Recently, the shraddha murder case is being highlighted on our TV screens, in newspapers, on social media, etc. The cold-blooded murder of shraddha by cutting her body into double dozen pieces is allegedly committed by none other than her live-in partner, Aftab. It was also alleged that shraddha is a victim of physical violence by Aftab, which was reportedly confided by shraddha to her parents and friends. This is just one of the cases. Live-in relationships are no different from marriages, when one is talking about offenses concerning family relations such as domestic violence, cruelty by a spouse and in-laws, adultery, etc. Not just these, the other issues arising out of cohabitation are divorce, alimony, coparcenary rights of their children, and many more. Besides this, the hard reality is there are no direct statutes dealing with all said offenses when it takes place in a live-in relationship. However, there are few judicial pronouncements and laws which can be referred to by the victims of any crime in a live-in relationship to proceed with existing statutes. Here we should also know that not all so-called live-in relationships are recognized. There are some elements to fulfil to constitute the same. This article deals with the meaning and elements, of legality, grant of alimony, domestic violence, and property rights of children in live-in relationships.
Legal meaning of live-in relationship
There is no legal definition yet but there are a few elements to be fulfilled to constitute a live-in relationship. As everyone doesn’t know, a live-in relationship is not just living together with a loved one in a single household without being married for a brief time, rather it should be for a significant period. Continuous cohabitation for a considerable period, between consenting adults who are not married to each other in a legally recognized manner and are sharing a common household; is how the live-in relationship is characterized. In the case of D. Velusamy v. D. Patchaimal (2010), the Supreme Court set forth some elements required in order to be regarded as being; in the nature of marriage.
1. The couple must present themselves to the public as being equivalent to being married.
2. They must attain the legal age to marry.
3. They must also meet all other criteria to enter a valid marriage, such as not already being married.
4. They must present themselves to others for a significant amount of time as being akin to spouses.
5. They must have lived together voluntarily in a shared household.
6. There should exist a sexual relationship, not just for pleasure, but for an emotional and intimate relationship.
7. Pooling of Resources and Financial Arrangements Supporting each other, Domestic Arrangements, Entrusting responsibility, and Holding out to the public as if they are husband and wife may be a guiding factor.
The Court added that a weekend relationship with someone; whom he maintains financially and utilizes primarily for sexual purpose and/or as a servant would not amount to a relationship in the nature of marriage. If a relationship is merely made for sexual motives, neither partner can claim benefits from the legal marriage. Therefore, one-night stands don’t constitute a domestic relationship.
The legality of live-in relationship
Regarding its legality, despite its being taboo in our society, it is not seen as unlawful in the eyes of law because consenting adults present themselves to society for a significant amount of time as husband and wife. The Prevention of Domestic Violence Act of 2005 deems it to be a relationship in the manner of marriage. As a result, the female partner is allowed to request alimony. Children born from these relationships are regarded as legitimate and are entitled to receive claim a share of their parents; self-acquired property. Though live-in relationships are often viewed as immoral by society, they are not illegal in the eyes of the law, the Supreme Court ruled in the case of Khushboo v. Kanaimmal and others. It was also stated that living together is a fundamental human right, hence it cannot be considered unlawful. The same argument was made in SPS Balasubramanian v. Suruttayan (1994) case, where it was observed that if a man and a woman live together as husband and wife for an extended period of time, the law would presume that they are legally married to one another unless it can be shown otherwise, and children born out of such a live-in relationship would be entitled to inherit the parents; property. Besides this, it is advised for live-in partners or those who want to live-in together to enter into a legal agreement, in writing, so that the partners avail benefits and mitigate conflicts and risks which may arise in the future.
Grant of Alimony
In the US, the majority of the states grant palimony where there is a valid agreement between partners. Palimony is a form of financial support granted by courts in the US to people who were never married but previously lived together as a couple and are now separated. Malimath Committee on Criminal Justice in India recognized the necessity for such relief and proposed amending Section 125 of the CrPC to include women who had been living with the male for a significant amount of time as his wife. Therefore, in India, there is no direct provision in Indian law for claiming alimony by either of the partners in a live-in relationship after their breakup.
