APPLICABLITY OF INDIAN MARRIAGE LAWS TO LIVE-IN-RELATIONSHIPS

Author: Parvathy R Anil

ABSTRACT

Live-in-relationship is a kind of relationship in which an unmarried couple live together under

the same roof in a way resembling marriage but without getting married legally. Such
relationships are not illegal though there are no laws governing them, but are considered to be
immoral by majority. India as we know is home to millions with vast cultural diversity and a
tinge of tradition. However in the present urban scenario with the younger generation becoming
more open minded due to the impact of modern education and westernization, the traditions
seem to vanish and live-in-relationships are becoming more common.

The rise in number of cases arising out of live-in-relationships is increasing rapidly with the
increase in number of couples getting into a live-in-relationship. Determining issues related to
live-in-relationships is one of the many challenges faced by courts as it is difficult to decide them
on the basis of existing marriage laws. A number of issues pertaining to whether live-in-
relationships fall under the term nature of marriage, legitimacy of the child born out of a live-
in-relationship, applicability of the Protection of Women from Domestic Violence Act, 2005 and
applicability of Section 125 of CrPC are often questioned in the court.

The researcher finds these issues to be of supreme importance and thereby aims in answering the
above mentioned issues and bringing out the current legal status of live-in-relationships. The
proposed paper is purely doctrinal in nature and addresses the above issues in light of landmark
judgments such as Indra Sharma case, Veluswamy case, etc. taking into account the opinion of
Justice Karnan and K.S. Radhakrishnan.

Keywords: Live-in-relationships, Nature of marriage, Protection of Women from Domestic

Violence Act, 2005, Legitimacy of child, Maintenance.
INTRODUCTION

India as we know now is home to millions with vast cultural diversity and a tinge of tradition.
The union of a man and a woman is considered as one of the most sacred unions in our country
and it occupies a sacramental position both philosophically and practically. In the typical Indian
scenario, couples living together before marriage or who are in a live-in-relationship are often
looked down by the staunch ethic holders. Live-in-relationship is a kind of relationship in which
an unmarried couple live together under the same roof in a way resembling marriage1 but
without getting married legally. Such relationships are not illegal though there are no laws
governing them, but are considered to be immoral by majority. However in the present urban
scenario with the younger generation becoming more open minded due to the impact of modern
education and westernization, the traditions seem to vanish and live-in-relationships are
becoming more common.

The attitude towards live-in relationships in different societies varies but its definition is the
same almost everywhere. It is a kind of relationship in which a couple lives together without
marrying each other and without any legal or social commitment. This arrangement is similar to
marriage when it comes to the relationship between two individuals living together though are no
rights and obligations imposed on either of the partners. This form of relationship does not thrust
the typical responsibilities of a married life on the individuals living together. The foundation of
live in relationship is individual freedom. Couples live together rather than marry for a number
of reasons which includes testing their compatibility before committing themselves to a legal
union. In some cases, the individuals may feel that the entire concept of a marriage is
unnecessary.

The rise in number of cases arising out of live-in-relationships is increasing rapidly with the
increase in number of couples getting into a live-in-relationship. Determining issues related to

1
The free dictionary, Co-habitation, http://legal-dictionary.thefreedictionary.com/Live-in+relationship ( last visited
on February, 29th, 2016 (2:30 AM (IST))
live-in-relationships is one of the many challenges faced by courts as the existing marriage laws
do not explicitly deal with live-in-relationships. A number of issues pertaining to whether live-
in-relationships fall under the term nature of marriage, legitimacy of the child born out of a
live-in-relationship, applicability of the Protection of Women from Domestic Violence Act,
2005, and applicability of Section 125 of CrPC2 are often questioned in the court. These issues
are of supreme importance and needs to be answered to bring out the current legal status of live-
in-relationships in India.

