PROJECT SUBMISSION

Family Law I

Judicial Approach of Live in Relationships in India

Submitted by:
Anusha Jain
Class: BA LLB Division: D
PRN: 17010223072

of Symbiosis Law School, NOIDA

Symbiosis International (Deemed University),

On
29th August 2018
Under the Guidance of
Ms. Srishty Banerjee

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 CERTIFICATE

The project entitled “Judicial Approach of Live in Relationships in India” submitted to

the Symbiosis Law School, Noida for Special Contracts as part of Internal assessment is based
on my original work carried out under the guidance of Dr. C.J. Rawandale and Ms. Srishty
Banerjee from 3 July, 2018 to 28th August, 2018. The research work has not been submitted
elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly
acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Anusha Jain

29 August, 2018

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 ACKNOWLEDGEMENT

With my deepest appreciation, I would like to thank Professor C. J. Rawandale and Assistant
Professor Srishty Banerjee for providing me with the opportunity to do this research project on
Judicial Approach of Live in Relationships in India and for their consistent guidance and
support.
Without their consistent motivation and assistance, it would not have been possible to make this
project.
Moreover, I would also like to express my sincere gratitude towards Symbiosis Law School,
Noida for providing me a congenial learning environment to do my project.
Furthermore, I would like to thank the library staff for helping me in completing this project
successfully by helping me finding the necessary books and resources and finally, I would like to
thank my parents whose constant prayers and guidance has always been the biggest motivating
source in my life.

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 INDEX
Content Page Number
Abstract 5

Keywords 5

Introduction 6

Historical Approach 7

Legality Under Scrutiny 8

Women’s Right 9
Maintenance Rights 9
Mutual Rights of Inheritance 11
Domestic Violence 12

Children’s Rights 13
Legitimacy 13
Maintenance Rights 14
Inheritance Rights 14

Challenges before Indian Judiciary 15

Society and Morality 15
Silence of Laws 16
Rights of Women 16
Rape 17

Suggestions 17

Conclusion 18

Bibliography 20
Articles 20
Books 20

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 Case Laws 21
Dictionary 21
Statutes and Constitution 22
Websites 22

ABSTRACT

The ‘live- in-relationship’ is a living arrangement in which a un-married couple lives together in
a long-term relationship that resembles a marriage. None of the legislations in our country
recognizes the live in relationships. The expression ‘relationship in the nature of marriage’ which
is included within the definition of ‘domestic relationship’ has not clearly been defined in the
Protection of Women from Domestic Violence Act, 2005 (PWDVA). In a situation where the
trend of live in relationship is increasing manifold day by day and there is lack of legislation,
where would an aggrieved party in search of justice go?
The Indian Judiciary has taken it upon itself to fill the void and ensure the justice by the means
of interpretation of various existing statutes though not directly related to the concept itself.
Judiciary has come through to set up precedents and have always ensured justice whosoever
came to them. The live in relationship not only revolves around the partners that get into it, the
children born out of such relationships also need to be sought after. And there is no doubt, with
increasing trend, there would arise more complexities besides women and children’s rights. So
this paper has been divided into nine parts - I. Introduction II. Historical Perspective III.
Legality under Scrutiny IV. Women’s Rights V. Children’s Rights VI. Challenges before Indian
Judiciary VII. Suggestions VIII. Conclusion and IX. Bibliography, to ponder upon all the
aspects pertaining to the live in relationships.

Key Words:
Live In Relationship
Judiciary
Women
Children
Marriage

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Introduction
India embodies the spirit of unity in diversity in its soul. Different languages, regions, religions,
languages, cultures all exist in harmony. Our as ever percipient law makers, granted autonomy to
the citizens in personal laws to preserve this unique feature of versatility. Marriage is considered
the paramount of personal laws in India since all other rights more or less flow through it. It is
considered a sacred social institution1 and profuse sentiments are associated with it. But this ever
changing society calls for metamorphose, relationships being no exceptions.

Live in relationships, though a social norm to first world countries, is one such concept that has
gained momentum recently in India. It can be defined as a living arrangement in which an
unmarried couple lives together in a long-term relationship that resembles a marriage. It is a
marriage-like-arrangement yet there exist lots of differences between the two. In every day
parlance, it is just cohabitation, there need not to be a compulsory sexual relationship between
the two. The basic idea can be best defined as that interested couple wants to test their
compatibility for each other before going for some commitment. Or simply, they want to evade
the hassles that a married life has to offer.

Live in relationships can be categorized into two distinct columns – by choice and by
circumstances. The former one is entered into while being wholly conscious, where people
voluntary want to be in live in to avoid all the legality that comes with the marriage. The latter
one is peculiar in nature since it may not involve the consent of the parties, it can simply arise
due to some odd state of affairs like financial disablement to marry again or being under the
mistaken impression of validly divorcing or marrying his/her partner. The reasons behind it may
range from the struggle of earning a decent livelihood to death of the partner at old age and thus
unable to bear loneliness coming out of it. The live in relationship induced by fraud, they all
come under the purview of the circumstantial relationships.

