Author: Niharika Kalyan
“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”
Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun
‘Globalisation’ had had both positive and negative influence. Taking the positive aspect into consideration, evil practices such as taking dowry have been abolished. Decriminalization of Section 377 of IPC, 1860 gave a new way to the people to accept their actual identities. Abolition of gender- based stereotypes has encouraged equality in each sector. Participation of women in decision- making has opened new avenues for the nation to its prosperity. But the negative aspects have far reaching consequences. Consumption of drugs, pornography, and boycott of parents in their old age etc. are a few instances.
One such impact which globalization had is the flourishing of live- in relationship among the young people. But we cannot classify it as a positive or a negative influence. Thus this paper attempts to analyze the position of live- in relationships in India to have an idea about its legal, social and religious dimensions.
LIVE- IN RELATIONSHIPS IN INDIA
India is known for its years- old customs and traditions which glorify the tales of brave. Institution of marriage is considered as the most sacred and the purest relation between two individuals of opposite sex. Hindu Law is specifically drafted to regulate it & consequences it follows. In the old Hindu scriptures, it is considered as an eternal bond of love and togetherness. Wedding is the ceremony through which two people tie their knots and consists of many rituals. Contrary to it, there are no rituals for entering live- in relationship. Merely the consent of individuals is sufficient. These relations have their origin in western culture.
The live- in relationship is an arrangement where an unmarried couple lives under a same roof in a long term relationship which resembles a marriage. In common parlance, it is considered cohabitation. In the pre- independence era, judiciary took a stand on such relations and considered them as ‘state of marriage’. In the case of A. Dinohamy vs. W.L. Balahamy, the Privy Council recognizing this concept held that where a man and woman are proved to have lived together as husband and wife, the law will presume that they were living together in consequence of a ‘valid marriage’ and not in a state of concubinage, unless otherwise proved.
The present paper focuses on the analysis of Legal, Religious and Social dimensions of Live-in relationships in India.
REVIEW OF LITERATURE
Live In Relationship and its Impact on Indian Traditional Society A Critical Socio- Legal Study – RAJIB BHATACHARYYA(2016)
In his paper, he has concluded that despite being highly prevalent in majority of the western countries, the reality with regard to the social fabric of India is drastically different. It can be inferred from the fact that in India, marriage continues to be the most favoured form of institution over any other arrangement. But it does not restrict any person’s right to enter into a live- in relationship.
Live-In Relationships In India and Their Impact- A Sociological Study
-KALIKA ACHARYA, SANKALP UDGATA(2019)
This study focuses on sociological perspective of live- in relationships to understand the actual nature of such unstable form of living arrangement. It also provides a deeper insight into Hindu scriptures and a comparison between marriage and such arrangement.
SHIV VISHVANATHAN (2015)
Today’s generation is physically and emotionally mobile. Everyone is replaceable. The major objective of such relationship is to cut off the relation if it did not work out. Young generation possesses a higher degree of individuality and they would not mind cutting off someone else from their life if they are not happy.
Live- In Relationship and Status of Women in India
It is harmful for the legally wedded wife and children if the husband is in live- in relationship with someone else. It is also not beneficial to the woman with whom he is living in such unrecognized relationship.
FRITZI-MARIE TITZMANN (2013)
In his research article, Contesting the Norm? Live-in Relationship in Indian Media Discoures, he concluded through his study that cohabitation without marriage poses a threat to ideological constructions of an essential “Indian family” and various themes such as sexuality, relationship models, and intergenerational relationships yield an overall impression of immorality and are against the alleged “Indian culture.”
CHAPTER 1- LEGAL POSITION
There is no particular enactment for these kinds of relationships. Thus the parties are free from any obligations towards each other. Various legal dictionaries define the term ‘live in relationship’ but there is no specific definition and henceforth lawful status of such individuals is always doubtful. Though the law is still not specific yet courts have played a crucial role and conferred certain rights and duties to the couple and also secured the future of children born out of such union. A few acts have been amended to prevent the misuse of such union.
1.1 Some of them are:-
1. DOMESTIC VIOLENCE ACT, 2005
It was the first statute wherein the legislature recognized such relationships and gave certain rights to the females who lived with a man without marriage. However such kinds of relationships are still uncommon in India and are mostly found in urban areas. Section 2(a) of the Act defines aggrieved person as the woman, living in domestic relationship, subjected to domestic violence by the respondent. Section 2(f) of Domestic Violence Act defines domestic relationship and identifies live in relationship as a relationship where parties live in a shared household in the nature of marriage. Section 3(a) lists out certain acts which would amount to domestic violence. In all these provisions, there is no period prescribed for the residence of the parties. Legislature has missed out on explaining the meaning of term ‘relationship in nature of marriage’. However the Supreme Court in D. Velusamy v. D. Patchaiammal has provided certain guidelines for a relation to come in the ambit of ‘relationships in the nature of marriage’-
- The couple must hold themselves as being analogous to spouses for a significant period of time.
