LEGAL VALIDITY AND IMPLICATIONS OF LIVE-IN RELATIONSHIPS IN INDIA

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INTRODUCTION

The term ‘Live-in Relationship’ is not legally defined, but it can be used to define the relationship of couples who share a common household despite being unmarried. This concept of live-in relationship is basically inspired from the western culture and is making its place in the Indian society slowly and gradually. Relationships of these kind, which are quite common and popular among the millennials of India, for various reasons, are still considered to be taboo and immoral among the people belonging to older generation or people having a conservative mind set. However, this article would not go into the moral aspects of these relationships and would only focus on analyzing these relationships from a legal point of view, because morality is something which is very subjective. Something, which is good for me based upon my moral values, might be bad for someone else based upon his/her moral standards.

Now, when we talk about the legal validity and implications of live-in relationships, it is important to understand that, as of now, there is no statute or legislation enacted by the parliament to govern such relationships and therefore, the only source of law available for understanding the legal status of these relationships is the past cases, which have been decided by the Indian courts, that work as precedents in these matters. This article would analyze such judgments given by the Indian courts in the various cases and would try to clarify the stand of Indian courts with regards to the legal validity of live-in relationships. Also, the article would try to explain the legal implications which might arise out of such relationships.

LEGAL VALIDITY OF LIVE-IN RELATIONSHIPS

So, talking about the legal validity of these relations, we shall begin with the most basic question which might arise in a person’s mind i.e., is it legally valid/allowed, to enter into a live-in relationship?

Well, it won’t be wrong to say that the Indian culture has not yet accepted this practice of live-in relationship completely, due to which such relations are usually looked down upon by the Indian society, but that surely is not the case with the Indian Courts. Indian courts have a different opinion than that of the Indian society. The Indian courts have adopted a positive approach while dealing with the cases of live-in relationships and have made sure that the conservative mind set of the society does not end up causing any injustice to the people who are voluntarily involved in such relationships.

In the case of Indra Sarma V. VKV Sarma [1], the Supreme Court observed,that a live-in relationship is neither a crime nor a sin. Furthermore, the Supreme Court in the case of Lata Singh V. State of U.P. [2] held that a live-in relationship between two consenting adults does not amount to any offence. In addition to that, the Supreme Court, in the landmark case of S. Khushboo V. Kanniammal [3], held that a live-in relationship falls under the ambit of ‘Right to life and personal liberty’, which is guaranteed to every person by article 21 of the Indian constitution and thereby, stopping a person from entering into a live-in relationship would be violative of article 21 of the constitution and thus unconstitutional.

The above judgments given by the Supreme Court in various cases show, that the Indian courts have, from time and again, made it clear that the live-in relationships are not illegal in India. Not only the Indian courts have made such relationships legal, but have also declared them to be a person’s fundamental right.

The other question which usually comes in a person’s mind isthat, who all can enter into a live-in relationship?

Well, there are absolutely no restrictions imposed by the courts with this regard. Any two persons of any gender can enter into a live-in relationship. This means that there could be a legally valid live-in relationship between-

(A) A man and a woman (both unmarried)

(B) A married man and an unmarried woman

(C) An unmarried man and a married woman. A relationship of this nature was held to be illegal in India before 2018 and would have made the man liable for the offence of adultery. But, in 2018, in the case of Joseph Shine V. UOI[4], adultery was declared to be no more a criminal offence.

(D) Same sex partners. A relationship of this nature was considered unnatural and was a criminal offence before 2018. But in 2018, the Supreme Court in the case of Navtej Singh V. UOI[5], decriminalized homosexuality.

The only condition which needs to be fulfilled in all the above categories is that both the partners must be adults (above 18 years of age). Live-in relationship with a minor is illegal.

Now, there could be ‘n’ number of reasons on the basis of which couple these days, prefer live-in relationship over or maybe before marriage. While some people prefer staying in a live-in relationship before marriage because it helps them in knowing their partner better and help them in checking the compatibility with the other person, there are some people who prefer live-in relation over marriage just because of its hassle-free nature. They usually think that unlike marriage, there are no formalities involved with live-in relationships and they can enter into a live-in relationship at any time and can leave as per their will, which is not actually the case. Most of the people think that they can easily get out of a live-in relationship whenever they want, but are actually unaware of the fact that there are certain legal consequences which they might face as a result of their live-in relationship. 

