Socio-legal dimensions of ‘live-in relationship’ in India

Socio-legal dimensions of ‘live-In relationship’ in India

Dr. Swarupa N. Dholam *

Abstract :
The article deals with the socio-legal Dimensions of Live-In relationship in India.
Live-In Relationship has been one of the most controversial legal topic in the
instant past. The aspects of Live-in relationship was not very clear in India until the
Hon’ble Supreme Court gave its landmark judgment in D Veluswamy Vs D
Patchaiammal on 21st October, 2010 about 'relationship in nature of marriage'
under Protection of Women from Domestic Violence Act, 2005. 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.

In India there exists only one kind of relationship between an unrelated

couple of a male and female. The said social union is termed as “Marriage”, which is
more of a sacrament and a divine concept and is practiced as a ritual since ages. But
for number of reasons this concept is loosing its divineness. Love can not be the only
reason to marry, sometimes marriages are forced on couples. Therefore a live in
relationship introduced in society as a substitute for marriage. But nowdays it is no more
substitue, it is having its own stand in society and in law of the country.

Concept of Live in relationship :

The definition and ambit of live in relationship is not clear.

The ‘live-in-relationship’ is a living arrangement in which an un-married couple

lives together in a long-term relationship that resembles a marriage.

Couple present themselves as spouse to the world.

'Live in relationship' means those relationship where there is no marriage

between the parties, in the sense of solemnization of a marriage under any law. Yet the
parties live as couple, represent to the world that they are a couple and there is stability

1
 Socio-legal dimensions of ‘live-in relationship’ in India

and continuity in the relationship. Such a relationship is also known as a 'common law
marriage'.

Common law marriage, sometimes called 'sui juris marriage' (of one’s own laws),
informal marriage or marriage by habit and repute, is a form of interpersonal status that
is legally recognized in limited jurisdiction as a marriage, even though no legally
recognized marriage ceremony is performed or civil marriage contract is entered into or
the marriage registered in a civil registry. A common law marriage is legally binding in
some common law jurisdiction but has no legal consequence in others. 1

A common law marriage, sometimes called 'de facto marriage' (in practice but not
necessarily ordained by law).

Law and society are not alien to each other. They are the two faces of the same
coin. One needs the other. Changes in society demand that law should move with the
time. When this concept rooted in Indian society, then it urges for its meaning in the
eyes of law. Hence the various High Courts of the country and the Hon’ble Supreme
Court in a number of decisions tried to explain the concept of live in relationship. Laws
are in the form of court verdicts which varies from case to case, therefore concept is
also explained on the basis of various social problems before the court.

2
The Privy Council in A Dinohamy v. W L Blahamy laid down the principle 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”. Furthermore the
Supreme Court granted legality and validity to a marriage in which the couple cohabited
together for a period of 50 years. The Supreme Court held that in such a case marriage
is presumed due to a long cohabitation. The same principle was reiterated in the case of
3
Mohabhat Ali v. Mohammad Ibrahim Khan

'Live in relationship' is an extra legal concept, which already secured its stand in
society and it is initiated in law by way of various rulings passed by the superior courts.
Some of them are discussed below;

2
 Socio-legal dimensions of ‘live-in relationship’ in India

4
Payal Sharma v. Superintendent, Nari Niketan, and others 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."

5
The Delhi High Court, in a case Alok Kumar v. State 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”

6
In the case of S. Khushboo v. Kanniammal , the Supreme Court gave its
landmark judgment and held that there was no law which prohibits Live-in relationship
or pre-marital sex. The Supreme court further stated that Live-in relationship is
permissible only in unmarried major persons of heterogeneous sex.

Reasons behind live-in-relation :

Couples cohabit, rather than marry, for a variety of reasons.

• They may want to test their compatibility before they commit to a legal union.

• They may want to maintain their single status for financial reasons.

• In some cases, such as those involving gay or lesbian couples, or individuals

already married to another person, the law does not allow them to marry.

• In other cases, the partners may feel that marriage is unnecessary.

• Most of couples go for live-in relations because they hate to be divorced.

• Existed marriage is unsuccessful or legal and social difficulties arose in

separation.