In India, live in arrangement has been viewed as a trend, increasing manifold especially in
metropolitan cities, where people are opting it as an alternative to marriage. But since in the very
same India, marriage is reckoned not only union of two people but of two souls and families, the
very idea of live in relationships is frowned upon and is often seen as a taboo and a sin by the
society. Traditional marriage set up is so deep rooted in our society that to preserve and
encourage the same, the law reserves number of rights and privileges for the married.
Cohabitation carries none of those rights and privileges. This has led to conjugal disloyalty and
disquiet. And these discrepancies have made it a requisite for Indian Judiciary to intervene in the
present scenario. Though, there isn’t any autonomous law governing live in relationships but
time and again, through interpretation of different laws and consequently, setting up precedents,
Courts have always come through to ensure Justice to each and all. They are always open to new
challenges like live in relationships. This takes us to the quote:
“With changing social norms of legitimacy in every society, including ours, what was
illegitimate in the past may be legitimate today.”
– Hon’ble Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun2

1
Prof. Vijender Kumar, Live-In Relationship: Impact on Marriage and Family Institutions, (2012) 4 SCC J-19 at p.
J-19
2
2011 (2) UJ 1342 (SC)

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Historical Perspective
India has always been a country with rich culture and heritage. Its history is so rich that which is
evident by the fact that it leaves no stone unturned when it comes to discussing various
phenomenona ranging from science to laws. Personal Laws are no exception. The origin of Live
in Relationships can be traced back to all the way ancient India. The famous composer(s) Manu
in his/their Hindu chronicle Manusmriti, gave eight kinds of marriages inclusive of Gandharva
Vivaah.3 According to Apastamba Grhyasutra, an ancient Hindu literature, this kind of marriage
allows two heterosexual people to get into cohabitation with their mutual consent not requiring
any kinsmen’s blessings or performance of any rituals.4
Or the Dasi culture that has always drawn its breath among Majesties and Royalties, they have
had women living with them without any marital relationship between them. The whole concept
of keeping mistresses where one doesn’t confer the legal title of ‘wife’ but shares the same
residence and has illicit relationship is fair example of circumstantial live in relationships
mentioned before.
Other relationships homologous to live in relationships are Maitri Karar in Gujarat and Nata
Patra in Rajasthan where the relationship is defined by cohabitation and sexual relationship in the
name of friendship contact. Though, the former was declared Void ab initio in judgement of
Justice Calla J.5
A look at legal history of the Live In relationships would take us to focus on two incidents which
were the resultant of recommendations of the Malimath Committee (2003) that brought the
issue of Live in relationships that became prevalent in metropolitan cities during that time in
limelight. Under the superintendence of V S Malimath, former chief justice of the Karnataka and
Kerala High Court, the Committee was set up in 2000 to bring on Reforms of Criminal Justice
System. In 2003, they suggested to widen the horizon of the laws dealing with maintenance
rights of the neglected wife but in very limited sense as in they only dealt with the adult
heterosexual relationships that too, between a married man and his second wife only, particularly
one who has been brainwashed into believing the distorted reality of marrying an unmarried
man.
The incidents were - one being the Protection of Women from Domestic Violence, 2005 having
provisions that state ‘marriage like relations’, giving recognition to relations outside marriage. 6
This Act has been widely hailed as the first legal Act to recognize the existence of non-marital
adult heterosexual relations. The other one being Maharashtrian Government’s attempt in 2008
to amend the Sec 125 of Criminal Procedure Code 7 which sought to broaden the scope of the

3
The Illustrated Encyclopedia of Hinduism: A-M, James G. Lochtefeld (2001), ISBN 978-0823931798, Page 427
4
Hindu Saṁskāras: Socio-religious Study of the Hindu Sacraments, Rajbali Pandey (1969), see Chapter
VIII, ISBN 978-8120803961, pages 153-23
5
Minaxi Zaverbhai Jethva vs State Of Gujarat (2000) 2 GLR 1336
6
Section 2(f), Domestic Violence Act “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.”

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meaning of the term ‘wife’ to include a woman who was living with a man like a wife though
even if there is no marital relation, for a long time.

Legality under Scrutiny

As aforementioned, there isn’t any exclusive legislation for regulating live in relationships in
India. Unlike countries like United States and United Kingdom, where they acknowledge live in
partners as ‘domestic partners’ through a formal cohabitation contract, India still has a long mile
to go in this area. The legal status of such live in couples lacks a definition. No law on the
subject has been formulated; the law is adumbrated in the court rooms via myriad cases . Women
in Live in relationship neither have any legal incidence for any financial matter nor share
surname of her partner thus, retaining individual rights.
Live-in-relationship‟ is neither recognized by The Hindu Marriage Act, 1955 nor by The
Criminal Procedure Code, 1973, nor by The Indian Succession Act 1925. But the Indian
Judiciary have come forward to fill the void that is left due to lack of formal code. Pre
independence cases like Dinohamy v. WL Blahamy8, where the Privy Council laid down a broad
rule postulating that, “Where a man and a woman are proved to have lived together as a man and
wife, the law will presume, unless the contrary be clearly proved, that they were living together
in consequence of a valid marriage and not in a state of concubinage.” The same principle was
reiterated in the case of Mohabhat Ali v. Mohammad Ibrahim Khan9.

