LIVE IN RELATIONSHIP IN INDIA IS STILL A TABOO?

C.G. Eeshwaa (II year B.A.LLB (Hons))

Email id: eeshwaarks@gmail.com, Contact number: +91 63835 50954

School of Law, Sathyabama Institute of Science and technology.

ABSTRACT:

Live in relationship’ is a living arrangement in which an unmarried couple lives together in a

long term relationship that resembles a marriage. Such a relationship is also known as
Common law marriage i.e. informal marriage or marriage by habit and repute. Live-In
Relationship has been one of the most controversial legal topics in the instant past. The
aspects of Live-in relationship was not very clear in India until the Hon’ble Supreme Court
gave its landmark judgment in D Veluswamy Vs D Patchaiammal on 21st October, 2010
about 'relationship in nature of marriage' under Protection of Women from Domestic
Violence Act, 2005. Live in relationship form a characteristic feature and style of living of
couples, especially those in metropolitan areas. However, the definition and ambit of live in
relationship is very unclear, there is no specific legislation in India on this subject, and the
laws are in the form of court verdicts which varies from case to case. This paper has made an
attempt to analyze the concept and legal status of live-in- relationship in India and judicial
approaches towards the same.

Key words: Valid Marriage, Legal Status, Legitimacy, Walk in and Walk out relationship,
Live – in Status.

I. INTRODUCTION

It's really being said that change is the only thing that's constant in this world. Over the past f
ew years, Indian society has witnessed a drastic change in its living pattern. People open their
minds slowly and gradually to the idea of pre-marital sex and living-in relationships.
Nevertheless, this reform has been continually been debated and widely discussed because
the culture lacks legitimacy and acceptance of such ideas .Unlike marriage, partners are not
married to each other in live-in relationships, but live together under the same roof as a
marriage-like relationship. We can say that it's cohabitation, in other words. In India, only
those relations between a man and a woman is considered to be legitimate where marriage
has taken place between the two based on existing marriage laws otherwise all other sort of
relationships are deemed to be illegitimate. The reason for people choosing to have a live
relationship is to make sure that the couples are compatible before they get married. In the
case of a breakup, it also excludes partners from the chaos of family drama and lengthy court
proceedings. Whatever the cause, it's evident that an increasing number of couples choose to
have a live relationship over marriage as a perpetual arrangement in a patriarchal society such
as ours where marriage is considered to be "sacred." Several legal and social problems were
raised, which were the subject of debate under these circumstances. In the course of time,
several cases have been recorded and seen where couples over living relationships or children
born from these have remained vulnerable because they are not part of the rule of law. The
partners ' live relationships have been badly misused as they have no duties and
responsibilities. The purpose of this article is to examine the judicial response so far to the
principle of living relations. It also discusses the rights of live partners in India as well as how
children who are born from these relationships are concerned.

II. Difference between Live-in- relationship and Marriage

Marriage, also called marriage or wedlock, is an agreement or contract between partners that
acknowledges the socially and ritually accepted existence of some rights and legal obligations
to one another. In view of the diverse culture in India, various laws setting out procedure and
guidelines for proper marriage in different religions have been created. In order to provide for
conflicts resulting from marriage in different religions, the marriage laws have been created.
Due to the different customs and traditions, each of them practiced individual acts were
presented for a single religion. In cases of inter cast marriages the Special Marriage Act is
applicable. Section 125 of the Code of Criminal Procedure (1973)1 provides not only for
maintenance under personal law, but also for maintenance of a partner, among other things,
who can’t maintain herself. Females can seek additional support, other than support received
by them pursuant to any other law pursuant to Section 20(1)(d) of the Domestic Violence Act
(DV Act), 20052. Simple living relationships can be described as a marriage relationship
where both spouses enjoy individual freedom and are living in a shared household without
being married. This includes continuous coexistence among the parties without obligations or
responsibilities. There is no rule that ties them together, so that each spouse can leave the
relationship as and when she wants.

1
Durga Das Basu: The Criminal Procedure Code 1973
2
Commentary on Protection on Women’s rights
There is no legal definition of living in partnerships and therefore these relationships do not
have a legal status. The Indian law does not give the parties in living relations any rights or
responsibilities. The status of kids born in such a relationship is also ambiguous, and
subsequently through several judgements the Court has explained the concept of living in
relationships. The Court explicitly affirmed that, if the statute proves wrong, all men and
women living together over the long term are considered to be legally married. In compliance
with the Domestic Violence Act 2005 and the specific facts of the case, the Court shall decide
the right to live relationships.

The security of women from domestic violence Act 2005 provides for protections and
preservation and therefore grants a live partner with the right to a grievous live partner to
feed, although a common man often hesitates to consent to this type of relationship.