• Marriage may not be supported or not allowed by family due to interreligion, age
difference etc.

3
 Socio-legal dimensions of ‘live-in relationship’ in India

• Sometimes they scared from responsibilities arose as a married partner,

thereafter as a parents.

• Couple gives priority to the career rather than marriage. Therefore live-in-
relationship is best option for them where there is no commitment and no time for
partner.

• To escape the loneliness in their lives senior citizens have started preferring live
in relationships.

A group of senior citizens under the banner of 'Jyeshtha Nagrik Live-In

Relationship Mandal' Nagpur, led by a former banker Arvind Godbole has formed an
organisation for helping those seeking a partner at the fag end of their lives. 7 Vina
Mulya Amulya Seva (VMAS) Ahemedabad, the charitable trust which had organised this
'Senior Citizen Live-in Relationship Samellan', seven couples who met at this alliance
meet have decided to enter into a live-in relationship. 8

The concept had created a buzz in the social and media circles for the openness
with which various aspects of taking up a live in partner by those who are alone in their
twilight years. This initiative is to reduce the loneliness and the neglect and isolation that
many such single senior citizens face in the evening of their lives. This is a welcome
move by the seniors.

Marriage versus Live in relationship

Today’s India is changing at a pace that was socially unimaginable. Issue like
‘live-in relationship’ that was taken up by the western society are gradually percolating
into our social norms. Marriage is just another commitment. If people are shying away
from marriages – one reason could be that people are scared of commitments that grow
from marriage and are worried. Every relationship has its own advantages and
disadvantages.

The law and society were traditionally biased in favour of marriage. Public policy
supports marriage as necessary to the stability of the family; the basic societal unit. To
preserve and encourage marriage, the law reserves many rights and privileges to

4
 Socio-legal dimensions of ‘live-in relationship’ in India

married persons. Cohabitation carries none of those rights and privileges. It can be said
that cohabitation has all the headaches of marriage without any of its benefits.

Act of Live-in relationship is understood to be without mutual statutory obligations

towards each other. Both parties enter into such relationship with full understanding of
the situation. Hence awarding maintenance or recognising rights out of such relation will
be equating them with husband and wife. Further long cohabitation leads to
presumption of valid marriage which must not be extended to live-in-relation. These
couples face some of the same legal issues as married couples, as well as some issues
that their married friends never acquainted. Both parties who dare to enter into such
relations are all educated class and can not complain or claim any rights on each
other's property.

It threatens the 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 crop up adultery, as
there is no such proscription that live in partners should be unmarried. Thus, a person
might be married and be lived with someone else under the garb of live in relationship.

If the rights of a wife and a live-in partner become equivalent it would promote
bigamy and it would arose a conflict between the interests of the wife and the live-in
partner. 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.
While the right of legally wedded wife remains at stake, the right of live in female partner
too does not become secure.

For instance Payal Katara v. Superintendent, Nari Niketan Kandri Vihar Agra and
Others9, here 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.

5
 Socio-legal dimensions of ‘live-in relationship’ in India

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. Marriage grants 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.

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. The social status and sanction as enjoyed by Married
Couples is not enjoyed by couples in a live-in relationship.

Conflict is a part and parcel of any relationship.

International scenario :

Live in relationship in various countries is 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 excludes a uniform tenor of protecting their
rights. Thereby, discouraging attempts of live-in relationships with legal sanction.

In United States of America exists the concept of 'Cohabitation Agreements'

containing the explicit mention of rights and liabilities under such agreements. In USA
the expression 'palimony' was coined which means grant of maintenance to a woman
who has lived for a substantial period of time with a man without marrying him, and is
then deserted by him. Palimony is a compound word made by 'pal' and 'alimony'. The
first decision on palimony was the well known decision of the California Superior Court

6
 Socio-legal dimensions of ‘live-in relationship’ in India

10
in Marvin vs. Marvin . This case related to the famous film actor Lee Marvin, with
whom a lady Michelle lived for many years without marrying him, and was then deserted
by him and she claimed palimony. Subsequently in many decisions of the Courts in
USA, the concept of palimony has been considered and developed. The US Supreme
Court has not given any decision on whether there is a legal right to palimony, but there
are several decisions of the Courts in various States in USA. These Courts in USA have
taken divergent views, some granting palimony, some denying it altogether, and some
granting it on certain conditions. Hence in USA the law is still in a state of evolution on
the right to palimony.

