Evolution Of The Live-In Relationship In India Vis-A-Vis Personal Law

With societal change, in the present day, the institution of marriage does not hold as strong a grip over humankind as it once did. All around the world, we see the emergence of new and varied forms of relationships, with different compositions, functions, and durations. Among the more popular ones of late is the live-in relationship. It is a relationship involving unmarried people that share a common household as partners, without the religious or legal tag of spouses. Often, these couples hold property jointly, allocate and share finances, and even raise children together. These unmarried couples don’t necessarily share any less of a bond than married people and are often much closer emotionally because living in with another person is a matter of volition rather than a familial arrangement, the way many marriages in India are.

Therefore, if one was to look at two couples from a third person’s perspective- one that is married and one that is unmarried but living in, the differences would be difficult to pinpoint at a first glance. But the reality of the situation is not all that simple, especially from a legal perspective. Let us then trace the social and legal evolution of the live-in relationship in India and see if the two go hand in hand. If they do not, let us try and understand how or why.

Growth Of Live-In Relationships Over Time

To understand how the law looks at live in relationships, we must first start by looking at how live-in relationships have emerged and grown in Indian society. The emergence of live-in relationships is in many ways linked with global perception changes regarding marriages and their strong grip on social life. In India, this perception change involved a lengthy and arduous route. The reason for this is that the institution of marriage in India holds tremendous social and religious strength, and has done so for centuries. Coupled with this is the emphasis Indian society has historically placed on community living and family ties. Combined, these factors have encouraged the court of public opinion in its endeavours, especially when it comes to relationships and sexuality. Individual choice, for the most part, was secondary to familial and public opinion. This can be illustrated through the prevalence of arranged marriages in India, where the families of the spouses would arrange the marriage for them based on how suitable they found a ‘candidate’. This was especially true for women in India, whose future relationships and lives would depend primarily on how their father would view a prospective suitor. The prevalence of such marriages is overwhelmingly common even today. In fact, the statistics are so extreme, that a 2018 survey comprising over 1.5 lakh households revealed that over 90% couples were together by virtue of arranged marriages.^[1]

It is in this context that the concept of a live-in relationship entered the Indian landmass and psyche. With higher amounts of exposure to global opinions and media, Indians too were questioning some aspects of marriages, deeming it in some cases unnecessary, and in some, undesirable. The idea of the live-in relationship emerged with two primary purposes: to test the waters of domestic compatibility with a person before marriage, and as an alternative to marriage altogether, in case someone found the procedures or customs involved restrictive or cumbersome. At this juncture, being engaged in serious relationships (especially those involving sexual aspects) was nothing short of a taboo if experienced outside of the confines of a marriage.^[2] Hence, living in with someone was considered by the largely conservative Indian society as nothing short of blasphemous.

However, with time and generational change, views change, and the acceptance of previously unacceptable ideas becomes a possibility, and at times, even reality. Anomalies become normal, and rarities become common. Live-in relationships have become a fairly common sight today, especially in major urban centres with cosmopolitan population groups. A recent poll with a sample population size of 1.8 lakh (mostly between the age of 18-35) showed that over 80% of adults do not object to living in as a form of relationship, and in fact, support the idea.^[3] However, another key observation of the same poll was that a significant portion of these young adults also think live-in relationships are still considered taboo by Indian society at large.

This tells us that the concept of a live-in relationship is widely accepted by the newer generations, while the older ones that still hold significant social clout and control might have their reservations against it. Nonetheless, the power of stigma and social scrutiny over the issue still grips the people to some extent, despite the remarkable increase in acceptance and tolerance towards a form of relationship that the country has been exposed to for merely some decades.

What we must also consider is the angle of the law. Is this evolution of public perception or position on live-in marriages something that is based in or reinforced by the law? Or has the law been headed in a direction different to that of society? Let us look at the legislative and judicial evolution of the issue to find out.

Legislative Standing On Live-In Relationships

In India, religion plays a noticeably significant role not only in a spiritual sense, but also a legal sense. The real-world consequence of this is that many individual and social issues are regulated by laws based in religion. These religious personal laws govern areas such as marriage, divorce, inheritance, familial property and wealth, adoption, etc. For those who follow religions which do not have their own exclusive personal laws, or do not follow any religion, India also has certain pieces of secular legislation that cover all the aforementioned areas. At large, we can say that personal laws govern a person’s interpersonal relationships from a familial perspective and detail the different rights and obligations that arise from said relationships. As a result, the unit of the family in India is one that is heavily regulated upon by personal laws. These personal laws are not rigid. They are amended as and when the need for the same arises. Given religion’s stance on marriages, and the recency of the concept of living in, it is only natural that religious personal laws did not initially recognise live-in relationships. However, has this changed after the increasing presence of live-in relationships in Indian society and their increased social legitimacy?