III. How live-in is defined under Law?

The Supreme Court in Indra Sarma vs. V.K.V. Sarma 3defined live-in relationships in five
distinct ways- A domestic cohabitation between an adult unmarried male and an adult
unmarried female. This is the simplest kind of relationship.

Home cohabiting (entered together) between a married man and an adult unmarried woman.
The home life of a single male and a married female is the most nuanced gray areas for
understanding living ties. These two are the most complex areas. In addition, adultery that
can be punished under the Indian Penal Code is the second type of relationship. A domestic
cohabitation between an unmarried adult female and a married male entered unknowingly is
punishable under Indian Penal Code as well. A domestic cohabitation between two
homosexual partners, which cannot lead to a marital relationship in India as no marital laws
against homosexuality are defined yet.

IV. Landmark Judgements Over Years

Following are the landmark Supreme Court judgment on the concept of live in relationship:

Badri Prasad vs. Dy. Director of Consolidation, 19784

This was the first case in which the Supreme Court of India recognized live in relationship
and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year

3
2013 15 SCC 755
4
Air 1978 Sc 1557; 1979 (1) Scr 1; 1978 (3) Scc 527 (1 August 1978)
live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption
arises in favour of wedlock where the partners have lived together for a long term as husband
and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to
deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon
bastardy.

Tulsa & Ors vs. Durghatiya & Ors, 2008 5

The Supreme Court provided legal status to the children born from live in relationship. It was
held that one of the crucial pre-conditions for a child born from live-in relationship to not be
treated as illegitimate are that the parents must have lived under one roof and co-habited for a
considerably long time for society to recognize them as husband and wife and it must not be a
"walk in and walk out" relationship. Therefore, the court also granted the right to property to
a child born out of a live in relationship.

D.Velusamy vs. D.Patchaiammal, 20106

The judgment defined certain conditions that would be appropriate for a living in a
partnership. This stipulates that the couple must be deemed to be like partners and must be
legal in age or eligible in marriage, even unmarried, to enter into legal marriage. It was
claimed that the pair had coexisted peacefully for a considerable period of time and were
considered to be close to partners. The court held that not all relationships represent a
marriage relationship and benefit from the Domestic Violence Act. Therefore, it was
explained that a man would not be considered married in the courts if he kept a wife as a
servant and maintained her financially and used mostly for sexual purposes. The criteria
alluded to by the Court must therefore be met and proven with evidence in order to gain such
a profit.

The court relied here on the idea of "palimony" used in the United States for live
maintenance. In Marvin vs. Marvin, a landmark decision of the California Superior Court, the
principle of palimony was derived.

S. Khushboo vs. Kanniammal & Anr, 20107

5
(2008) 4 SCC 520
6
CRIMINAL APPEAL NOS. 2028-2029 OF 2010
7
(2010) 5 SCC 600
The Supreme Court in this case dropped all the charges against the petitioner who was a
south Indian actress. The petitioner was charger under Section 499 of the IPC and it was also
claimed that the petitioner endorsed pre-marital sex and live in relationships. The court held
that living together is not illegal in the eyes of law even if it is considered immoral in the eyes
of the conservative Indian society. The court stated that living together is a right to life and
therefore not ‘illegal’.

Indra Sarma vs. V.K.V.Sarma, 20138

The recent judgment of the Supreme Court has illustrated five categories where the concept
of live in relationships can be considered and proved in the court of law. Following are the
categories:

1. Domestic relationship between an adult male and an adult female, both unmarried. It
is the most uncomplicated sort of relationship
2. Domestic relationship between a married man and an adult unmarried woman, entered
knowingly.
3. Domestic relationship between an adult unmarried man and a married woman, entered
knowingly. Such relationship can lead to a conviction under Indian Penal Code for the
crime of adultery
4. Domestic relationship between an unmarried adult female and a married male, entered
unknowingly
5. Domestic relationship between same sex partners ( gay or lesbian)

In compliance with Section 2(f) of the Protection of Women Against Domestic Violence Act
2005, The Court stated that a live relationship falls within the term ' relationship in the nature
of marriage.' A thorough examination of the whole relationship should also be made, in other
words, all aspects of the interpersonal relationship, including the individual factors, should be
taken into account. In this case, the Court affirmed that the marital arrangement in the case at
question is not "the nature of the marriage relation" because it has no intrinsic or necessary
feature of marriage but "the nature of marriage" relationship and the appellant's status is
lower than the status of the wife. In this case, although the intimate was a married man with
two children born out of wedlock who opposed live since the creation, the appellant evidently
entered into a relationship with the invoked male. The Court further added, “If we hold that

