Live-in Relationship : Legal Status
Marriage is a sacred or contractual relationship in India. Marriage, as its legal consequences, entitles both the persons to cohabit; the children born out of a legal wedlock have legitimacy as legal heir; the wife is entitled to maintenance during and after the dissolution of marriage. To avoid these obligations and to enjoy the benefit of living together, the concept of live-in relations has come into picture. Live in relationship provides for a life free from responsibility and commitment unlike as in a marriage.
Live-in relationship defined
It is a living arrangement. It is “an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage". In this relationship an unmarried couple lives together under the same roof in a way it resembles a marriage, but without getting married legally. This form of relationship does not thrust the typical responsibilities of a married life on the individuals living together. The foundation of live in relationship is individual freedom.
No specific law recognizes a live in relationships in India. No legislation is there to define the rights and obligations of the parties and the status of children born to such couples. A live–in relationship is not recognized by Hindu Marriage Act, 1955 or any other statute. In the absence of any law to define the status of live in relationships the Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. The Protection of Women from Domestic Violence Act 2005 provides for the protection,maintenance and right of palimony to a live-in partner, if she complains.
The earliest case in which the Supreme Court of India recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Deputy Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple.
In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has right to go anywhere and that anyone –man and woman even without getting married can live together if they wish”.
Again in the case of Patel and Others, the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence.InLata Singh v State of UP & Anr. the Apex Court held that live-in relationship was permissible only between unmarried major persons of heterogeneous sex. If a spouse is married, the man could be guilty of adultery punishable under section 497 of the IPC. Since the husband survives, Rangammal cannot invoke presumption of live-in. If so the children became illegitimate and disqualified to inherit u/s 16 of the Hindu Marriage Act, 1955. Therefore, live-in relationship could be ‘a dangerous thing’ between a wife and a non-husband as it could lead to an offense of adultery, but not to ‘marriage’.
In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court has held that living together is a right to life. The Court held that how can it be illegal if two adults live together cannot be illegal.
But in Alok Kumar vs. State of Delhi, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality.
The Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a relationship in the nature of marriage under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a domestic relationship. It also held that if a man has a ˜keep” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in their opinion, be a relationship in the nature of marriage.
Supreme Court's Conditions
The Supreme court in the D. Velusamy v. D. Patchaiammal case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with certain conditions.
The conditions laid down are that the 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 voluntarily cohabited for a significant period of time.
Considering that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression relationship in the nature of marriage and not ˜live-in relationship”. The court cannot change the language of the statute.
Right to Maintenance in Live-in Relationship
The need to include live in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973 wa supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. The Malimath Committee and the Law Commission of India also 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 a divorced wife is treated as a wife in the context of Section 125 of CrPC but the live in partners cannot get divorced, and hence cannot claim maintenance under Section 125 of CrPC.
The Protection of Women from Domestic Violence Act, 2005 considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which 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. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage.
In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the Supreme Court held that the nomenclature “dowry” has no magical charm. It refers to a demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him in a step ahead in protecting the woman from harassment for dowry in a live in relationship.
Recent SC Judgment
The Supreme Court, in Indra Sarma case delivered on 26th November 2013 says: “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. Long-standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and Exhaustive.” The court as well asked Parliament to bring in proper amendments to the Protection of Women from Domestic Violence Act, or enact a suitable legislation so that women and children born out of live-in relationships are protected, though those types of relationship might not be a relationship in the nature of a marriage.
The five kinds of live-in relationships the apex court identified in Indra Sarma case are as follows:
- The first one is a domestic relationship between an adult male and an adult female, both unmarried. This is the most uncomplicated sort of relationship.
- The second one is a domestic relationship between a married man and an adult unmarried woman, entered knowingly. This is a problematic grey area. This one can lead to a conviction under Indian Penal Code for the crime of adultery.
- The third one is a domestic relationship between an adult unmarried man and a married woman, entered knowingly. This is also a problematic grey area.
- The fourth one is a domestic relationship between an unmarried adult female and a married male, entered unknowingly.
- The fifth one is a domestic relationship between two gay or lesbian partners.
The Court has clarified that the above are merely illustrative.
The live in relationship may be immoral, but not illegal. The judiciary has accorded legality to the concept of live in relationship and has protected the rights of the parties and the children of live in couples which makes it unnecessary to formulate a law to clarify the concept so urgently. There is no law which makes a live in relationship illegal.