LIVE-IN RELATIONSHIPS: IMPACT ON MARRIAGE INSTITUTION

Subject – Family Law-I

Submitted to: Dr. Vijender KumarProfessor of Law

Submitted by: Abhishek Kumar SinghRoll no. – 2011-04Ist Year, IInd Semester

NALSAR University of Law,Justice City, Shameerpet, Hyderabad

TABLE OF CONTENTSTABLE OF CASES...............................................iTABLE OF STATUTES...........................................iiTABLE OF ABBREVATIONS......................................iiiCHAPTER I INTRODUCTION......................................11.1 Differentiations.......................................21.2 Research Plan..........................................21.3 Research Methodology...................................3

CHAPTER II LIVE-IN RELATIONSHIPS IN INDIA....................4CHAPTER III POSITION OF LIVE-IN RELATIONSHIPS ABROAD.........7SCOTLAND...................................................7FRANCE.....................................................7UNITED KINGDOM.............................................7CANADA.....................................................8IRELAND....................................................8AUSTRALIA..................................................8UNITED STATES..............................................8

CHAPTER IV PROS AND CONS OF LIVE-IN RELATIONSHIPS............9CHAPTER V RIGHTS OF WOMEN IN A LIVE-IN RELATIONSHIP IN INDIA 115.2 Rights of Child born through a Live-In Relationship. . .125.3 Inheritance Rights....................................13

CHAPTER VI EFFECT IN THE SOCIETY............................156.1 Breaking down of marriage institution.................156.2 In and out relationship...............................156.3 Anti-Hindu and live-in relationship...................156.4 Negative identity.....................................156.5 Weakens social relationship...........................16

CHAPTER VII CONCLUSION......................................17

Suggestions...............................................17BIBLIOGRAPHY................................................iv

TABLE OF CASES

Abhijit auti v State of Maharastra………………………………………………………….12

A Dinohamy v. WL Blahamy………………………………………………………………..5

D Veluswami v D Patchaimal………………………………………………………………11

Gokal Chand v. Pravin Kumari………………………………………………………………5

Malti v. State of Uttar Pradesh……………………………………………………………….4

S Khushboo v Kanniammal…………………………………………………………………..6

Yamunabai v. Anant Rao……………………………………………………………………..4

TABLE OF STATUTES

Code of Criminal Procedure,

1973..........................................................

...............

Civil Solidarity Pact, 1999

(France)......................................................

...................................

Hindu Adoptions and Maintenance Act,

1956..........................................................

.................

Hindu Minority and Guardianship Act,

1956..........................................................

.................

Hindu Marriage Act,

1955..........................................................

...............................................

Hindu Succession Act,

1956..........................................................

............................................

Indian Evidence Act,

1872..........................................................

.........................................

Indian Succession Act,

1925..........................................................

............................................

Muslim Women (Protection of Rights on Divorce) Act,

1986..................................................

v

Matrimonial Causes Act, 1973

(UK)..........................................................

.............................

Protection of Women from Domestic Violence Act,

2005........................................

Special Marriage Act,

1954..........................................................

..............................................

TABLE OF ABBREVATIONS

Cr.P.C – Code of Criminal Procedure, 1973

DVA – Domestic Violence Act, 2005

HAMA – Hindu Adoptions and Maintenance Act, 1956

HMGA – Hindu Minority and Guardianship Act, 1956

HC – High Court

MP – Madhya Pradesh

NCW – National Commission for Women

PC – Privy Council

S. - Section

SC – Supreme Court

UK – United Kingdom

USA – United States of America

vi

CHAPTER I

INTRODUCTION

A live-in relationship is an arrangement where a

heterosexual couple lives together, without entering into formal

relationship called marriage. It is also commonly known as

“Cohabitation.”1 It need not necessarily involve sexual

relations. It is a largely informal arrangement in most places,

although some countries do offer registration of such couples.

People generally choose to enter into such relations either to

test compatibility before marriage, or if they are unable to

legally marry or simply because it does not involve the hassles

of formal marriage with lengthy divorces should partners decide

to call it quits. It may also be that they see no benefit or

value offered by the institution of marriage or that their

financial situation temporarily precludes it. Whatever be the

reason, it is quite clear that even in a traditional India, where

the institution of marriage is “sacred”, an increasing number of

couples choose a live-in relationship, sometimes even as a

permanent arrangement over marriage. In such circumstances,

various legal and social issues have arisen and continue to do

so.

