Legal status of Live-in Relationships in India: Mapping Indian Jurisprudence

GLA University - B.Com | LLB | B.A.
GLA University | B.Com | LLB | B.A.

The legality of live-in relationships in India is quite muzzled. While there’s no legislation defining live-in relationships in India, the judiciary hasn’t been averse to the idea. So even though it’s pretty common now, no legal protections are extended to couples as the state does not legally recognise the relationship. The subject offers a conundrum for the couple and often act as an impediment to access social security. Alekhya Sattigeri writes about the legal status of live-in relationships in India, detailing the judiciary’s stance on the same. She writes about how the state’s aloofness towards the social practice is primarily affecting children and women.

legal status of live-in relationship in india

By Alekhya Sattigeri, second-year BA LLB student at University School of Law and Legal Studies, GGSIPU.

Introduction

With changing times and modernisation, the social dynamics in India have undergone a few positive changes. And a series of progressive judgements over the last decade is a testament to that. For instance, in 2017, the Supreme Court recognised privacy as a fundamental right in KS. Puttaswamy v. Union of India.[1] In 2014, the SC affirmed the rights of transgender persons in NALSA v. Union of India.[2] And in 2018, it decriminalised S. 377 of the Indian Penal Code in Navtej Singh Johar v. Union of India.[3]

Several judgments have contested the archaic notions of Indian society.  However, certain social truths still await acceptance and are seen through the lens of patriarchal morality; a classic example is live-in relationships.

While a fraction of the Indian population has accepted it, a sizeable chunk is still hostile towards the idea. Even though now it is pretty normalised in Bollywood and regional cinema through movies like ‘Luka Chhuppi’, there still is hesitance.

The subject gained traction in May 2021, following two controversial judgements passed by the Punjab and Haryana High Court. First, in Gulzar Kumari v. State of Punjab[4] and Ujjawal v. State of Haryana[5], the Court refused to grant protection to couples cohabiting in a live-in relationship, stating that such relationships are morally and socially unacceptable, capable of destroying the social fabric of the Indian society.

Thankfully, days after these judgements, in a separate case, the Punjab and Haryana High Court expressed that the right to choose whether to marry or adopt a non-formal approach of live-in relationships is inherent in the right to life and personal liberty.[6]

Along the same lines, in recent rulings, various High Courts have granted police protection to a live-in couple, upholding their fundamental right to life and personal liberty as envisaged under Article 21 of the Constitution of India.[7]

These recent contradictory judgements, thus, require us to revisit the past decisions of various Indian Courts to eliminate ambiguity on the said issue. Therefore, the article seeks to delve into the legal contours of live-in relationships in India. It begins by expounding upon the definition, legality and requisites of live-in relationships. It then proceeds to delineate the incentive to partners who decide to follow through a live-in relationship, such as the right to maintenance, the right to inherit property, and the legitimacy attributed to the children born out of live-in relationships.

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Meaning and Legal Status of Live-In Relationship in India 

Although the term ‘live-in relationship’ fails a precise definition, it refers to the domestic cohabitation between two unmarried individuals.[8]  The concept of live-in relationships is becoming popular among couples. However, it may be said that the prevalence is more in metros and tier 1 cities, especially among the upwardly mobile youngsters. Individuals prefer live-in relationships over marriages for various reasons.[9]

Often couples tend to resort to live-in relationships to test their compatibility before binding themselves together in marriage.[10] It provides a better opportunity for them to understand each other and make well-informed decisions in serious commitments like marriage.

Particularly in countries like India, where divorce is frowned upon and stigmatised, live-in relationships allow separation without the state’s interference.

However, in Indian society, pre-marital sex is highly looked down on.[11] Therefore, couples cohabiting together before marriage is often deemed culturally inappropriate, immoral and repulsive to societal norms.[12] Thus, although some have has openly embraced the concept of live-in relationships, it continues to face social aversion based on conservative mindsets.