This was followed by the recognition of cohabitation as a marriage as a consequence of living

together for long duration in landmark case of Badri Prasad v. Dy. Director of Consolidation 10,
wherein the Supreme Court recognised live in relationships as valid marriage, putting a stop to
questions raised by authorities on the 50 years of life in relationship of a couple. Justice Krishna
Iyer in this case remarked that “a strong presumption lies in favour of wed lock where partners
have lived together for a long spell as husband and wife as law. Law leans in favour of
legitimacy and frowns upon bastardy.”
Other similar judgements were construed on identical lines a presumption is made if a man and
woman are living under the same roof and cohabit for a number of years. S.P.S
Balasubramanyam  v.  Suruttayan11 the Supreme Court held that if a man and woman are living
under the same roof and cohabiting for a number of years, there will be a presumption that they
live as husband and wife and the children born to them will not be illegitimate. This is in fact in
accordance with section 5012 the Indian Evidence Act. The same principle was reiterated in

7
“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and private business, in their relation to the facts of the
particular case.”

8
AIR 1927 PC 185 : (1928) 1 MLJ 388.
9
AIR 1929 PC 135
10
AIR 1978 SC 1557
11
1992 Supp (2) SCC 304.
12
Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one
person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as

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Tulsa  v.  Durghatiya13 where it was held that unless rebutted by convincing evidence, there
would be a presumption in favour of their having been married. 
These judgements were construed on the Section 11414 of Indian Evidence Act that states that the
Court may presume certain facts if it feels that they have a strong sense that in all likelihood it
would have happened.

But it still raised the question what exactly was the legal status of Live in relationships and the
silence was broken by Allahbad High Court in Payal Katara v. Superintendent, Nari Niketan
and Anr.15 where it was held that live in relationship is not illegal in a 2001 judement. In
Khushboo’s case16, the Court commented that there is no law that prohibits pre-marital
relationships. A three judge bench comprising of Chief Justice K.G. Balakrishnan, Justice
Deepak Verma and Justice B.S. Chauhan observed, “When two adult people want to live
together what is the offence. Does it amount to an offence? Living together is not an offence. It
cannot be an offence“. The court further said “Please tell us what is the offence and under which
section. Living together is a right to life”, thereby referring to the right to life guaranteed under
Article 2117. Though this was an obiter dictum, it provided a positive impetus to live in
relationships.

Women’s Rights
Maintenance Rights
As defined in the Black’s Law Dictionary18, the term `maintenance' means:
"The furnishing by one person to another, for his or her support, of the means of living, or food,
clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound
to support the other, as between father and child or husband and wife".
It means that one of the spouse, (mainly man to woman in Indian Context except Hindu Laws
where even a husband can ask for maintenance under exceptional conditions 1920) giving periodic
a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.
13
(2008) 4 SCC 520.
14
Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case. 
15
AIR 2001 All. 254
16
JT 2010 (4) SC 478
17
Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except
according to procedure established by law.
18
(6th Edn., pp.953-54)
19
Nivya VM v. Shivaprasad N.K.
20
Sec 24 HMA Maintenance pendente lite and expenses of proceedings. —Where in any proceeding under this Act
it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient
for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem
to the court to be reasonable: 

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financial support to the partner for the benefit of the other on separation/dissolution of the legal
relationship. In Indian law, it has been defined in Section 3(b)(i) of Hindu Adoption and
Maintenance Act, 195621 as “in all cases, provisions for food, clothing, residence, education and
medical attendance and treatment” and Section 1822 of the Act talks about the right of a Hindu
wife to be maintained by her husband.
Interestingly, concubines who come within the definition of an “avarudh stri” were previously
eligible under Shastric Hindu law for maintenance but the Act of 1956 did not include them in
the list of persons to be maintained. Besides Hindu wives, muslim women have their right to
maintenance embodied in the Shariat and the Muslim Women (Protection of Rights on Divorce)
Act, 198623. Interim and permanent alimony is given in divorce cases for Parsis, Christians, etc.
because of lack of specific law provision. The main umbrella that gives uniform provisions for
maintenance to all married persons of any religion is the Section 125 of the Code of Criminal
Procedure, 1973.
But Section 125 only recognizes the word ‘wife’ which excludes the scope of women in a live in
relationship. This has created fallacy on the part of the law especially on the circumstantial live
in relationships that are of nature where the woman enters into relationship without complete
dissolution of the first legal marriage of the male partner. The different judgments on the same
create more confusion than ever.
In Savitaben Somabhai Bhatiya v. State of Gujarat24 the Supreme Court said that even the plea
that the appellant was not informed about the respondent's earlier marriage, when she married
him is of “no avail”, because the principle of estoppel cannot be pressed into service to defeat the
provisions of Section 125 of the Code of Criminal Procedure. Thus, interpreting “wife” only to
the “legally wedded wife”. Further they stated that a second wife whose marriage is void on
account of the survival of the first 25marriage is not a legally wedded wife, and is, therefore, not
entitled to maintenance under this provision.
Though in contrary, in Narinder Pal Kaur Chawla v. Manjeet Singh Chawla 26, the husband had
not disclosed the facts of his first marriage and married the appellant and maintained a
relationship with her for 14 years as husband and wife. Thus, the Court stated that the second
wife has a right to claim maintenance under the Hindu Adoptions and Maintenance Act, 1956
and if we do not give maintenance to the second wife, it would amount to giving premium to the
respondent for defrauding the appellant.

