Dr.RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

SUBJECT: LAW AND MORALITY

FINAL DRAFT

TOPIC-LIVEIN REALTIONSHIP: REVIEW AND ANALYSIS

SUBMITTED TO:- SUBMITTED BY:-

Dr. A.P Singh Abhisht HelaProf. Of Law   Semester IXthRMLNLU Roll no.- 07

LIVE IN RELATIONSHIP- REVIEW AND ANALYSIS

The Project deals with the issue of live in relationship which is very common these days.

However, law on this issue is not very clear either in India or abroad. While case by case basis

court is adumbrating the law with regard to live in relationships, there are many questions that

need to be answered. The rights guaranteed to female live in partners along with the rights of

child born out of such relationships ought to be secured. However, it has to be kept in mind that

when law is giving legal sanction to live in relationships, it does not impede upon the institution

of marriage as many a times men who get into live in relationship is already married. If live in

relationships are recognized prima facie then it may implicitly promote bigamy. Law should

have a discernible stance with respect to live in relationships and the aftermath of such relations.

INTRODUCTION

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.

The right of woman in such relationship is also not very certain, though court has shown

willingness in recognizing their rights. Law like Protection of Women from Domestic Violence

Act, 2005 recognizes right of woman in such relationship, nonetheless various other laws such as

law of marriage, succession etc. needs to be changed to give full protection to woman in live in

relationship.  As far as the right of child born under such relationship is concerned, under Hindu

Marriage Act, 1955 such child will be legal, nevertheless there is no such law apart from HMA,

and 1955 that endorses presumption of legality of child born out of live in relationship.

 

Though at global level as well, laws are not very clear on live in relationship, showing a common

theme of aloofness and hesitation amongst countries to recognize such relationships.

 

Nevertheless, as far as Indian scenario is concerned, there is a dire need to recognize such

relationship in form of a new legislation that will clearly dictate the ambit of live in relationship

and the rights and obligation of partners in such relationship.

 

FACETS OF LIVE IN RELATIONSHIPS 

The whole notion of live in relationship is not as simple as it appears but is multi-dimensional

bringing along with it many issues and complications.

Legal Status of Live-in Relationships

 

The legal status of such live in couples lacks a definition. The rights and obligation which such

couples have towards each other and the status of children born out of such a tie exudes a blurred

shadow. No law on the subject has been formulated; the law is adumbrated in the court rooms via

myriad cases. When it comes to live in relationships, in earlier cases the court tended to presume

marriage based on the number of years of cohabitation.

In the cases prior to independence like A Dinohamy v. WL Blahamy[1],1 the Privy Council laid

down a broad rule postulating that.“Where a man and a woman are proved to have lived

together as a man and wife, the law will presume, unless the contrary be clearly proved, that

they were living together in consequence of a valid marriage and not in a state of

concubinage.” The same principle was reiterated in the case of Mohabhat Ali v. Mohammad

Ibrahim Khan[2].

After independence the first case that can be reviewed is Badri Prasad v. Dy. Director of

Consolidation [3], wherein the Supreme Court recognized live in relationships as valid marriage,

putting a stop to questions raised by authorities on the 50 years of life in relationship of a couple.

Moving on from the initial time when the court recognized live in relationship which were of

considerably long period, court in recent cases have postulated that live in relationship are not

illegal per se. The Allahabad High Court, in 2001, in Payal Sharma v. Superintendent, Nari

1 (1928) 1 MLJ 388 (PC)

2AIR 1929 PC 135

3 AIR 1978 SC 1557

Niketan, and others[4], stated that a live-in relationship is not illegal. Sharma had approached

the Allahabad High Court when she was forced to live in Nari Niketan at Agra, following her

arrest, along with Ramendra Singh, with whom she had a live-in relationship. The Agra police

arrested her and Singh on the basis of an FIR lodged by her father, accusing Singh, an already

married man, of kidnapping Sharma. Payal Sharma produced documentary evidence evincing the

fact that she was 21 years old. On the basis of this evidence, the court directed the authorities to

set her free. Justice M Katju and Justice R.B. Mishra stated, “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 is not illegal. There is a difference between law and morality.“

In Patel and others case,[5] the Supreme Court observed that live- in –relation between two

adults without a formal marriage cannot be construed as an offence. It also stated that there is no

such statute which postulates that live in relationships are illegal. The same proposition was

upheld in the case of Tulsa v. Durghatiya,[6] where the long term live in relationship was

recognized as equivalent to marriage.