LEGAL ASPECTS OF LIVE IN RELATIONSHIPS

Live-in-relationships and the Protection of Women from Domestic Violence Act, 2005

The Hindu Marriage Act 1955, Special Marriage Act or any of the personal laws does not
recognize live-in-relationship. The Protection of Women from Domestic Violence Act
2005 (PWDVA) on the other hand for the purpose of providing protection and maintenance to
women says that an aggrieved live-in partner may be granted maintenance. The PWDVA
recognizes relationship in the nature of marriage. Thus, The Protection of Women from
Domestic Violence Act, 2005 can be applied to a live-in-relationship if it falls under the criteria
of relationships in the nature of marriage.

Section 2 (f) of the PWDVA defines the term domestic relationship3. This very section mentions
the term nature of marriage. In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha4,
the Supreme Court gave wide interpretation to terms like domestic abuse, domestic relationship
and included live in relationship which entitles such women to reliefs under the Protection of
Women from Domestic Violence act 2005. In the case of D. Velusamy v. D. Patchaiammal 5, a
2011 judgment of the Supreme Court bench consisting of Justices Markandey Katju and T.S.
Thakur, held that, a relationship in the nature of marriage under the 2005 Act must also fulfill
the following criteria:

2
Section 125, Code of Criminal Procedure, 1973
3
S. 2(f)- Domestic relationship means a relationship between two persons who live or have, at any point of time,
lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in
the nature of marriage, adoption or are family members living together as a joint family".
4
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141
5
D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469
 (a) The couple must hold themselves out to society as 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, and in addition the parties must have
lived together in a shared household as defined in Section 2(s) of the Act.
Also, in the case of Indra Sarma v. V.K.V.Sarma6, the Supreme Court followed the same
guidelines with a few additions. The few additions include:
(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 and, 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 up
keeping 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.

6
Indra Sarma v. V.K.V Sarma , 2013 (14) SCALE 448
 (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.7
If the above said guidelines are satisfied, it can be established that the relationship falls under
nature of marriage. In the case of Sumitra Devi v. Bhikan Choudhary (1985)8 the Supreme
Court held that,
relevant facts such as how long have the parties been living together, does society
recognize them as husband and wife, etc need to be looked into to determine whether the
relationship is in the nature of marriage.
The PWDVA can be applied to live-in-relationships if the live-in-relationship falls under the
category of nature of marriage Thus it can be concluded that if the above guidelines are
satisfied, it can established that the live-in-relationship falls under the category of nature of
marriage and the PWDVA can be applied.

Applicability of Section 125 of Code of Criminal Procedure, 1973

Section 125 of the Code of Criminal Procedure, 1973 provides for maintenance of wife. In
Vimala (K.) v. Veeraswamy (K.)9, a three judge bench of the Supreme Court, interpreting
Section 125 of Code of Criminal Procedure held that,
A woman who does not have the legal status of a wife can fall within the purview of this
section.
In various cases, such as in case of Chanmuniya v. Virendra Kumar Singh Kushwaha10, the term
wife was interpreted to include even those cases where a man and woman have been living
together as husband and wife for a reasonably long time and strict proof of marriage was not a
precondition for maintenance.

7
The Chamber of Law, All Live-in-relationships are not in the nature of marriage, http://www.tcl-
india.net/node/140 (last visited on March 2nd, 2016 (IST 10:20 PM))
8
Sumitra Devi v. BhikanChoudhary, (1985) 1 SCC 637
9
Vimala (K.) v. Veeraswamy (K.) (1991) 2 SCC 375
10
Supra note 4
In the landmark judgment in the case of Aysha v. Ozir Hassan11 Justice Karnan was of the
opinion that if a man and woman of marriageable age have a sexual relationship, they will be
treated as husband and wife and maintenance can be claimed under the Section 125 of the Code
of Criminal Procedure, 1973 as the couple here is elevated to the status of husband and wife.
Justice Malimath committee as well as the Law Commission of India states that if a woman is in
a live-in relationship with a man for a reasonable period of time, she should be elevated to the
status of a wife and should be eligible to all the legal rights available to a woman.

From the above cases, it can be said that marriage is not the most important criteria for treating a
couple as husband and wife. It can be said that there are certain cases where live-in-relationships
are treated as marriage and the couple in a live-in-relationship are elevated to the status of
husband and wife. In such cases, it can be said that maintenance can be claimed under Section
125 of the Code of Criminal Procedure Code.

