Written by: Rashmi Singh
In India, live-in relationships are becoming more common as a simple alternative to marriage. Domestic cohabitation between mature, non-married partners is what is meant by the definition. It seems like a stress-free relationship with no legal responsibilities, but it has a lot of hassles, responsibilities, and legal liabilities. Recently, efforts have been made to include it in the purview of several pieces of legislation. In India, it is no longer a crime, and numerous guidelines concerning child custody, property rights, and maintenance have been published in judgments by the Apex Court. However, it is a contentious subject in India. Many grey areas require adequate treatment, including those involving official documents, cultural considerations, property rights, will, and gift rights, anti-religion status, and LGBT concerns.
A live-in relationship is a situation in which two people live together but are not married. Many nations around the world have already authorized and approved the idea. According to the Apex Court, it is no longer illegal for a man and a woman who are in love to live together because it is a component of their right to life. The Malimath Committee in 2003 paved the way for providing landmark recommendations. It is pertinent to mention that primarily it shed light on the term ‘wife’ and considers a woman in a live-in relationship as a wife. Thereafter, the Protection of Women from Domestic Violence Act (PWDVA) 2005, which is regarded as the first piece of legislation to provide legal recognition to relations outside marriage, by covering it under the ambit of relations in marriage. Many attempts have been made to bring it into the purview of some laws like domestic violence, maintenance, property, and the legal status of a child to regulate the dynamics of this new social order. Still, on moral and societal grounds, it is debatable and taboo in India.
The Apex Court in its various judgments has stated that if a man and a woman live like a husband and a wife in a long-term relationship and even have children, the judiciary will presume that the two were married and the same laws would be applicable to them and their relationship. The concept of a live-in relationship was recognized in Payal Sharma v. Nari Niketan by the Allahabad High Court, where it is observed by the Bench consisting of Justice M. Katju and Justice R.B. Misra 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 it is not illegal. There is a difference between law and morality." Afterward, in S. Khushboo v. Kanniammal & anr case, the Supreme Court observed that a live-in relationship between two adults without formal marriage cannot be construed as an offense. Further, it is added that there was no law prohibiting live-in relationships or pre-marital sex. Article 21 of the Constitution of India guarantees the right to life and personal liberty as a fundamental right. Therefore, live-in relationships are legal in India.
The Protection of Women from Domestic Violence Act (hereinafter PWDVA) of 2005 was possibly the first piece of legislation to recognize live-in relationships by granting rights and protection to women who are not legally married but are nonetheless sharing a home with a man in a relationship that is similar to marriage but not marriage and also comparable to wife, but not the same as a wife. The Supreme Court has illustrated five categories where the concept of live-in relationships can be considered and proved in the Court of law, as stated in Indra Sarma v. V.K.V. Sarma, case, 2013. They are:
a) Live-in relationship between an unmarried adult woman and an unmarried adult male, which is a less complicated relationship.
b) Live-in relationship between an unmarried woman and a married adult male, where an unmarried adult woman knowingly enters a relationship with a married adult male.
c) Live-in relationship between a married adult woman and an unmarried adult male where an adult married woman, knowingly enters a relationship with an unmarried adult male.
d) Live-in relationship between an unmarried woman who unknowingly enters into a relationship with a married adult male.
e) Live-in relationship between same-sex partners (Gay and Lesbians), although PWDA does not recognize such a relationship and that relationship cannot be termed as a relationship in marriage under the Act.
The third group listed under the aforementioned categories is contentious since it permits a married adult woman and an unmarried adult man to cohabit, which was previously prohibited by section 497 of the Indian Penal Code. However, on September 27, 2018, a five-judge Constitution bench of the Supreme Court unanimously decided to repeal Section 497, making it no longer a crime in India. This decision was made in Joseph Shine v. Union of India10. It has been claimed that this section violates Articles 14 and 15 of the Indian Constitution, which state that "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" and "The State shall not discriminate against any citizen on the sole ground of religion, race, caste, sex, place of birth, or any of them." Adultery cannot be a crime, Chief Justice Dipak Misra stated while reading the ruling, but it might be a basis for civil disputes like divorce.