21
Sec 3(b)(i) HMA “Maintenance” includes— in all cases, provision for food, clothing, residence, education and
medical attendance and treatment.
22
Sec 18 HMA Maintenance of wife
23
Sec 3 Mahr or other properties of Muslim woman to be given to her at the time of divorce. And Sec 4 Order for
payment of maintenance.
24
(2005) 3 SCC 636 : 2005 SCC (Cri) 787.
25
AIR 2008 Del 7.
26
AIR 2008 Delhi 7, 148 (2008) DLT 522, I (2008) DMC 529

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The Supreme Court in Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra
Daga27 observed that “keeping into consideration the present state of statutory law, a bigamous
marriage may be declared illegal being in contravention of the provisions of the Hindu Marriage
Act, 1955 but it cannot be said to be immoral so as to deny even the right of alimony or
maintenance to spouse.” Thus, giving a scope in the upcoming cases to reward the maintenance
to the second wife by attaching moral obligation to it.
The Supreme Court in Vidhyadhari v. Sukhrana Bai28 has given partial relief to the second wife
without deciding her status and leaving her status in ambiguity, who was duped in a bigamous
relationship. The second wife was granted the succession certificate and was ordered to protect
the share of the first wife, who was recognised as the “legally wedded wife”.
Clearly by above cases, one can conclude, there is no specific law for maintenance right of the
women under the live in relationship. If the court finds enough evidence that the woman can be
considered as a ‘legal wife’ because of living together for a long time like in Chanmuniya v.
Virendra Kumar Singh Kushwaha & Anr 29 where the court held that the “a man and woman
living together for a long time, even without a valid marriage, would raise as in the present case,
a presumption of a valid marriage entitling such a woman to maintenance ” or for any other
reason for that matter, the court does give maintenance under Section 125 Criminal Procedure
Code, otherwise, the section refuses to go beyond that.

Mutual Rights of Inheritance

These rights are the rights given to the spouses to inherit each other’s property after demise of
one of them. Hindu law gives the widow of a male Hindu the status of a Class I heir 30 giving her
right to one share with absolute ownership over her deceased husband's property 31 if he dies
intestate. Likewise, a husband would have the right to inherit a share of his wife's property upon
her death.32 In Muslim law, a widow having children is entitled to one-eighth of her deceased
husband's property and one-fourth of it, if they are childless. A husband would similarly inherit
three-fourth of his wife's property in case of the former and half otherwise, upon his wife's death.
Partners in a live-in relationship do not enjoy an automatic right of inheritance to the property of
their partner. The Hindu Succession Act, 1956 does not specify succession rights to even a
mistress living with a male Hindu. However, the Supreme Court in Vidhyadhari v. Sukhrana
Bai33 created a hope for persons living-in together as husband and wife by providing that those
who have been in a live-in relationship for a reasonably long period of time can receive property
in inheritance from a live-in partner. In this case property of a Hindu male, upon his death

27
(2005) 2 SCC 33
28
(2008) 2 SCC 238 : (2008) 1 SCC (L&S) 451.
29
((2011) 1 SCC 141 : (AIR 2010 SC (Supp) 29))
30
Section 8, Schedule I of the Hindu Succession Act, 1956.
31
Section 10 of the Hindu Succession Act, 1956.
32
Section 15(a) of the Hindu Succession Act, 1956.
33
Supra note 28

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(intestate), was given to a woman with whom he enjoyed a live-in relationship, even though he
had a legally wedded wife alive.34

Domestic Violence
The first statute to legally recognize the rights under live in relationship, though not completely
explicitly was Domestic Violence Act, 2005. Section 2(a) 35 defines an “aggrieved person” as
“any woman who is, or has been, in a domestic relationship with the respondent and who alleges
to have been subjected to any act of domestic violence by the respondent”. The term “domestic
relationship”, defined in Section 2(f)36, which covers those who have “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”. A live-in
partner, being in a relationship in the nature of marriage and sharing the household comes within
this definition. They thus have a right to all remedies which may be available to a wife under this
Act. This includes monetary relief either as damages, compensation, maintenance or any other
name that suits the duty-right situation of the man and woman. They enjoy the right to reside in
the shared home and the man cannot evict them in retaliation.37
In M. Palani v. Meenakshi38 the respondent had filed a claim for maintenance of Rs 10,000 for
food, clothes, shelter and other basic necessities from the plaintiff, who had been in a live-in
relationship with her. The petitioner contended that the respondent was not entitled to any
maintenance since they had not lived together at any point of time. They had only indulged in
consensual sexual intercourse hence mere proximity at some time for the sake of mutual pleasure
could not be called a “domestic relationship” to invite the application of the Protection of
Women from Domestic Violence Act, 2005. The Madras High Court said Section 2(f) of the
Protection of Women from Domestic Violence Act, 2005 did not specify that the couple should
have lived together for a particular period for the relationship to be a domestic relationship. The
Court held that “at least at the time of having sex by them, they shared household and lived
together”. The Court further held that the provisions of the Act would apply even in such a case;
hence, maintenance claim under the Act was upheld.
Though the Supreme Court in the case of D.Velusamy v. D. Patchaiammalx39, held that, a
“relationship in the nature of marriage” under the 2005 Act must also fulfil some basic criteria.
Merely spending weekends together or a one night stand would not make it a “domestic
relationship‟. It also held that if a man has a “keep” whom he maintains financially and uses

34
Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 : (2011) 3 SCC (Civ) 581.
35
“Any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been
subjected to any act of domestic violence by the respondent.”
36
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
37
Sec 17 Protection of Women from Domestic Violence Act, 2005
38
AIR 2008 Mad 162.
39
(2010) 10 SCC 469.