Nevertheless, the Indian judiciary has time and again intervened and granted respite to couples in a live-in, upholding the individual’s right to liberty.

Legally, live-in relationships find roots in Article 21 of the Indian Constitution. The right and freedom of choice to either marry or have a live-in relationship with an individual of one’s own will, thus, emerges from this inalienable fundamental right.[13]

In Payal Sharma v. Nari Niketan,[14] the Supreme Court affirmed that a man and woman could live together upon their willingness even without getting married. Demarcating the difference between law and morality, the Court expressed that even if live-in relationships are regarded as immoral by society, it is neither illegal nor an offence. Two individuals cohabiting and staying in a live-in relationship are not criminal offenders.[15] It clarified that although socially unacceptable in parts of India, live-in relationships are neither a crime nor a sin.

In Badri Prasad v. Director of Consolidation,[16] the Supreme Court legitimised a 50-year long relationship of a couple. The bench stated that since the couple had lived together for a long time, there was strong presumption in favour of wedlock. And the law favoured the legitimacy of their relationship. Additionally, if any third party seeks to disprove such a presumption, a heavy burden lies on them.[17]

Indra Sarma v. V.K.V. Sarma[18] is a noteworthy case wherein the Supreme Court extensively deliberated on the subject of live-in relationships. The judgment delivered in this case serves as a basic framework or rulebook for matters on live-in relationships.

While expounding upon the legal sanctity afforded to live-in relationships, the Court referred to Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the ‘Act’) that defines the term’ domestic relationship’. According to the definition in the Act, domestic relation 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.”[19]

In the case above, the bench held that the words ‘relationship in the nature of marriage’ encompasses within itself live-in relationships.

However, it must be noted that the provisions of the Act do not cover all live-in relationships. In this regard, the Court reaffirmed the tests of (i) holding out to society as being akin to spouses (ii) being of legal age (iii) otherwise qualified to enter into a legal marriage (iv) voluntarily cohabited for a significant period, laid down in Velusamy v. Patchaiammal[20].

Additionally, the Court in Indra Sharma also laid down certain factors that need consideration while determining whether a live-in relationship falls within the expression ‘relationship in the nature of marriage’ under the Act, namely, duration of the period of relationship, shared household, pooling of resources and financial arrangements, domestic arrangements, sexual relationship, children, companionship, socialisation in public and intention and conduct of parties.[21]

Precarious Love: Forms of Live-In Relationships in India 

Live-in relationships can be broadly categorised into three distinct categories for ease of understanding. This classification helps understand if these categories fall within the broad ambit of the term ‘relationship in the nature of marriage’.

Keeping with the term ‘relationship in nature of marriage’, three kinds of scenarios dispute this terminology. First, could be a domestic cohabitation between two unmarried heterosexual individuals. Second, adulterous live-in relationships. And finally, domestic relationships between same-sex partners.

The most common, pervasive and accepted form is the first type of live-in relationship where two unmarried heterosexual individuals willfully cohabit. However, most societal antipathy and legal issues arise against the second and third scenarios mentioned above.

For instance, in Kusum v. State of UP,[22] a married woman had ‘eloped with another man’, continued to cohabit with him for five years. However, the Allahabad High Court disallowed the woman to seek protection under the garb of a live-in relationship since her marriage was not legally dissolved. Therefore, her new relationship could not be said to fall within the expression relationship ‘in the nature of marriage. Consequently, it was not covered under the ambit of Section 2(f) of the Act.

In Reshma Begum v. the State of Maharashtra,[23] the Bombay High Court underlined that to constitute a ‘domestic relationship’ under Section 2(f) of the Act, the possibility of a legal marriage is a sine qua non. In the case, the Court asserted that the impugned provision could not be interpreted excessively to promote adulterous relationships. Thus, the Court held that the relationship between the parties was not ‘in the nature of marriage’. Therefore, the applicant was not entitled to any relief under the Act.