Legal status: The Supreme Court in Tulsa v. Durghatiya held that a child born out of such a relationship would no longer be considered as an illegitimate child. The noteworthy prerequisite for the same is that the parents must have lived under the same roof and cohabited for a significant period which proves their sincerity towards the relationship. Property rights: The Supreme Court in Revanasiddappa v. Mallikarjun approved the inheritance to the four children born out of the live-in relationship by considering them as 'legal heirs'. Therefore, the Court has guaranteed that no child may be denied their inheritance who is born out of a live-in relationship of a significant period of time. Maintenance: The Malimath Committee, i.e., the Reforms of Criminal Justice System was set up in November 2000, it submitted the report in 2003 after making several recommendations for offenses against women. One of the significant recommendations proposed was, to amend Section 125 of the Criminal Procedure Code (hereinafter CrPC) which is related to the maintenance rights of the 'neglected and dependent wife, children, and parents. The committee also pursued extending the definition of 'wife' mentioned under Section 125 of CrPC to include a woman who was living with the man akin wife under the same roof for a reasonably long period. However, the aforesaid criteria are necessary for any woman who wants to take benefit of PWDVA, which consist of the right age, mutual and independent consent, a significant period, and social status.
Issues and difficulties in living together. Even while live-in relationships are now legal and frequently upheld in court decisions, there are still numerous issues that call for an important discussion. The following are a few of the trickiest grey areas that need to be resolved peacefully:
1. Social and moral acceptance: Although live-in relationships are now legal, they are nevertheless frowned upon and viewed as unethical by Indian society.
2. Governmental records In India, there is still no category for a live-in relationship on any official paperwork. The couple encounters issues with their shared bank accounts, nominee names, insurance, visas, and other things.
3. Cultural issues: India is known for its diverse culture and religion. In our nation, the effects of globalization on interpersonal relationships are unprecedented. Family bonds and values, which once predominated, are undergoing rapid transformation. Every religion has a unique viewpoint on cohabitation. Anti-religion unions are only permitted in accordance with the Special Marriage Act of 1955, which is still a contentious issue. A live-in relationship is a step up, and while Christianity apparently allows it, Hinduism and Islam do not. In India, a person's thinking is greatly influenced by their beliefs, habits, usages, and culture. Therefore, rather than any legislation, acceptance of new norms depends on how strongly held their beliefs are. The emphasis must be given to addressing the complications of antireligion live-in relationships, which is still a sensitive issue.
4. LGBT couples, society is indifferent towards providing benefits to the LGBT community and unwilling to accept their relationship. Even, any laws and judgments of live-in relationship provisions or discussions about LGBT couples are lacking. No matter whether the Supreme Court has decriminalized consensual same-sex intercourse by scraping Section 377 of the Indian Penal Code, yet India does not recognize same-sex marriage and live-in relationships.
5. Gender-biased: The PWDVA of 2005 recognizes a woman who has been living with a man for an extended period of time as a wife, and numerous provisions, such as maintenance and property, are also in her favor. Unfortunately, it makes no provisions for gay couples or males. It has been noted that men are frequently accused of sexual assault and taking advantage of a woman by promising a phony marriage. There may be a contradiction, in which case there would be no strengthening for men. Similar to that, there is no provision for same-sex partners being sexually abused.
A live-in relationship might be an objectionable and new concept in India, but it is bourgeoning all over. In this contemporary lifestyle, which is partially emerging due to the rapid impact of globalization, people are not ready to take responsibility and indulge in a full-time devoted relationship. For the youth voluntary relationship between couples based on a broader understanding of domestic cohabitation as well as recognition of pre-nuptial agreements, overall tolerance towards sexual preferences, etc. is a new attraction. Today, society and other organizations have also joined the judiciary in facilitating the legitimization of the concept of live-in relationships, as the country is slowly opening its door to western culture, ideas and lifestyles. The concept is gradually being accepted by society now as a substitute for marriage but as an increasingly viable alternative. It is now legalized, and PWDVA 2005 protects some of the rights of women in this relationship. Nonetheless, there are many grey areas that need a pivotal discourse. There is a need for a separate law that should emphasize socio, legal and secular aspects also to solve these complexities which still exist in the live-in relationship.
1. Avantika Sarkar, (2015) “Law, Religion and Conjugal Ties: A Study of ‘Live-in-Relationships’ in Contemporary Indian Society”
2. Anuja Agrawal (2012), Law and ‘Live-in’ Relationships in India, Economic & Political Weekly.
3. Auroshree, “Live-In Relationship and Indian Judiciary”, The SCC blog online, https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/