Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

STATUS OF CHILDREN BORN OUT OF LIVE-IN RELATIONSHIPS UNDER INDIAN LAW: A

CRITICAL LEGAL STUDY
Jyotiringa Puzari1

Abstract

With time, the notion of marriage has developed continually with the ever-changing
culture and human psychology. There has been an exponential increase in the
development of live-in relationships with the widespread effect of globalization and
shadowing modernization in society. India has seen a dramatic shift in how these
relationships are perceived by the current generation. Such a relationship includes a
stable and peaceful cohabitation between two partners where the couple may have
moral and personal duties and obligation, but there are fewer legal duties per se.

Partners living together for a long time may have kids together. Now the issue that
arises here is that, unlike a socially recognized wedlock, is the baby born from a live-in
relationship provided a prior legal status? Is he an illegitimate child? Has he got
rights? Is the law protecting him?

This paper thus researches on this aspect of such a relationship, which isn’t governed
or rightly codified under any law- be it ‘personal laws’ or criminal law. Initially, it
discusses analytically on how Indian law perceives live-in relationships. The paper
mentions relevant court judgements and other legal interpretations that were put
forward in dealing such a matter. The main highlight of this paper is to project the
issue of the legitimate status conferred to a child born out of a live-in relationships in
India and further pinpoint certain lacunae in this realm of study of law, thus bringing
out a critical conclusive analysis of it.

Keywords: Live-in Relationships, Indian Law, Legitimacy, Rights, Child

1
Student (3rd Year, 5th Semester), BA.LLB Hons., National Law University and Judicial
Academy, Assam; Affiliated to Bar Council of India, UGC(Sec.12 B) and Association of Indian
Universtities; Amingaon (North Guwahati), Kamrup (R)- Assam.
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

Live-in Relationships- An Emerging Trend in India

In order to discipline sexual relationships and guarantee the legal validity in identity
and status of children and their intellectual and psychological development in a
congenial atmosphere, the institution of marriage appears to have developed. The
upcoming generations are also considering relationships even more liberally. Live-in
relationships have appeared among individuals today as an autonomous, independent
perspective. In Indian society, too, this notion has slowly paved its way. However, the
Indian culture most often treats such interactions and relations as a taboo. While the
legal status of live-in relationships in India is unclear, the Supreme Court ruled in
that 2any long-term couple living together (for a relatively longer duration) will be
presumed to be legally married and not a ‘walk-in and walk-out’ relationship, unless
otherwise proved.

The partners are provided certain rights and responsibilities to be exercised by either
of them in a typical marriage. There are several personal laws that regulate and defend
the marriage bond of a recognized pair, such as Hindu law, Muslim laws, Christian
laws, etc. Live-in relationships, being an outlandish idea to the Indian legislature has
no legal recognition as such or consequences for couples living together without the
relationship involving marriage. We know live-in relationships also promote pre-
marital sex, for which a child's birth is highly likely to happen. These children, unlike
the successors born out of wedlock, do not have any rights over ‘inheritance’ and are
socially treated as ‘illegitimate’ children. With time, several laws and amendments
have been introduced that provide clarity on the status and freedoms of kids born out
of a live-in relationship. This guarantees consistency and helps to establish such a
child's emotional, mental and physical safety. Before entering into a discussion on
ethics and legitimacy on this problem, it is essential to evaluate the practical and legal
aspect of such unions.

A live-in relationship is the relationship of two adults of sound mind without entering
into a legal or formal relationship of marriage. Such a relationship is usually
recognized by cohabitation which may or may not be accompanied by sexual relations.
In such a relationship there may be moral and personal obligations decided mutually

2
Madan Mohan Singh v. Rajni Kant; (2010) 9 SCC 209.
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

by the couple but there are fewer legal obligations.3 A form of living in relationship is
defined by the couple having full understanding of the implications of living together
as a pair without marital status or legal recognition and entering into this relationship
through their free will, giving an aspect of willingness. Another type of such
relationship is defined by its involuntary element and can happen if the man or
woman is led to think that the person is unmarried, divorced or widowed and married
to him. The relationship that survived thus becomes a living-in nature. However, laws
relating to bigamy prevent this type of unions.

In view of India's varied culture, distinct legislations have been developed setting out
the procedure and guidelines for properly performing of marriages in different
religions. In order to provide remedy to conflicts resulting from marriage in distinct
religions, marriage laws were developed accordingly. The existence of laws and acts
such as the Hindu Marriage Act 1956, The Special Marriage Act 1954 give legal
backing and teeth to this institution. Thus, it is apt to say that in India, marriage has
been given legal and social recognition.

