COHABITATION IN INDIA

India being a rustic full of cultural values, rituals and ceremonies, its customs and traditions have seen a lot of dynamism and great inspiration from the western countries; and one in every of it’s the live- in relationships. While India considers marriage as a sacred ceremony, is it able to accept live- in relationships?

This paper talks about one in all controversial topics: live- in relationships. This idea is not new in the western countries, but it is making a place for itself in the east. Lately, cohabitation is preferred over marriage to check each other’s compatibility and also to avoid the lengthy legal procedure of divorce if they decide to breakup. 

What is a live- in relationship? What does the Indian Judiciary have to say about individuals’ inhabitancies without marriage? What are the rights of partners in cohabitation?

COHABITATION, is a state or condition of living together in a conjugal relationship without being married. [1] There is no legal definition to live- in relationship. It is an arrangement of individuals/ couples living together unmarried to have a long going relationship similar to marriage. It is purely an arrangement of two parties; when either of the party decides to walk out of the relationship, it comes to an end. And hence it is walk-in and walk- out relationship.

  1. In Madan Mohan Singh v. Rajni Kant, the Court held that, the live-in relationship if continued for a very long time, cannot be termed as a “walk-in and walk-out” relationship and that there is a presumption of marriage between the parties. By this approach of the Court, it can be clearly inferred that the Court is in favour of treating long-term living relationships as marriage instead of making it a brand-new concept like live-in relationship.[2]

In India, marriage is taken into account as a sacred form of matrimony. In a marriage, both the individuals are given certain rights and duties to perform and they are governed and protected by various personal laws like Hindu Law, Muslim Law etc.   Live- in relation being an alien concept to the Indian Legislature not expressly recognized does not have a Uniform Civil Code, however, over and over again, distinguishing morality from law, Indian Courts have protected the rights of partners through various laws like the Domestic Violence Act, Evidence Act, CrPC, etc. Indian judiciary has taken a step that was created in absence of any specific statute relating to live-in relationships. It may be considered immoral in the eyes of society but it’s not in the least “illegal” within the eyes of the law. The intention of Indian judiciary is to render justice to the partners of live-in relationships who, were earlier not protected by any statute when subjected to any abuse arising out of such relationships.

Live-in relationships were legally considered void-ab-initio. But during a judgement in 1978, such relationships are valid for the first time, thanks to the Supreme Court. If the requisites of a wedding like mental soundness, the fulfilment of the legal status of marriage, consent, etc. are all satisfied, the couple is taken into account to be in a legal live-in relationship. The couple is additionally regarded as married if they live together for a considerably long period until proven otherwise.

The Constitution of India provides and guarantees Fundamental Rights and Freedom to people. Article 21 of the Indian Constitution confers the Right to life to every person. One’s wish to reside with a partner and have relationship is governed by the mentioned Fundamental Rights and Freedom, although they are not absolute.

  1. In landmark case of S. Khushboo v. Kanniammal, the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.[3]
  2. The Supreme Court in Indra Sarma vs. V.K.V. Sarma defined live-in relationships in five distinct ways:
  3. A domestic cohabitation between a major unmarried female and a major unmarried male. It is considered as the simplest kind of relationship between all.
  4. A domestic cohabitation between that was entered mutually by a major unmarried woman and a married man. A domestic cohabitation between that was entered mutually by a major unmarried man and a married woman.
  5. These two are the most acknowledged type of live-in relationship in India. Moreover, adultery is a type of relationship, and it is punishable under the Indian Penal Code, 1860.
  6. A domestic cohabitation between that was entered unknowingly by a major unmarried woman, and a married man is also punishable under Indian Penal Code, 1860.
  7. A domestic cohabitation between partners who are homosexual, cannot lead to a marital relationship. As in India, any matrimonial law for homosexuality is not defined yet.

It was held that Live- in type of relationship is neither a crime nor a sin, even though it is morally unaccepted.  Honourable Supreme Court of India, held that a live-in relationship requires effective and adequate protection, especially the female partner and the children born out of such relationships, as it may sustain for a long time and can result into vulnerability and dependency.[4]

  1. In the case of Lata Singh  V.  State of U.P., the Supreme Court of India observed that live- in relationship between two consenting adults of heterogenous sex doesn’t amount to any offence, with the clear exception of adultery, even though it maybe perceived as immoral. [5]

However, Supreme Court has decriminalised Adultery by its judgement in Joseph Shine’s Case.

Through references from the Malimath Committee in 2003, Section 125 was incorporated within the Criminal Procedure Code to modify the meaning of ‘wife’ and expand it to incorporate women who were in an exceedingly live-in relationship. This ensured that her financial needs were taken care of by the partner if she was unable to sustain herself or if the relationship became estranged. Similarly, protection against all forms of abuse is covered under the Domestic Violence Act, 2005, as it is for married women.

RIGHTS IN A LIVE-IN RELATIONSHIP.

  • MAINTENANCE:

is available to each wife/ wives under the private Laws. None of religions in India have considered or accepted the concept of live- in relationships, the rights haven’t been guaranteed. And hence, Indian Courts have widened the scope of maintenance under the Criminal Procedure Code.
Consequently, Section- 125 of the Criminal Procedure Code has been provided to offer a right of maintenance to lady partners in or out of a wedding.