To elevate a couple to the status of husband and wife, there should be presumption of marriage
and the live-in-relationship should fall under the category of nature of marriage and they should
appear to the society as husband and wife In such cases, protection from domestic violence can
be sought under the Protection of Women from Domestic Violence Act, 2005 and maintenance
can be claimed under Section 125 of Code of Criminal Procedure, 1973. If the couple is elevated
to the status of husband and wife, then it can be concluded that the personal laws which is
applicable to husband and wife can be applied to such live-in-relationships.

Legitimacy of child born out of a live-in-relationship

A child born out of a live-in-relationship can claim maintenance and protection from the
Protection of Women from Domestic Violence Act, 2005 and Section 125 of the Code of
Criminal Procedure Code as these Acts explicitly grants protection even to illegitimate children.
When there is presumption of marriage in a live-in-relationship, it cannot be treated as a walk-in
and walk-out relationship. Due to the very same reason, the courts have, in numerous judgments,
held that children born out of a live-in-relationship cannot be said to be illegitimate. This

11
Aysha v. Ozir Hassan (2013) 5 MLJ 31
decision has been made as early as 1993 as in the case of S.P.S Bala Subramanyam v.
Sruttayan12, the Supreme Court 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 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.13 A child born out of a live-in-relationship will not be treated as an
illegitimate child as long as its parents have cohabited under the same roof and appeared to the
society as husband and wife. This was held in the case of Tulsi v. Darghatiya14. Thus, a child
born in a live-in-relationship is considered to be legitimate in India. The denial of maintenance
rights to children born out of live in relations can be considered to be violative of fundamental
rights guaranteed under the Constitution (Article 21 which provides the right to life and personal
liberty) and such denial can deprive such individuals of their right to lead their lives with dignity
15
This was in the case of P.V Susheela v. Komalavally by the Kerala High Court. Also the
unequal treatment of children born out of live in relationships and marital relationships even
though both are perceived as legitimate in the eyes of law can amount to violation of Article 14
which promises equality before law16.

CONCLUSION

Though there are no particular laws governing live-in-relationships and if even if no particular
law deals with live-in-relationships explicitly, from the above discussions it is clear that the
existing statutes can be interpreted so as to govern live-in-relationships. As of now in India all
live-in-relationships that falls within the category of nature of marriage are granted protection
within the Protection of Women from Domestic Violence Act, 2005 and all cases of live-in-
relationships wherein the couple can be elevated to the status of husband and wife can claim all
benefits available to a legally wedded couple. A child born out of a live-in-relationship is also
12
S.P.S Bala Subramanyam v. Sruttayan, 1994 AIR 133
13
Enakshijha, Status of children born in live-in-relationships, January 14, 2014,
http://www.legalservicesindia.com/article/article/status-of-children-born-in-live-in-relationships-1622-1.html (last
visited on March 3rd, 2016, (IST 3:46 PM))
14
2008 SC 1193
15
See Supra note 13
16
Bharata Matha & Ors. v. R. Vijaya Renganathan & Ors, AIR 2010 SC 2685
considered to be a legitimate child by the Indian courts. Therefore, it can be said that the legal
aspects of live-in-relationships are well established in India by interpreting the already
established statutes. The only lacking is the explicit implication of such laws. The main
foundation of live-in-relationship is individual freedom. The explicit implication of laws shatters
the very foundation of live-in-relationships. The Indian judiciary has woven the thread of law
related to live-in-relationships with utmost care keeping in mind the freedom of individuals in
live-in-relationships. This is exactly why not all live-in-relationships fall under the category of
nature of marriage and attracts legal ties. Only when couples in a live-in-relationship step over
their individual freedom do they attract legal ties and only in such conditions live-in-
relationships are treated as marriages.

DETAILS OF AUTHOR
Parvathy R Anil
3rd Year, B.A.LL.B (Hons.)
Contact: 09597382975
Mail id: parvathyranil27@gmail.com
Institution: Tamil Nadu National Law School, Tiruchchirappalli