11
In Taylor vs. Fields the facts were that the plaintiff Taylor had a relationship with a
married man Leo. After Leo died Taylor sued his widow alleging breach of an implied
agreement to take care of Taylor financially and she claimed maintenance from the
estate of Leo. The Court of Appeals in California held that the relationship alleged by
Taylor was nothing more than that of a married man and his mistress. It was held that
the alleged contract rested on meretricious consideration and hence was invalid and
unenforceable. The Court of Appeals relied on the fact that Taylor did not live together
with Leo but only occasionally spent weekends with him. There was no sign of a stable
and significant cohabitation between the two.

In China couples also sign a contract for live-in relationship. The child born through
such relationships enjoys the same succession and inheritance rights as are enjoyed by
children born through marriages.

The concept is well substantiated and given the most vital force in France wherein
two adults of opposite sex or same sex can enter into an agreement to live together and
organize their lives and thereby enjoy the rights of a married couple and also work
towards social welfare. Such agreement can be revoked by both or either of the parties
by giving three months prior notice to the other party. Such agreements or pacts are
popularly known as “pacte civil de solidarite” (civil solidarity pacts). The legal status of
the pact was passed by the French National Assembly in 1999 and allowed couples to
enter into agreements for a social union.

In the UK, 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

7
 Socio-legal dimensions of ‘live-in relationship’ in India

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. 12

Law in India relating to live in relationship in respect of woman and their

children :

As we know that law is not a means to maintain law and order in the society, but
it is also the means of providing social justice. We are also aware that the law does not
operate in vacuum. It operates in society, which is itself influenced by various factor
such as social structure. Law is not for law sake. Law is an instrument of social control.

There is no specific enactment for live in relationship. Neither any personal law
recognize ‘live-in-relationship’ nor does the Criminal Procedure Code 1973. The
Protection of Women from Domestic Violence Act 2005 on the other hand for the
purpose of providing protection and maintenance to women says that an aggrieved
person from relationship in nature of marriage. However, law on this issue is not very
clear either in India or abroad.

Cohabiting couples have little guidance as to their legal rights in such areas as
property ownership, responsibility for debts, custody, access to health care and other
benefits, and survivorship.

Section 125 of Cr. P. C. provides for maintenance of wife, children and parents,
who cannot maintain themselves. As of now maintenance can only be claimed by a
woman who is a wife, has either been divorced or has obtained a divorce, or is legally
separated and is not remarried.

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 Cr. P. C. This view was supported by the
13
judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others . The positive

8
 Socio-legal dimensions of ‘live-in relationship’ in India

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 Cr. P. C 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 Cr. P. C. Thus, it recommended that the word 'wife' in Section 125
Cr. P. C. should be amended to include a woman who was living with the man like his
wife for a reasonably long period.

The Apex Court even went on to protect the live in female partner from harassment
14
for dowry. In Koppisetti Subbharao Subramaniam v. State of A.P. the defendant used
to harass his live in partner for dowry. In the Supreme Court, Justice Arjit Pasyat and
Justice 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. It is just a label
given to a demand of money in relation to a marital relationship”. Drawing parallels with
the law which recognises 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?”

15
In Chanmuniya vs Virendra Kumar Singh Kushwaha it is held that a broad and
expansive interpretation should be given to the term `wife' to include even those cases
where a man and woman have been living together as husband and wife for a
reasonably long period of time, and strict proof of marriage should not be a pre-
condition for maintenance under Section 125 of the Cr. P. C, so as to fulfill the true spirit
and essence of the beneficial provision of maintenance under Section 125 of Cr. P. C.
Such an interpretation would be a just application of the principles enshrined in the
Preamble to our Constitution, namely, social justice and upholding the dignity of the
individual.