  1. In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha, where High Court declared that appellant wife is not entitled to maintenance on the ground that only legally married woman can claim maintenance under Section 125 CrPC. But the Supreme Court turned down the judgment delivered by the High Court and awarded maintenance to the wife (appellant) saying that provisions of Section 125 CrPC must be considered in the light of Section 26 of the PWDVA, 2005. The Supreme Court held that women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife. [6]
  • DOMESTIC VIOLENCE.

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 (ACT NO. 43 OF 2005)

An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto.

Section 2(f) of the said act defines the term “domestic relationship” – 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.  [7]

  • CHILDREN BORN: THEIR RIGHTS AND INHERITENCE.

As per the Guidelines Governing the Adoption of Children as notified by the Central Adoption Resource Authority, couples in a live- in relationship are not allowed to adopt kids.  

Section- 16 of the Hindu Marriage Act mentions the Inheritance rights of children. The children born through live- in relationships enjoy the same rights of succession and inheritance as of the children born to couples through marriage under the Hindu Marriage Act.

The position of maintenance of children through marriage varies according to the personal laws. Under the Hindu Marriage, the father has to maintain the child. But under the Muslim Law, the father is not obligated to do the same.

And hence, for those children who are unable to entitlement maintenance under the Personal Laws, Section 125 of the CrPC, provides a legal right of maintenance.

  1. In Bharata Matha & Ors. V. R. Vijaya Renganathan & Ors. Case, the SC has also ruled that Child born out of a live-in-relationship may be permitted to inherit parent’s property, but does not have any right to claim against Hindu Ancestral Coparcenary Property. [8]
  • During a decision of seminal significance, the Kerala Judicature has held that a child born out a live-in relationship and acknowledged so by the mother of the child, would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption under Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act).[9]

In a landmark case, Supreme Court dealt with the issue of live-in relationships in detail and also laid down the conditions for live-in relationship that can be given the status of marriage.

Following are the guidelines given by Supreme Court:

1. Duration of Period of Relationship

Section 2(f) of the Domestic Violence (DV) Act has used the expression ‘at any point of time’, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.

2. Shared Household

The expression has been defined under Section 2(s) of the DV Act.

3. Pooling of Resources and Financial Arrangements

Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long-term investments in business, shares in separate and joint names, so as to have a long-standing relationship, may be a guiding factor.

4.  Domestic Arrangements

Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.

5. Sexual Relationship

Marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring, etc.

6.  Children

Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have long-standing relationship. Sharing the responsibility for bringing-up and supporting them is also a strong indication.

7. Socialisation in Public

Holding out to the public and socialising with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.

8. Intention and Conduct of the Parties

Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship. [10]

  • The Supreme Court held that if an unmarried couple is living together as husband and wife, then they would be presumed to be legally married and the woman would be eligible to inherit the property after death of her partner. “It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party who seeks to deprive the relationship of legal origin,” the bench said.[11]
  • EVIDENCE ACT, 1872:

The court may presume the existence of any fact which it thinks likely to possess happened, regard being given to the common course of natural events, human conduct and public and personal business, in a very relation on the facts of the actual case. Therefore, where a person and an adolescent live respectively for a protracted spell of your time as a pair then there would be an assumption of marriage.

  1. In Tulsa & Ors. V.  Durghatiya & Ors., the Supreme Court gave a legal validity to a 50 year live- in relationship. It was held that with reading Sections 50 and 114 of Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events.

Even though cohabitation is morally not accepted in the eyes of society, it is not illegal in the eyes of law. Live- in relationships have made a topic of discussion and debate in the Indian society. There is no legality to the topic, as there’s no separate legislation for the provisions of a live-in in India. Although the concept of a live-in relationship may be a subject of morality in India, it’s not illegal in line with the laws. Honourable Supreme court held that two major people habitation is their right to life, and hence, it can’t be considered illegal. In order to bring justice to those females who are the victims of live-in relationships Indian judiciary took a step, brought interpretations and made such arrangements valid. In India, there is no actual legal status given to this kind of relation. But to protect one’s Rights and Freedoms, various laws have come into picture. Keeping morality and law different, the Indian Courts have made a place for cohabitation in the country. Though it is still not accepted by religions and society, live- in relationships are not considered illegal. With society accepting various other western influences, we can have a hope that even cohabitation makes a permanent respectful place in the eyes of the society.


[1] Collins dictionary: https://www.collinsdictionary.com/dictionary/english/cohabitation

[2] SCC Online.

[3] https://frontline.thehindu.com/other/article30180466.ece

[4] https://www.indiafilings.com/learn/live-in-relationships-in-india/

[5] https://lawtimesjournal.in/lata-singh-vs-state-of-u-p-anr/

[6] Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 2 SCC (Cri) 666 : (2011) 1 SCC (Civ) 53, 07-10-2010: http://www.supremecourtcases.com/index2.php?option=com_content&itemid=99999999&do_pdf=1&id=20197

[7] https://legislative.gov.in/actsofparliamentfromtheyear/protection-women-domestic-violence-act-2005

[8] https://lawstreet.co/judiciary/child-born-out-of-live-in-relationship-not-entitled-to-claim-inheritance-in-ancestral-property/

[9] https://www.barandbench.com/news/litigation/adoption-jj-act-child-live-in-relationship-treated-as-child-married-couple#:~:text=In%20a%20decision%20of%20seminal,under%20Juvenile%20Justice%20(Care%20and

[10] SCC Online.

[11] https://timesofindia.indiatimes.com/india/Couple-living-together-will-be-presumed-married-Supreme-Court-rules/articleshow/46901198.cms

Author: SAKSHI. S, K.L.E. SOCIETY’S LAW COLLEGE.

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