Live-In Relationships & legal implications in India

Updated: Aug 11, 2021

Marriage is a legally and socially accepted form of relationship between couples. Social structure and bonding being stronger in our country, the institution of marriage holds even greater importance here. Living together without marriage is considered a taboo and is very rare.

Live-in relation i.e. cohabitation is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and/or sexually intimate relationship. The term is most frequently applied to couples who are not married. Live-in relationship may be defined as “Continuous cohabitation for a significant period of time, between partners who are not married to each other in a legally acceptable way and are sharing a common household.”

Live-in relationship, that is, living together as couple without being married to each other in a legally accepted way and such relationships are being increasingly common due to a variety of reasons.

The law on cohabitation rights is largely evolving and many participants are still unaware of their rights and duties to each other.

In India, cohabitation had been a taboo since British rule. However, this is no longer true in big cities, but is still often found in rural areas with more conservative values.

There is no specific legislation, social rules, or customs in India regulating the matter of live-in relationship. Therefore, the Supreme Court has taken liberty to elaborate on the concept through its judgment at different times and has issued guidelines for the purpose of dealing with such relationships.

Psychosocial Implications of Live-In Relationship

In recent years, India has witnessed drastic changes in the matter of relationships between opposite sex particularly in urban area. The present generation perceives such relationships in a way different from what was perceived earlier. In the context of our sociocultural values, it was considered to be taboo for men and women to live together under the same roof without being legally married to each other. Similarly, the idea of having premarital sex was considered to be highly immoral. But these beliefs and taboos are gradually fading away and the society is opening up about the idea of premarital sex and live-in relationships.

Freedom, privacy, profession, education, globalization, and other factors are responsible for this change in mindset. Present generation, unlike their predecessors, considers it necessary for them to understand each other in a fairly reasonable way before entering into a formal wedlock. Once someone enters into a formal wedlock, the break up becomes very cumbersome, lengthy, complicated, and troublesome to all concerned if the partner finds that they are not at all compatible to each other. But living together for some time without entering into a legal marriage provides for an easy break up without the need of taking recourse to cumbersome legal procedures.

But such relationship without any duties and obligations attached has its disadvantage as well. Such relationships are not binding upon the partners, whereas in a typical marriage, the partners are provided certain rights and bestowed with obligations and duties to be performed by both of them. The woman is often in a disadvantageous position in live-in relationships.

Such relationships lead to multiple social as well as logistic problems in day-to-day living. They face legal hurdles of multiple types like opening a joint bank account, visas, insurance, visitation to hospitals, and so on. Children born out of the wedlock are exposed to mental trauma and have problems of smooth inheritance in property of the parents.

Importance of Good Quality Relationship

Association between good-quality relationship and mental health cannot be overemphasized. Having good-quality, close, and positive relationships gives us a sense of purpose, meaning, and belongingness. Conversation with a good and empathetic listener in a face-to-face interaction helps in relieving stresses and also helps to process our emotions, including the uncomfortable ones. Interactions with a loved one lead to a range of pleasurable and positive experiences. People in good-quality relationship and social connectivity to family, friends, and the community are happier and have few mental health problems. Isolation and loneliness lead to multiple psychological problems and also poor physical health.

Stable and good-quality relationship has demonstrable benefit on both physical as well as mental health. Lower morbidity and mortality were found among those who were in stable and good-quality marital relationship. For persons with disabilities too, social relationships play important role and have been demonstrated to have beneficial effect on their mental health and well-being.

These days, social media has come to play important role in our life. People have started to devote their substantial time in online interactions via social media. But these online interactions, friendships, and relationships cannot have the same effect as those happening in the real life. Social media interactions cannot have the same healthy psychological and emotional response that happens in the real-life relationships. Face-to-face and real-life interactions between people always remain a satisfying and healthy means of communication and relationship, which contributes to a sense of belongingness and well-being. Moreover, online interaction via social media can also be damaging as it blurs the line between real friends and virtual friends and exposes people to unhealthy communications as well leading to developing prejudices and biased opinions, which may get rectified on witnessing things in real life. Therefore, it may be concluded that live-in relationship in a compatible couple is better than no relation at all. Living alone or remaining trapped in an unhappy marriage may lead various types of psychological problems.

Live-in Relationship (cohabitation) agreement

Live-in Relationship agreement is made when couples lives together and describe their liberty and responsibility during the relationship and after its end and this is written in this agreement:

a. What happens about the property and other valuable things including their savings when the relationship is ended?

b. How they share their living and daily cost.

c. Their Responsibility for each other including about the child born out of cohabitation.

d. How they split (personal item, asset, and other things) if the relationship breaks down.

e. Live-in relationship agreement is mutually canceled when both are agreed to cancel it.

f. In agreement, many other things are also included that is mutually decided by the couple particularly about the business venture,

Legal implications of Live-In Relationships

In absence of any specific legislation, rules, or customs on the subject, the Supreme Court has issued certain guidelines in its judgment for regulating such relationships.

Live-in relationship between consenting adults is not considered illegal under the Indian law. In 2006, in the case of “Lata Singh v. State of U.P,” it was held that a live-in relationship between two consenting adults of opposite sex, though perceived as immoral, does not amount to any offence under the law. In another important case “Khushboo vs Kanaimmal and another,” the Supreme Court observed “Though the concept of live-in relationship is considered immoral by the society, but is definitely not illegal in the eyes of the law. Living together is a right to life and therefore it cannot be held illegal.

If live-in relationships continue for a long period of time and the couple present themselves to the society as husband-wife, they get recognized as being legally married. The Court observation was made that “If man and woman who live as husband and wife in society are compelled to prove, after half-a-century of wedlock by eye-witness evidence that they were validly married fifty years earlier, few will succeed. A strong presumption arises in favor of wed-lock where the partners have lived together for a long spell 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.