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mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the
nature of marriage”. The Supreme Court further opined that the Parliament has drawn a
distinction between the relationship of marriage and the relationship in the nature of marriage,
and has provided that in either case the person is entitled to benefits under the Domestic
Violence Act,2005(PWDV).
The recent judgment of the Supreme Court IndraSarma vs. V.K.V.Sarma40 in 2013 the Supreme
Court gave the categories as to what will fall within the expression “relationship in the nature of
marriage” under Section 2(f) of the Protection of women Against Domestic Violence Act, 2005
and provided certain guidelines to get an insight of such relationships:
 Duration of period of relationship.
 Shared household.
 Pooling of resources and financial arrangements.
 Domestic arrangements.
 Sexual relationship.
 Children.
 Intention and conduct of the parties.
 Socialisation in public.
Also, there should be a close analysis of the entire relationship, in other words, all facets of
the interpersonal relationship need to be taken into account, including the individual factors.

Children’s Rights
Legitimacy
The status of the legitimacy of children is more or less same as that of live in relationships.
Section 112 of the Indian Evidence Act41, 1872 provides that legitimacy of a child is proved only
if he/she was born during the continuance of a valid marriage between his mother and father.
Mohammedan law too recognises only those children, who are the offspring between a man and
his wife as legitimate children. Where there doesn’t exist any specific law regarding children
born out of the live in relationships, the Supreme Court in Tulsa v. Durghatiya42 held that
children born out of such a relationship will not be considered illegitimate. In SPS
Balasubramanium v. Sruttayan43 the apex court observed that “if a man and a women are living
under the same roof and cohabiting for a number of years, there will be a presumption under the

40
(2013(4) K.L.T. 763)
41
Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance
of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the
mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be
shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
42
Supra note 13
43
Supra note 11

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Indian Evidence Act that they live as husband and wife and held that the child born to them will
not be illegitimate”
Again in Vidhyadhari v. Sukhrana Bai44, the Supreme Court held that even if a person had
contracted second marriage during the subsistence of his first marriage, children born out of such
second marriage would still be legitimate though the second marriage would be void. Whereas in
Mohd. Bauker v. Shurfoon Nissa Begum45 Council had held that legitimacy of children of
Mohammedan parents may be inferred without any direct proof of marriage, if there is prolonged
and continuous cohabitation. Thus, in a case where a couple has lived together for a long time,
there shall be presumption of marriage and a child born from such a relationship shall enjoy all
the rights of a legitimate child.

Maintenance Rights
A legitimate son, son of predeceased son or the son of predeceased son of predeceased son, so
long as he is minor and a legitimate unmarried daughter or unmarried daughter of son or the
unmarried daughter of a predeceased son of predeceased son, so long as she remains unmarried
shall be maintained as dependents by his/her father or the estate of his/her deceased father. 46 But
children from live-in relationships do not enjoy this right under the Hindu Adoptions and
Maintenance Act, 1956. Whereas Section 125 of the Code of Criminal Procedure provides
maintenance to children whether legitimate or illegitimate while they are minors and after they
attain majority where such child is unable to maintain himself. However, the right to
maintenance of children born from a live-in relationship was upheld in 2007, in Dimple
Gupta  v.  Rajiv Gupta.47

Inheritance Rights
Under Hindu law an illegitimate child inherits the property of his mother only and not putative
father because illegitimate children are deemed to be related by illegitimate kinship to their
mother and can therefore inherit from each other under the said act whereas under Shia law, such
a child cannot even inherit from his mother. If children from a live-in relationship were to still be
considered “illegitimate”, inheritance from the father's estate would be barred. In fact, where the
live-in relationship has not subsisted for a reasonable period of time, the courts would not
consider a child from such relationship to be legitimate, thereby barring his inheritance.
However, where the live-in satisfies this condition, a child being “legitimate” can inherit from
both the parents.
But in legislations, like in the case of Bharata Matha v. R. Vijaya Renganathan48 the apex court
clarified while deciding this case that a child born out of live in relationship may inherit the
property of his parents but he does not have any birthright in the Hindu undivided ancestral

44
Supra note 28
45
(1859-61) 8 MIA 136.
46
Section 21 of the Hindu Adoptions and Maintenance Act, 1956.
47
(2007) 10 SCC 30 : (2008) 1 SCC (Cri) 567.
48
AIR 2010 SC 2685

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property. Overturning that in Revanasiddappa v. Mallikarjun49 it was held that Section 16(3)50
of the Hindu Marriage Act, 1955 as amended, does not impose any restriction on the property
right to such children that are born out of illicit relationship/ void marriage except limiting it to
the property of their parents. Therefore, such children will have a right to whatever becomes the
property of their parents whether self-acquired or ancestral. In Vidhyadhari  v.  Sukhrana Bai51,
the Supreme Court granted the inheritance to the four children born from the woman with whom
the man shared a live-in relationship, calling them “his legal heirs”. The Court has thus ensured
that no child born from a live-in relationship of a reasonable period may be denied their
inheritance.

