By Dr Swati Jindal Garg
While dismissing the plea of an inter-faith live-in couple seeking police protection, the Allahabad High Court said that live-in relationships are more of an “infatuation” without any “stability or sincerity”. As expected, this has created a furore.
However, the Supreme Court has already declared that the right to live together is a part of the right to life under Article 21 of the Constitution. But the law on cohabitation is still evolving and most people in live-in relationships are unaware of their legal rights. In India, female live-in partners have been accorded economic rights under Protections of Women and Domestic Violence Act, 2005.
There may be several reasons why a couple might want to live together without getting married, including wanting to test compatibility or attaining financial security before marrying. In some cases, it can be because the couple can’t legally marry as in same-sex couples. Some inter-racial or inter-religious marriages are also not legal or permitted under respective personal laws.
But even the Supreme Court verdict allowing the concept of live-in relationships had created furore among orthodox people who feared that it would destroy the sanctity of marriage. In fact, Maa Ghara Foundation Trustee Rutuparna Mohanty had reportedly said: “We hope the government shall take proper steps to safeguard Indian women’s rights and dignity and save the society from chaos. It will start unraveling the fabric of Indian family life,” she said, referring to live-in relationships. It would give rise to child pregnancy and have far reaching ramifications and could result in the spread of HIV/AIDS, she added. “Children born out of living together relationships would not be properly brought up,” Mohanty said.
Many social activists have identified grave social problems with live-in relationships such as teenage pregnancies, drug abuse and a loose social and moral structure of society in the wake of the apex court judgment. They also alleged that there was no provision for a second wife among Hindus. Hence, enabling the mistress to get the status of a legally married wife in all matters, including share in property, inheritance, and maintenance is contrary to the Act as well as Hindu customs, they claimed.
The problems that arise from live-in relationships are primarily due to the lack of a binding nature in the relationship. While in a marriage, the couple has certain rights and duties, live-in relationships lack legal status. The fact that such relationships support pre-marital sex means there is a high possibility of a child being born out of wedlock.
Due to the absence of a law addressing live-in relationships in India, courts have largely relied on legal precedents. According to the Supreme Court judgment in Badri Prasad vs Dy. Director of Consolidation (1978), live-in relationships in India are legal but subject to caveats like age of marriage, consent and soundness of mind. In this case, the Court had ruled that a presumption of marriage arises if a man and a woman have lived as husband and wife for a long time. It said: “A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin.”
This trend continued, and in 2001, the Allahabad High Court in Payal Sharma vs Nari Niketan ruled that it was not illegal for a man and a woman to live together and drew a distinction between law and morality. It said: “Hence, she is a major [adult] and she has the right to go anywhere and live with anyone. In our opinion, a man and a woman, even without getting married can live together if they wish. This may be considered immoral by society but it is not illegal.”
In Lata Singh vs State of UP (2006), the apex court ruled that two persons of opposite sex living together are not doing anything illegal. Thereafter, in 2010 too, the Court in S Khushboo vs Kanniammal & Another reiterated the 2006 verdict. It said: “A live-in relationship between two consenting adults of heterogenic sex does not amount to any offense even though it may be percieved as immoral.”
In 2013, the Supreme Court in Indra Sarma vs VKV Sarma ruled that the woman partner in a live-in relationship is protected under the Protection of Women from Domestic Violence (PWDV) Act, 2005, and gave a wide net of legal protection to the women who were being abused and devoid of any legal protection due to their unmarried status. In this landmark judgment, the Court ruled that women are protected under the PWDV Act, 2005, as live-in relationships fall under Section 2(f) of the law which defines a domestic relationship. The Court also ruled that live-in relationships fall under “a relationship in the nature of marriage” mentioned in the sub-section.
The apex court has also laid down the criteria for live-in relationships to be legal, which is the closest to a “codification” in the absence of any specific law. The criteria includes:
- The couple must hold themselves out to society as being akin to spouses.
- They must be of legal age to marry.
- They must be otherwise qualified to enter into a legal marriage, including being unmarried.
- They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
As per the 2016 Punjab and Haryana High Court judgment in Ajay Bhardwaj vs Jyotsana, women are now also eligible for alimonies in live-in relationships. While initially Section 125 of the Code of Criminal Procedure (CrPC) only allowed a married woman who is unable to pay for herself to claim alimony from the husband, the situation has changed now. The Malimath Committee, which looked into reforms in the criminal justice system, had extended the definition of the term “wife” to include a woman who has lived with a man like his wife for a considerable amount of time and thus is legally eligible to claim maintenance.
Protection has also been granted to children who are born in such relationships through a Supreme Court judgment in 2022 where it ruled that children born to partners in live-in relationships can be considered legitimate. This, however, was conditional—the relationship needed to be long-term and not of a “walk in, walk out” nature. The Court clarified: “Long course of living together between a male and female will raise a presumption of marriage between them and the children born in such relationship are considered to be legitimate children.”
So even as courts have shown an increasing inclination to favour live-in relationships, the latest judgment of the Allahabad High Court has raised eyebrows. Observing that live-in relationships are more of an “infatuation” without any “stability or sincerity”, the Court took note of the “tender age” of the petitioners and the time spent living together to question whether it was a carefully-considered decision.
The Court clarified its stance by saying: “No doubt that the Hon’ble the Apex Court, in a number of cases, have validated live-in relationships, but in the span of two months in a tender age of 20-22 years, we cannot expect that the couple would be able to give serious thought over such types of temporary relationship. As mentioned above, it is more of infatuation against the opposite sex without any sincerity.”
The two-judge bench comprising Justices Rahul Chaturvedi and Mohd Azhar Husain Idrisi also refused protection to the petitioners saying: “Life is not a bed of roses. It examines every couple on the ground of hard and rough realities. Our experience shows that such types of relationships often result in time pass, temporary and fragile and, as such, we are avoiding giving any protection to the petitioner during the stage of investigation.”
Be that as it may, the Supreme Court stance on live-in relationships has changed the way society views them. But till a law is made, society will continue to judge them.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi