In India, no legal definition is available in relation to live-in relationship but it can be ordinarily defined as an arrangement in which an unmarried couple lives together and establishes sexual relationship that resembles a marriage in order to test their compatibility and due to some other reasons. Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual or homosexual relationship is intensely personal.
In S. Khushboo Vs. Kanniammal, the Hon’ble Supreme Court has held that, a live-in relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.
In Lata Singh Vs. State of Uttar Pradesh, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral.
In SPS Balasubramanyam Vs. Suruttayan @ Andali Padayachi, Hon’ble Supreme Court has held 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.
In Madan Mohan Singh Vs. Rajni Kant, it was held that, the live-in relationship if continued for such a long time, cannot be termed in as "walk in and walk out" relationship and there is a presumption of marriage between them.
The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (Mohabbat Ali Khan Vs. Mohd, Gokalchand Vs. Parvin Kumar, SPS Balasubramanyam Vs. Suruttayan, Ranganath Parmeshwar Panditrao Mali Vs. Eknath Gajanan Kulkarni and Sobha Hymavathi Devi Vs. Setti Gangadhar a Swamy & Ors.)
Modern Indian society through the DV Act recognizes in reality, various other forms of familiar relations, shedding the idea that such relationship can only be through some acceptable modes hitherto understood. In order to provide a remedy in Civil Law for protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having relationship in the nature of marriage, persons related by consanguinity, marriages etc. We have few other legislations also where reliefs have been provided to woman placed in certain vulnerable situations.
In Chanmuniya v. Chanmuniya Kumar Singh Kushwaha, Hon’ble Supreme Court has held that, provisions of Section 125 CrPC must be considered in the light of Section 26 of the PWDVA, 2005, hence, the women in live-in relationships are equally entitled to all the claims and reliefs which are available to a legally wedded wife.
In Re Marriage of Lindsay, Litham vs Hennessey and Re Marriage of Pennington, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be “long term” to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.
In Stack v. Dowden, it was said that, Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage. So many couples are cohabiting with a view to marriage at some later date - as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ‘as good as married’ anyway.
In the case of Indra Sarma vs VKV Sarma, Hon’ble Supreme Court has issued some guidelines for testing under what circumstances, a live-in relationship will fall within the expression “relationship in the nature of marriage” under Section 2(f) of the DV Act. The guidelines, of course, are not exhaustive, but will definitely give some insight to such relationships.
(1) Duration of period of relationship -
Section 2(f) of the DV Act has used the expression “at any point of time”, which means a reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation.
(2) Shared household -
The expression has been defined under Section 2(s) of the DV Act, hence, need no further elaboration.
(3) Pooling of Resources and Financial Arrangements-
Supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor.
(4) Domestic Arrangements -
Entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or upkeeping the house, etc. is an indication of a relationship in the nature of marriage.
(5) Sexual Relationship -
Marriage like relationship refers to sexual
relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.
(6) Children -
Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.
(7) Socialization in Public -
Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage.
(8) Intention and conduct of the parties -
Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship.
It was further held that, relationships in which both partners are adult and unmarried or an unmarried woman unknowingly enters into the Live-in relationship with married man shall be considered as relationship in the nature of marriage. DV Act does not recognize same sex relationships(Gays and Lasbians) and that relationship cannot be termed as a relationship in the nature of marriage under the Act. Legislatures in some countries, like the Interpretation Act, 1984 (Western Australia), the Interpretation Act, 1999 (New Zealand), the Domestic Violence Act, 1998 (South Africa), the Domestic Violence, Crime and Victims Act, 2004 (U.K.), have recognized the relationship between the same sex couples and have brought these relationships into the definition of Domestic relationship.
Any child born out of a Live-in relationship shall not be considered to be illegitimate (SPS Balasubramanyam Vs. Suruttayan, Tulsa Vs. Durghatiya and Revanasiddappa Vs. Mallikarjun).
In Bharatha Matha Vs. R. Vijaya Renganathan, Hon’ble Supreme Court has held that, a child born out of a live-in relationship may inherit the property of the parents (if any) and therefore be given legitimacy in the eyes of law. We have seen that Indian judiciary in the absence of specific legislation have been protecting the rights of the children by giving law a broader interpretation so that no child is “bastardised” for having no fault of his/her own.
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