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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

FAMILY LAW-I

ANALYSING THE CONCEPT OF SOLEMNISATION OF MARRIAGE IN REFERENCE TO

LIVE-IN-RELATIONSHIPS

Submitted by: Submitted to:

Prarthana Gupta Asst Prof. Debashri Sarkar

2019BALLB26

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ACKNOWLEDGEMENT

On completion of this Project, it is my present privilege to acknowledge my profound

gratitude and indebtedness towards many people for their valuable suggestions and
constructive criticism. Their precious guidance and unrelenting support kept me on the right
track throughout the project. I gratefully acknowledge my deepest sense of gratitude to: Prof.
(Dr.) V. Vijayakumara, Director, National Law Institute University, Bhopal for providing us
with the infrastructure and the means to make this project;

Our Family Law professor- Professor Debashree Sarkar, who provided me this wonderful
opportunity and guided me throughout the project work. I would also like to thank my batch
mates and seniors for their constant help and guidance which helped me in completing this
project.

I’m also thankful to the library and computer staff of the University for helping us find and
select books from the University library. Finally, I’m thankful to my family members and
friends for the affection and encouragement with which doing this project became a pleasure.

Prarthana Gupta

(2019BALLB26)

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TABLE OF CONTENTS

ACKNOWLEDGEMENT...............................................................................................................2

STATEMENT OF PROBLEM........................................................................................................3

HYPOTHESIS..............................................................................................................................3

RESEARCH QUESTIONS.............................................................................................................4

RESEARCH OBJECTIVES............................................................................................................4

RESEARCH METHODOLOGY.....................................................................................................4

REVIEW OF LITERATURE..........................................................................................................4

INTRODUCTION..........................................................................................................................5

UNDERSTANDING LIVE-IN RELATIONSHIP IN THE INDIAN CONTEXT....................................7

WHAT WE OWE TO EACH OTHER: RIGHTS AND LIABILITIES OF PARTNERS IN A LIVE-IN

..................................................................................................................................................11

MARRIAGE:..........................................................................................................................12

MAINTENANCE:...................................................................................................................12

INHERITANCE:.....................................................................................................................13

STATUS OF CHILDREN........................................................................................................13

A. LEGITIMACY:..........................................................................................................13

B. MAINTENANCE RIGHTS:.........................................................................................13

C. INHERITANCE RIGHTS:.........................................................................................13

CONCLUSION AND SUGGESTIONS...........................................................................................14

BIBLIOGRAPHY........................................................................................................................15

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STATEMENT OF PROBLEM

The current legal standpoint on live-in-relationship fails to take into account the intention of
the parties while entering into such an arrangement by conferring a presumption of marriage
in a relationship which was an escape from matrimonial duties and obligations

HYPOTHESIS

An effective regulatory framework that focuses upon the intention of the parties at the time of
entering into the arrangement would be beneficial in determining whether their relationship is
in nature of marriage or not.

RESEARCH QUESTIONS

The present research work involves the following questions:

1. What is the current legal standpoint regarding live-in-relations in India?

2. Whether live-in couples have rights and liabilities like married couples?
3. How can live-in relationships be governed in Indian scenario?
4. To what extent does live-in-relationship facilitate polygamy or polyandry?

RESEARCH OBJECTIVES

The present study has been undertaken:

1. To examine the legality of live-in-relationship and legal status of live-in partners and
their children.
2. To contemplate the rights and liabilities of live in partners.
3. To scan the response of judiciary upon live-in-relationship

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RESEARCH METHODOLOGY

The method employed for collection of data for research has been doctrinal, analytical and
descriptive.

REVIEW OF LITERATURE

The present research has been made by the researcher by critically analysing various existing
sources on the subject matter. Some of these sources are as follows:

1. Jayanta Ghosh in book ‘Live in Relationship & Hindu Marriage: A Critical Legal
Analysis’ focuses upon some of the recent popular cohabitation patterns in India i.e.
adult heterosexual non-marital cohabitation, popularly termed live-in relationship and
the legal moves thereon. As some popular and judicial readings seem to suggest legal
sanction and recognition of new forms of non-marital heterosexual cohabitation
patterns in India, these legal moves do not unambiguously signify that. Through a
critical examination it is shown that the legal changes are primarily directed at taking
cognizance of women's vulnerable position within conventional forms of non-marital
relations. Such critical examination has been done of some recommendations and
aspects of the Malimath Committee and the debates ensuing from the Protection of
Women from Domestic Violence Act, 2005. In the absence of such legal changes
being explicitly cognizant, the contradictory interpretations and conflicting
implications arise in response to diverse forms of live-in relations prevalent in
contemporary society.
2. Beliza Ann Furman in her book ‘Test-driving Marriage’ looks at the pros and cons
of an unwed, live-in relationship with advice on finances and establishing space,
boundaries, and privacy, and describes a variety of living-together relationships. She
also provides solutions for coping with the nuances of unofficial marriage.
3. Assistant Professor Manbir Bhinder in ‘Live -In -Relationship: In A Marriage
Centric India’ an article authored by her considers marriage as sacrament and live in
relationship though not illegal but socially and morally improper. She considers the
avoidance of responsibility as a main reason of live in relationship. She discusses the

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position in India with the help of few cases and then recognizes the need of protection
of rights of female partner. After highlighting the rights of children born out of live-in
relationships, she discusses the live in relationship in relation to Indian society and
finally concludes that rights of partners and child born out of live-in relationships
should be protected by granting legal status to these relationships but only after
considerable period of cohabitation.

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INTRODUCTION

It is a common proverb that matches are made in heaven and enjoyed on earth. The concept
of marriage is a universal one. The ceremonies may differ across religions and communities
however its primary purpose remains the same- providing legitimacy to intimate relations
between two people. The institution of marriage is of paramount importance to the society
since it helps in bringing stability in relations 1. It is also the primary method for carrying
forward the civilization, culture and progeny.

Marriage may take several forms under different religions and customs. For instance, under
the Hindu Law, marriage is considered a sacrament whereas under the Muslim Law it is a
contract. As such, for a marriage to be valid certain conditions must be necessarily met which
are elaborated under the personal laws of each religion. One such factor that must be
considered is that the marriage must have been validly solemnized. Section 7 of the Hindu
Marriage Act clearly elucidates upon the necessity of fulfillment of the essential rituals and
ceremonies for a marriage to be considered to have been solemnized. Even the Special
Marriages Act talks about a procedure that must be followed for solemnization and
registration of marriage. Only after such conditions are fulfilled is the marriage said to have
been validly solemnized. The importance of valid solemnization of marriage becomes
relevant when one spouse seeks divorce or separation from the other and the question of
maintenance arises. It also becomes relevant in cases where one spouse is accused of adultery
or of bigamous relations.

An axillary yet relevant question that must be raised while talking about solemnization of
marriage is of the legal status of a live-in relationship. The concept of pre-marital and non-
marital co-habitation has garnered interest in the recent decades and has become a field of
interest for many academicians. The concept of live-in- relationship is often understood as a
contract that may be terminated by either part unilaterally without any repercussions (as
opposed to a contract of marriage under Muslim Law) and one that must be renewed
everyday by mutual consent.

It is nothing more than “an arrangement of living together under one roof where the couple
is unmarried to conduct a long-going relationship similarly as in marriage.” It is more
commonly referred to as a de facto marriage and is fast replacing the institution of marriage
1
SHOMA A. CHATTERJI, THE FAMILY IN FLUX 256 (1 ed. Sage Publications Delhi, 2007).

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among the upcoming generation. An arrangement much like the institution of marriage in the
absence of any ceremonies and rituals to guarantee it some form of legitimacy is what a live-
in relationship is. Keeping this in mind what must be considered next is what effect does the
absence of performance of ceremonies have upon the legal status and safeguards of the live-
in-partner? Can they be considered “married” in the eyes of law for purposes like
maintenance? What exactly would be the legal status of the child born out of such an
arrangement?

Pre-marital cohabitation for a long time has remained outside the purview of law and thus
unregulated. However, when disputes among such co-habitats arose, especially regarding
maintenance of women who had been in such a dependent relationship for a long time but
had no real legal standing, the courts (especially the US Courts) rose to the occasion and
applied the Doctrine of Common Law Marriage. Under this Doctrine the courts considered
the couple to be married in the eyes of the law for imposing certain liabilities and duties on
either party. It functioned primarily to benefit women to give them the legal rights that a wife
or a widow might have.2 This doctrine was synonymous to the system of long-term
cohabitation in the modern era.