The answer is interestingly in the negative. Despite the flexible nature of family law and the prevalence of live-in relationships among Indian adults, there is no law in India that specifically legitimises or regulates live-in relationships. Neither religious nor secular family laws say anything that refers particularly to the existence of any legally recognised live-in relationships. The only statute that recognises live-in relationships even remotely is the Protection of Women from Domestic Violence Act of 2005^[4] (PWFDVA), which provides protection to women living in ‘relationships in the nature of marriage’ from cruelty, violence, or other forms of atrocities.

At large though, the omission of live-in relationships in family legislation is notable, and has two distinct angles, however. On one hand, due to the lack of legal recognition of these relationships, there are no statutorily born rights that couples can derive from these relationships. They are in more of an informal position when it comes to indoctrinated legislation. The other angle of looking at it is that the lack of legal recognition of live-in relationships leaves them out of restrictive regulation, and resultantly gives people the freedom to dictate their own terms when it comes to such relationships.

Judicial Evolution Of Live-In Relationships

Indian law has evolved as much through judicial pronouncements as it has through legislation. The judiciary thus, has played a role of paramount importance in Indian jurisprudence, and through it, often even the popular opinion. It has done so not only by upholding the law as it exists, but also by striking down or interpreting laws in specific ways when the need arises, when a situation requiring such action is brought before it.

When it comes to live-in relationships, the courts in India have had a complex stance so far. This stance emerges mainly due to the absence of any clear legislation on the matter, as illustrated in the previous portion of this paper. Hence, what jurisprudence we do find on the matter is a product of great amounts of subjectivity, individual reasoning, and judicial interpretation of the relationship in the context of constitutionality and acceptability.

The judiciary has attempted to answer a plethora of questions when it comes to live-in relationships. It has tackled the prevalent social views regarding these relationships and tried to give an answer regarding whether or not such relationships are at all permitted by the law. It has tried to categorise what kind of a relationship living in can constitute, what rights or obligations it confers upon its participants and their descendants, and what happens to the property held by the participants of the relationship, among others.

The first, and arguably most important question of absolute legality was commented upon by the Allahabad High Court in 2001.^[5] The court unequivocally stated that living together was a matter of choice of the concerned individuals, and that the law cannot forbid them from doing so. Even if society considers the nature of the relationship immoral, that in itself is not justification enough to render such relationships illegal and restrict anyone’s individual freedom.

This view has now been cemented in Indian family law, after being affirmed on many occasions in numerous judgments such as Guljar Khan^[6], Shahjahan Khan^[7], Lata Singh^[8], and Gaytri v Rajasthan^[9]. In S. Khushboo vs. Kanniammal & anr.^[10], the Supreme Court went on to reiterate and cement the same position by placing it in the context of the right to life and liberty

After knowing for certain that a live-in relationship is legal and permitted by law, the next question that arises is regarding the nature of such relationships. This is where the ambiguity of the issue becomes more evident. In Badri Prasad^[11], a couple living together for 50 years was presumed to be married by the Supreme Court. The court said that such a presumption was definitely refutable with appropriate evidence, but the long-lasting nature of such relationship would give rise to the same in the first place. Such a presumption was also supported in SPS Balasubramanyam^[12]. The emphasis that is placed on the duration of the relationship in determining its recognition as marriage was illustrated in Himani and another v. State of Haryana^[13], where the Punjab and Haryana High Court said that merely living together for a few days cannot lead to a presumption of marital ties within a relationship.

From the above cases, we can infer that a live-in relationship, to be considered a marriage, must be of a considerable duration. However, it has not yet been made clear what that duration may be. Further, parameters other than timespan have not been explored in too much detail.