Challenges before Indian Judiciary

Society and Morality
The social construct of India is such where having rich values, traditions, customs and beliefs are
the important sources of law. Marriage is a sacred union, gets legal effects and high respect in
society. Marriage is a social institution and one of the important parts of Indian Culture. Our
country, which has strong cultural roots, focuses on morality and social ethics. Live in
relationship is still considered a foreign concept that penetrated our norms through the
westernization of the world, consequently, still considered a taboo. This has even been explicitly
recognized in Payal Sharma vs. Superintendent, Nari Niketan, Agra, C.M. Hab. Corp 52. where
the Bench consisting of justice M.Katju and justice R.B.Mishra of Allhabad High Court observed
that “In our opinion, a man and a woman, even without getting married, can live together if they
wish to. This may be regarded as immoral by society, but is not illegal. There is a difference
between Law and Morality.
So, the Judiciary is of the mindset that even if the society doesn’t want to accept such relation, on
just that mere fact cannot be called illegal. There is nothing wrong in that. This idea was
reiterated in Khushboo vs Kanniammal & Anr53. where the Special Bench of the Supreme
Court of India consisting of K.G. Balakrishnan, Deepak Verma, B.S. Chauhan posed a question
"If two people, man and woman, want to live together, who can oppose them? What is the
offence they commit here? This happens because of the cultural exchange between people.” The
S.C. held that live-in-Relationship is permissible. The court also held that living together is a part
of the right to life u/Art.21 of the Indian Constitution and it is not a "criminal offence". In this
context the court commented that there exists no law in the country which prohibits pre-marital
sex. This comment was passed by the Apex Court in answer to the comments made by the

49
Supra note 2
50
Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a
marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the passing of this Act, such child would
have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his
parents.]
51
Supra note 28
52
Supra note 15
53
Supra note 16

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prosecution that the actress Khushboo endorsed pre-marital sex which affects the moral fabric of
the society.
But the problem at the ground zero is different. The society associates negative feelings which
such relationships, calling them anti-Indian Culture. The parents continue to live in denial and
cringe at the idea of a live-in because for them, it hints at sex for pleasure instead of for
procreation, which marriage implies. Women are considered to be the torch-bearer of good
reputation and honour of the family.54 In consequence of which not only the people in the
relationship suffers but also the family of the partners, the children born out of such relationship
bear the grunt of the social stigma attached to them. This mindset poses a great challenge before
the judiciary that even through the law, they set up live in relationships as something not illegal,
but still it is not getting as much respect in society as it needs being the personal choice of two
individuals.

Silence of Laws
The biggest challenge before judiciary is that there aren’t any statutory laws regulating live in
relationships. There seems to be a great void in laws and most of the disputes are relying on the
precedents and interpretation of one or two legislations that may change from case to case. All
other problems stem their branches from this sole fact. One cannot turn a blindeye to the fact that
this trend is increasing, consequently, there will be more complexities in terms of the rights of
the children, maintenance, property etc. so it has become the need of the hour to have laws
pertaining to it to ensure the justice. No doubt, judiciary does understand the urgency. But the
codified provisions themselves can give a sense of security to people and initiate the social
acceptance among the minds of general strata which is also the need of the hour. In Savitaben
Somabhat Bhatiya v. State of Gujarat and Ors.55, the Court held that however desirable it may
be to take note of the plight of an unfortunate woman, who unwittingly enters into wedlock with
a married man, there is no scope to include a woman not lawfully married within the expression
of 'wife'. The Bench held that this inadequacy in law can be amended only by the Legislature.

Rights of Women
Live in relationships are a walk in and walk out relationships. This gives birth to many
predicaments with respect to women’s rights. Anyone of marriageable age has the right to live
together. First of all, this creates the discrepancy that people who have just attained the majority,
may have not attain the maturity needed, may enter into kind of relationships. When such
relationships do not work, it is easy to walk out as there aren’t any legal implications as it is easy
to move into. This leads to often exploitation of women at the hand of female partners and
consequently, gives a rise to having multiple female partners. This could may give rise to child
pregnancies and despite the aim of restricting multiple partners, it would result to an opposite of

54
Radhika Coomaraswamy, "Identity Within: Cultural Relativism, Minority Rights and the Empowerment OfWomen", (2002) 34
George Washington InternationalL aw Review, 483-513 at p. 497.
55
Supra note 24

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what is being intended and there would be always an increased fear of spreading HIV AIDS
among youth class.
The dissolution of the live in relationship, in all its entirety is possible that could be one sided, by
the male partner. The deserted female partner not only faces the wrath of the social stigma of live
in relationship, but also there aren’t any maintenance rights or rights on property that they had
acquired in joint name when the relationship subsisted. This is evident by the Delhi High Court
judgment which reflected that an educated woman is capable of understanding the consequences
of the live-in relationships.56 The Court further stated that the live-in relationship does not entail
any responsibility and in the case the court also ignored the fact that the woman had been in the
relationship for five years. A relationship of five years is definitely not a 'walk-in and walk-out
relationship' as reported in the judgment. Instead, this case reinstates the fact that in a live-in
relationship, the consequences are only faced by the woman and not by the man, who is allowed
to walk out.
The Provisions under Protection form Domestic Violence Act are not enough either. The
definition in nature of marriage does not deals with all forms of domestic relations in a
comprehensive manner. It excludes the domestic relationship between a male employer and a
live-in domestic worker. The Act also clearly has no space for adult same-sex relationship. And
not all relationships come under the ambit of ‘in nature of marriage’ as laid down in D.Velusamy
v. D. Patchaiammalx57. So, it is a great dilemma in front of the judiciary to protect the rights of
the women.