The further sanction to live in relationship was granted by judgement of Supreme Court on

23rd of March, 2010 in the Khushboo case[7]2. The case of the prosecution was that the

comment of the actress Khushboo allegedly endorsing pre-marital sex will adversely affect the

moral fabric of society. The Court, while quashing the charges framed on Khushboo, commented

that there is no law that prohibits pre-marital relationships. A three judge bench comprising of

Chief Justice K.G. Balakrishnan, Justice Deepak Verma and Justice B.S. Chauhan observed,

“When two adult people want to live together what is the offence. Does it amount to an offence?

Living together is not an offence. It cannot be an offence“. The court further said “Please tell us

what is the offence and under which section. Living together is a right to life“, thereby referring

24 2001 (3) AWC 1778

5 (2006) 8 SCC 726

6 (2008) 4 SCC 520

7 JT 2010 (4) SC 478

to the right to life guaranteed under Article 21. Though this was an obiter dictum, it provided a

positive impetus to live in relationships.

However, this position is not all binding. The Delhi High Court, in a recent case, observed that a

live in relationship is a walk in and walk out relationship. Justice S.N. Dhingra noted, “There are

no legal strings attached to this relationship nor does this relationship create any legal-bond

between the partners”. The court further added, “People who choose to have live-in relationship

cannot complain 3of infidelity or immorality as live-in relationships are also known to have been

between a married man and unmarried woman or vice-versa”[8]4

D.Velusamy vs D.Patchaiammal on 21 October, 2010

In our opinion a `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.

Indian society is changing, and this change has been reflected and recognized by

Parliament by enacting The Protection of Women from Domestic Violence Act,

2005.

Hence, though more or less uniformity has been exuded in a positive direction by the court when

it comes to live in relationships, the law does not cut a clear picture as can be observed from the

recent Delhi High Court judgement.

38 Alok Kumar v. State Crl.M.C.No. 299/2009

9Criminal Appeal Nos. 2028-2029 of 2010

4

Status of child born under a live in relationship

When it comes to the right of child born under live in relationship, we again find the law to be

groping in the dark. The Hindu Marriage Act, 1955 gives the status of legitimacy to every child,

irrespective of birth out of a void, voidable or valid marriage. However, they don’t have property

and maintenance rights. However, there is no such presumption of legality of child in any other

religion or law, in such cases, legality of the child born out of such relationship is doubtful.

Another important matter that needs to be taken note of is that, if the live in partners and the

parents desire to get out of the relationship, the future of the child comes into question. There

must be a provision to secure the right of the child, in case; none of the parent wants to keep the

child with him. Court may appoint a guardian to look after the interest of child. The child ought

to be entitled to have share, both in mother’s and father’s property.

Protection of Rights of Female Partner in Live in Relationships

The rights of female partner in live in relationship tend to be secure, credited to the recent

statutes and recommendation by the committees. Courts also display alacrity to protect the right

of female partner in such relationship as exhibited by judgements given in number of cases. The

statutes like Protection of Women from Domestic Violence Act, 2005 protects woman both in

the categories of wife i.e. relationship by marriage and live-in partner i.e. relationship in nature

of marriage[9], by reason of being embraced within the term “domestic relationship” under

Section 2(f) of the Act.  However as was discussed in D. Veluswami v. D. Patchaimmal[10]5, to

get the benefits arising from “relationship like marriage”, it is necessary that, “couple must hold

themselves out to society as being akin to spouses, they must be of legal age to marry, they must

be otherwise qualified to enter into a legal marriage, including being unmarried, they must have

510Supra, note 9

11 CRIMINAL WRIT PETITION NO.2218 OF 2007

12 Supra, note 9

13 SLP (Crl.) No. 4496 of 2006

voluntarily cohabited and held themselves out to the world as being akin to spouses for a

significant period of time.”

 

In June, 2008, The National Commission for Women recommended to Ministry of Women and

Child Development made suggestion to include live in female partners for the right of

maintenance under Section 125 of CrPC. This view was supported by the judgement in Abhijit 

Bhikaseth  Auti v. State Of Maharashtra and Others[11]. The positive opinion in favour of live

in relationship was also seconded by Maharashtra Government in October, 2008 when it

accepted the proposal made by Malimath Committee and Law Commission of India which

suggested that if a woman has been in a live-in relationship for considerably long time, she ought

to enjoy the legal status as given to wife. However, recently it was observed that it is divorced

wife who is treated as a wife in context of Section 125 of CrPC and if a person has not even been

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

maintenance under Section 125 of CrPC.[12]

The Apex Court even went on to protect the live in female partner from harassment for dowry.