Persons may find themselves in live-in relationship either

‘by choice’ or ‘by circumstances’. Relationships ‘by choice’ are

those where the partners live together. It may exist even where

one or both of the partners are already legally married to

1. http://www.enotes.com/everyday-law-encyclopedia/cohabitation on(27/01/2012)

1

another person and yet engage in such a relationship as a matter

of preference. Relationships in this category are wholly

voluntary. There are live-in partners whose concerned are

consciously choosing to live as live-in partners. They do not

want a status of formal marriage, they are happy to continue to

live in as partners. In metros like Mumbai, Delhi it is highly

impossible to get housing accommodation for bachelors and

spinsters who are working in multi-national corporations, or

corporate houses. The property owners prefer to rent/lease their

houses to only married couples because they feel it will be safe

for them. In such a situation young people get in agreement with

opposite sex for sake of getting accommodation. Though their

relationship is not real or fake in eyes of law and has no

intimate relationship of any kind but with passage of time they

start having feelings for each other.

On the other hand, relationship ‘by circumstances’ occur where

one or both partners are under the mistaken assumption that a

valid marriage exits between them or where parties thought they

had validly divorced from persons married or cannot afford to be

married again due to economic reasons. They may occur in case

where the man or woman was led to believe that the man was

unmarried, divorced or widowed and married him. If the man and

woman followed all rituals of the marriage but already had a wife

or husband living at such time from whom, he or she had not

divorced as yet, this marriage will not be recognised in law.

Such a live-in relationship is thus involuntarily entered into.

It is important to understand that the courts and the lawmakers

2

look to make laws to protect socio-economic and legal interests

of the partners, especially women caught in the circumstantial

live-ins. But this often leads to misuse of these laws by

partners in relationships of choice.0

1.1 Differentiations

It is important at the outset, to differentiate live-in

relationships from other similar cohabitations.

a) A “mistress” (paramour or lover) refers to a man's long term

female sexual partner and companion, with whom he has intimate

relations while married to another woman. The relationship is

semi-permanent and generally secret. The man may pay for some of

the woman's living expenses, or provide her with an allowance.

However, they do not live together, as in the case of a live-in

relationship. But the area of differentiation as regards rights

is a gray area, as Courts sometimes grant a mistress similar

rights to as if she were a live-in partner.

b) A “concubine” refers to a woman who cohabits with a man, in

addition to his official wife. The practice of keeping concubines

was followed by many Asian, Arab and European rulers. Their

status is lower than that of the official wife and they hence

enjoy limited rights. It was an involuntary and servile practice

and is regarded as a form of ‘sexual slavery.’ In Hindu Law,

these women were known as ‘Avarudha Stris.’ 3 These are clearly

different from women in live-in relationships, who generally

enter into the relationship voluntarily. Live-in relationships

0.http://articles.timesofindia.indiatimes.com/2008-07-09/man-woman/27949685_1_live-in-relationship-recommendations-live-in-partners( 16/4/2012)

3

also need not solely be for the purpose of sexual relations as

with concubines.

c) “Cohabitants” is synonymous to live-in partners0

1.2 Research Plana) Aims and Objectives

Through this project the researcher aims to provide the

reader with a detailed socio-legal study of live-in relationships

and its impact on marriage institutions and also analysed the law

relating to matrimonial and proprietary rights of live-in

partners besides the duties and obligation of live in partners.

The researcher has also compared the status of live-in

relationship with the status of married couples and status of

children born out of live in relationship as well in this

project.

b) Scope and Limitations

Within the scope of this project the researcher will discuss

the topic in detail with all social and legal issues and

implication, the impact of live-ins on marriage institution has

been highlighted. Due to paucity of space and relevant research

material, not all case laws have been cited, but only the

important ones.

c) Chapterization

The researcher has divided the project into six main

chapters. The first discuss live –in relationship in India. The

second chapter discusses the rules of other countries on live-in.

0. http://www.enotes.com/everyday-law-encyclopedia/cohabitation(27/01/2012)4

The third chapter talks about right of women in live-in

relationship. The next chapter deals with the effect of live-in

in the society. The last chapter is a conclusion.

1.3 Research Methodology

The researcher has adopted the doctrinal form of research in

completing this project. As the project is primarily a socio-

legal study on Live-in Relationships and it’s on marriage

institutions, the doctrinal form of research was most

appropriate. Primary as well as secondary sources of information

have been used from the NALSAR Law library. The above category of

material consists of law reporters such as AIR and ILR and

commentaries on the Hindu Law and Mohammedan Law written by

eminent authors and articles of some eminent personalities with

distinction. Also, secondary soft copy sources of information

have been perused from online databases such as Manupatra among

others. No part of this project is plagiarized and it is the

original work of the researcher.

