LIVE IN RELATIONSHIP

INTRODUCTION

In an era where traditional notions of love and companionship are ever evolving, the concept of live-in relationships has emerged as a prominent and transformative change in the social reality of the world.

Combining both the general and legal understanding of a live-in relationship: one can define it as an arrangement between two persons, who are unmarried, to live together on a long-term basis, satisfying the emotional, sexual as well as financial needs of each other.[1] While, in nature it can be held to be similar to marriage, it is not the same as that. The aim for this article therefore is to delve into the intricacies that surrounds its legal status of such an arrangement, the exploration of which extends beyond geographical boundaries of just India, and rather brings into its ambit perspectives from around the world.

1. POSITION OF LIVE-IN RELATIONSHIPS AROUND THE WORLD

Individuals in live-in relationships have differing degrees of legal rights and protections in different jurisdictions. As a result, an international perspective provides significant insights into various approaches to recognizing and regulating such domestic arrangements, aiding discussions and debates in India on the subject. Therefore, before delving into the legal status of such relationships in India, we will first take a look at a few other countries.

1.1 Scotland

In the contemporary times, the Family Law Act, 2006 of Scotland recognizes and in turn, legitimizes the concept of live-in couples in the country.

Section 25 of the Act states the criteria for courts when determining whether a person is a cohabitant of another;[2] here, while there isnt any explicit usage of the term live-in relationship, the recognition comes from the factors the court chooses to focus upon when identifying the cohabitant status of these individuals. It looks over the length of period of cohabitation, or how long the individuals have lived together; the nature of their relationship during the cohabitation, narrowing down on the emotional and intimate physical acts towards each other; and lastly, the nature and extent of financial arrangements between them, taking into consideration shared aspects like financial responsibilities towards each other, joint ownership of property, etc., so as to determine the financial dependency as well as independency of the individuals towards each other.

In other words, the section can be interpreted to provide legitimacy to individuals, who although are not married legally to each other, have been in a committed and long term relationship (here, it can be considered to mean live-in couples). Consequently, it now also means that, in case of breakup of the relationship, the cohabitant has the right to apply for financial support from their former partner under Section 28 of the Act.[3]

1.2 United Kingdom

Live-in relationships in the UK are largely covered by the Civil Partnership Act 2004.

Now even though there exists the term"common law spouses" to refer to a man and a woman living together in a stable sexual relationship, the expression in itself is not so accepted under law in England and Wales; such rejection is brought by the fact that the UK feels that live-in partners owe each other more than just a stable sexual relationship to be worthy of that term.[4]

We hence observe from a 2010 note from Home Affairs Section to the House of Commons, that unmarried couples have no guaranteed rights to ownership of each other's property on breakdown of relationship; if a cohabiting couple separates, the courts have no power to override the strict legal ownership of property and divide it as they may do on divorce.[5]

1.3 Canada

Live-in relationships are legally recognized in Canada under Section 53(1) of the Family Law Act, R.S.O. 1990. The section in question legitimizes such domestic arrangements by stating that if two people, through not married, intend to cohabit or are cohabiting with each other, then they have to right to enter into an agreement regarding their rights and obligations during such cohabitation or the ceasing of such arrangement. The rights and obligations in this section includes,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

(d) any other matter in the settlement of their affairs. R.S.O. 1990, c.F.3, s.53(1); 1999, c.6, s.25(23); 2005, c.5, s.27(26); 2020, c. 25, Sched. 1, s. 28 (7).[6]

1.4 Australia

In Australia, Family Law Act 1957 explicitly recognizes the concept of live-in relationships by going on to define what it means for an individual to be in a de facto relationship. According to the Act, there exists a de facto relationship, that is, regardless of the absence of marriage between the individuals, there can be legal ties (akin to marital ties) binding them to each other when,[7]

i) The persons are not legally married to each other;

ii) The persons are not related by family; and

iii) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

1.5 United States

Although illegal prior to the 1970s, live-in relationships in the contemporary times assumes legal status under common law in the US. However, even though live-in couples are now provided with the same rights and obligations as a married couple in the country, they are yet to be considered and recognised as legal parents.[8]

2. WHAT IS INDIAS STANCE ON LIVE IN RELATIONSHIP?

In the Indian society, marriage has always been held to be a sacrament characterizing the continuation of a community framed around religious notions of what is acceptable and what is not. This meant that sexual activities performed outside the ambit of marriage, like pre-marital was considered as an attack to a communitys moral and cultural values. The concept of live-in relationships then comes in due to its association with pre-marital sex; by the general understanding, since a live-in relationship constitute a couple performing intimate sexual activities while being unmarried to each other, that is, performing such activities outside the legal or religious institution of marriage, it constitutes as engaging pre-marital sex. Consequently, such a concept also goes against the societal recognition of what can be accepted as a family; according to the conservation side of the community, live-in relationships fall outside it.