2
Cynthia G. Bowman, Legal Treatment of Cohabitation in the United States, 26(1). LAW & POLICY 145,
(2004).

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UNDERSTANDING LIVE-IN RELATIONSHIP IN THE INDIAN CONTEXT

For a long time, live-in-relationships remained a foreign concept to the Indian mindset. The
idea of a man and woman living together out of wedlock seemed like a grossly immoral idea
incompatible with the Indian culture and tradition. Gradually, however, with the emergence
of metropolitan cities and decline of family values, live-in-relationships began emerging.
Now, they are a norm in most industrialized cities.

A major factor for their popularity has been the general lack of responsibility and liability
that is owed by both partners to one another. While the situation is different in cases where
the partners have co-habited for an extended period of time and have lived together much like
a married couple without solemnization of marriage, generally either party does not owe any
obligation towards the other party that may arise in a wedlock.

While the transformation of society is underway to adapt to such a concept, the courts of the
country have tried to elucidate upon the legal status of such an arrangement through the cases
that arose before the. Live-in-relationship was formally defined by the court in Alok Kumar v.
State3,

“Live-in relationship is a walk-in and walk-out relationship where neither any strings are
attached, nor does it create any legal bond between the parties. It is a contract of living
together which is renewed every day by the parties and can be terminated by either of the
parties without the consent of the other party and one party can walk out at will at any time.”

The legal sanction for live-in-relationship was expressly given by the court in the case of
Khushboo v. Kanniammal4 wherein it stated that there is no law in force in India which
prohibits the living together of two consenting adults. The bench also referred to the case of
Lata Singh v. State of U.P.5 for authority and reiterated that,

“A live-in relationship between two consenting adults of heterogenic sex does not amount to
any offence (with the obvious exception of ‘adultery’), even though it may be perceived as
immoral. A major girl is free to marry anyone she likes or live with anyone she likes.”

3
Alok Kumar v. State and Another, Cr. M.C. No. 299/2009.
4
Khushboo v. Kanniammal, JT 2010(4) SC 478.
5
Lata Singh v. State of U.P, AIR 2006 SC 2522.

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Pre-marital co-habitation, though considered immoral and contrary to the culture and
traditions of India, is not illegal. The courts have made it clear that when two consenting
adults wish to live together without getting married, they may do so without fear of any
intervention. Though such an act would be frowned upon by the society, there is a difference
between law and morality and such a difference allows room for exercise of private rights.6

the enactment of The Protection of Women from Domestic Violence Act, 20 has brought
about a tremendous change the legal standing of live in relationships. hey by recognizing
such relationships which are in the nature of a marriage the legislature has finally accepted
the contemporary global phenomena hey and its presence in the Indian society. The act
provides that:

“Aggrieved person means 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.” 7

The Act further provides:

“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.”8

The Act has effectively made a distinction between ‘relationship of marriage’ and
‘relationship in the nature of a marriage’. The Act makes it clear that a woman who has
entered in either of them for a long period of time is entitled to claim benefits of the Act.

The Supreme Court opined on the same and said that:

“Relationship in the nature of marriage is akin to a Common Law Marriage. Common Law
Marriages require that although not being formally married: (a) The couple must hold
themselves out to society as being akin to spouses, (b) They must be of legal age to marry, (c)
They must be otherwise qualified to enter into a legal marriage, including being unmarried,
(d) They must have voluntarily cohabited and held themselves out to the world as being akin
to spouses for a significant period of time.”9

6
Payal Sharma v. Superintendent, Nari Niketan, and Others, AIR 2001 All 254.
7
Protection of Women from Domestic Violence Act, 2005, § 2, cl. a.
8
Protection of Women from Domestic Violence Act, 2005, § 2, cl. f.
9
D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479 at para 33.

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The Court therefore has equated a live-in relationship to be akin to a Common Law Marriage
which is often considered to be an arrangement ‘in nature of marriage’. A somewhat
contradictory view was however put forth by the courts in the case of Indra Sarma v. V.K.V.
Sarma10. In this case the court was of the opinion that all live-in-relationships would not
necessarily be in the nature of marriage. A subjective analysis of the conditions of the
relationship must be made to determine the extent of dependability of partners on one
another. A list of factors to be considered were laid down which mentioned below:

1. Duration of period of relationship:

Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 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 Domestic Violence Act,
2005 and hence court didn’t feel the need of further elaboration. Section 2(s)
provides: ‘shared household’ means a household where the person aggrieved lives or
at any stage has lived in a domestic relationship either singly or along with the
respondent and includes such a household whether owned or tenanted either jointly
by the aggrieved person and the respondent, or owned or tenanted by either of them
in respect of which either the aggrieved person or the respondent or both jointly or
singly have any right, title, interest or equity and includes such a household which
may belong to the joint family of which the respondent is a member, irrespective of
whether the respondent or the aggrieved person has any right, title or interest in the
shared household.
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:

10
Indra Sarma v. V.K.V.Sarma, AIR 2014 SC 309.

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Entrusting the responsibility, especially on the woman to run the home, do the
household activities like cleaning, cooking, maintaining or up keeping 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. Socialization in Public:
Holding out to the public and socializing 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.”11

11
Indra Sarma v. V.K.V.Sarma, AIR 2014 SC 309 at para 55.

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WHAT WE OWE TO EACH OTHER: RIGHTS AND LIABILITIES OF PARTNERS

IN A LIVE-IN

The concept of live-in-relationships has become a prevalent part of the Indian society and
there is no denying that. Over the past decade, the number of couples in live-in-relationships
has gone up significantly in the urban cities. It has emerged as an alternative to marriage for
the millennial generation who often whish to live together for a few years to ‘test their
compatibility’ before entering matrimony.

MARRIAGE:
Individuals cohabiting together outside of wedlock are considered married in the eyes of the
law for certain specific conditions. However, this holds true only for unmarried individuals as
was laid down in the case of Lata Singh v. State of U.P.12 A position contrary to this would
imply circumvention of the bigamy clause under the IPC and the Hindu Marriage Act and
would be ultra vires the settled principle of law. Thus, a live-in-relationship cannot be treated
as “a walk in and walk out relationship”. Presumption of marriage is necessary for
exercising certain rights and liabilities against each other.

By the case of S.P.S. Subramaniyam v. Suruttayan13, the Supreme Court reiterated the
presumption of marriage principle stating that, “if a man and a woman cohabit for a long
duration of time, it will be presumed under Section 114 of the Indian Evidence Act that they
are living together as husband and wife.” The court however, failed to consider the question
of consent and intention of parties in entering into such a relationship. Live-in-relationships is
the product of busy lifestyles which hardly focus on the formation of families. In such a
scenario, unnecessarily burdening the couples in live in relations with the legal duties of
marriage from which they were intending to be free from in the first place, seems contrary to
sense and reason.

MAINTENANCE:
Prior to the enactment of Protection of Women from Domestic Violence Act, 2005, the
unmarried partner could not be equated to his ‘wife’ and therefore had no right to

12
Lata Singh v. State of U.P, 1 (1996) 4 SCC 76.
13
S.P.S. Subramaniyam v. Suruttayan, 1992 Supp (2) SCC 304.

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maintenance from her live-in partner14. Even if one of the partners was already married and
had hidden such a fact from the other partner, no maintenance or relief could be claimed by
the live-in-partner.15

However, with the case of Narinder Pal Kaur Chawla v. Manjeet Singh Chawla16, the court
began relying the Protection of Women against Domestic Violence Act, 2005 to enable the
live-in partner to claim maintenance when the fact that he was already married was not
previously disclosed to her.

This significant change had been given impetus in 2003 with the suggestion by the Malimath
Committee in its Report on the “Reforms in the Criminal Justice System” whereby it
suggested that in Section 125 of the CPC the word “wife” be amended and instead include the
term “woman living for a reasonable period”.

Thus, the PWDA is the first statute to hold live-in-relationships on the same footing as a
marriage. The same protection, however, is not extended by the provisions of the personal
laws.

INHERITANCE:
The right to inheritance that the legal wife has is not extended to the live-in-partner. The
Hindu Succession Act does not allow for the mistress of a male Hindu to claim any
succession rights on his property. The Supreme Court in the case of Vidhyadhariv. Sukhrana
Bai17, however, allowed for succession of property of the inestate male by the mistress even
though the legal wife was alive.

STATUS OF CHILDREN
A. LEGITIMACY:
The legitimacy of a child depends upon the validity of marriage of the parents 18. In the
cases where the relationship is considered to be in nature of marriage by the courts,
the child born out of such a union is not considered to be illegitimate.19

14
Malti v. State of U.P, 0 2000 Cri LJ 4170 (All).
15
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav,1988 SCC (Cri) 182.
16
Narinder Pal KaurChawla v. Manjeet Singh Chawla, AIR 2008 Del 7.
17
Vidhyadhariv. Sukhrana Bai, (2008) 1 SCC (L&S) 451.
18
Indian Evidence Act, 1872 § 112.
19
Tulsa v. Durghatiya, (2008) 4 SCC 520.