5

CHAPTER II

LIVE-IN RELATIONSHIPS IN INDIA

The custom of men and women living together without marriage has

been in practice for millenniums. Since ancient times, the

nawabs, princes and wealthy men in India not only had several

wives, but also several live-in women in their zenanas.0 It was

not at all considered ‘immoral’ for men to have live-in

relationships with women outside their marriage.0 Concubines

(avarudh stris) were kept for the man’s entertainment and

relaxation. Following independence, as society matured, bigamy

was outlawed and women became more aware of their rights. This

practice thus died out.

The last few decades has however seen the advent of a new

form of “live-ins”, where men and women cohabit together without

entering into marriage. The traditional Indian society however

disapproved of such ‘living in’ arrangements, for several

reasons. Firstly, society revered the institution of marriage. An

Indian woman was expected to remain a virgin till she married,

but a live-in relationship contradicted this tradition.0

Secondly, as women tended to be financially dependent on men, the

instability of such live-ins created a subservient status for the

woman. There was much social criticism and stigma attached to

such relationships, forcing them to remain largely secretive.

Neither statutes nor Courts supported such relationships. In0. The part reserved for the women of the household. [Seehttp://www.thefreedictionary.com/zenanas]0. Vimla Patil, “Do Live In Relationships Really Benefit Women”, THE TRIBUNE,Chandigarh, Sunday, September 23rd, 2003,http://www.tribuneindia.com/2003/20030921/herworld.htm#1, (febuary 26th, 2012)0. Ibid.

6

1988, the SC in the case of Yamunabai v. Anant Rao0 held that where

a man married the second time, his second ‘wife’ had no claim to

maintenance under Section 125 Cr.P.C 0, even though she was

unaware of his earlier marriage.0 The SC refused to recognize

that they had lived together even if their marriage was void. The

man was allowed to take advantage of this, although he had

defrauded the woman by concealing his earlier marriage. The SC

would not grant any rights to the woman in such a live-in

relationship ‘of circumstance’. Even as late as 2000, in Malti v.

State of Uttar Pradesh0, the Allahabad HC held that a woman living

with a man could not be equated as his wife. In this case, the

woman was a cook in the man’s house and she stayed with him and

shared an intimate relationship. The Court however refused to

extend the meaning of the word “wife” in Section125 Cr.P.C to

include a live-in partner’s maintenance claims.

There are some incidents where Courts had recognized such

relations though. A Dinohamy v. WL Blahamy0 the PC held that "Where

a man and a woman are proved to have lived together as a man and wife, the law will

presume, that they were living together in consequence of a valid marriage, unless the

contrary can be proven.” Again in Gokal Chand v. Pravin Kumari0 the SC

reiterated the same principle, though it cautioned that the

couple would not get legitimacy, if the evidence of them living

together was rebuttable.0 However, these judgements only served0. AIR 1988 SC 644.0. Cr.P.C0 . Kusum, “Cases and Materials on Family Law”, 1st. ed. 2007, p. 1610 .2000 Cri LJ 4170 (All).0. (1928) 1 MLJ 3880. AIR 1952 SC 2310.Shoma Chaterjee, “Living in: Shades of Gray”,INDIA TOGETHER,http://www.indiatogether.org/2008/aug/soc-livein.htm, (febuary 25,2012)

7

to recognize marriages which were doubted, on the basis that a

long term live-in relationship existed. They did not recognize

live-in relationships as independent of the institution of

marriage.

The increasing incidents of live-in relationships,

especially those which occur ‘by circumstance’ however ensured

that the need for reforms was felt. In 2003, the Malimath

Commitee report on Reforms in the Criminal Justice System,

suggested amendment of the word ‘wife’ in Section 125, Cr.P.C to

include a woman who is living in with a man for a “reasonable

period.” Last year, the Maharashtra Government approved such an

amendment to the Cr.P.C, but this now awaits approval by the

Central Government. The National Commission for Women has

recently made a similar recommendation, to protect the rights of

such women. Significantly, the Protection of Women from

Domestic Violence Act, 2005 became the first statute to give

live-in partners the same recognition as married couples. The

position of Live-in Relationships is not very clear in the Indian

context but the recent landmark judgments given by the Hon’ble

Supreme Court provides some assistance when we skim through the

topic of Live-In and analyze the radius of the topic in Indian

legal ambit.0 The couples tied with the knots of live-in

relationships are not governed by specific laws and therefore

find traces of assistance in other civil laws. The law is neither

clear nor is adamant on a particular stand, the status is

dwindling. In the words of Dhingra J., “There are no legal strings

0. http://www.lawyersclubindia.com/articles/The-Socio-Legal-Dimensions-of-Live-In-Relationships-3966.asp (27 febuary 2012)

8

attached to this relationship nor does this relationship create any legal-bond between

the partners. 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”

Furthermore the Hon’ble Allahabad High Court stated that a live-

in relationship is not illegal. Katju J. and Mishra J. stated

that, “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.”