Nevertheless, the Indian judiciary has time and again intervened and granted respite to couples in a live-in relationship, upholding the individuals right to liberty under Article 21 of the Indian Constitution.[9] We can infact observe this stance through the various judgements by the India courts,

i) In Payal Sharma v. Nari Niketan,[10] the court affirmed that a major man and woman can stay together without getting married if they so wish to, and that such an arrangement is not illegal. Here, a demarcation between law and morality was bought out; even though it might be socially unacceptable, it cannot be considered a crime according to law.

ii) In Badri Prasad v. Director of Consolidation[11], as well as Tulsa v. Durghatiya,[12] it was held that, if a couple dwelt together as husband and wife for a long period, an assumption of legitimate marriage would arise even if the parties themselves are not married. In other words, a situation of de facto relationship would arise between the parties.

Judgements such as these can be held as precedents in the legal recognition of live-in relationships to be included under the definition of the term marriage. Consequently, there had been suggestions by both the National Commission for Women and the Malimath Committee to amend the term wife under CrPC to include a woman living with the man like his wife, so that she too would be entitled to alimony.[13] Later, taking account of these suggestions, while deciding on the case Abhijit Bhikaseth Auti v. State Of Maharashtra Anr,[14] the court held that it is not necessary for a woman to strictly establish the marriage, to claim maintenance under section 125 of CrPC; this was interpreted to mean that woman in a live-in relationship may also claim maintenance under section 125 CrPC.

2.1 Legitimacy of the Child Born Out of a Live-In Relationship

In every debate on live-in relationships, an expected question that follows is usually framed around the legal perspective on the legitimacy of such a couple's offspring. The answer to this question lies in the various cases and their judgements by the judiciary on the same. One such case is S.P.S Balasubramanyam v. Suruttayan[15]; here the Supreme court for the first time thoroughly considered the question of legitimacy of such children and held that,

If a man and woman are living under the same roof and cohabiting for some years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate."

Later, in 2011, in the case of Revanasiddappa v. Mallikarjun[16], the decision by the court followed a similar stance where it was held that,

"Regardless of the legitimacy of the relationship between parents, the child born out of that relationship must be regarded separately from the relationship between his/her parents".

In other words, the court holds that the lack of marital ties between the parents of a child has no effect in context of the said childs legitimacy under law. In fact, as put forward by Justice AK Ganguly, the child resulting from such a relationship is to be regarded as innocent and hence entitled to all the rights and privileges accorded to children born out of lawful marriages.[17]

2.2 Inheritance Rights of such a Child

Considering its legitimate status in the eyes of law, the children to live-in couples are to be considered rightfully entitled to the inheritance of either of the parents. Such a stance is followed in the judgement of Bharatha Matha v. Vijaya Renganathan[18] where the Supreme Court upheld the legitimacy of children born out of live-in relationships and as such their right of inheritance of property of their parents. Similar, the court also held in Vidyadhari v. Sukhrana Bai[19] that such children should be given the status of legal heirs, hence entitling them to the property of both the parents. The rationale of both these decisions rests on Section 16 of the Hindu Marriage Act, which although doesnt explicitly recognize the live-in relationship in itself but does indirectly provide legitimacy and right of inheritance to children borne out of such arrangements.[20]

CONCLUSION

In the midst of its rich cultural tapestry, India struggles with maintaining a balance between society norms and individual liberty; this can be observed with its reaction to live-in relationships. Even though the Indian judiciary has been essential in recognizing the rights of couples in live-in relationships, emphasizing the constitutional principles of liberty and personal choice, we still see the society attaching a sense of immorality and stigma to such domestic arrangements.

In such a social reality where this dichotomy exist, it is important to realise the need for nuanced legal frameworks, explicit in nature, that preserve individual freedoms while encouraging a community understanding of varied expressions of companionship.

REFERENCES

1. Concept of Live-in Relationship and Maintenance, India, available at: https://www.legalserviceindia.com/legal/article-4855-concept-of-live-in-relationship-and-maintenance.html (last visited on December 27, 2023).

2. Family Law (Scotland) Act, 2006, s. 25.

3. Family Law (Scotland) Act, 2006, s. 28.

4. Live-in Relationship, India, available at: https://www.advocatekhoj.com/blogs/index.php?bid=4294fe94c613c9ad072931429bcmd=VIEW#:~:text=Scotland%3A,cohabiting%20couples%20in%20the%20country (last visited on December 27, 2023).

5. Ibid.

6. Family Law Act, R.S.O., 1990, s. 53.

7. Family Law (Australia) Act, 1975, s. 4AA.

8. Supra note 4.

9. Legal status of Live-in Relationships in India: Mapping Indian Jurisprudence, India, available at: https://www.lawctopus.com/academike/live-in-relationships-in-india/#_ftn15 (last visited on December 28, 2023).

10. AIR 2001 All 254.

11. (1978) 3 SCC 527.

12. 2008 (4) SCC 520.

13. Live-in Relationships, India, available at: https://www.legalservicesindia.com/article/211/Live-in-Relationships.html (last visited on December 28, 2023).

14. Crl. W.P. No. 2218/2007 MANU/MH 1432/2008 (Bom. H.C. Sept. 16. 2009).

15. 1994 AIR 133, 1994 SCC (1) 460.

16. 2023 SCC OnLine SC 1087.

17. Legal Rights and Status of Children Born out of Live-in Relationships, India, available at: https://www.latestlaws.com/articles/legal-right-and-status-of-children-born-out-of-living-relationships-188528#_ftn4 (last visited on December 28, 2023).

18. (2010)11SCC 483.

19. (2008) 2 SCC 238

20. Supra note 17.