However if we look in today’s social scenario, young couples find it simpler to shape
themselves into a live-in relationship. It offers them with a trial period that can further
pave the way for marriage to check their compatibility. There is currently no law as
such in India that defines the ‘maxims’ of a live-in relationship. Live-in partners have
no means of recognition as such. This notion is emerging slowly and can be seen in
latest legal innovations and other judicial developments. 4The Supreme Court
established the 'Malimath Commission' for Criminal Justice System reforms in 2003.
The report submitted by this Commission stated that-"The definition of the word ' wife'
should be amended in Section 125 of the Criminal Procedure Code (CrPC) to include a
woman who lived with the man as his wife for a reasonably long period of time during
the first marriage subsistence." This entitles a woman living in such a type of
relationship the right to claim alimony.

The Protection of Women from Domestic Violence Act (PWDVA) of 2005 is regarded to
be the first legislation to acknowledge the right of a person to protection in
3
Enakshi Jha, “ Status of Children born in Live In Relationships”
(http://www.legalservicesindia.com/article/1622/Status-of-Children-born-in-Live-in-
Relationships.html), last accessed on 20th June, 2019.
4
“Maharashtra to Legalize `live-in' Relationships”, Times of India,[Oct. 09, 2008].
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

"relationship in nature of marriage" including live-in types. This westward concept is

thus emerging slowly in Indian society.5 PWDVA's regulations are currently relevant to
persons in live-in relationships. Courts presume that live-in relationships are to be
covered as the words nature of marriage and living-in connection stand on the same
line and significance within the ambit of speech. This provides women some vital
rights to safeguard themselves against the abuse of fraudulent marriage, bigamous
marriages etc.

Judicial response to live-in relationships

The Supreme Court of India first recognized the live in relationship as a valid marriage
in Badri Prasad vs. Dy. Director of Consolidation 6 where the Court gave a 50-year legal
validity to a couple's live-in relationship. In D. Velusamy v. D. Patchaiammal7 case,
India's Supreme Court set four requirements for a living in regards to assuming the
status of marriage eventually resolving countless conflicts related to such assumption.

According to Article 21 of the Indian Constitution, the fundamental right guarantees to

all its citizens the' right to life and to personal liberty' and, in view of this, live-in
relationships may be immoral in the eyes of the conservative Indian society, but it is
not' illegal' in law.8 Thereafter, in Ramdev Food Products (Pvt) Ltd. v. Arvindbhai
Rambhai Patel9, the Court observed that two people who are in a live-in relationship
without a formal marriage are not criminal offenders.10 This judgment then was made
applicable to various other cases.

In Alok Kumar v. State11, the Delhi High Court marked the nature of such a
relationship as a ‘walk-in and walk-out’ relationship without attaching any legal
strings. It is cohabitation contract "which is renewed by the parties on a daily basis
and can be terminated by either party without the other party's approval." Those who

5
“Live-in Relationships and Protection from Domestic Violence for Women in India”,
(https://advocatechenoyceil.com/2014/08/17/live-in-relationships-and-protection-from-
domestic-violence-for-women-in-india/), last accessed on 20th June, 2019.
6
1978 AIR 1557, 1979 SCR (1) 1
7
(2010) 10 SCC 469
8
Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 : (2011) 2 UJ 1342.
9 (2006) 8 SCC 726.
10
Astha Saxena, "Live-In Relationship And Indian Judiciary" The SCC Online Blog,
(https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-
judiciary/#_ftn15) last accessed on 20th June, 2019.
11
2010 SCC OnLine Del 2645.
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

do not want to enter into such relationships enter into a marriage partnership that
generates a legal bond that no party at will can break. Thus, people who choose to
have "live-in relationships" later cannot complain about unfaithfulness or immorality.

The Allahabad High Court in Payal Sharma v. Nari Niketan12 held that a ‘major’ man
and woman can stay together without getting married if they want and this is not
illegal.13 Again, the Supreme Court in a certain case gave the wife status to the ' live-in
' relationship partner. Here, J. Katju and J. Mishra held in their view that a male and
a female could live together if they wanted, even without getting married. Lately, in a
landmark case of Indra Sarma v. V.K.V. Sarma14, the Supreme Court dealt in detail
with the issue of living-in-relationships and also set out the conditions for living-in-
relationships to be granted marriage status. With this, ‘victims’ may be protected by
law against any social wrongs induced by such relationships.

It is therefore evident that non-marital relationships in India do not have a' criminal'
or' illegal' status so far, as they are neither ‘adultery’ nor a very new trend to attend to.
This cannot, however, be construed as encouraging such interactions by the judiciary
rather than traditionally biasing the law in favor of marriage. Hence between law and
morality there is difference.