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B. MAINTENANCE RIGHTS:
The right to maintenance of the children born to parents in a live-in-relationship was
expressed by the Supreme Court in the case of Dimple Gupta v. Rajiv Gupta20. The
court held that, as long as the child is a minor, legitimate or not, he/she has a right to
claim maintenance from his/her biological parents. However, this right ceases to exist
as soon as they attain the age of majority.

C. INHERITANCE RIGHTS:
The inheritance rights of a child depend upon his status of legitimacy. The legitimacy
of a child borne out of a live-in-relationship depends on whether or not the
relationship was in the nature of a marriage. This, as explained before, depends upon
several factors one of them being the time duration of the relationship. Thus, if the
couple cohabited for a reasonable period of time and their relationship can be said to
be in nature of a marriage the child born out of it would be considered legitimate and
thus entitled to inherit the property of both the mother as well as the father21.
Since inheritance is a subject covered primarily by personal law, the effect of
illegitimacy of a child has different repercussions for different religions. For instance,
in the Shariat law the illegitimate child has no claim to inheritance from either parent
but the Hindu Law allows for an illegitimate child to inherit only from his birth
mother.

20
Dimple Gupta v. Rajiv Gupta, (2007) 10 SCC 30.
21
Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238.

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CONCLUSION AND SUGGESTIONS

Over the past decade, the Indian society has seen a tremendous change of attitude towards
pre-marital cohabitation. Meanwhile, the legislature is still lagging in its duty of effectively
regulating the same. There is a gap in legislation when it comes to matters relating to
maintenance of women in live-in-relations, their property rights over their partner as well as
matters pertaining to domestic abuse, dowry, sexual abuse and violence etc. The laws on
status of a child born to a pre-marital couple- his maintenance and inheritance rights, the
issue of his legitimacy and guardianship and adoption issues still remain open ended.

The judiciary has done a commendable job in extending the existing provisions to the issues
of pre-marital couples wherever possible. This has been done primarily to ensure the safe and
protection of women in such relationships. Laws on women and child such as Section 125 of
Code of Criminal Procedure and Sections 498A and 304B of the Indian Penal Code, have
been read liberally by the courts to legally protect the interests of women in such
relationships.

There is however, still an urgent need for a legislation governing the rights and liabilities of
partners in a pre-marital cohabitation as well as the children borne out of them. In the absence
of any express statute, judicial interpretation on a case-by-case basis is not sufficient for
efficient dispensation of justice. Mere extension of existing laws cannot begin to cover the
wide expanse of area of law that is required to regulate pre-marital cohabitation in India.

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BIBLIOGRAPHY

Books and Articles

1. Cynthia G. Bowman, Legal Treatment of Cohabitation in the United States, 26(1).

LAW & POLICY 145, (2004).
2. Shoma A. Chatterji, The Family in Flux, 256 (1 ed. Sage Publications Delhi, 2007).
3. Beliza Ann Furman, Test-driving Marriage, (Barricade Books, 1998).
4. Ghosh, Dr. Jayanta. Live in Relationship & Hindu Marriage: A Critical Legal
Analysis, (2015).

Other Sources

1. Protection of Women from Domestic Violence Act, 2005.

2. Indian Evidence Act, 1872.
3. Alok Kumar v. State and Another, Cr. M.C. No. 299/2009.
4. Khushboo v. Kanniammal, JT 2010(4) SC 478.
5. Lata Singh v. State of U.P, AIR 2006 SC 2522.
6. Payal Sharma v. Superintendent, Nari Niketan, and Others, AIR 2001 All 254.
7. Indra Sarma v. V.K.V.Sarma, AIR 2014 SC 309 at para 55.
8. Malti v. State of U.P, 0 2000 Cri LJ 4170 (All).
9. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav,1988 SCC (Cri) 182.
10. Narinder Pal KaurChawla v. Manjeet Singh Chawla, AIR 2008 Del 7.
11. Vidhyadhariv. Sukhrana Bai, (2008) 1 SCC (L&S) 451.
12. Tulsa v. Durghatiya, (2008) 4 SCC 520.

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