LEGAL IMPLICATIONS OF A LIVE-IN RELATIONSHIP

The Supreme Court, in the case of Madan Mohan Singh V. Rajni Kant[6], held that the couples who are living in a live-in relationship, from a long period of time, can be perceived as married by the society and law. A similar observation was also made by the Supreme Court in the case of SPS Balasubramanian V. Suruttayan[7]. Such a presumption can make live-in relationships bound by the various laws which were actually made for regulation of marriages. The primary example of such laws is the Protection of Women from Domestic Violence Act, 2005 and section 125 of CrPC.  However, such a presumption can be proved wrong, but in such a case, the entire burden is on the couple to prove that they are not married.

Protection of Woman from Domestic Violence Act, 2005

A reading of Section 2(f) of the Act tells us that this act is not only applicable on married couples but is also equally applicable on those persons who live or have lived together in a shared household and share a relationship which is in ‘nature of marriage’.

However, in the case of Indra Sarma V. VKV Sarma[8], the Supreme Court stated that not all live-in relationships could be treated as relationship ‘in nature of marriage’. For a live-in relationship to be treated like one and to fall under the ambit of the Act, certain pre-requisites needs to be fulfilled which are laid down by the Supreme Court, in the case of Velusamy V. D. Patchaiammal[9].

To begin with, both the partners must be legally eligible to get married i.e. the man must be above 21 years of age and the woman must be above 18 years of age, and both of them must be unmarried. If any one of them is already married, the relationship would not be considered a relationship ‘in nature of marriage’ because that would constitute bigamy (Sec. 494 of IPC).

In addition to that, they must have voluntarily cohabited.

And lastly, they must’ve represented themselves as spouses to the society.

If these conditions are fulfilled, the relationship would fall within the meaning of ‘relationship in nature of marriage’ and the abused woman would become entitled to claim the remedies which are made available to the wife in a marriage, under the Act. However, there is one exception to this clause. The Supreme Court, in the case of Indra Sarma V. V.K.V. Sarma[10], held that if a woman is in a live-in relationship with a married man and she is aware of the fact that the man has a legally wedded wife, then she would not be entitled to claim the benefits which are made available by the Act to the woman.

Section 125 of Code of Criminal Procedure, 1973

Section 125 basically talks about the monthly maintenance allowance which a man needs to give to his wife after divorce, if she is unable to maintain herself. However, this provision of law is not limited only to marriages. It is also applicable to live-in relationships, if a ‘relationship in nature of marriage’ is established by fulfilling the above pre-requisites. The Supreme Court, in the case of Chanmuniya V. Virendra Kumar Singh Kushwaha[11], held that the woman would be entitled to claim maintenance from the man with whom she was involved in a live-in relationship, if he leaves her, even if they were not legally married.

Now, another major legal implication which a couple will have to face is when they give birth to a child, while living in a live-in relationship. So, the question which comes in mind is that, what is the legitimacy of the child which is born out of live-in relationship? And what rights does he get?

If the live-in relationship is proved to be a ‘relationship in nature of marriage’, the child out of such relation is considered to be a legitimate child and has a right in the property of his/her parents and is also entitled to maintenance under section 125 of CrPC. The Supreme Court, in the case of Tulsa V. Durghatiya[12], granted the right of property to a child which was born out of live-in relationship. A similar judgment was also given by the Supreme Court, in the case of Bharatha Matha V. R. Vijaya Renganathan[13]. The Supreme Court, in the case of Madan Singh V. Rajni Kant[14], pointed out that for a child to be treated as legitimate, it is important that the relationship between the parents should have continued for a significantly long period of time and it should not be a “walk in and walk out” relationship. However, if the relationship is not proven to be a ‘relationship in nature of marriage’ and is considered to be a relationship limited to sexual relations, then the child out of such relationships have no right on the property of his/her parents, but they still have a right to claim maintenance under section 125 of CrPC because the section specifically mentions “both legitimate and illegitimate child”. The Supreme Court also, in the case of Dimple Gupta V. Rajiv Gupta[15], held that even illegitimate child is entitled to receive maintenance under section 125 of CrPC.