In Koppisetti Subbharao Subramaniam v. State of A.P[13], the defendant used to harass his live

in partner for dowry. In the Supreme Court, Justice Arjit Pasyat and A.K. Ganguly while denying

the contention of defendant that section 498A does not apply to him since he was not married to

his live in partner held that, “the nomenclature ‘dowry’ does not have any magical charm written

over it. It is just a label given to a demand of money in relation to a marital relationship”.

Drawing parallels with the law which recognizes the legitimacy of children born of void and

voidable marriages, it explained its stand asking: “Can a person who enters into a marital

agreement be allowed to take shelter behind a smokescreen to contend that since there was no

valid marriage, the question of dowry does not arise?”

 

An important observation to be noted here is that to recognize the right of female partners in live

in relationship and consequently the protection granted via some statutes will have to be

accompanied by changes in laws of succession, adoption, marriage as well if we move in the

direction of legalisation of such relationship. Another point to be taken note of is that recourse to

such relationship was taken to circumvent the obligations, bondage and legality attached with

marriage. Bringing in such limitations and obligations even without the formal shroud of

marriage will run contrary to the whole idea of freedom and liberty associated with live in

relation.

LAWS IN OTHER COUNTRIES

Live in relationships in various countries are either recognized as it exists or it’s finding

recognition via implied provisions of different statutes that protect property rights, housing

rights. Many countries provide for live in relationship contracts in which partners can determine

their legal rights. However, when it comes to the right of child born under such relationship, law

of various countries exudes a uniform tenor of protecting their rights.

FRANCE, there is the provision of “Civil Solidarity Pacts” known as “pacte civil de

solidarite” or PaCS, passed by the French National Assembly in October 1999 that allows

couples to enter into a union by signing before a court clerk. The contract binds “two adults of

different sexes or of the same sex, in order to organise their common 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

month’s notice in writing.

PHILIPPINES, live in relationship couple’s right to each other’s property is governed by co-

ownership rule. Article 147, of the Family Code, Philippines provides that when a man and a

woman who are capacitated to marry each other, live exclusively with each other as husband and

wife without the benefit of marriage or under a void marriage, their wages and salaries shall be

owned by them in equal shares and the property acquired by both of them through their work or

industry shall be governed by the rules on co-ownership.14

UNITED KINGDOM, live in couples does not enjoy legal sanction and status as granted to

married couple. There is no obligation on the partners to maintain each other. Partners do not

have inheritance right over each other’s property unless named in their partner’s will. As per a

2010 note from the Home Affairs Section to the House of Commons, unmarried couples have no

guaranteed rights to ownership of each other’s property on breakdown of relationship. However,

the law seek to protect the right of child born under such relationship. Both parents have the onus

of bringing up their children irrespective of the fact that whether they are married or

cohabiting [15].

SCOTLAND,The live in relation were conferred legal sanctity  in the year 2006 by Family

Law (Scotland) Act. 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 factors; the length of the period during which

they lived together, the nature of the relationship during that period and the nature and extent of

any financial arrangements, in case of breakdown of such relationship, Section 28 of the Act

gives a cohabitant the right to apply in court for financial support. This is in case of separation

and not death of either partner. If a partner dies intestate, the survivor can move the court for

financial support from his estate within 6 months[16].

Laws in the UNITED STATES OF AMERICA, as well do not provide the live in

relationship couple with the rights as enjoyed by married couple. Nonetheless, couple can enter

into Cohabitation Agreement containing stipulation with regards to their rights and liabilities.

CANADA recognizes live in relationship as “Common Law Marriage”. The couple is accorded

legal sanction if the couple has been living in conjugal relationship for a year or the couple is

parents of a child born by birth or adoption[17].

In CHINA, couple can sign a contract for live in relationship. The rights of the child are

secured as the child born outside the wedlock has the same benefits as enjoyed by the child born

under a marriage[18].6

The laws of IRELAND AND AUSTRALIA also recognizes live in relationship. The

family law of Australia recognizes “de facto relationship” between couples, while in Ireland the

impetus is towards greater recognition to live in relationship as there has been demand for right

to maintenance by separated live in couples.

The position that emerges with respect to live in relationships is not very discernible and lacks a

definition in majority of the countries. While some countries have passed legislation according

legal status to live in couples, some countries are granting greater legality to such couples by the

implied provision of their statutes as discussed. In India as well, via various decisions of the

court, law is exhibiting a tendency of giving legal tinge to live in relationships.

Nevertheless, the fact remains; the legal progress of laws with respect to live in relationship and

the sweeping increase in number of such live in relationships are not running parallel to each

other. The law needs to whiz up to prescribe and proscribe speculation with respect to live in

relations.