9
 Socio-legal dimensions of ‘live-in relationship’ in India

Law should have a discernible stance with respect to live in relationships and the
aftermath of such relations. There are number of cases pending before trial courts filed
under The Protection of Women from Domestic Violence Act, 2005, wherein a female
from live in relationship is an aggrived person. The said Act does not define live in
relationship or relationship in nature of marriage. Therefore Hon'ble Supreme Court on
21st October, 2010 cleared all doubts about the same.

Landmark Judgement of Hon'ble Supreme Court in D Veluswamy Vs D

Patchaiammal 16

Some relevant paragraphs are reproduce herewith :

para 16. However, the question has also to be examined from the point of view of The
Protection of Women from Domestic Violence Act, 2005.

Section 2(a) of the Act states :

“2(a) “aggrieved person” means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to any act of
domestic violence by the respondent”;

Section 2(f) states :

“2(f) “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”;

Section 2(s) states :

“2(s) “shared household” means a household where the person aggrieved lives or at
any stage has lived in a domestic relationship either singly or along with the respondent
and includes such a household whether owned or tenanted either jointly by the
aggrieved person and the respondent, or owned or tenanted by either of them in respect
of which either the aggrieved person or the respondent or both jointly or singly have any
right, title, interest or equity and includes such a household which may belong to the

10
 Socio-legal dimensions of ‘live-in relationship’ in India

joint family of which the respondent is a member, irrespective of whether the respondent
or the aggrieved person has any right, title or interest in the shared household.”

para 20. Having noted the relevant provisions in The Protection of Women from
Domestic Violence Act, 2005, we may point out that the expression 'domestic
relationship' includes not only the relationship of marriage but also a relationship 'in the
nature of marriage'. The question, therefore, arises as to what is the meaning of the
expression 'a relationship in the nature of marriage'. Unfortunately this expression has
not been defined in the Act. Since there is no direct decision of this Court on the
interpretation of this expression. We think it necessary to interpret it because a large
number of cases will be coming up before the Courts in our country on this point, and
hence an authoritative decision is required.

para 33. 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.

In our opinion a 'relationship in the nature of marriage’ under the 2005 Act must also
fulfill the above requirements, and in addition the parties must have lived together in a
'shared household’ as defined in Section 2(s) of the Act. Merely spending weekends
together or a one night stand would not make it a 'domestic relationship’.

para 34. In our opinion not all live in relationships will amount to a relationship in the
nature of marriage to get the benefit of the Act of 2005. To get such benefit the
conditions mentioned by us above must be satisfied, and this has to be proved by
evidence. 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 our opinion, be a relationship in the
nature of marriage’

11
 Socio-legal dimensions of ‘live-in relationship’ in India

para 35. No doubt the view we are taking would exclude many women who have had a
live in relationship from the benefit of the 2005 Act, but then it is not for this Court to
legislate or amend the law. Parliament has used the expression 'relationship in the
nature of marriage’ and not 'live in relationship’. The Court in the grab of interpretation
cannot change the language of the statute. We can not interpret the law beyond its
words.

This landmark judgment is elaborative in itself. Hon'ble Supreme Court has

repeatedly emphasized the difference between 'live in relationship' and 'relationship in
nature of marriage'. This judgment is self explanatory about its reasons for giving
requirements to explain any relationship in the pretext of the Protection of Women from
Domestic Violence Act, 2005.

The Madras High Court has in a judgement said if any unmarried couple of the
right legal age "indulge in sexual gratification," this will be considered a valid marriage
and they could be termed "husband and wife. The court said that if a bachelor has
completed 21 years of age and an unmarried woman 18 years, they have acquired the
freedom of choice guaranteed by the Constitution.

"Consequently, if any couple choose to consummate their sexual cravings, then that
act becomes a total commitment with adherence to all consequences that may follow,
except on certain exceptional considerations The court said marriage formalities as per
various religious customs such as the tying of a mangalsutra, the exchange of garlands
and rings or the registering of a marriage were only to comply with religious customs for
the satisfaction of society. The court further said if necessary either party to a
relationship could approach a Family Court for a declaration of marital status by
supplying documentary proof for a sexual relationship. Once such a declaration was
obtained, a woman could establish herself as the man's wife in government records.
The court also said if after having a sexual relationship, the couple decided to separate
due to difference of opinion, the 'husband' could not marry without getting a decree of
17
divorce from the 'wife'. Justice C. S. Karnan passed this order on17.6.2013

Conclusion :

However in Indian context there is a urgent and dire need to recognize such
relationship through legislation which would empower both the parties with rights and

12
 Socio-legal dimensions of ‘live-in relationship’ in India

create obligations with duties thereby confining the ambit of such relationship. Therefore
the law so enacted on live in relationship should keep in mind the basic structure of
tradition that prevails in the Indian society.