Rights of a child born out of ‘Live-in’ relationships

Children are the most fundamental unit of a progressive society of today, and their
fate is often determined by the social relationships that govern every sphere of their
lives. Having kids is a powerful sign of a marriage. Therefore, parties plan to maintain
a long-standing connection. It is also a strong indication to share responsibility for
bringing them up and supporting them. In view of this, couples involving in any type
of relationship and eventually participating in procreation leading to the birth of such
kids decide to place such newly born people in society considerably and responsibly.

12
2001 SCC Online All 332.
13
Astha Saxena, "Live-In Relationship And Indian Judiciary" The SCC Online Blog,
(https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-
judiciary/#_ftn15) last accessed on 20th June, 2019.
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

Four rights are important to be guaranteed to a child who is born out of a relationship,
vide legitimacy, maintenance, property rights and custodial rights.

The right to legitimacy is a baby born in a living relationship's first and foremost right.
This right will form the foundation of all other freedoms available to a baby in our
nation. The Supreme Court had said in this SPS Balasubramanyam v. Sruttayan15
case that, "If a man and woman have been living under the same roof and cohabiting
for a few years, there will be a presumption under Section 114 of the Evidence Act that
they are living as a ‘husband’ and ‘wife’ and that the children born to them will not be
illegitimate." Furthermore, the court interpreted the status and legislation to the
extent that it showed conformity with Article 39(f) of the Indian Constitution, which
stipulates the State's duty to provide appropriate opportunities for kids to grow
properly and further protect their interest. The Indian courts have continued to
promote this interpretation of the law to guarantee that no child is "bastardized"
because of his/her own fault, as was seen in Bharata Matha & Ors ' case. V R. Vijaya
Renganathan & Ors16. In this situation, the Supreme Court ruled that a kid born from
a living-in partnership could succeed in the inheritance of the estate of the parents (if
any) and then be given validity in the eyes of the law.

In the landmark case of Dimple Gupta v Rajiv Gupta17, where the Supreme Court held
that even an illegitimate child born of an unlawful relationship is entitled to
maintenance under Section 125 of the CrPC (Code of Criminal Procedure, 1973),
which provides support to children whether they are legitimate or unlawful, the Indian
judiciary used its power to achieve the ends of social justice. According to Article 32 of
the Constitution of India, the refusal to provide maintenance to a child born out of a
live-in relationship may also be questioned as a breach of the fundamental rights
guaranteed under Article 21, which gives for the 'Right to Life and Personal Liberty.'
The unequal treatment of a child born out of a live-in relationship can amount to a
violation of Article 14 which promises ‘Equality before Law’ as well as Article 15(3) of
the Constitution.

15
(1994) 1 SCC 460 : AIR 1994 SC 133.
16 CIVIL APPEAL NO. 7108 of 2003
17 Criminal Appeal No.1139 of 2002
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

Legitimacy has always been a prerequisite under Hindu law for inheritance rights.
Consequently, the courts have always ensured that the right to inherit is not denied to
any kid born from a living relationship of a decent and ‘reasonable’ duration. In Hindu
law, Section 6 of the Hindu Minority and Guardianship Act of 1956 clearly says that
the ‘father’ is the natural guardian of his minor legitimate child. The mother becomes
the natural guardian in the absence of the father, which implies that the father is
unable to act as the child's guardian. However, in the event of a child born out of
relationships, Section 6(b) of the same Act (appears to cope indirectly with live-in
relationships) grants the custodial rights of the child to the mother. Also, we can relate
that children born out of live-in relationships and such will be entitled to whatever
becomes their parents ' property, whether self-acquired or ancestral in the light of
equity legislation and absence of clarity with regard to the parts of the statutes
involved. The child is guaranteed such rights accordingly.

Legal status of such children at present

Section 112 of the Indian Evidence Act also provides that a child's legitimacy is only
demonstrated if he/she was born during the continuation of a valid marriage between
the mother and the father and therefore fails to address the issue of such children
born from living relationships. As a result, in India, these children were given the
status of “de jure legitimate; de facto illegitimate" which is a proof of the insecurity
such individuals face on a daily basis, the gloomy future awaiting them and their
placement in a different strata of the society18.

Recently in 2014, the apex court in Uday Gupta vs. Aysha and Another19 noted that if
a guy and woman lived together as a husband and wife for a long time, though never
married, there would be a marriage presumption and their kids could not be called
illegitimate. The kids born from the relationships of' live-in' are regarded as lawful.

