Legality Of Live In Relationship In India

The Indian society is ever changing. Its custom and practices have seen a lot of dynamism and a great influence from the western culture. The Indian society has shown a drastic change in their living patterns from women working at night in BPOs/Call centers, people moving to different states in search of better education and employment to millennials taking cabs instead of buying cars. People in the society has opened their minds to the idea of Western lifestyle and living an independent lifestyle away from cultural and family boundations.

One of such change is in the outlook of how people see their relationships. Feeling of belongingness and being loved is what most people want but the tie that marriage binds is too binding for them. And an alternative is a relationship that resembles marriage but without its obligations and responsibilities. This is when live-in relationships come into picture.

Live-in-Relationship is legal in India, is purely an arrangement between the parties; once a party to a live-in- relationship determines that he/she does not wish to live in such a relationship, that relationship comes to an end. Hence, it is called as a walk-in & walk-out relationship.  Live-in-Relationship is neither a Crime nor a Sin; though it is unacceptable to the certain extent in the Indian society . In a country like India, where marriages are considered as a social foundation to legalize the relationship between a man and a woman; the concept of Live-in-Relationship has set up a new dimension in the arena of men-women relationship.

Is live-in relationship legal in India?

There exists no uniform civil code in India and marriages are most of the times are governed under personal laws of every Individual. The concept of Live-In Relationships is not expressly recognized by the legislature however the Courts in India time and again while distinguishing morality from law have upheld the validity of such relationships keeping in mind the constitutional principles.

The constitution of India has given certain fundamental rights and freedoms to the people. Under Article 19 of the Constitution Indian citizens have a fundamental right to freedom of speech and expression, and to reside and settle in any part of the territory of India. Apart from this Article 21 of the Constitution confers Right to life to every person. One’s wish to reside with a partner of their choice and establish sexual relationship is governed by the above mentioned rights and freedoms. However it is to be kept in mind that such rights and freedoms are not absolute.

In landmark case of S. Khushboov. Kanniammal (2010) 5SCC 600, 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.

In Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522 the supreme court of India observed that live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery’), even though it may be perceived as immoral.   
[It is to be noted that the Supreme Court has recently decriminalized adultery by its judgment in Joseph Shrine’s case.]

In Indra Sarma vs V.K.V.Sarma (2013) 15 SCC 755 the Supreme Court observed that Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.

Presumption Of Marriage And Live In Relationships

The courts in India have time and again observed that a long continued live in relationship can raise a presumption of marriage. Such a presumption is often raised by the courts to safeguard the interests of the parties (generally women) to such arrangement and the children born out of such arrangement.

In Tulsa & Ors vs Durghatiya & Ors (2008) 4 SCC 520 the Supreme Court gave legal validity to a 50 year live in relationship of a couple. It was held that the court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sec. 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case. It was further held that a strong presumption arises in favour of wedlock where the partners have lived together for a long term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favour of legitimacy and frowns upon bastardy.

Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209 the Supreme Court held that the live-in relationship if continued for 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 rather than giving making it a new concept like live-in relationship.

Applicability Of Various Laws On A Live In Relationship

Can maintenance be claimed in a live-in relationship?

The ability to claim maintenance in a live-in relationship depends on the legal recognition of such relationships in the specific jurisdiction. In some regions, live-in partnerships are similarly to marriages, which can allow for maintenance claims under certain conditions, such as financial dependence and the length of the relationship.

For example, in India, the Supreme Court has acknowledged the right to maintenance for women in live-in relationships, provided specific criteria are met. However, in other areas, live-in relationships might not have legal standing, which could limit or negate the ability to claim maintenance. Therefore, individuals in live-in relationships should seek legal advice to understand their rights and the applicable laws in their region.

Is the domestic violence act applicable to live-in relationships?

Domestic Violence Act, 2005 was legislated as an attempt to protect women from abusive partners and family. As per Section 2 (f), the Act not only applies to a married couple, but also to a ‘relationship in nature of marriage’.  A woman under DV Act is entitled to claim remedy in case of physical, mental, verbal or economic abuse. In addition, remedies are conferred for alienation of woman’s property and restriction from use of facilities to which the abused is entitled. The abused has been granted several rights and protections under this legislation.

Therefore where it is established that there exist a relationship in nature of marriage the woman in a live I relationship can claim all the remedies available to her.

In Velusamy vs. D. Patchaiammal 2010 (10) SCC 469 determined certain pre- requisites for a live in relationship to be considered valid. It provides that the couple must hold themselves out to society as being akin to spouses and must be of legal age to marry or qualified to enter into a legal marriage, including being unmarried. It was stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The court held that not all relationships will amount to a relationship in the nature of marriage and get the benefit of the Act. It further clarified that, if a man keeps women as a servant and maintains her financially and uses mainly for sexual purposes, such relationship would not be considered as marriage in the court of law. Therefore to get such benefit the conditions mentioned by the Court must be satisfied, and has to be proved by evidence.

Section 125 Cr.P.C

Is Section 125 of CrPC applicable to live-in relationship?

• Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?     
• Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of DV Act, 2005?
• Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

Thereafter the Supreme Court to some extent clarified the legal position in the Landmark Judgment of Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 held that “when the woman is aware of the fact that the man with whom she is in a live-in relationship and who already has a legally wedded wife and two children, is not entitled to various reliefs available to a legally wedded wife and also to those who enter into a relationship in the nature of marriage” as per provisions of PWDVA 2005. But in this case, the Supreme Court felt that denial of any protection would amount to a great injustice to victims of illegal relationships. Therefore, the Supreme Court emphasized that there is a great need to extend Section 2(f) which defines “domestic relationships” in PWDVA 2005 so as to include victims of illegal relationships who are poor, illiterate along with their children who are born out of such relationships and who do not have any source of income. Further, Supreme Court requested Parliament to enact a new legislation based on certain guidelines given by it so that the victims can be given protection from any societal wrong caused from such relationships.      
 The court gave certain guidelines to determine the relationships which will fall within the expression ‘in the nature of marriage’ which are as follows-

1. Duration of period of relationship Section 2 (f) of the 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 and, hence, need no further elaboration.
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 a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
7. Socialization in Public Holding out to the public and socializing 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.

The court further said though socially unacceptable in this country, a live-in or marriage-like relationship is neither a crime nor a sin and it is an extremely personal decision to marry or not to marry, or to have a heterosexual relationship and therefore the court felt that there was a need for a legislation as it was the woman who invariably suffers because of the breakdown of such a relationship. The apex court bench also gave examples of various countries that had started recognizing such relationships. It said the Parliament should give this issue a serious consideration and bring in proper legislation or make a proper amendment to the Act, so that women and the children born out of such kinds of relationships can be protected, though such a relationship might not be a relationship in the nature of a marriage.

Conclusion

The steps taken by the judiciary are pragmatic in approach and a welcome step towards social acceptance of live-in relationships. Live-in relationships do provide individual freedom, but laws are essential to cut back its disadvantages, due to the insecurities it carries with it. A live in relationship though may be recognized by the judiciary still lacks societal acceptance and continues to be a taboo. Proper legislative enactments are required not only to protect the rights and interests of the partners to such relationships but also to determine the various other rights arising out of such relationship such right over property, custodial rights of children etc.

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