenance
under Section 125 CrPC. But the Supreme Court turned down the judgment
MEMORANDUM ON BEHALF OF PETITONERS Page 28
delivered by the High Court and awarded maintenance to the wife
(appellant) saying that provisions of Section 125 CrPC must be considered
in the light of Section 26 of the Protection of Women from Domestic
Vioence Act 2005. The Supreme Court held that women in live-in
relationships are equally entitled to all the claims and reliefs which are
available to a legally wedded wife.

PRAYER
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 Wherefore in the light of aforesaid facts, issues raised, arguments
advanced and authorities cited, it is most humbly prayed that this
honorable court may graciously be pleased to :-

1) Set aside the order of high court

2) Entitle the petitioner and her child to get the property of
deceased Yusuf
3) Direct the respondent to deliver the rightful property to the
petitioner and her son
Or grant such other relief as the court may deem fit in the light
of justice, equity and good conscience
And for this act of kindness the petitioner shall duty bound
ever pray.

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