18 Enakshi Jha, “ Status of Children born in Live In Relationships”

(http://www.legalservicesindia.com/article/1622/Status-of-Children-born-in-Live-in-
Relationships.html), last accessed on 20th June, 2019.
19 SPECIAL LEAVE PETITION (Crl.) No. 3390

OF 2014 (Crl M.P. No.6817 of 2014)

Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

It is vital to keep in mind that the law needs to be improved with the evolution of
society. Although some verdicts provided by Indian courts and committee reports have
been recognized live in relationships, the opposite has been achieved by an equivalent
amount of verdicts. It is therefore crucial that the law takes a stand on this evolving
type of partnership, the pace of which is catalyzed by the booming economy and
cultural modernization in India. Once this is dealt with the significant issue of the
impact of live-in relationships on children must be analyzed.

It is possible to conclude, on the basis of the present situation, that although certain
clauses, such as Section 16 of the Hindu Marriage Act, 1955, give validity to kids born
out of marriages, their rights to ancestral property and maintenance stay dubious and
differ from case to case. The same can be said of custody of the baby born from a
partnership that is open to interpretation despite the existence of Section 6(b) of the
1956 HMGA.

It can be said that the baby born of a living in partnership is bound to find a lack of
clarity in life concerning his or her legal status, origin and subsequent rights with the
situation of the legal situation of India at the moment. This can lead to mental and
emotional instability in the lives of the child.

Where’s the lacunae?

It is dangerous to remember that the law has to be altered and reformed with the
evolution of culture. While some verdicts handed down by separate courts have
acknowledged live-in relationships, an equivalent amount of decisions have performed
the precise opposite. It is necessary to properly analyze the key issue of the impact of
living-in relationships on children.

Live-in relationship merits are that the partner does not require any formal
engagement. The recognition of such a relationship entered into by two adults seems
to be accepted by people, slowly.

While live-in relationships have become legally valid, the partners are still not legally
binding. It might be both an advantage and a disadvantage depending on the couple's
expectations. However, live-in relationships seem to have its disadvantages of pushing
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

life into an unstable stage. Since there are no legal rights, the fear of separation fills
life. Also, acceptance of a practice like live-in in a society that shamed premarital sex
is a large step forward. Also these relationships are not governed by particular private
legislation or personal laws. The laws also do not allow the couples living together to
adopt a child as per the terms laid down by Central Adoption Resource Authority
(CARA).

Clear regulations should be created to prevent all these confusions and loopholes, and
modifications should be made to the ambiguous terms in present legislations
regarding this form of relationship. They should make clear in connection the status
and rights of children born from a live-in relationship. This will guarantee consistency
and assist to establish such a child's emotional, mental and physical safety.

And keeping all of this in mind our law makers and implementers have ensured as
best possible, that no child should be ‘bastardized' by anyone, irrespective of the
nature or situation of his birth.

Conclusion

Live-in relationships have always been the focus of discussions as they pose threats to
our fundamental societal structure. It is not regarded an offense as there is no law
until the date on which such a connection is prohibited. In order to bring justice to
those women who are victims of live-in relationships, the Indian judiciary took a step,
interpreted and validated such agreements. It is the judiciary's responsibility to
guarantee that law is compatible with society's evolving situation. Although courts
tried to get a clear image of the status of live-in relationships through numerous
decisions and case regulations, it continues uncertain on multiple elements where
there is an urgent need for distinct sets of rules and regulations and codification in
relation to such relationships.

According to the author, there must be a distinct statutes dealing with this present
problem in order to protect the rights of living partners, child born from such
relationships and all those who are likely to be impacted by such interactions. Not all
relationships of the nature of living in should be provided lawful status, but only those
Bharati Law Review, Volume 8, Issue 1 (July-Sept) 2019

that meet certain fundamental criteria and legal standards. At the same moment, live-
in partners should also be aware of the legal implications of such living arrangements.

There must be wide-scale awareness of this topic among youth in India. Such
relationships should be duly recognized but should not be paralleled to that of a
marital bond as such. Both are distinctive and have its own inferences.

ANNEXURES

Books:

• Kusum, K. , ‘Family Law Lectures:Family Law 1’ 3rd Ed. LexisNexis (2003)

Articles:

• Furtado, Rebecca, “Rights Of Child Born Out Of A Live-in Relationship”

• Singla, Kushal ,"LIVE IN RELATIONSHIP AND LEGITIMACY OF CHILDREN:

JUDICIAL ATTITUDE", International Journal of Law and Legal Jurisprudence Studies

• Jha, Enakshi , “ Status of Children born in Live In Relationships”

• Saxena, Astha; "Live-In Relationship And Indian Judiciary" The SCC Online Blog

Websites:

• https://blog.ipleaders.in/rights-child-born-live-relationship/

• https://vakilsearch.com/advice/live-relationship-indian-law-say/

• http://ijlljs.in/wp-content/uploads/2015/03/live-in-relationship.pdf

• https://www.thebetterindia.com/132607/want-to-get-into-a-live-in-relationship-
here-are-the-rights- you-need-to-know/

•http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do
_pdf=1&id=165 06