DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

SUBJECT: WOMEN AND LAW

Session: 2019 - 2020

FINAL DRAFT

ON

“Live-In Relationship in India”

SUBMITTED TO: SUBMITTED BY:

Dr. Aparna Singh Shubham Singh Rawat

Assistant Professor (Law) B.A. LL.B. (Hons.)

RMLNLU Sec. B; Enroll. No.-134

 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher Dr. Aparna Singh for giving me such a
challenging topic and also for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college for their
cordial support, valuable information and guidance, which helped me in completing this task
through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation during
the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without which
this assignment would not have been possible.
 TABLE OF INDEX

1. Introduction……………………………………………………………..…4

2. Facets of live-in relationship

a) Legal Status of live-in relationship………………………………...........5-6

b) Status of child born under a live-in relationship………………………….....7

c) Protection of rights of female partner under live-in relationship....................8-9

3. Laws in Other Countries………………………………………….......10-12

4. Live-in Relationship in Indian Socio-Legal Context

– A Critical Analysis…………………………………………………12-13

5. The Present Need……………………………………………………..13-14

6. Conclusion……………………………………………………………….16

7. Bibliography……………………………………………………………..17
 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] 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
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.

1. (1928) 1 MLJ 388 (PC)

2. AIR 1929 PC 135
3. AIR 1978 SC 1557
4. 2001 (3) AWC 1778
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
23rdMarch, 2010 in the Khushboo case [7]. 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 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 at 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 of infidelity or immorality as live-in relationships are also known
to have been between a married man and unmarried woman or vice-versa.” [8]

5. (2006) 8 SCC 726

6. (2008) 4 SCC 520
7. JT 2010 (4) SC 478
8. Alok Kumar v. State Crl.M.C.No. 299/2009
D. Velusamy vs D. Patchaiammal on 21st 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.

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, 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], 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
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.

9. Supra, note 9
10. Supra, note 7
11. CRIMINAL WRIT PETITION NO.2218 OF 2007
12. Supra, note 9
13. SLP (Crl.) No. 4496 of 2006
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 legalization 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 organize 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.
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.
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.

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.

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.

The laws of IRELAND & 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.

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. Facts: 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 recognizing 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 the right of
legally wedded wife remains at stake, the right of live in female partner too does not become
secure.
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 characterizes 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 is worth
noting in this context and should be followed. 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. 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 live-in 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 and 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 Relationship.

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, 2006.

Articles:-

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

 Live In Relationship- Review And Analysis – Shrishti Aishwarya.

External Web Links:-

 https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/
 https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-
relationships
 https://www.thebetterindia.com/132607/want-to-get-into-a-live-in-relationship-here-are-
the-rights-you-need-to-know/
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