The Hon’ble Supreme Court accepted the principle that a

long term of cohabitation in a live-in relationship makes it

equivalent to a valid marital relationship. The Supreme Court

also held that live-in relationships cannot be considered as an

offence as there is no law stating the same. In the well talked

about case of S.Khushboo v Kanniammal,0 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.

In another case the Supreme Court stated that if man and

woman are living under the same roof and cohabiting for a number

of 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.

Hence the High Courts and the Hon’ble Supreme Court in a

number of decisions delivered until recently have showed the

positive signs of recognizing the legitimacy of the live-in0. 2010 AIR SCW 2770

9

relationships and have also shown the inclination for a

legislation to be enacted with the objective of protecting the

rights of couples in a live-in relationship.

10

CHAPTER III

POSITION OF LIVE-IN RELATIONSHIPS ABROAD

With the Supreme Court declaring that the right to live

together is a part of the right to life, it is necessary to look

at the legal rights and obligations for live-in couples around

the world. While heterosexual couples who are in a live-in

relationship are called “co-habitant”, same sex couples are

legally defined as “civil partners”. But the law on cohabitation

rights is largely evolving and many participants are still

unaware of their rights and duties to each other.

SCOTLAND

Family Law (Scotland) Act, 2006, for the first time

identified, and in the process by default, legalised live-in

relationships of over 150000 cohabiting couples in the country.

Section 25(2) of the Act states that a court of law can consider

a person as a co-habitant of another by checking on three

factors; the length of the period during which they lived

together, the nature of the relationship during that period and

the nature and extent of any financial arrangements.0

FRANCE

Live-in relationships in France are governed by the Civil

Solidarity Pact of ‘pacte civil de solidarite’ or PaCS, passed by

the French National Assembly in October 1999. Cohabitation is

defined as a "de facto stable and continuous relationship"

between two persons of different sexes or of the same sex living

together as couple. The pact defines the relationship as a

contract, and the couples involved as “contractants". The0. http://airwebworld.com/articles/index.php?article=1266(27 febuary 2012)

11

contract binds "two adults of different sexes or of the same sex, in order to

organise their common life." For a valid contract to exist, the

contractants "may not be bound" by another pact, "by marriage,

sibling or lineage."0

UNITED KINGDOM

Live-in relationships in the United Kingdom are largely

covered by the Civil Partnership Act, 2004. Though a man and

woman living together in a stable sexual relationship are often

referred to as "common law spouses", the expression is not wholly

correct in law in England and Wales. The Government feels that

live-in partners owe each other more than that to be worthy of

the term. 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.

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. Unmarried partners have no automatic

inheritance over their partner's assets on death. Cohabiting

couples are treated as unconnected individuals for taxation

purposes.

CANADA

Living together in Canada is legally recognised as "common

law marriage". In many cases common law couples have the same

rights as married couples under the federal law of the country. A

common law relationship gets legal sanctity if the couple has

been living in a conjugal relationship for at least 12 continuous

months, or the couple are parents of a child by birth or0. Ibid

12

adoption, or one of the persons has custody and control of the

child and the child is wholly dependent on that person for

support.

IRELAND

Though living together is legally recognised in Ireland,

news reports says the public is up in arms against a new

legislation to introduce legal rights for "separated" live-in

couples to demand maintenance or share their property with their

dependent partners. The scheme will apply to both opposite sex

and same sex unmarried couples who have been living together for

three years, or two years in the case of a cohabiting couple with

children. The Government, with this legislation, intends to

provide legal and financial protection for the vulnerable and

financially dependent cohabitants in the event of death or the

breakup of a relationship.

AUSTRALIA

The Family Law Act of Australia states that a "de facto

relationship”0 can exist between two people of different or of

the same sex and that a person can be in a de-facto relationship

even if legally married to another person or in a de-facto

relationship with someone else.

UNITED STATES

Cohabitation was illegal in the United States prior in 1970,

but went on to gain status as a common law, subject to certain

requirements. The American legal history was then a witness to

several consensual sex legislations, which paved the way for

living together contracts and their cousins, the "prenuptial0. http://www.familycourt.wa.gov.au/_files/defacto.pdf (27 febuary 2012)

13

agreements". The country later institutionalized cohabitation by

giving cohabiters essentially the same rights and obligations as

married couples, a situation similar to Sweden and Denmark. Those

living together are not recognized as legal parents

CHAPTER IV

PROS AND CONS OF LIVE-IN RELATIONSHIPS

The Supreme Court’s controversial observation Okaying live-

in relationships and pre-marital sex has generated fierce debate

across the country. The historic observation has made to upset

many orthodox groups fearing that it would destroy the sanctity

of marriage. A fragment of the society including noted social

activists and prominent dignitaries have stepped ahead and shared

their precious views on this.

Social scientists have already identified grave social

problems like young age pregnancy of adolescent girls, drug

abuse, violence and juvenile delinquencies and in the wake of the

controversial ruling, the erstwhile objectionable social

behaviour gets legalized, many felt. This way, the new generation

will be more spoilt. They will prefer live-in relationships to

marriages arranged by their parents. There is no guarantee that

the male in such relationship will turn out to be a loyal partner

14

in the long run or would not leave the woman with their issues

and run away without prior notice.

BJP spokesperson Shaina, expressed that, according to the

Hindu Marriage Act, 1955, there is no provision for a second wife

among Hindus.0 Hence, enabling the mistress to get the status of

a legally married wife in all matters, including share in

property, inheritance, and maintenance is contrary to the Act as

well as Hindu customs.”

When the Maharashtra Government approved a proposal

suggesting that a woman involved in a live-in relationship for a

‘reasonable period’, should get the status of a wife, Shaina said

that the Government on one hand has banned dance bars because

they are spoiling the social atmosphere, while on the other it is

promoting illicit relationships through such amendments. Senior

BJP leader Jaywantiben Mehta also opposed the amendment. "It will

have adverse effect on our values. The amendment will prove to be

a loss for the women instead of gain," she said.

On the other hand, the section advocating freedom of

choosing live-in relationship has hailed it as a pragmatic move.

The recent observations, as they see, should be welcomed because

it lays down emphasis on individual freedom. It opens frontiers

to understand the personality traits of their partner well. Since

there are no legal complications in a live-in relationship,

walking out of such a relationship would be much easier than

walking out of a marriage. Metro life that throws floodgates of

challenges also supports this kind of an arrangement. The

0. http://lex-warrierlegalsolutions.blogspot.in/2010/11/live-in-relationship-recent.html (27th febuary 2012)

15

individuals should be free to live as they think best, subject

only to the limitation that their actions and choices should not

cause harm to others. It is a very radical attitude. Some people

are of the view that women should be given the liberty to choose

their life partners and should not be forced into marriages if

they are not ready.

As expected, women from various walks of life have welcomed

progressive moves on live-in relationships. Jaishree Mishra, a

New Delhi based author says, “India has changed. If people think

youngsters are losing their values, then I would say they are

becoming more pragmatic. In today’s times, it is better for them

to know what they are getting into”.0

This is not the first time live-in relationship is in the ambit

of debates and discussions. There has been a long-standing

controversy whether a relationship between a man and a woman

living together without marriage can be recognized by law. With

changing social hypothesis entering the society, in most places,

it is legal for unmarried people to live together. Now even in a

country like India bounded by innumerable cultural ethics and

rites, the law finds legally nothing wrong in live-in

relationships.

This, however, cannot be construed that law promotes such

relationships. Law traditionally has been biased in favour of

marriage. It reserves many rights and privileges to married

persons to preserve and encourage the institution of marriage.

Such stands, in particular cases of live-in relationship, it

appears that, by and large, is based on the assumption that they0. Ibid.

16

are not between equals and therefore women must be protected by

the courts from the patriarchal power that defines marriage,

which covers these relationships too.

17

CHAPTER V

RIGHTS OF WOMEN IN A LIVE-IN RELATIONSHIP IN INDIA

The Rights of Women in such relationships do not have much

condolence except some traces of assistance offered by the

Protection of Women from Domestic Violence Act which covers in

its ambit “relationship similar to marriage” or live-in

relationships. The definition of “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. Hence the words in the nature of

marriage are self explanatory and buy within its meaning the

social concept of live-in.