8
Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448 [K.S. Radhakrishnan and
Pinaki Chandra Ghose, JJ.]
the relationship between the appellant and the respondent is a relationship in the nature of a
marriage, we will be doing an injustice to the legally wedded wife and children who opposed
that relationship. Consequently, any act, omission or commission or conduct of the
respondent in connection with that type of relationship, would not amount to “domestic
violence” under Section 3 of the DV Act, as there is also no evidence of a live-in relationship
between the appellant and the respondent as per the given guidelines”. The Court held that
the relationship between the appellant and the respondent was not a relationship in the nature
of a marriage, and the status of the appellant was that of a concubine. Furthermore, the
Domestic Violence Act does not take care of such relationship which may perhaps call for an
amendment of the definition of section 2(f) of the DV Act, which is restrictive and
exhaustive.

V. Legal Status of Live in relationship in India

The first time when the Supreme Court held the legitimacy of children born out of live-in
relationship was in S.P.S. Balasubramanyam v. Suruttayan9, the Supreme Court 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.” Further, the court interpreted the
status and legislation to an extent that it shows conformity from Article 39(f) of the
Constitution of India which sets out the obligation of the State to give the children adequate
opportunity so that they develop in proper manner and further safeguard their interest.

Dealing with the recent case on the legitimacy of children of such relationships, Supreme
Court in Tulsa v. Durghatiya10 has held that a child born out of such relationship will no
longer be considered as an illegitimate child. The important precondition for the same should
be that the parents must have lived under one roof and cohabited for a significantly long time
for the society to recognise them as husband and wife and it should not be a “walk-in and
walk-out” relationship.11

In another case Bharatha Matha v. R. Vijaya Renganathan12, the Supreme Court held that a
child born out of a live-in relationship may be allowed to inherit the property of the parents
(if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian

9
AIR 1994 SC 133.
10
AIR 2008 SC 1193.
11
Madan Mohan Singh v. Rajni Kant, (AIR 2010 SC 2933).
12
AIR 2010 SC 2685.
judiciary in the absence of specific legislation have been protecting the rights of the children
by giving law a broader interpretation so that no child is “bastardised” for having no fault of
his/her own.

On 31-3-2011 a Special Bench of the Supreme Court of India consisting of G.S. Singhvi,
Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun13 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. This is the crux of Section 16(3) of the
amended Hindu Marriage Act, 1955.

VI. Conclusion

The discussion centered on living relationships, since it poses challenges to our fundamental
society. It is not seen as an offence since no law exists until such time as this arrangement is
prohibited. The Indian judiciary has taken a measure, made interpretations and made such
provisions valid in order to bring justice to those women who suffer from live relationships.
Still India has not legalized it, legalization means special laws. There is currently no law or
statute that specifically governs succession, maintenance or custody in connection with live-
in relationships. In 2005, however, the legislature acknowledged the right of couples living in
an intimate partnership to insurance for the protection of women from domestic violence Act.
It has acknowledged live relationships by different judgements in order to protect individuals
from violence. At the same time, courts often resisted, by requiring compulsory agreements
between unmarried couples to take some sort of positive step in the legalization of such
activity as might clash with the overall social strategy. The Indian judiciary is clearly not
willing to deal with any sort of living relationship as marriage. It is quite clear. The advantage
of the 2005 Act is that relations between pairs are only stable and reasonably long. The
judiciary's responsibility is to ensure the law takes the changing social situation into account.
Although courts have provided a clear picture of living-in relationships through various
judgements and legislation, there are still various aspects unknown where there is a
compelling need for various rules, regulations and codification of such relationships.
In the opinion of the author, a separate law must be enacted on this current issue in order to
protect the rights of the living spouses, children born from such partnerships and of all

13
(2011) 2 UJ 1342.
persons likely to be affected. Not every living partnership should be granted a legal status,
but only those that fulfill certain basic criteria. At the same time, live couples should also be
aware of the legal ramifications of such a living arrangement.

VII. References
1. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/
2. https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-
relationships
3. https://www.thebetterindia.com/132607/want-to-get-into-a-live-in-relationship-here-are-the-
rights-you-need-to-know/
4. https://indiankanoon.org/
5. <https://timesofindia.indiatimes.com/india/Couple-living-together-will-be-presumed-married-Supreme-
Court-rules/articleshow/46901198.cms>
6. Commentary on Protection of Women and Domestic Violence Act, 2005 and Rules
2006.
7. Durga Das Basu Code of Criminal Procedure Code, 1973
8. Family Law and Constitutional Claims: Flavia Agnes : Volume 1
9. Family Law: Ruth Lamont
10. Jonnath Hearing : Family and legal relations