Along similar lines, in Sunita Jha v. State of Jharkhand,[24] while dealing with a case on cruelty, the Supreme Court expounded that the term ‘relative’ under Section 498A of the IPC, 1860, could not be given an extensive interpretation to include within its ambit a woman. The Courts, thus, expressed their reservations towards adulterous live-in relationships.[25]

On the other hand, notwithstanding that same-sex relationship, not legally competent to enter into wedlock, the Indian judiciary, through its activism, has extended the right to cohabit in live-in relationships to same-sex couples, but only to some extent.[26]

In Chinmayee Jena v. State of Odisha,[27] Justice Ratho observed:

“love knows no bound has expanded its bounds to include same-sex relationships.”

In this recent case, the Orissa High Court confirmed the right of a transgender man and a woman to be in a live-in relationship.

Coming to the question as to whether a one-night stand or spending weekends together constitutes a live-in relationship? In the case of Velusamy v. Patchaiammal, the Court answered in the negative.[28]

To qualify as ‘relationship in the nature of marriage’ under the Act, the parties must prove that they fulfil the requisites mentioned above and live or have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. In this particular case, the Supreme Court held that merely maintaining the finances and fulfilling sexual desires doesn’t fall within the relationship in nature of marriage. Therefore, simply spending weekends together or a one-night stand does not constitute a domestic relationship.

Rights of Women Partners and Children in A Live-In Relationship

Besides offering legal sanctity to live-in relationships, the Indian judiciary proving itself as the custodian of its citizens, has extended extra protection to relationships arising out of live-in relationships. The Courts have, in many cases, vindicated the right of the woman partner to maintain, to inherit property. The Indian Courts have protected the rights of children born out of such live-in relationships.

The Right to Maintenance under Section 125 of the Cr.P.C.

The term ‘palimony’ is commonly used to refer to maintenance vis-a-vis live-in relationships. In India, Sec.125 of the Cr.P.C. pertains to the right to maintenance. This provision that got enacted to achieve social justice by aiding ‘destitute’ wives, hapless minor children and infirm parents [29] is now applicable to the indigent partner of live-in relationships.

Acting upon the recommendations of the Malimath Committee on Reforms of Criminal Justice System to amend Section 125 of the Cr.P.C. and alter the meaning of ‘wife’ therein, a revision was made.[30]

As per the current legal position, women who are were in a live-in relationship, and have subsequently been abandoned by their partner, enjoy the status of a wife.

In Chanmuniya v. Virendra Kushwaha,[31] the Supreme Court overruled the previous verdict,  upholding the right of a woman in a live-in relationship to claim maintenance under Section 125 of the Cr.P.C. The rationale behind entitling a woman in a live-in relationship to such a right is to ensure that a man does not take advantage of legal loopholes by enjoying the benefits of a de facto marriage without fulfilling the responsibilities of that marriage.

In Kamala v. Mohan Kumar,[32] the Hon’ble Supreme Court had expressed that a purposive interpretation should be given to the term ‘wife’ to further the principles of social justice and uphold the right to dignity of individuals enshrined in the Constitution. In this instance, long cohabitation between woman and man led to the presumption of marriage upon which the Court adjudged that the woman was entitled to maintenance for herself and the children born to them.

Thus, the judicial standing is that a woman in a live-in relationship enjoys a similar right to maintenance akin to legally wedded wives.[33]

Right of Women to Inherit Property

In Dhannulal v. Ganeshram,[34] the Court affirmed a woman’s right to inherit property after the death of her live-in partner to settle a property dispute. In the case, family members contested that their grandfather had been cohabiting with a woman for the past 20 years. Further, they claimed that since she was not married to their grandfather, she was not entitled to inherit the property after his death.

The Court adjudicated to the contrary and held that ‘where the man and woman were living together as a husband and wife, the law will presume that they were living together in a valid marriage’.