Furthermore in the recent years the recommendations by

various committees and NGO’s have awaken the spirits of justice

in the interest of women specially aggrieved by such

relationships. Apart from this the Hon’ble Supreme Court has also

given landmark judgments make its stand clear on the issue. For

instance in the landmark case of D. Veluswami v D. Patchaimmal0 it

was held a woman in a live-in relationship is not entitled to

maintenance unless she fulfills certain parameters, the Supreme

court had observed that merely spending weekends together or a

one night would not make it a domestic relationship.

5.1 In order to get maintenance, the essential four conditions

are:0

0. AIR 2011 SC 47918

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.

d) They must be voluntarily cohabited and held themselves out

to the world as being akin to spouses for a significant period of

time.

The Supreme Court observed that not all Live-in

relationships will amount to a relationship in the nature of

marriage to get the benefit of the Protection of Women from

Domestic Violence Act, 2005. If a man has a ‘keep’ whom he

maintains financially and uses mainly for sexual purpose and/or

as a servant it would not be a relationship in the nature of

marriage.

The National Centre for Women made recommendations to the

Ministry of Women and Child Development to include female live-in

partners within the ambit of section 125 of Cr.PC in order to

establish their rights and make them entitled to right to

maintenance. The Hon’ble Court also in the case of Abhijit Auti v.

State of Maharashtra0 and others supported the above principle and

furthermore the Maharashtra Government showed a positive sign by

accepting the Malimath Committee Report and also the Law

Commission Report and held that if a live-in relationship

continues for a very long time she is entitled to enjoy the

0.http://articles.timesofindia.indiatimes.com/2010-10-21/india/28237348_1_live-in-relationship-dv-act-live-in-partners (febuary 27,2012)0. AIR 2003 Bom 304

19

rights of a wife but it was recently ruled out that a wife under

section 125 of Cr.PC is a divorced wife and the right to

maintenance should only be enjoyed by a divorced wife and not by

a female partner who merely cohabited with her male partner.

Since in case of a live-in relationship there exists no marriage

and hence no concept of divorce. Therefore a female partner under

live-in relationship should not be construed as a wife under

section 125 of the Cr.PC. The decision of the Hon’ble Court is in

the righteous spirit as empowering any women who cohabited with a

man would result in misuse of the legal provisions under section

125 and would therefore be unfair on the part of the male partner

as well. Definition of the word "wife" in section 125 of the Code

be amended to include a woman who was living with the man like

his wife for a reasonably long period.

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’s

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.

5.2 Rights of Child born through a Live-In Relationship

The Child born through a Live-In Relationships enjoys the

same rights of succession and inheritance as are enjoyed by a

child through a married couple under the Hindu Marriage Act.

Notwithstanding that marriage is null and void under section 11,

any child of such marriage who would have been legitimate if the

20

marriage had been valid, shall be legitimate, whether such child

is born before or after the commencement of the Marriage Laws

(Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree

of nullity is granted in respect of that marriage under this Act

and whether or not the marriage is held to be void otherwise than

on a petition under this Act. Thus in order to keep up the

spirits of law in the righteous direction and to subside the

social evils wherein illegitimate child was denied his rights the

Hindu Marriage Act has granted legitimacy to children born

through marriages which are not valid. Hence such definition

brings within itself the ambit of live-in relationships and

children born through such relations.

While still the other laws have not guaranteed such legality

to children born through such relationships and therefore the

status is dwindling for legal status of children which results in

extensive misuse of the provisions and still escape liability.

Hence the legality of a child is doubtful in other laws and has

to be proved beyond reasonable doubt. Furthermore if the live-in

partners decide to separate the question of the future of the

child is tossed. Therefore the laws regarding the guardianship

should be amended to include within its ambit the guardianship of

children born through such relationships.

5.3 Inheritance Rights

The Supreme Court held that a child born out of a live-in

relationship is not entitled to claim inheritance in Hindu

ancestral coparcenary property (in the case of an undivided joint

Hindu family) and can only claim a share in the parents’ self-

21

acquired property. The Bench set aside a Madras High Court

judgment, which held that children born out of live-in

relationships were entitled to a share in ancestral property as

there was a presumption of marriage in view of the long

relationship.