615

Love ‘live-ins’ – Man-Woman – Relationships – Life & Style – The Times of

India 

http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Love-live-

ins/articleshow/6386392.cms#ixzz0xKIknHki (last visited on 23rd August)

16 http://airwebworld.com/articles/index.php?article=1266(last visited on 22nd august)

17 Supra

18 Supra, note 14

LIVE IN RELATIONSHIPS IN INDIAN SOCIO-LEGAL CONTEXT-

CRITICAL ANALYSIS

The manifold augmentation in the number of live in relationship couples in India may exude the

new metropolitan tenor and bondage free living but also has umpteen lacunae.

While it threatens the very notion of husband and wife and the cognition of marriage that enjoys

high level of sanctity when it comes to India, it also tends to prop up adultery, as there is no such

proscription that live in partners should be unmarried. Thus, a person might be married and be

living with someone else under the garb of live in relationship.

Live-in relationships also endorse bigamy. For instance Payal Katara v. Superintendent Nari

Niketan Kandri Vihar Agra and Others.197 here Rajendra Prasad, the person with whom plaintiff

was living in was already married. While the court recognized the right of cohabitation of the

plaintiff, what about the right of the wife of the person with whom plaintiff was cohabiting. The

question that seeks an answer with the elevation of live in relationship is what will be the status

of wife, if a person who is in live in relationship is already married as law also seek to protect the

right of live in partner under statutes like Protection of Women from Domestic Violence Act,

2005. The recommendations of Law Commission, Malimath Committee is to recognize live in

partner as wife in case of live in relationship of reasonably long time. The attitude of Apex Court

towards such relation also evinces their alacrity in recognising live in relationships. Along with

these, the suggestions to include live in female partner under the provision given in Section 125

of CrPC ends up equating the status of live in female partner and wife.

This promotes bigamy, as the person who is getting into live in relationship might be already

married. The position of the wife is disadvantageous in such situation as court on the one hand is

giving all the rights of wife to live in female partner, while on the other hand it prohibits bigamy.

Law is ambiguous and disadvantageous for the weaker sex and is not being beneficial to anyone.

While 89the right of legally wedded wife remains at stake, the right of live in female partner too

does not become secure.

719 Supra, note 5

8

9

Even if rights of maintenance etc are provided to the live in female partner, there is no guarantee

that she can actually avail those rights. Marriages grant social recognition, but there is no proof

of live in relationship; a person can easily deny the fact of live in relationship to evade liability.

In sum and substance the rights of woman remains precarious.

When we talk about the after math of a live in relationship, the rights and liabilities of partners is

deficient of delineation. What will be the rights and liabilities of such partners after separation or

the death of one of the partner. There is no law of succession and maintenance that mentions the

stipulation that protects the right of such live in couples.

The children born under such relationship, although are recognized under Hindu Marriage Act,

1955; however, it is submitted that the couples who tend to disobey the socially recognized

social tenor cannot be supposed to be people of only one religion or to be the one professing

Hinduism. In fact, many a time, because of family’s opposition to inter-religion and inter-racial

marriage, couple prefers to get into live in relationship and hence forth circumventing family

objection.

Such relationships are fragile and can be dissolved any moment, there is no obligation and

bondage, legal position with respect to live in relationship does not portray a discernible image.

Live in relationship sponsor bigamy and adultery while posing a threat to the entire fabric

weaved out of values and morals on which the Indian Society stands.

THE PRESENT NEED

The law on live in relationship need to demonstrate a clear cut picture keeping in mind the

present social context along with the basic structure of tradition and culture that characterises

Indian society.

While the court in few cases granted the status of married couple to live in couple, in some cases

court held that live in relationship does not cast any obligation on the couple, as the whole idea

of live in relationship is to evade such bondage, evincing a penchant towards an obligation less,

free society.

Nonetheless, another thought that seek attention is that if the law lobs same kind of obligation

with respect to maintenance and succession as exist in the institution of marriage, then why will

a couple prefer to get into a live in relationship, when the basis of getting into live in relationship

is to evade all bondages and entanglement. A different point to be observed is that, if the rights

under live in relationships and marriage are equated, it will bring in conflict the rights of wife if

the person who is in relationship is already married and the rights of live in partner, secondly this

will make the circumventing of liability much easier and matters more complicated by shuffling

between the rights and liability under marriage- live in relationship and will lead to entanglement

in judicial meanders if judicial discourse is taken.