Legal Status of Children Born Out of Live-in Relationship

In Balasubramanyam v. Suruttayan,[35] children born out of live-in relationships received the legal status of legitimacy for the first time. The Supreme Court said that if a man and woman live under the same roof and cohabit for considerable years, there will be a presumption of marriage under Section 114 of the Evidence Act. Therefore, the children born to them will be considered legitimate and rightfully entitled to receive a share in ancestral property.

In Bharatha Matha v.  Vijeya Renganathan,[36] the Supreme Court granted a share in parents’ property to the children born from live-in relationships. The Court held that if the relationship lasted long enough, children born to live-in relationships could not be deemed illegitimate.[37]

Recently, in a notable judgement, the Kerala High Court recognised a child born in a live-in relationship as a child born to a married couple for adoption.[38]

Right to visa extension akin married couples

In a very interesting case of Svetlana Kazankina v. Union of India,[39] the Court dealt with the issue of granting visa extension to an Uzbekistan national woman who had been in a live-in relationship with an Indian man. The Respondents submitted that the reason behind the denial of visa extension was that the concerned Rules permit such extension only upon proof of marriage and not in case of live-in relationships. The Court pointed out that the provisions for extension of visas of foreigners married to Indian nationals enabled such couples to enjoy companionship, love and affection. Highlighting that live-in relationships are now a factum of life, the Court opined that to grant an extension of visa, marriage and live-in relationships should not be treated differently.

Moreover, in line with the Indra Sarma judgment, the Court advised the Parliament to formulate appropriate legislation for live-in relationships.

Conclusion

Due to legislative ignorance, individuals’ in live-in relationships are not given protection under a prescribed set of rules or regulations. The current Indian legal framework surrounding live-in relationships is primarily a result of a series of relatively progressive judicial precedents.

The Indian judiciary, on multiple instances, has delineated the difference between social morality and constitutional morality by legitimising live-in relationships and upholding their rights.

Read more about constitutional morality here.

The Supreme Court and various high courts have read the legitimacy of live-in relationships within the scope of statutes such as the Domestic Violence Act, Cr.P.C., Evidence Act. Thus, as per the current legal position, women in live-in relationships are entitled to maintenance and property.

While these judicial precedents lay a framework for regulating and guiding legal affairs from live-in relationships, they are not enough. Recent events have proven that the lack of definite legislation and corresponding ambiguity has led to differing and deviating judgements amongst the judiciary. Thus, the Legislature must consider the prevalence of live-in relationships and enact a comprehensive law delineating the rights and duties of parties.

Endnotes

[1] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[2] NALSA v. Union of India, (2014) 5 SCC 438.

[3] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[4] Gulzar Kumari v. State of Punjab, W.P. (Cri) No.: 4199 of 2021.

[5] Ujjawal v. State of Haryana, W.P. (Cri) No.: 4268 of 2021.

[6] Pardeep Singh v. State of Haryana, W.P. (Cri) No.: 4521 of 2021.

[7] Kamini Devi v. State of UP, W.P.(C) No.: 11108 of 2020; Paramjit Kaur v. State of Punjab, W.P. (Cri) No.: 5024 of 2020.

[8] Auroshree, Editor, Sharma, D., Surodip, Saxena, A., Hameed, Parth, Gupta, N. K., Saini, A., Raman, M. A., Lal, V, srinivas, ail, I., kumar, D., & Indulia, B. (2021, May 19). Live-In Relationship And Indian Judiciary. SCC Blog. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/.

[9] Titzmann, F.-M. (2017, September 14). Contesting the Norm? Live-in Relationships in Indian Media Discourses. South Asia Multidisciplinary Academic Journal. https://journals.openedition.org/samaj/4371.