Rape
As aforementioned that the women suffer greater loss then menfolk in our society which is true
to a great extent but it would be wrong to say that they are the only victims of the ill
consequences of the live in relationships. In cases where there is a failure of live in relationship,
a dismaying trend is followed which has become common these days - rape allegations are
maliciously slapped by women against men, which results in harassment of one gender by the
other, in majority cases. This is often accompanied by the feelings of either evading the social
stigma or maybe just seeking the revenge. The Delhi High Court in Ravi Kumar v. State58
observed that one of the major reasons contributing increase in the rape cases is a failure of live
in relationship or any immature decision on the part of such young adults which more often end
up in a broken relationship but sometimes after indulging into physical relationship”. No one can
deny that there exist several cases where the rape allegations are true but no one can deny the
existence of cases that are otherwise and thus, since it is a serious topic, it responsibility on the
judiciary to distinguish between these kinds of cases since the penal cost for it is pretty hefty.

Suggestions:
56
Alok Kumar v. State &Another, Crl.M.C. No. 299/2009
57
Supra note 39
58
212 (2014) DLT 349

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After going through various sources and statutes pertaining to the live in relationships, following
changes have been suggested:
Bring in proper legislation for regulation of live in relationships. If that procedure is too sluggish
for a separate legislation then, Supreme Court should lay down some guidelines like they did in
Vishakha59 to get rid of the ambiguity present. For immediate reform, bare minimum can be done
is the scope of definition of wife given under the section 125 Criminal Procedure Code should be
widened to include women in live in relationships.
For proper legislation, we could learn from the France where a “pacte civil de solidarite
(PACS) was passed that allows couples to enter into a union by signing before a court clerk. It is
a contractual form which binds “two adults of different sexes or of the same sex, in order to
organize their joint life” and allows them to enjoy the rights accorded to married couples in the
areas of income tax, housing and social welfare. The contract can be revoked unilaterally or
bilaterally after giving the partner three months’ notice in writing. 60 Or China where a couple can
sign a contract for live in relationship. The rights of a child are secured as a child born outside
the wedlock has the same benefits as enjoyed by the child born under a marriage.61

If the idea of a relationship being a contract seems too radical then, one could always go for what
Canada did, recognizing live-in relationships as Common law marriage where common-law
partners are granted the same fundamental rights as married couples after two years of
cohabitation has cast a light on how common-law couples are treated. The presence of children
can significantly affect the way a common-law relationship is viewed in the eyes of the law in
other provinces.62 This would quench the thirst of the advent of the idea to test the compatibility
of two people before long commitment like marriage in a country like India. But there would
still be a scope of exploitation as what if the male partner asks to exit the relationship just before
the completion of 2 years? Thus, the contract model is suggested in its truest from.

Whether one likes it or not, the need of the hour is to protect the rights especially of the women
and children. Give recognition live in relationships through proper legislation that would extend
the social acceptance, the women and children won’t suffer from the absence of any law and
there would be less chaos and better sense of security in society.

Conclusion
In Indian context there is a urgent and dire need to recognize such relationship through
legislation which would empower both the parties with rights and create obligations with duties
thereby confining the ambit of such relationship. Therefore the law so enacted on live in
relationship should keep in mind the basic structure of tradition that prevails in the Indian
society. Family Law experts advise cohabiting couples to address these and other issues in a
written cohabitation agreement, similar to a Premarital Agreement. The agreement should clearly
outline who is entitled to what.
59
Vishaka v. State of Rajasthan AIR 1997 SC 3011
60
Law Act no. 99-944 of 15 November 1999
61
www.indialawjournal.com/volume2/issue_2/article_by_saakshi.html, (Accessed on 22 nd November 2011)
62
Alexandra Kazia ,4 myths about common-law relationships, CBC News Posted: Mar 20, 2013 12:39 PM ET Last Updated:
Mar 20, 2013 1:18 PM ET, available at http://www.cbc.ca/news/canada/4-myths-about- common-law-relationships-1.1315129

18 | P a g e
Live in relationships should be granted legal status after specific period of its existence,
providing the partners as well as the child born out of such relationship with all the legal rights of
maintenance, succession, inheritance as available to a married couple and their legitimate
offspring, also securing their rights after the dissolution of such relationship due to break up or
death of one of the partner. The need of the present hour is not to try bringing live-in
relationships under the ambit of any existing law, but to enact a new different law which would
look into the matter of live-in separately and would grant rights and obligations on the part of the
couples thereby reducing the cases of misuse of existing laws and also to reduce cases of
atrocities faced by the female partners under such relationships.

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Bibliography
Articles:
1. Anuja Agrawal, “Law and 'Live-in' Relationships in India” 47 EPW 50-56 (2012)
2. Wazida Rahman, “Live-In-Relationship And Status Of Women In India” 3 IJLLJS 207-
212 (2016)
3. Mohit Chibber, Aditya Singh, “Live-in relationships: An ethical and a moral
dilemma?” 1(8) IJAR 74-75 (2015)
4. Sangita Laha, “Live-In Relationship–An Analysis Through Cases” 6 IJAHMS 47-57
(2016)
5. Mr. Rajib Bhattacharyya, “Live in relationship and its impact on Indian traditional
society - A critical socio- legal study” 2 IJMART 171-187 (2015)
6. Sonali Abhang, “Judicial Approach to „Live- In-Relationship‟ In India- Its Impact on
Other Related Statutes” 17 IOSR-JHSS 28-38 (2014)
7. Craig A. Bowman, Blake M. Cornish, “A More Perfect Union: A Legal and Social
Analysis of Domestic Partnership Ordinances” 92 CLR 1164-1211 (1992)
8. Pravita Panda, “The Status of Live-in–Relationship in India : A Legal and
9. Judicial Approach” 5 IOSR 16-17 (2016)

