The Concept
There are occasions when some couples reside together without contracting a legally binding marriage.
This is called a live-in relationship and over the years live-in relationships have come to be accepted by the society.
1. Judicial Acknowledgement
In the case of A. Dinohamy vs. W.L. Balahamy, [AIR 1927 PC 185], it was held by the Privy Council for the first time in the Indian judicial history that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.
In the case of Gokal Chand vs. Parvin Kumari, [AIR 1952 SC 231], the Hon’ble Supreme Court observed that continuous co-habitation of man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage.
2. Recent Pronouncements
The question 'whether living together of a man and woman as husband and wife for a considerable length of time would raise the presumption of a valid marriage' was again considered by the Hon’ble Supreme Court of India in the case of Chanmuniya v. Chanmuniya Virendra Kumar Singh Kushwaha and Another [(2011) 1 SCC 141], after various issues arose in this type of relationship and the Hon'ble Supreme Court conclusively held that "where partners live together as husband and wife, a presumption would arise in favour of a wedlock."
Following the above, later in terms of a landmark judgment in the case of Dhannulal Vs. Ganeshram [(2015) 12 SCC 301], the Hon’ble Supreme Court decided that couples living in live-in relationship would be presumed legally married.
That the Hon’ble Court in the said Judgment also held that the woman in the relationship would be eligible to inherit the property after the death of her partner.
3. Important Questions that matter Today
Q. Do the women in Live-In relations have rights to claim maintenance u/s 125 Cr. P.C?
A. That the Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 recommended that the word 'wife' in Section 125 Cr. PC. should be amended to include a woman who was living with the man like his wife for a reasonably long period.
4. Court Rulings in the context
That there is no amendment to the Cr. PC brought about on these lines.
However, in terms of the ratio of the Judgment in the case of Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha and Another [(2011) 1 SCC 141], the Hon’ble Supreme Court recognized the factum of live in relationship and held that a woman, who is party to a live in relationship, would have the status of a wife and should be awarded maintenance and the partner could not derive any benefit from denying maintenance on the ground that there was no valid marriage.
That the Hon’ble High Court of Punjab and Haryana at Chandigarh in a Judgment passed in the case of Ajay Bhardwaj vs Jyotsna and Others [2017 ALLMR (Cri) 43] reiterated and emphasised the aforesaid ruling while relying on the Supreme Court Judgment in the case of Chanmuniya.
In the background of the foregoing discussion, the answer to the above question is in the affirmative. Yes! the Women in Live-In relations have a right to claim maintenance u/s 125 Cr. P.C.
5. Domestic Violence
Q. Whether a woman in Live-In relationship can invoke jurisdiction under the Protection of Women from Domestic Violence Act, 2005?
Ans. The Hon’ble Supreme Court of India examined the term `relationship in the nature of marriage' in the case of D. Veluswamy v. D. Patchaiammal [AIR 2011 SC 479], the Hon’ble Supreme Court enumerated following ingredients of a live-in relationship:
(a) The couple must hold themselves out to society is 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, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
A three Judge Bench of the Hon’ble Supreme Court of India made an observation in the case of Lalita Toppo v. State of Jharkhand & Anr [(2019) 13 SCC 796] that the 2005 Act provides an “efficacious remedy” for maintenance even if the victim is not a legally wedded wife and “In fact, under the provisions of the Protection of Women from Domestic Violence Act, 2005 the victim i.e. estranged wife or live-in-partner would be entitled to more relief than what is contemplated under Section 125 of the Code of Criminal Procedure, 1973, namely, to a shared household also,”
In the case of Indra Sarma Versus V.K.V. Sarma [(2013) 15 SCC 755], the Hon'ble Supreme Court went into the question whether a "live in relationship" would amount to a "relationship in the nature of marriage", falling within the definition of "domestic relationship" under Section 2 (F) of the Protection of Women from Domestic Violence Act, 2005 and whether the failure to maintain a women involved in such a relationship amounts to "domestic violence" within Section 3 of the DV Act.
6. Conclusion in so far as Protection of Women from Domestic Violence Act is concerned
It must be noted, in view of the above, that not all live-in relationships are entitled to benefits in the terms of the Protection of Women from Domestic Violence Act, but only those that qualify as “relationship in the nature of marriage”.
Another important point may be noteworthy here is that only stable and reasonably long period of relations between the couples are given the advantage of the 2005 Act.