 

Outside the legal arena, live in relationship also faces the social speculation; the tenor of live in

relationship is the characteristic motif of metropolitan area, however, when we look at the

masses that define India, live in relationship does not find consensus of majority and is accused

of tampering with the Indian culture of values and morality.

Hence, as we observed many questions with respect to live in relationship remains unanswered.

On the one hand it faces speculation from society and secondly legal status of live in relationship

evinces contingency. The more clear approach and attitude of law and the changing time and

stance of society will determine the future of live in relationship. Laws should be made by the

parliament, which should keep a check on the practice of evading bondages.

Live in relationships should be granted legal status after specific period of its existence,

providing the partners as well as the child born out of such relationship with all the legal rights of

maintenance, succession, inheritance as available to a married couple and their legitimate

offspring, also securing their rights after the dissolution of such relationship due to break up or

death of one of the partner. The guidelines given in D. Veluswami v. D. Patchaimmal[2]10} is

worth noting in this context and should be followed. Since, proving de facto live in relationship

1020Supra, note 10

21 Rights specific to female live in partner such as right under Domestic Violence Act, 2005

is difficult, the burden of proof should be relaxed, so that the rights that are conferred upon

partners, specifically female live in partner[21] can be availed. However, if the person in live in

relationship is already married, then live in relationship should be considered as the second

marriage, hence an offence of bigamy. This will ensure the rights and privileges in live in

relationship without possessing any threat to the institution of marriage. A good legal system

always tends to adapt to the gradual social changes. As such, the law cannot grope in dark, when

the number of live in couples is increasing tremendously. The rights of live in couples should be

legally recognized while ensuring that it does not impede upon the system of marriage.

CONCLUSION

Law on this issue is not very clear either in India or abroad. While case by case basis court is

adumbrating the law with regard to live in relationships, there are many questions that need to be

answered. The rights guaranteed to female live in partners along with the rights of child born out

of such relationships ought to be secured. However, it has to be kept in mind that when law is

giving legal sanction to live in relationships, it does not impede upon the institution of marriage

as many a times men who get into live in relationship is already married. If live in relationships

are recognized prima facie then it may implicitly promote bigamy. Law should have a

discernible stance with respect to live in relationships and the aftermath of such relations.

Outside the legal arena, live in relationship also faces the social speculation; the tenor of live in

relationship is the characteristic motif of metropolitan area, however, when we look at the

masses that define India, live in relationship does not find consensus of majority and is accused

of tampering with the Indian culture of values and morality.

Hence, as we observed many questions with respect to live in relationship remains unanswered.

On the one hand it faces speculation from society and secondly legal status of live in relationship

evinces contingency. The more clear approach and attitude of law and the changing time and

stance of society will determine the future of live in relationship. Laws should be made by the

parliament, which should keep a check on the practice of evading bondages.

As per various Judgments given by Supreme court and various others court, live in relationships

should be granted legal status after specific period of its existence, providing the partners as well

as the child born out of such relationship with all the legal rights of maintenance, succession,

inheritance as available to a married couple and their legitimate offspring, also securing their

rights after the dissolution of such relationship due to break up or death of one of the partner.

Since, proving de facto live in relationship is difficult, the burden of proof should be relaxed, so

that the rights that are conferred upon partners, specifically female live in partner can be availed.

This will ensure the rights and privileges in live in relationship without possessing any threat to

the institution of marriage. A good legal system always tends to adapt to the gradual social

changes. As such, the law cannot grope in dark, when the number of live in couples is increasing

tremendously. The rights of livein relationships should be given legal sanctity.

The law on live in relationship need to demonstrate a clear cut picture keeping in mind the

present social context along with the basic structure of tradition and culture that characterizes

Indian society.

And lastly we can say that “Change is the need of the hour” and the social nd moral ethics need

to be evolved and as when our legal system allows for the same our society must broaden our

mind and must accept the change for good and must move ahead with new and refreshed

thinking and Values and accept the concept of live in Reelationship.

BIBLIOGRAPHY 

Books :-

Gaur Sanjay, Live-in-Relationship, Yking Books,2011.

Mahendra Singh Adil & Rajiv Raheja, Legal and Social Ramification of Live-in Relationship in India, Jain Book Agency, 2011

Magoo Ish Kumar, Law of Maintenance & Child Custody (Grant & Refusal),Capital Law House,2005

Mathur Vivek, Live-in Relationship Sex & Beyond, Gyan Publishing House,2011

Articles:-

Live-In Relationship : A Comparative Approach -Parul Solanki Sharma

Live In Relationship- Review And Analysis -By Srishti Aishwarya