Where a man and a woman live together as husband and wife for long time, presumption under the law would be in favor of their being legally married to each other unless proved to the contrary and children born out of such live-in relationship would be entitled for inheritance in the property of the parents. If such relationship is only for sexual reasons, neither of the partners can claim benefits of a legal marriage.

If both the partners are unmarried and enter into a relationship mutually, it does not constitute any offence.

Prior to 2018, domestic cohabitation of a married or unmarried man with a married woman constituted a criminal offence of “adultery,” but for the man only, under Section 497 of Indian Penal Code (IPC). But this section was annulled by the Supreme Court of India in the case of “Joseph Shine vs Union of India” in September 2018, as the Court came to the conclusion that it was violative of the Article 14 of the Constitution of India. The section treated men and women unequally as only the man and not the woman is subject to prosecution for adultery. Moreover, it was only the husband of the concerned woman who could prosecute the man who was involved in the act and the woman cannot prosecute her husband for adultery.

Though adultery is no longer a criminal offence, but the matter of cohabitation with any married man or woman may be a matter of civil issues constituting a ground of divorce, in which case it would be gender neutral.

Live-in relationship between two consenting adults is not considered illegal and if the couple present themselves to the society as husband and wife and live together for a significant period of time, the relationship is considered to be a relationship “in the nature of marriage” under the Prevention of Domestic Violence Act, 2005. Consequently, the female partner is entitled to claim alimony under its provisions. Children born out of such relationships are considered legitimate and entitled to get share in the self-acquired property of their parents, though they are not entitled for a coparcenary share in the Hindu undivided family property. Live-in relationships may enable the couple to know each other better, but such no-strings-attached relationship has its disadvantages as well. The couple faces multiple social and logistics problems in day-to-day living. From mental health point of view, it is considered better to be engaged in a good-quality relationship than living alone and having no relation at all.

To get recognized as “in the nature of marriage,” certain conditions were set by the Supreme Court in the case of “D. Velusamy and D. Patchaimal (5 SCC 600).”

1. The couple must hold themselves out to society as being akin to spouses.

2. They must be of legal age to marry.

3. They must be otherwise qualified to enter into a legal marriage, including being unmarried.

4. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In “Indra Sarma vs VKV Sarma,” the Supreme Court was of the view that all live-in relationships are not relationships in the nature of marriage. The Court further made following observations:

· Such relationship may endure for a long time and can result in a pattern of dependency and vulnerability, and increasing number of such relationships calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship.

· Legislature, of course, cannot promote premarital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against.

Grant of Alimony and Application of the Prevention of Domestic Violence Act, 2005

In U.S.A, the word “palimony” is a combined form of worlds “pal” and “alimony.” Though the particular suit was unsuccessful, the courts found that “in the absence of an express agreement, courts may look to a variety of other remedies to divide property equitably.” It was observed that if there is cohabitation agreement for the couple before moving in together, the Court may consider grant of palimony.

Section 125 of the Cr. P.C. provides for claiming maintenance by wives, children, and parents from a person on which they are dependent and are unable to maintain themselves. Though the amendment was not incorporated in the Cr. P.C., such relationships were brought into ambit of domestic relationship. Section 2(f) of Prevention of Domestic Violence Act, 2005 (PDV Act, 2005) defines domestic relationship as “a relationship between two persons who live or have lived together, at any point of time, 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.” According to this definition, live-in relationships which are in a nature of marriage, that is, the couples are living for a long period of time and presenting themselves as husband and wife come under the ambit of the PDV Act, 2005. Therefore, the woman in live-in relationship can take protection under Protection of Women from Domestic Violence Act, 2005 and can claim for maintenance also (D. Velusamy vs D. Patchaiammal).

Rights of Children Born Out of Live-In Relationship

In “Tulsa vs Durghatiya,” the Supreme Court, while granting right of property to a child, observed that children born from live-in relationship would not be treated as illegitimate if their parents would have lived under one roof and cohabited for a considerably long period of time so as to be recognized as husband and wife and it must not be a “walk in and walk out” relationship. Section 16 of the Hindu Marriage Act, 1955 and Section 26 of the Special Marriage Act, bestow legitimacy to children born out of void and voidable marriages by providing that children born out of marriage, which is null and void or where a decree of nullity is granted in respect of voidable marriage, shall be legitimate or deemed to be legitimate, respectively. But according to Subsection (3) of the same sections of the Act, right of inheritance of such children is limited to the property of the parents only. Therefore, such children do not have the coparcenary rights in the property of the Hindu undivided family (HUF) if their parents were not legally wed to each other.

Conclusion

Live-in relationships provide the couples a greater opportunity to know each other better together with a freedom to end the relationship as per their wish. But they have to face many social and legal hurdles. Such relationship puts women often in a disadvantageous position. Social values and norms have changed for the new generation. Live-in relationship may be ok in some circumstances but the importance of the institution of marriage for maintaining the social order cannot be denied. From a psychiatrist point of view, what is more important is to get engaged into a positive, lovable, and meaningful relationship than to remain alone or remain trapped in an unhappy, negative, and troublesome relationship.

To conclude, it is pertinent to say that “There is always some madness in love. But there is also always some reason in madness”.—Friedrich Nietzsch

“Living together is an art. It's a patient art, it's a beautiful art, and it’s fascinating.”― Pope Francis

“Living in harmony with one another brings inner tranquility”― Lailah Gifty Akita

“It is wonderful for us to live together in love, in peace and in faith.”― Lailah Gifty Akita

https://journals.sagepub.com/doi/full/10.1177/2631831820974585

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