SCC Articles
1. Prof. Vijender Kumar, “Live-In Relationship : Impact on Marriage and Family
Institutions” 4 SCC J-19 (2012)
2. “Live-in Relationship — A Right to Life” PL (2010)
3. Lakshmi Shanthakumar, “Legitimacy of Bastardisation Law – A critical Overview” PL
S8 (2011)
4. Alia Kamal, “Live in Relationships and Legal Issues Worldwide – A comparison” 1
JCLC 167 (2013)
5. Kunal Ambasta, “”Informal” Bonds and Incomplete Rights – Property Rights of
Cohabitees in India and the need for Reform” 3 GNLU L. Rev. 3 (2012)

Newspaper
1. “SC lays down conditions for women seeking maintenance in livee in Relationship” The
Times of India, Oct. 21, 2010.
2. “Gandharva wedding no reason to deny maintenance: Bombay HC” Times of India, Oct.
12, 2012.
3. “Supreme Court upholds maintenance for live-in partners” Times of India, May 6, 2015.

Books:
1. Indira Jaising, Law of Domestic Violence 59 (Universal Law Publishing Co. Ltd., Delhi,
2nd Edition, 2007)
2. Dalbir Bharati, Women and Law, (S.B. Nangia-APH Publishing Corporation, New Delhi,
2008)

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 3. Dinshah Fardunji Mulla, Satyajeet Atul Desai, Principles of Hindu Law, (LexisNexis
Butterworths, New Delhi, 20th edition, 2007)
4. Dr. Kailash Rai, The Constitutional Law of India, (Central law publications, Allahbad 7th
edition, 2008)
5. Dr. Poonam Pradhan Saxena, Family Law Lectures Family Law II (LexisNexis
Butterworths, Nagpur, 3rd Edition, 2016)
6. Prof Kusum, Family Law I 9 (Lexis Nexis, 4th Edition, 2015)
7. R.C. Nigam, Law of Crimes in India - Principles of Criminal Law Bombay-Delhi (Asia
Publishing House, Delhi , Volume 2 1965)

Case Laws:
1. Badri Prasad v. Dy. Director of Consolidation AIR 1978 SC 1557
2. Bharatha Matha & Anr vs R. Vijaya Renganathan & Ors AIR 2010 SC 2685
3. Chanmuniya v. Virendra Kumar Singh Kushwaha & Anr ((2011) 1 SCC 141 :
(AIR 2010 SC (Supp) 29))
4. Dimple Gupta v. Rajiv Gupta (2007) 10 SCC 30 : (2008) 1 SCC (Cri) 567.
5. Dinohamy v. W.L.Blahamy AIR 1927 P.C. 185
6. IndraSarma vs. V.K.V.Sarma (2013(4) K.L.T. 763)
7. M. Palani v. Meenakshi AIR 2008 Mad 162.
8. Mohabbat Ali Khan v. Mohd. Ibrahim Khan, (1928-29) 56 IA 201 : AIR 1929 PC 135
9. Mohd. Bauker v. Shurfoon Nissa Begum (1859-61) 8 MIA 136.
10. Minaxi Zaverbhai Jethva vs State Of Gujarat (2000) 2 GLR 1336
11. Narinder Pal Kaur Chawla v. Manjeet Singh Chawla AIR 2008 Delhi 7, 148 (2008) DLT
522, I (2008) DMC 529
12. Payal Sharma vs. Superintendent, Nari Niketan, Agra, C.M. Hab. Corp. W.P. No.
2001(3) AWS 1778
13. Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga (2005) 2 SCC
33
14. Ravi Kumar v. State 212 (2014) DLT 349
15. Revanasiddappa & Anr. vs Mallikarjun & Ors Civil Appeal No. of 2011, Arising out of
Special Leave Petition (C) No.12639/09 , 2011(2)UJ 1342(S.C.)
16. S.Khushboo v. Kanniammal & Anr. JT 2010 (4) SC 478 : (2010 AIR SCW 2770)
17. S.P.S Balasubramanyam v. Suruttayan 1992 Supp (2) SCC 304.
18. Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 : 2005 SCC (Cri) 787
19. Tulsa v. Durghatiya (2008) 4 SCC 520.
20. Velusamy vs. D. Patchaiammal AIR 2011 SC 479
21. Vidhyadhari v. Sukhrana Bai (2008) 2 SCC 238 : (2008) 1 SCC (L&S) 451

Dictionary:
1. Catherine, Soanes, Oxford English Dictionary, Oxford University Press, 7th ed. 2007

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Statutes:
1. The Constitution of India
2. The Protection of Women from Domestic Violence Act, 2005
3. The Code of Criminal Procedure, 1973
4. The Indian Evidence Act, 1872
5. Indian Succession Act, 1925
6. The Hindu Marriage Act, 1955
7. The Hindu Adoptions and Maintenance Act, 1956
8. The Hindu Succession (Amendment) Act, 2005
9. The Muslim Personal law (Shariat) Application Act, 1937

Web Resources:
1. https://www.jstor.org (Visited on: August 26, 2018)
2. https://www.manupatrafast.com (Visited on: August 26, 2018)
3. https://www.scconline.com (Visited on: August 26, 2018)
4. https://home.heinonline.org/ (Visited on: August 26, 2018)
5. https://timesofindia.indiatimes.com/ (Visited on: August 26, 2018)

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