[10] Auroshree, Editor, Sharma, D., Surodip, Saxena, A., Hameed, Parth, Gupta, N. K., Saini, A., Raman, M. A., Lal, V, srinivas, ail, I., kumar, D., & Indulia, B. (2021, May 19). Live-In Relationship And Indian Judiciary. SCC Blog. https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/.

[11] The Times of India. (2019, October 14). Marriage vs. live-in relationship: Two different approaches to exploring love and companionship – Times of India. The Times of India. https://timesofindia.indiatimes.com/life-style/relationships/love-sex/marriage-vs-live-in-relationship-two-different-approaches-to-exploring-love-and-companionship/articleshow/71582056.cms.

[12] Narayan CL, Narayan M, Deepanshu M. Live-In Relationships in India—Legal and Psychological Implications. Journal of Psychosexual Health. 2021;3(1):18-23. doi:10.1177/2631831820974585

[13] Khushboo v. Kanniammal, (2010) 5 SCC 600; Nandakumar v. State of Kerala, (2018) 16 SCC 602.

[14] Payal Sharma v. Nari Niketan, AIR 2001 All 254.

[15] Ramdev Food Products Ltd. v. Arvind bhai Ram bhai Patel, (2006) 8 SCC 726.

[16] Badri Prasad v. Director of Consolidation, (1978) 3 SCC 527.

[17] Gokal Chand v. Parvin Kumari, AIR 1952 SC 231.

[18] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755.

[19] The Protection of Women from Domestic Violence Act, 2005.

[20] Velusamy v. Patchaiammal, (2010) 10 SCC 469.

[21] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, para 56.

[22] Kusum v. State of U.P., W.P.(C) No: 53503 of 2016.

[23] Reshma Begum v. State of Maharashtra, (2018) 3 AIR Bom R (Cri) 482.

[24] Sunita Jha v. State of Jharkhand, (2010) 10 SCC 190.

[25] Geeta v. State of U.P., W.P.(C) No: 7542 of 2021; Kusum v. State of UP, W.P.(C) No.: 53503 of 2016.

[26] Madhu Bala v. State of Uttarakhand, 2020 Cri LJ (NOC 268) 82; Chinmayee Jena v. State of Odisha, W.P. (Cri) No.: 57 of 2020.

[27] Chinmayee Jena v. State of Odisha, W.P. (Cri) No.: 57 of 2020.

[28] Velusamy v. Patchaiammal, (2010) 10 SCC 469.

[29] Badshah v. Urmila Badhshah Godse, (2014) 1 SCC 188.

[30] “Committee on Reforms of Criminal Justice System”, Government of India, Ministry of Home Affairs, Mar. 2003, vol. 1, p. 189, available at: https://www.mha.gov.in/sites/default/files/criminal_justice_system_2.pdf (last visited on: Jan. 7, 2020).

[31] Chanmuniya v. Virendra Kushwaha, (2011) 1 SCC 141.

[32] Kamala v. Mohan Kumar, (2019) 11 SCC 491.

[33] Rajnesh v. Neha, (2021) 2 SCC 324; Ajay Bhardwaj v. Jyotsna, (2017) 1 HLR 224; Abhijit Bhikaseth Auti v. State of Maharashtra, (2009) 1 AIR Bom R 212.

[34] Dhannulal v. Ganeshram, (2015) 12 SCC 301.

[35] Balasubramanyam v. Suruttayan, AIR 1992 SC 756.

[36] Bharatha Matha v.  Vijeya Renganathan, (2010) 11 SCC 483.

[37] Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209.

[38] Lydia Suzanne Thomas, Breaking: JJ Act- Child Born In Live-in Relationship To Be Construed As Child Born To Married Couple: Kerala High Court-Read Judgment, Apr. 10, 2021, https://www.livelaw.in/news-updates/child-born-in-a-live-in-relationship-child-married-couple-kerala-high-court-adoption-juvenile-justice-172398?infinitescroll=1.

[39] Svetlana Kazankina v. Union of India, (2015) 225 DLT 613.

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