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We have all heard about how wrong it is to be a live in relationship especially the moral policing goes on with no limit. The society is always onto the idea that no matter what legally getting married is the only way you can be with your loved one. Well did you know that is not what the court of law in India says? That there is absolutely no crime in live in relationships. Some of the major points are noted below :
1. Will a man and a woman living together constitute as an offense?
On 23rd March 2010[1] a three-judge bench of Supreme court comprising the then Chief Justice K.G. Balakrishnan, Deepak Verma and B.S. Chauhan observed that a man and woman living together without marriage cannot be construed as an offence and held that living together is a Right to Life and Liberty as a Fundamental Right (Article 21).
The apex court said there was no law which prohibits live-in relationship or pre-marital sex. The apex court made this observation while reserving its judgment on a special leave petition filed by noted south Indian actor Kushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-marital sex in interviews to various magazines in 2005.
It was also stated that held that live-in relationship is permissible only in case of unmarried & major persons of heterogeneous sex.
2. Are children born in a live in relationship considered illegitimate?
The legitimacy of children born out of wedlock presents a dilemma to the Indian Courts. Courts have been divided in this effort. Child out of a prolonged relationship is deemed legitimate but the Court held that if man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption that they lived as husband & wife and the children born to them will not be illegitimate (S.P.S. Balasubramanyam vs Suruttayan[2]). SC had said, "If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act[3] that they live as husband and wife and the children born to them will not be illegitimate." This was a landmark case wherein the apex court upheld the legitimacy of the children born out of live in relationships and interpreted the statutes in concurrence with Article 39(f) of the Constitution of India which lays down the responsibility on the state to provide children with opportunities to develop in a healthy manner and safeguard their interests. Courts have not pronounced a uniform judgment with respect to shorter relationships. Further complexity is added with respect to Section 16 of the Hindu Marriage Act, 1955 which accords a legal status of legitimacy even to illegitimate children (those born out of wedlock) for the purpose of inheritance. Thus inheritance rights have been granted to children out of a live-in relationship, with respect to both ancestral and self-acquired property[4]. Deeming a child legitimate for certain purposes and illegitimate for other has raised questions of equality in the Courts. In the modern context, cases like Tulsi v Darghatiya held that children born from such relations will no more be considered illegitimate. The crucial pre-conditions for a child born from live-in relationship to be not 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.
3. What are the criteria for a live in relationship to being considered as a relationship in the nature of marriage?
In the case of Venuswami vs. D. Pathchaimmal[5]Court held that ‘relationships in the nature of marriage’ under PoWDVAct, 2005[6], must fulfill the following criteria:
The couple must hold themselves out to the Society as being akin to the spouse.
They must be of legal age to marry.
They must otherwise qualify to enter in to legal marriage.
Shared household’ (Sec. 2 (s) & voluntary cohabitation.
Indra Sarma[7] case, on the other hand, enlists a number of criteria on basis of which a subjective analysis of the relationship should be undertaken by the Court in order to determine if it constitutes a live-in relationship under the purview of Domestic Violence Act. The grounds listed were neither strictly binding nor exhaustive. They, however, provided an insight into the aspects which would bring live-in relationships under the definition of ‘relationships in the nature of marriage.’
[1] S. Khushboo vs Kanniammal & Anr (2010) 5 SCC 600
[2] AIR 1992 SC 756
[3] Evidence Act 1872
[4] Parayankandiyal Eravath Kanapravan Kalliani Amma vs K.Devi 1996 SCC (4)76
[5] AIR 2011 SC 479
[6] Protection of Women From Domestic Violence Act, 2005
[7] Indra Sharma v VKV Sarma