- Both of them must have attained the legal age of marriage.
- They must be qualified to enter into a legal marriage.
- The act of cohabitation must be voluntary.
Merely spending weekends together or a one- night stand would not qualify as ‘domestic relationship’. A relationship with a married person cannot amount to relationship in nature of marriage.
2. CRIMINAL PROCEDURE CODE, 1973
Section 125 provides for maintenance to wife and other relatives. Explanation (b) to Section 125(1) provides an inclusive definition of the term ‘wife’ i.e. a woman who has obtained a divorce by or has been divorced by her husband and has not remarried. The Supreme Court in Vimala v. Veeraswamy, gave a wider meaning to the provision in Sec. 125 and stated its object also. The primary object of Sec. 125 is to protect the woman from destitution. Therefore a woman not having the status of a legally wedded wife is brought within the ambit of Sec. 125 complementary to its objective.
The Supreme Court reiterated the principle in 1999 in the case of Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr. . The court observed the difference between strictnesss of evidence required under Sec. 125 of CrPC and Sec. 494 of IPC. Since the primary object of Sec. 125 is to provide a quick and summary remedy to the neglected wives, so the standard of proof required to prove marriage is not that strict.
3. EVIDENCE ACT, 1872
According to Sec. 114, Courts may presume existence of certain facts which it thinks likely to have happened in the natural course of events. Therefore, it may presume existence of a valid marriage where a man and a woman have lived together for a long spell of time. In Madan Mohan Singh v. Rajni kant  emphasized on the importance of Sec. 114 and in the concluding paragraph held that the live in relationships cannot be termed as “walk-in” and “walk-out” relationship and there shall be presumption of marriage and the children born to the couple will not be illegitimate.
A point of discussion in the provision is that the couple has entered into this relationship deliberately to avoid the relation of marriage and such presumption would operate against them. But it is still unanswered.
1.2 LEGAL STATUS OF CHILDREN BORN OUT OF THESE RELATIONSHIPS
The Supreme Court in Tulsa v. Darghatiya  reiterated the Madan Mohan Singh case and held that children born to the couple will not be illegitimate provided the couple havs cohabited for a significant period of time. In another case Bharatha Matha v. R. Vijaya Renganathan, the Supreme Court held that a child born out of such relationship may be allowed to inherit the property of the parents and therefore be given legitimacy in the eyes of law. The Indian judiciary in the absence of specific statute has been protecting the rights of the children by giving a broader interpretation to the law so that no child is “bastardised” for having no fault of his/her own.
In Revanasiddappa v. Mallikarjun Supreme Court explained the crux of Sec 16(3) of the Hindu Marriage Act, 1955 and said that the birth of the child is to be viewed independently of the parents’ relationship. Such child is completely innocent and has all the rights and privileges as are available to the children born out of valid marriages.
It is clear from the above judgments that children born out of such relations are not illegitimate. However the legal position of their inheritance rights is still ambiguous and unclear. Section 16 of HMA provides for inheritance of property of parents by their children. But in order to invoke Sec. 16, there must be de facto or de jure marriage in existence and when hit by Sec. 11 or 12 becomes void or voidable. No rituals or ceremonies take place while entering into live-in relationships. The court in Ramkali v. Mahila Shyamvati  defined a de-facto marriage as a union where a man and a woman live together for a significant time period as husband and wife with habit and repute. So a live-in relationship can be termed as de-facto marriage. Only self- acquired property of the parents can be inherited by these children and not their ancestral property. However the Supreme Court in Revansidapa v. Malikarjun  observed that property is used in a generic sense and marks no distinction between ancestral and self- acquired property. Thus children are entitled to acquire both ancestral and self-acquired property.
1.3 INHERITANCE RIGHTS OF PARTNERS
According to the present law, a person may nominate any person in his will. However the main point to be noted is that a will can only be made for a self-acquired property of the person. In the case of Vidyadhari v. Sukharna Bai, the deceased partner nominated the other partner in his will and the Apex court granted the succession certificate also. Any person eligible to enter into a contract can make a will and a person legally competent to hold property can become a legatee. Gift under Transfer of Property Act, 1882 can also be made by one partner to another. Any property can be transferred whether movable or immovable. Registration of gift deed is mandatory in case of immovable property. Any of the above mentioned ways can be used by partners in live- in relationship.