Departing from the marriage- not marriage dichotomy came the landmark case of Indra Sarma^[14]. This case drew notice to the Protection of Women from Domestic Violence Act of 2005 and the wording used in the statute, specifically to refer to the category of relationship termed there as one ‘in nature of marriage’. This essentially meant a middle ground between marriage and the absence of one, for certain relationships. However, the act did not specify what such a relationship would mean. Hence, the court stepped in and laid down certain characteristics for a relationship to be ‘in the nature of marriage’. It said that the time spent in the relationship, the domestic living arrangements, pooled resources and finances, cohabitation, sexual relations, offspring, social behaviour, and intention of the partners, are all factors that must be considered. This case did not, however, set any concrete threshold along these parameters and instead urged the legislature to enact appropriate laws defining the same.

Further criteria were set in Velusamy v. Patchaiammal, which mentioned the necessity of people in such relationships to be of marriageable age, qualified to legally marry, cohabiting for a long time, and appearing to society the same way spouses do. This case also made it clear that simply living together for sexual purposes, or situations such as ‘one-night stands’ would not amount to a relationship being in the mature of marriage. Another important rule was laid down in Indira Sharma,^[15] which stated that live-in relationships where either of the partners is already married to someone else can’t fall under the category of marriage, as this would mean adultery or bigamy.

As of now, it seems that live-in relationships have come a long way in Indian jurisprudence. Where once the legality of it was questioned, it is now well recognised as a matter of right of individuals. The nature of live-in relationships is not certain though, and it is clear that detailed legislation needs to emerge in order to provide a conclusive answer to the question.

Women And Children’s Rights In Live-In Relationships

A very pertinent set of questions we must ask, is regarding the rights conferred to members of live-in relationships. Given the risk of exploitation women might face in a relatively unregulated relationship like living in, do they have any legal protection from the same, similar to those provided in marriages or otherwise? Do they have any specific rights by virtue of being in the relationship? Further, if a couple wishes to have children while living in, what rights will be conferred to these children, specifically with respect to inheritance? These are questions that the judiciary, and to some extent legislation, have attempted to deal with.

When it comes to marriage, wives are entitled maintenance upon separation or divorce. Such a right was previously not present in case of live-in relationships. However, the Malimath Committee on criminal justice reform recommended changing §125 of the Code of Criminal Procedure to include women in live-in relationships within the scope of ‘wife’ in its provision for maintenance.^[16] Paying heed to this, the Supreme court removed the strict necessity of marriage for a woman to claim maintenance, thereby expanding the scope of maintenance to include women in live-in relationships.^[17] Subsequent judgments like Rajnesh v. Neha^[18], Ajay Bhardwaj v. Jyotsna^[19], and Abhijit Bhikaseth Auti^[20] have reinforced this position. Moreover, due to live in-relationships in certain cases falling under the category of those in the nature of marriage as per the PWFDVA, such relationships count as domestic relationships under the act, and women in these relationships enjoy the protection it offers from abuse or violence.

When it comes to the right to inheritance though, partners in these relationships are not entitled to any property as per succession laws, since personal law doesn’t recognise live-in relationships as ones that can extend or create a family. Hence, the judiciary took the onus of providing for such rights to women in live-in relationships. The caveat here though, is that this right to inherit property is limited to the individual property of the partner, and not the partner’s ancestral property.

When it comes to children, their legitimacy comes into question if they are born from live-in relationships. However, it has been held that children born out of long-lasting live-in relationships in the nature of marriage will be considered legitimate children and inherit their parents’ individual property the same way their parents would inherit each other’s property, as is shown above.^[21] In Hindu law, these children may fall under the category of illegitimate children, and as such have the rights to inheritance prescribed for illegitimate children in §16 of the Hindu Succession Act.^[22] When it comes to maintenance, children born to live-in relationships enjoy the same rights their mother enjoy, as per §125 of the IPC. This assurance was made by courts in the same breath as that of maintenance for the women in these relationships.

Hence, we can see that women in and children born to live-in relationships have been given various rights and protections in India. The judiciary has stepped in time and again to ensure their welfare, especially in areas where legislation has failed to do so.

What Comes Next?

With the rapid social growth of our society, live-in relationships have become an important and prevalent part of social and family relationships. However, social stigma around the issue still persists, and family laws have failed to catch up with societal and judicial progress. Hence, at this juncture where such relationships have engrained themselves in the social fabric and can’t be uprooted, we must adapt and accept them, and attempt to frame inclusive legislation to regulate them and protect the rights of those involved. Women, children born to these relationships, and the millions in the LGBTQ community who can’t yet marry legally and can only live together rely on society and the law to help preserve their interests and make their existence in these relationships more sustainable.

Views are personal.