Reiterating an earlier ruling, a Vacation Bench of Justices

B.S. Chauhan and Swatanter Kumar said,

“In view of the legal fiction contained in Section 16 of the Hindu

Marriage Act, 1955 (legitimacy of children of void and voidable

marriages), the illegitimate children, for all practical purposes,

including succession to the properties of their parents, have to

be treated as legitimate. They cannot, however, succeed to the

properties of any other relation on the basis of this rule, which

in its operation, is limited to the properties of the parents.”0

A child can only make a claim on the person's self acquired

property, in case the child is illegitimate. It can also be

interpreted in a way in which a child could lay a claim on the

share of a parents’ ancestral property as they can ask for that

parents’ share in such property, as Section 16 permits a share in

the parents’ property. Hence, it could be argued that the person

is not only entitled to self acquired property but also a share

in the ancestral property.

The Apex Court also stated that while the marriage exists, a

spouse cannot claim the live-in relationship with some other

person and seek inheritance for the children from the property of

that other person. The relationship with some other person, while

0. http://barandbench.com/brief/2/762/supreme-court-says-live-in-relationships-are-fine-but-dont-expect-ancestral-property(16/4/2012)

22

the husband is living is not ‘live-in relationship’ but

‘adultery’. It is further clarified that ‘live in relationship’

is permissible in unmarried heterosexuals (in case, one of the

said persons is married, the man may be guilty of adultery and it

would amount to an offence under Section 497 of the Indian Penal

Code).

23

CHAPTER VI

EFFECT IN THE SOCIETY

This fashion of live-in relation has effected all the youth

of the society for various reasons. Nothing escapes without

without leaving drawbacks. No doubt such relation gives two

partners the maximum opportunity to right to liberty, right to

privacy, right to life. But the negative point has to be realised

as well. Below I have list few point resulting to such

relationship.

6.1 Breaking down of marriage institution

Marriage is a social union or legal contract between people

that creates kinship. It is an institution in which interpersonal

relationships, usually intimate and sexual, are acknowledged in a

variety of ways, depending on the culture or subculture in which

it is found. Such a union, often formalized via a wedding

ceremony, may also be called matrimony. Therefore, it would be

easily mentioned that live-in relationship is but degrading the

valued of marriage which is recognised as social union unlike

live-in relationship where there is only well of two person.

Marriage leads to a bonding between a man and woman and this

ensures security for children. Let us also caution the

protagonists of live-in relationships that parting of ways, for

one reason or the other, will leave behind deep scars of being

used and rejected. Progenies of such relationships will also end

up as misfits in society

6.2 In and out relationship

24

Other easy way of defining the term “live-in,” is “walk-in

and walk-out” relationship which entails no obligation on the

parties. “It (live-in relationship) is a contract of living

together which is renewed every day by the parties and can be

terminated by either without the consent of the other. Thus

people who choose to have a live-in relationship cannot complain

of infidelity or immorality. Therefore, we can say it nothing

more than personnel enjoyment.

6.3 Anti-Hindu and live-in relationship

The Bharatiya Janata Party (BJP) has agitation over

legalising live-in relationship as anti-Hindu0. The party state

that according to the Hindu Marriage Act, 1955, there is no

provision for a second wife among Hindus. Hence, enabling the

mistress to get the status of a legally married wife in all

matters, including share in property, inheritance, and

maintenance is contrary to the Act as well as Hindu customs

6.4 Negative identity

Everyone has the moral liability to adhere to life-enriching

norms to enable the future generations to be proud of their

birth, cultural traditions and national identity. Why should

children be made to bear the cross of the skewed behaviour of

their parents? Responsible parents will leave a valuable legacy

and not vicarious liabilities to the progeny.

Even when parents normatively raise their children, many

precautionary measures are required to insulate them from the

0. http://www.dnaindia.com/mumbai/report_live-in-relationship-is-anti-hindu-bjp_1197128, Saturday, Oct 11, 2008 (27 febuary 2012)

25

ill-effects of the unsanctioned societal deviations and the

vicious projections of modernity. India cannot afford to throw

its proven and time-tested merits of its custom to the winds.

6.5 Weakens social relationship

As such relationships are choice of two individual wish to

make their own family without the will of their parents there is

always expectation of weak relation between the parents of the

spouse family. Therefore it is no doubt that there is always

change of conflict of ideas and opinion in the family as a result

it will laterally lead to weaken the relation between other

member of the family. So over all it is no it has a better

negative effect in the society.

26

CHAPTER VII

CONCLUSION

The decisions by the Indian Court is discerning as in some

cases the Courts have opined that the live-in relationship should

have no bondage between the couples because the sole criteria for

entering into such agreements is based on the fact that there

lies no obligation to be followed by the couples whereas in some

instances the Court has shown opposite views holding that if a

relationship cum cohabitation continues for a sufficiently and

reasonably long time, the couple should be construed as a married

couple infusing all the rights and liabilities as guaranteed

under a marital relationship.