These were some of the legal consequences which a couple can probably face as a result of a live-in relationship. However, the partners involved in live-in relationship can get themselves free from these legal implications by entering into a ‘live-in relationship’ agreement, at the beginning of their relationship.

LIVE-IN RELATIONSHIP’ AGREEMENT

Almost every couple who decides to get into a live-in relationship believes that their relationship would continue for an indefinite period of time and would become permanent at a later stage. There is nothing wrong in having a positive approach but the problem is that they don’t think about the consequences which they might face if their relationship comes to an end, and regret later on. Every couple that is about to enter into a live-in relationship must think practically and should enter into a live-in relation agreement so as to avoid the legal complications, that might arise, at the end of their relationship. Both the partners must discuss with each other and should prepare the necessary T&C, as per their understanding, which would describe the responsibilities and liabilities of each partner during and at the end of their relationship, such as-

  • Division of living expenses during relationship
  • Division of property, at the end of relationship, which is acquired jointly during the relationship
  • Payment of maintenance at the end of relationship etc.

Having an agreement of this sort could make the separation process easier and faster for both the partners at the end.

CONCLUSION

It is clear from the numerous cases that the practice of live-in relationships is gaining popularity amongst the youth very quickly, and therefore it is important that proper laws must be enacted for proper regulation of these relationships, or at least amendments must be made in the existing laws, to avoid any kind of confusion or ambiguity. At the same time, we must also acknowledge and appreciate the efforts of Indian judiciary which has helped in providing recognition to these relationships in the society. The progressive approach of judiciary has proven that the courts have nothing to do with, whether a practice is considered moral or immoral in the society. Even if a particular practice is considered immoral and bad in the eyes of society, the court would declare it to be legal, if the constitution of India or any law enacted by the parliament guarantees the right to the citizens to practice it. This is exactly the case with live-in relationships. Relationships of this sort are considered to be immoral by a majority of population in India, but still the courts have declared it to be legally valid just because of the fact that the constitution of India guarantees the freedom to the persons, to enter into such a relationship by their choice. Although, the concept of live-in relationships is considered bad by the society, there is no doubt that live-in relationship offers several benefits to couples, as compared to a marriage, such as-

  • It provides opportunity and time to the partners in knowing each other better, which is crucial before getting married.
  • Good for same sex partners, In India as we know, it is very difficult for same sex partners to get married and live respectfully in the society. Live-in relationship is a blessing for such partners who are in love and want to live together.
  • Leaving a toxic relationship and moving out is much more easier for a couple having a live-in relationship as compared to a married couple, etc.

However, despite these advantages, a person should not enter into a live-in relationship without proper planning and discussion with his/her partner. He/she must take into consideration all the legal implications, which might arise out of such relationship before entering into one. Also, if two people are entering into a live-in relationship for a temporary period, without any intention of getting married, they must necessarily enter into a ‘live-in relation’ agreement as it could help them avoid the legal complications in the future.


[1] (2013) 15 SCC 755

[2] AIR 2006 SC 2522

[3] (2010) 5 SCC 600

[4] 2018 SCC OnLine SC 1676

[5] (2018) 10 SCC 1

[6] (2010) 9 SCC 209

[7] AIR 1992 SC 756

[8] (2013) 15 SCC 755

[9] (2010) 10 SCC 469

[10] (2013) 15 SCC 755

[11] (2011) 1 SCC 38

[12] (2008) 4 SCC 520 : AIR 2008 SC 1193

[13] (2010) 11 SCC 483 : AIR 2010 SC 2685

[14] AIR 2010 SC 631

[15] AIR 2010 SC 239

Author: Agrim Tandon, Institute of Law, Nirma University

Editor: Kanishka VaishSenior Editor, LexLife India.

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