Family Law experts advise cohabiting couples to address these and other issues in a
written cohabitation agreement, similar to a Premarital Agreement. The contract should
outline how the couple will divide expenses and own property, whether they will
maintain joint or separate bank accounts, and how their assets will be distributed if one
partner dies or leaves the relationship. Property acquired during cohabitation, such as
real estate, home furnishings, movable valuables etc. may be contested if partners
separate or if one of them dies. To avoid this, the agreement should clearly outline who
is entitled to what.

Cohabiting parents may face legal difficulties about children born out of such
wedlock. An unmarried father must acknowledge paternity by making necessary legal
documents such as declaration for legitimating his child and establishing his parental
relationship. Likewise, both parents must actively participate in the raising of the child in
order to have a legitimate claim to custody or access (visits). Legitimation is also
important for inheritance purposes. The best way to guarantee the distribution of assets
to children is through a written will.

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 need of the present hour is not to try bringing live-in relationships under the
ambit of any existing law, but to enact a new different law which would look into the
matter of live-in separately and would grant rights and obligations on the part of the
couples thereby reducing the cases of misuse of existing laws and also to reduce cases
of atrocities faced by the female partners under such relationships.

13
 Socio-legal dimensions of ‘live-in relationship’ in India

References :

* The views expressed by the author in this article, are her personal views and have no
official bearing whatsoever.

1. http://en.wikipedia.org/wiki/Common-law_marriage (last visited on 18th December 2011 )

2. (1928) 1 M. L. J. 388 (PC)

3. AIR 1929 PC 135.
4. 2001 (3) AWC 1778 : AIR 2001 All 254
5. Cr. M.C. No. 299/2009, decided on August 9, 2010 by High Court of Delhi :
http://lobis.nic.in/dhc/SND/judgement/10-08-2010/SND09082010 CRLMM2992009.pdf :
(retrieved on 25th August 2010.)
6. 2010 CRI. L. J. 2828, AIR 2010 SC 3196, (2010) 2 SCC(Cri) 1299
7. Barkha Mathur, TNN Oct 7, 2012, 07.37PM IST
8. PTI Nov 20, 2011, 09.20PM IST
9. (2006) 8 SCC 726
10. 18 Cal.3d 660 (1976).
11. (1986) 224 Cal. Rpr. 186
12. http://www.indialawjournal.com/volume2/issue_2/article_by_saakshi.html, (last visited on
18th December 11)
13. In CRIMINAL WRIT PETITION NO.2218 OF 2007 decided on 16.9.2008 by Bombay
High Court.
14. In SLP (Crl.) No. 4496 of 2006 decided on 29.4.2009 by Supreme Court of India.
15. (2011) 1 SCC 141
16. In CRIMINAL APPEAL NOS. 2028-2029 Of 2010 decided on 21.10.2010 by Supreme Court of
India
17. http://www.thehindu.com/news/national/tamil-nadu/couples-who-have-premarital-sex-to-be-
considered-married-says-hc/article4824017.ece (lastly visited on 18th June 2013)
• Duff, Johnette, and George G. Truitt. 1992. The Spousal Equivalent Handbook: A Legal
and Financial Guide to Living Together. New York: Penguin, NAL/Dutton.
• Richardson, David G. 1993. "Family Rights for Unmarried Couples." Kansas Journal of
Law and Public Policy (spring).
• http://www.indialawyers.wordpress.com/category/live-in-relationship/ (last visited on18th
December, 12)
• Chetan Tripathy : Live in relationship–review and anlysis :
http://www.projectcloud.info/research-paper-idea/ (last visited on 18th December, 12)

14