It also appears strange if the concept of live-in is brought

within the ambit of section 125 of the Cr.PC where the husband is

bound to pay maintenance and succession as the ground of getting

into live-in relationship is to escape all liabilities arising

out of marital relations. If the rights of a wife and a live-in

partner become equivalent it would promote bigamy and there would

arise a conflict between the interests of the wife and the live-

in partner. Apart from lacking legal sanction the social

existence of such relationships is only confined to the metros,

however, when we look at the masses that define India, there

exists no co-relation between live-in relationships and its

acceptance by the Indian society. It receives no legal assistance

and at the same time the society also evicts such relationships.

The Parliament should try and enact a separate branch rather than

trying to bring live-in within the ambit of the existing laws as

27

such futile approach would further adversely complicate the

judicial mechanism.

Suggestions

The Indian Legal system should devise new strategies in

order to counter the present existing problems of live-in.

The live-in relationships should be presumed as permanent

after a specific period of time. Furthermore, the children

born through such relationships irrespective of the parents

religion should be guaranteed the rights of inheritance,

succession etc.

The female partner’s role to prove the burden of such

relationship should be relaxed.

Persons who enter into a live-in relationship with a living

spouse should be convicted for bigamy.

A separate legislation should only be competent enough to

grant assistance to the female partners aggrieved by such

relationships.

At last, the sooner our society accepts live-in

relationships, the better chances the Indian Judiciary has

for passing judgments which are in the righteous spirit of

law and in the interest of justice, equity and good

conscience.

28

BIBLIOGRAPHY

a. Books Referred

Kusum, “Cases and Materials on Family Law”, 1st. ed. 2007,

Universal Law Publishing Co., Delhi.

Kusum, “Family Law Lectures”, 1st ed. 2003, Lexis Nexis, New

Delhi

Paras Diwan and Peeyushi Diwan, “Family Law”, 7th ed. 2005,

Allahabad Law Agency, Allahabad.

Ranganath Mishra and Vijender Kumar, (rev.), Mayne, “Hindu

Law and Usage”, 16th ed. 2008, Bharat Law House, New Delhi.

TV Subba Rao and Vijender Kumar, (rev.), GCV Subba Rao,

“Family Law in India”, 1st Ind. rep. 2004 (8th ed. 2003), S

Gogia and Co, Hyderabad.

b. Websites Referred

http://www.rhrealitycheck.org/blog/2008/11/14/livein-

relationships-india-accorded-legal- status

http://www.tribuneindia.com/2003/20030921/herworld.htm#1

http://www.thefreedictionary.com/zenanas

http://www.indiatogether.org/2008/aug/soc-livein.htm

http://timesofindia.indiatimes.com/India/

NCW_wants_change_in_definition_of_livein_relationships/

rssarticleshow/3864127.cms

http://timesofindia.indiatimes.com/articleshow/2708525.cms

http://www.pucl.org/Topics/Law/2003/malimath-

recommendations.htm

iv

http://epaper.timesofindia.com/Repository/ml.asp?

Ref=VE9JQkcvMjAwNy8wNS8yMyNBcjAwMTA0&Mode=HTML&Locale=englis

h-skin-custom

http://www.tribuneindia.com/2006/20060827/society.htm

http://www.ohhoo.com/cohabitation.php

http://www.oneplusone.org.uk/marriedornot/PDF/

Cohabitation.pdf

http://www.lawcom.gov.uk/cohabitation.htm

http://news.bbc.co.uk/2/hi/uk_news/6923373.stm

http://caselaw.lp.findlaw.com/cacodes/fam/297.html

http://www.cbsnews.com/stories/2006/09/14/national/

main2007258.shtml

http://www.enotes.com/everyday-law-encyclopedia/cohabitation

http://www.france.qrd.org/texts/partnership/fr/

explanation.html

http://www.lawyersclubindia.com/articles/The-Socio-Legal-

Dimensions-of-Live-In-

Relationships-3966.asp

http://airwebworld.com/articles/index.php?article=1266

http://www.familycourt.wa.gov.au/_files/defacto.pdf

c. Articles Referred

M. Sridhar, DOMESTIC VIOLENCE: A CRIME AND TORT, Ramaswami

Iyer, “Law of Torts”, 2006.

Prof. Vijender kumar, LIVE-IN RELATION :IMPACT ON MARRIAGE

AND FAMILY INSTITUTION

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