However, in Ajay Bhardwaj vs. Jyotsna, the court granted alimony to a female partner in a live-in relationship in accordance with the PDV Act, 2005. There are many other cases like this, however, under the Prevention of Domestic Violence Act, 2005 (hereon mentioned as PDV’), only the woman can demand maintenance. Men in a live-in relationship are not eligible for maintenance under the PDV Act, 2005. In this regard, it is important to note that the Court, in the case of Khushboo v. Kanniamal (2010), stated that a live-in relationship is typically initiated and sustained by men.
Application of Prevention of Domestic Violence Act, 2005
The PDV Act was enacted in order to effectively defend the constitutionally granted rights of women who are victims of domestic violence of any type. The Act allows any relative of the husband or male partner to be sued by the wife or any other female who is in a relationship that is in nature of marriage. Although the amendment recommended by Malimath Committee was not made, such relationships were brought into the ambit of domestic relationships which is defined under Section 2(f) of the Act. In Lalita Toppo v. State of Jharkhand, the Supreme Court took into consideration whether the PDV Act, 2005, applied to live-in partnerships. It was decided that in a shared household, the victim—the estranged wife or live-in partner—would be entitled to relief under the Act. Live-in relationships that are in nature of marriage are under the purview of the 2005 Act, according to Section 2(f) of the PDV Act. As a result, the woman in a live-in relationship can request maintenance and seek protection from the law (D. Velusamy vs D. Patchaiammal). Children’s right to property. According to Section 16 of the Hindu Marriage Act, 1955, and Section 26 of the Special Marriage Act, children born out of a marriage that is null and void shall be legitimate. However, the right of inheritance of such children is restricted to the property of the parent alone, in accordance with Subsection (3) of the same sections of the same Act. Therefore, if their parents were not legally married to one other, such children do not have coparcenary rights in the property of the Hindu Undivided Family (HUF). The same holds true for live-in relationships. When it comes to deciding guardianship, the mother is considered to be the children natural guardian. In Tulsa v. Durghatiya, the Supreme Court noted that children born from a live-in relationship would not be viewed as illegitimate while granting a kid the right to property.
Need for Regulation
Although marriage is socially accepted and live-in relationships are considered taboo in Indian society, these kinds of relationships are increasing due to various reasons. Even though it is immoral, it is not at all illegal when there is consent from both parties. The same is contended by the Indian Judiciary too. Once it is legally accepted, there is also a need for protection if any sort of legal problem arises. Here, it is important to note the following observations made by the Supreme Court in Indra Sarma v. VKV Sarma:
Such relationships may endure for a long time and can result in a pattern of dependency and vulnerability, and an increasing number of such relationships calls for adequate and effective protection, especially for the woman and children born out of that live-in relationship.
Thus, the Parliament has to ponder over these issues, bring in proper legislation, or make a proper amendment to the Act, so that women and the children born out of such kinds of relationships are protected, though such relationships might not be a relationship in the nature of a marriage.
As the Hon’ble Supreme Court itself called the action on the part of parliament to enact a law regulating such relationships, it makes an obligation on parliament to respond to the same.
By legalizing live-in partnerships and protecting their rights, the Indian judiciary has proved multiple times the distinction between societal morality and constitutional morality. Additionally, it is put in the ambit of laws including the Evidence Act, the Domestic Violence Act, and the Criminal Procedure Code. These judicial precedents which provide a framework for regulating and governing legal matters arising from live-in partnerships are insufficient. The creation of laws is necessary to reduce their drawbacks as well as effectively protect the rights of partners. In order to adequately define the interests, rights, and duties of partners, the Legislature must take into account the prevalence of live-in relationships. Yet, not all live-in relationships should be considered legal; rather, they must also conform to the required elements and guidelines.
1. Velusamy v. Patchaiammal, (2010) 10 SCC 469 ¶ 20
2. S. Khushboo v. Kanniammal & Anr (2010) 5 SCC 600
3. S.P.S. Balasubramanyam vs Suruttayan 1994 AIR 133