In view of the foregoing discussion, it also becomes clear that a woman in Live-In relationship can invoke jurisdiction under the Protection of Women from Domestic Violence Act, 2005 including for the relief of protection orders (i.e. right to reside in the Matrimonial Home).
Some of the judicial precedents touching upon the settlement of legal principle regarding the right of the woman to reside in Matrimonial Home, Removal of the Respondent from the Shared Household, and alternate accommodation for the aggrieved person are:
1. Roma Rajesh Tiwari vs Rajesh Dinanath Tiwari
[2018 (2) ABR 517]
2. Sabita Mark Burges vs Mark Lionel Burges
[2013 (5) MhLJ 289]
3. Ajay Kumar Jain v. Baljit Kaur Jain
[160 (2009) DLT 401]
7. Succession Rights
By way of the Judgment in the case of Vidhyadhari vs. SukhranaBai [(2008) 2 SCC 238], the Hon’ble Supreme Court ruled that the property of a Hindu male, upon his death (intestate), could be given to a woman with whom he enjoyed a live-in relationship, even though he had a legally wedded wife alive.
8. Whether a woman in a live-in relation is entitled to invoke section 498A of IPC?
It was in the case of Shivcharan Lal Verma and Ors. vs. State of Madhya Pradesh [(2007) 15 SCC 369], the Supreme Court held that there must be a valid marital relationship between the accused and the victim otherwise the penal provisions of Section 498A cannot be attracted.
In another caseKoppisetti Subbharao vs. State of A.P. [(2009) 12 SCC 331], the Supreme Court went on to protect the woman in live-in relationship from harassment for dowry. The Court while denying the contention of the man that section 498A does not apply to him since he was not married to his live-in partner held that, “the nomenclature “dowry” does not have any magical charm written over it. It is just a label given to a demand of money in relation to a marital relationship”.
It was as recent as in 2017 in the case of Unnikrishnan vs. State of Kerala [2017 (3) KLJ 918] that the Kerala High Court following the ruling of the Apex Court in the case of Shivcharan Lal Verma held that a woman in a live-in relationship was not entitled to file a complaint under the section 498-A.
9. Legal status of children born out of a live-in relationship
a. The Hon’ble Supreme Court of India in the case of S.P.S. Balasubramanyam v. Suruttayan [(1994) 1 SCC 460] for the first time ruled upon and upheld the legitimacy of children born out of a live-in relationship.
b. In a pronouncement made in the case of Tulsa v. Durghatiya [(2008) 4 SCC 520] – later, the Hon’ble Supreme Court ruled that the children born out of a live-in relationship will not be illegitimate with an important precondition that parents must have lived under one roof and cohabited for a significantly long time for the society to recognise them as husband and wife.
c. In terms of the ratio of another Judgment in the case of Revanasiddappa v. Mallikarjun [(2011) 11 SCC 1], the Supreme Court further held that the birth of a child out of such relationship has to be viewed independent of the relationship of the parents. It is as plain and clear as sunshine that a child born out of such relationship is innocent and is entitled to all the rights and privileges available to children born out of valid marriages.
10. Maintenance
The law of maintenance as it exists, any ways provides that the Children born from live-in relationships are considered eligible for maintenance from the father u/s 125 of Cr. PC. However, they do not have any such right under Hindu Adoptions and Maintenance Act 1956.
11. Succession Rights of the Children born out of Live-In Relations
Under Hindu law, an illegitimate child inherits the property of his mother only and not putative father, whereas under Sharia law, such a child cannot even inherit from his mother. However, where the live-in satisfies the condition of a reasonable period as set out by the Courts, a child being “legitimate” can inherit from both the parents. In Revanasiddappa vs. Mallikarjun[(2011) 11 SCC 1] the Supreme Court granted the inheritance to the four children born from the woman with whom the man shared a live-in relationship, calling them “his legal heirs”.
Similarly, in the case of Vidhyadhari v. SukhranaBai [(2008) 2 SCC 238], above the Hon’ble Supreme Court has also ensured that no child born from a live-in relationship of a reasonable period may be denied inheritance.
12. Guardianship & Custodial Rights
Where the father and the mother are not married to each other and a child is born to such parents, the mother and not the father has the parental responsibility for the child. Section 6(b) of the Hindu Minority and Guardianship Act 1956 provides for the mother as the natural guardian over any illegitimate children she has.
For further interactions, please email:
Mr. Rakesh Taneja
Advocate, Supreme Court of India