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An estimated 10-minute read

Right of Maintenance to Women in Live-in Relationships

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Marriage in the Indian society has been considered as a sacred bond since the Vedic period. This concept of matrimony has continuously evolved with time. With the ever-changing society and human psychology, the concept of marriage and relationship has also evolved. The upcoming generations are considering relationships ever more liberally. One such concept of live-in relationships is being adopted by numerous couples around the world. The relationships where two people cohabit outside marriage without any legal obligations towards each other are known as live-in relationships. This is a relationship in the nature of marriage but unlike a marriage. This concept has slowly paved its way in the Indian scenario as well. However, such relationships are considered a taboo in the Indian society. Although the legal status of{jcomments off} live in relationships in India is unclear, the Supreme Court has ruled that any couple living together for a long term will be presumed as legally married unless proved otherwise. Thus, the aggrieved live-in partner can take shelter under the Domestic Violence Act 2005, which provides protection and maintenance and thereby grant the right of alimony.

Difference between live-in relationship and marriage

Marriage, also called as matrimony or wedlock, is a socially/ritually recognized union or contract between spouses that establishes certain rights and legal obligations towards each other. Considering the diverse culture in India, different laws have been framed which lay down the procedures and guidelines for proper execution of marriages in various religions. Marriage laws have been framed to provide remedies for disputes arising out of wedlock in different religions. Individual Acts were framed for individual religion due to the different customs and traditions followed by each of them. In case of inter-cast marriages, the Special Marriage Act shall be applicable.

Apart from maintenance under personal laws, Section 125 of the Code of Criminal Procedure, 1973 also provides for maintenance inter alia a wife is unable to maintain herself. Women can seek for additional maintenance apart from the maintenance received by her under any other law as per Section 20(1)(d) of the Protection of Women from Domestic Violence Act (DV Act), 2005.

Live-in relationship in simple terms can be explained as a relationship in the nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will to do so.

There is no legal definition of live in relationship and therefore the legal status of such type of relationships is also unsubstantiated. The Indian law does not provide any rights or obligations on the parties in live relationship. The status of the children born during such relationship is also unclear and therefore, the court has provided clarification to the concept of live in relationships through various judgments. The court has liberally professed that any man and women cohabiting for a long term will be presumed as legally married under the law unless proved contrary.

The right to maintenance in live in relationship is decided by the court in accordance with the Domestic Violence Act, 2005 and the individual facts of the case.

Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act 2005, provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner. 

Landmark judgments over the years

Following are the landmark Supreme Court judgment on the concept of live in relationship:

Badri Prasad vs. Dy. Director of Consolidation, 1978 [1]

This was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer 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.

Tulsa & Ors vs. Durghatiya & Ors, 2008 [2]

The Supreme Court provided legal status to the children born from live in relationship. It was held that one of the crucial pre-conditions for a child born from live-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife and it must not be a "walk in and walk out" relationship. Therefore, the court also granted the right to property to a child born out of a live in relationship.

D.Velusamy vs. D.Patchaiammal, 2010[3]

The judgment 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 Domestic Violence 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.

Here, the court relied on the concept of ‘palimony’ which was used in the USA for grant of maintenance in live in relationships. The concept of palimony was derived in the case of Marvin vs. Marvin, a landmark judgment of the California Superior Court.

S. Khushboo vs. Kanniammal & Anr, 2010[4]

The Supreme Court in this case dropped all the charges against the petitioner who was a south Indian actress. The petitioner was charger under Section 499 of the IPC and it was also claimed that the petitioner endorsed pre-marital sex and live in relationships. The court held that living together is not illegal in the eyes of law even if it is considered immoral in the eyes of the conservative Indian society. The court stated that living together is a right to life and therefore not ‘illegal’.

Indra Sarma vs. V.K.V.Sarma, 2013[5]

The recent judgment of the Supreme Court has illustrated five categories where the concept of live in relationships can be considered and proved in the court of law. Following are the categories:

  1. Domestic relationship between an adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship
  2. Domestic relationship between a married man and an adult unmarried woman, entered knowingly.
  3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. Such relationship can lead to a conviction under Indian Penal Code for the crime of adultery
  4. Domestic relationship between an unmarried adult female and a married male, entered unknowingly
  5. Domestic relationship between same sex partners ( gay or lesbian)

The Court stated that a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the Protection of women Against Domestic Violence Act,2005 and provided certain guidelines to get an insight of such relationships. Also, there should be a close analysis of the entire relationship, in other words, all facets of the interpersonal relationship need to be taken into account, including the individual factors.

The Court in this case affirmed that the relationship in the present case is not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under Section 2(f) of the DV Act. In this case, the appellant admittedly entered into a relationship with the respondent despite of knowing that the respondent was a married man with two children born out of the wedlock who opposed the live in relationship since the inception. The Court further added, “If we hold that the relationship between the appellant and the respondent is a relationship in the nature of a marriage, we will be doing an injustice to the legally wedded wife and children who opposed that relationship. Consequently, any act, omission or commission or conduct of the respondent in connection with that type of relationship, would not amount to “domestic violence” under Section 3 of the DV Act, as there is also no evidence of a live-in relationship between the appellant and the respondent as per the given guidelines”. The Court held that the relationship between the appellant and the respondent was not a relationship in the nature of a marriage, and the status of the appellant was that of a concubine. Furthermore, the Domestic Violence Act does not take care of such relationship which may perhaps call for an amendment of the definition of section 2(f) of the DV Act, which is restrictive and exhaustive.

Conclusion

Thus, the legal status of live-in relationships in India has been evolved and determined by the Supreme Court in its various judgments. However, there is no separate legislation which lays down the provisions of live in relationships and provides legality to this concept. Though the concept of live-in relationship is considered immoral by the society, but is definitely not illegal in the eyes of the law. The Supreme Court states that living together is a right to life and therefore it cannot be held illegal. The court has also tried to improve the conditions of the women and children borne out of live in relationships by defining their status under the Domestic Violence Act, 2005 if the relationship is proved to be “relationship in the nature of marriage”. In a recent case of May 5th, 2015, the Supreme Court bench of Justices Vikramajit Sen and A M Sapre, dismissed a petition by the petitioner ‘Z’ who worked in the Bollywood and contended that the respondent could not claim the status of a wife to be legally entitled to get maintenance under the Hindu Marriage Act, 1955. The Court held that cohabitation of a couple would give rise to the presumption of a valid marriage and if a live in relationship breaks down, the man is bound to pay maintenance to the women.

In the landmark Indra Sharma Case, the Court stated that such relationship may endure for a long time and can result 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 pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against. Thus the Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships are protected, though such relationship might not be a relationship in the nature of a marriage.


[1] Badri Prasad V. Dy. Director Of Consolidation & Ors [1978] Insc 119; Air 1978 Sc 1557; 1979 (1) Scr 1; 1978 (3) Scc 527 (1 August 1978)

[2] Tulsa v. Durghatiya [(2008) 4 SCC 520]

[3] D Velusamy Vs D Patchaiammal, CRIMINAL APPEAL NOS. 2028-2029 OF 2010

[4] S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600

[5] Indra Sarma v. V.K.V. Sarma, Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448 [K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.]

by Shirin Zahra Hussain (Intern) and Pooja Deelip Patil (Trainee Advocate) at Abhay Nevagi and Associates, Pune

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