However there is no specific legislation on the inheritance rights of partners in the current legal framework. The Indian courts have also not addressed this issue. Majority of the courts have tried to frame these relationships in form of marriage but are silent on this issue.
1.4 CONSTITUTIONAL PROTECTION TO LIVE- IN RELATIONSHIPS
India is a democratic nation and has to consider the ideas and notions of different people. While live- in relationships may be viewed as an attack on the very societal structure. There may be some people who consider it as right. There are many indigenous groups in our country which accept the sexual relations outside wedlock as a normal occurrence. A huge number of people find nothing wrong with pre- marital sex. Wherein any restriction is imposed, it is considered as violation of Article 21 of the constitution. In the case of Lata Singh v. State of U.P., the Supreme Court held that a live-in relationship between two adults of heterogenic sex with their consent does not amount to any offence even though it is immoral in the eyes of law. Also in Khushboo v. Kaniammal  the Supreme Court opined that though it is a mainstream view that sexual intercourse should take place between married partners only however, there is no statutory offence that takes place when adults willingly engage in intercourse outside the marital framework. The Supreme Court also hels that right to be in a live-in relationship is covered under the ambit of Article 21 i.e. Right to life and Personal Liberty under the Indian Constitution. The act of two major persons of living together cannot be termed as illegal or contrary to law.
CHAPTER 2: LIVE- IN RELATIONSHIP AND RELIGION
Culture is the behavior-pattern and collective programming of the mind which distinguishes one class of people from another. It includes all aspects of human interaction which passes on from one generation to another and thus becomes mankind’s adoptive mechanism.
Addressing cultural issues can be contentious in part because it is intimately related to some values or ethics which we are told to consider good or bad. Thus in order to deeply analyze the cultural issues in a specific context, one must gain the understanding of the subtle differences between cultural values and religious ideas. We are highly connected to our cultural values and thus challenge to the culture generates strong and emotionally charged responses.
Similarly modern law and religion both have a common object of framing human consciousness
and behavior in order to promote harmony and peace. Both are complementary, contradictory and have never been completely devoid of each- other. People’s religious beliefs differ from one area to another. They have difference in their ideologies. Each and every individual have a different set of customs and traditions based on the ideology of his class or community. However it is interesting to note that majority of the religions do not accept live- in relationships based on their individual beliefs.
When it comes to cohabitation between two individuals, one may see no wrong in it as it is just confined to living together and nothing more than that. But the Holy Bible suggests the contrary and states that when two people live together, one opens the doors to even more temptations between them. “But fornication, and all uncleanness, or covetousness, let it not be once named among you, as becometh saints.” Christian traditions and customs never incorporate non- conjugal cohabitation into a marital framework.
Islam strictly prohibits living together of people outside marital relation. Quran is strictly against the Zina or establishing any physical relationship or sexual intercourse between unmarried people. Living with a person of opposite sex is not at all permissible who is not related by blood, family or marriage.
Marriage is considered as a sacred and important event for an individual as well as his family. It has been given legal and social recognition through various acts lie Hindu Marriage Act, Special Marriage Act etc. According to Vedas, there are four purposes of human life- Dharma, Artha, Kaam and Moksha. In order to fulfill these purposes, it is important for a man and a woman to marry. Thus marriage is considered as a religious sacrament. In Hindus, Marriage is considered as the foundation stone of society. According to Manu, Kanyadaan is performed by the parents of the girl, who is going to be married, wherein they gift their daughter to a man who makes her his wife and they continue to live together for lifetime. Idea behind such ritual is stability and permanence in their relationship.
Thus it can be concluded that majority of the religions are not in favour of such kind of relationships.
CHAPTER 3- SOCIAL POSITION
The Apex Court while deciding Payal Sharma v. Superintendent, Nari Niketan and others observed the difference between law and morality and said a man and a woman can live together if they want to even without getting married. It may not be respected by the society but it is not illegal.
In India marriage is considered as a sacrament however it is very difficult to trace the origin of marriage. It is a concept that started as soon as the man came into being. The primary purpose of marriage was to give legitimacy to the sexual relationship between man and women and secondary to provide legitimacy to the children born out of such wedlock. The concept of marriage is so deeply rooted in Indian society that live-in relationships are considered as a taboo for the couple and even their parents. Hence those couples have to face the crunch of the society. Marriages in India are not only the tie up of men and women but also a tie up of their families. Therefore a great degree of caution is required when two people are getting married.
But when two individuals of opposite sex live together under a same roof, the society not only doubts their character but also start questioning their upbringing and humiliating their family members. As a result even parents become unsupportive for these relationships. However, things are undergoing a change in metropolitan cities like Bangalore, Delhi, Mumbai, and Chennai. People are coming forward to accept live-in relationship as a legitimate form of relationship but in rural India, the situation is exactly the opposite. They do not have a positive outlook towards live in a relationship.
On the other hand, in western countries marriages are seen as an individual choice rather than a family decision and hence the degree of individual liberty is higher compared to the one in Indian society. Majority people in India have a belief that live in relationships are just a way to fulfill the sexual desires and consider it equivalent to prostitution. Therefore this kind of mindset needs social conditioning. People need to understand the idea behind such living arrangements. It is completely upon the individuals whether they want to marry or not because ultimately they are the ones who will be affected by their decisions and they are the ones who are going to live together in the future.
Another notion that exists in Indian society is that live- in relationships make a man and a woman shrug away from their responsibilities. Individual liberty and freedom are the essence of democratic society and hence must be respected. However the younger generation is more welcoming towards this idea. They consider their own well being rather than small talks of the society.
A specific legislation on live- in relationships is the need of the hour. There is an urgent need to recognize such relationships through enactments thereby creating certain rights and corresponding duties. It is clear from the precedents given by the judiciary that it is not ready to treat all kinds of relationships as live-in relationships similar to marriage. Only stable and reasonably long period of relationships between the parties are given the benefit of various acts. However the judiciary is equally aware of the fact that the law must change itself according do that changing scenario of society. It exercises due care and caution while deciding the cases relating to live-in relationships as these are binding on lower courts and may also become law of land under Article 141 of the constitution. The judiciary should have a pragmatic approach rather than pedantic approach.
It is also not in the interest of society to legalize all kinds of live-in relationships. The foreign model cannot be adopted as it is. It requires refinement. Our social structure is substantially different from theirs. In absence of a clear social and legal categorization of non- marital relations, this field has been left wide open for the judicial functionaries and they have marked a difference between a realistic “relations in the nature of marriage” from that with a “servant, keep or a one night stand.”
Act of Live-in relationship is understood to be without mutual statutory obligations towards each other. Both parties enter into such relationship with a rational mind and awareness of the situation. Therefore awarding maintenance or recognition of rights out of such relation will be considered as equating them with husband and wife. Further a significant period of cohabitation leads to the presumption of valid marriage which must not be extended to live-in-relation. The couples are forced to face some of the same legal issues as married couples and even some issues which their married friends never acquainted during their wedlock.
Gradually the scope of live in relationships is expanding in India – especially across all major cities. A lot of young couples these days prefer living together without marriage. However live in relationships are often based on short term objectives and therefore can be dissolved at any moment. Henceforth, it can prove to be a failure in building a safe and secure society. It threatens the notion of husband and wife and the concept of marriage that enjoys high level of sanctity and purity when it comes to India. It also tends to crop up adultery as it is not compulsory for the live- in partners to be unmarried. Thus, there may be a possibility that a person might be married and still live with someone else under the garb of live in relationship.
Undoubtedly the shift to live in relationship culture is the result of westernization. Such ignorant attitude towards a religious sacrament is highly capable of destroying family structure and is contrary to the established norms of the society. Thus, laws must discourage such an approach. Parents must ensure adequate disciplinary measures to ensure the strong bonding which an individual must share with his family and his roots. Teenagers at educational institutions must be made aware of the harmful and unwanted effects of live in relationships. Simultaneously, to ensure the rights of women living in such an arrangement must be equated as against the rights of a duly wedded wife so as to ensure her safety and its misuse should be prevented.
 (2011) 11 SCC 1
 AIR 1927 PC 185
 2011 Cri L J 320
 1991 AIR SCW 754
 1999 AIR SCW 3844
 (2010) 9 SCC 2009
 (2008) 4 SCC 520
 (2010) 11 SCC 483
 (2011) 11 SCC 1
 AIR 2000 MP 288
 Jinia Kcotin v. Kumar Sitaram Manjhi, (2003) 1 SCC 730
 (2011) 11 SCC 1
 (2008) 2 SCC 238
 AIR 2006 SC 2522
 2010 Cri L J 2828.
 The Holy Bible(Ephesians 5:3)
 AIR 2001 All 254