To
understand the concept broadly, live-in relation is an arrangement in which two
people, who are not married, live together.
There
is no strict law or separate legislation as such passed for the live-in
relationship. The law does not provide any right and obligations to the party
under any statue. But Supreme Court has evolved and determined the live-in
relationship in its various judgements and in order to understand the scope and
validity of a live-in relationship we have to look upon those Supreme Courts
judgements.
The
first case where SC recognised live-in relationship
The
Badri Prasad v Dy. Director of Consolidates, the Supreme Court interpreted a 50
years long live-in relationship as a valid marriage. Jts. Krishna Iyer strong
presumption arose in favour of wedlock where both man and woman stayed as
husband and wife for a long-term duration.
Does
the court consider a live-in relationship to be marriage
In
the case of SPS Balasubramanyam v Sruttayan,[1] the Supreme Court held
that any woman or man living under the same room and also have been cohabiting
for a certain number of years (not strictly specified), then it will be
presumed by the court that these parties have been living as husband and wife
under section 114 of the Indian Evidence Act.
The
court has also allowed the right to maintenance under the Protection of Women
from Domestic Violence Act, 2005 especially for the child and women who are the
part of live-in relationship. And added that live-in relationship will fall
under the phrase of ‘relationship in the nature of marriage’ of section 2(f) of
the 2005 PWDV Act.
The
legitimacy of the child born out of a live-in relationship
The
Supreme Court in the case of Tulsa v Durghatiya[2]held that the child born
from a Live-in or co-living relationship will not be considered as an illegitimate
child. The prerequisite condition mentioned is that the parents must be living
together under the same roof for a given number of years and the society can
deem them to be ‘husband’ and ‘wife’. The live-in relationship hence cannot be
presumed to be a ‘walk in and walk out’ relationship. The court granted the right
to property to the child.
Is it a crime to be in a live-in relationship?
The
Supreme Court in its judgement of S Khushbhoo v Kanniammal[1], 2010 dropped the charge
u/s 499 (defamation) of the IPC. Khushboo was a film actress when she made a
statement in favour of live-in relationship and premarital sex, she was sued
for the same. Supreme Court said that pre-marital sex and live-in relationship
if consented by both the heterogeneous adult, it cannot amount to any offence.
Court further added that Live-in relationship is a right to life under and
hence not ‘illegal’. The court also dropped other allegations against her of
obscenity u/s 292 and 509 of the IPC.
Supreme
Court quoted the judgement of Lata Singh v State of UP and Anr.[2], 2006 where the Supreme
Court observed that live-in relationship between two consenting adults of
heterogenic sex does not amount to any offence (with the obvious exception of
adultery u/s 497 IPC), even though it may be perceived as immoral in the eyes
of conservative Indian society.
Below
18 years of age: The Supreme Court in the Nandakumar v
State of Kerala[3]
has overruled the judgement of the Kerala High Court. Kerala High Court held
the marriage as null and void under the Prevention of Child Marriage
Act 2006, as in the case boy didn’t complete the age of 21 years and married to
a girl (above 18 years). The custody of the girl was handed over to her father.
The boy thereafter attaining the age of 21 years filed a petition in the Supreme
Court and the court held that once the person has completed its legal age for
marriage, i.e. 18 years for girls and 21 years for boys, then they can live
with whomsoever person they want legally and nobody can restrict them. The
court upheld the right to live with personal liberty under this case. Court
further said that adult can have a live-in relationship even if the man’s age
is below 21 years and hence marriage is not void under the Hindu Marriage Act,
1955. Merely because the boy's age was less than 21 it cannot be said that the
marriage between the two parties is null and void.
Does
all the live-in relationship will be considered as marriage
The
Supreme Court in the case of D. Velusamy v D. Patchaiammal[4] held that not all the
relationship will be recognised as marriage and attain the benefit of the Domestic
Violence Act 2005. A relationship where a man keeps a woman as a servant and
maintain her financially and uses mainly for the sexual purpose, such a relationship
would not be considered as marriage by the court. So, in order to get the
benefit of the Domestic Violence Act, the condition set up by the court must be
satisfied and shall be proved through evidence, which is: (1) that the couple
must hold themselves out t society as being akin to spouses, (2) must be of
legal age to qualify for marriage, and (3) must voluntarily cohabit together
under the same roof.
A
recent judgement by the Supreme Court
In
the case of Indra Saran v VKV Sarma,[5] the Supreme Court has
given 5 categories of live-in relationship which can be considered and proved
by a court of law.
· Domestic relation between same-sex
partners
· Domestic relation between an unmarried
adult female and married male entered unknowingly
· Domestic relation between an adult
unmarried man and a married woman entered knowingly. Will fall under section
497 of IPC, i.e. adultery (adultery is not a crime but can form the basis for
divorce as per the recent judgement, Jts. DY Chandrachud in his obiter dictum
has further said to that right to explore sexuality for a married person should
within the ambit of right to life under article 21 of the constitution).
· Domestic relation between a married man
and an adult unmarried woman entered knowingly
· Domestic relation between an unmarried adult man and an unmarried adult woman.
[1] SPS Balasubramanyam v Suruttayan
Alias Andali Padayachi and Ors, AIR
1992 SC 756
[2] Tulsa v. Durghatiya [(2008) 4 SCC 520
[3] S. Khushboo vs. Kanniammal & Anr. (2010)
5 SCC 600
[4] Lata Singh Vs. State of U.P.
& Anr., AIR 2006 SC 2522
[5] Nandakumar vs The State of Kerala on 20 April
2018
[6]
D Velusamy Vs D Patchaiammal, CRIMINAL APPEAL NOS. 2028-2029 OF 2010
[7] Indra Sarma v. V.K.V. Sarma, Crl. App. No. 2009 of 2013; Decided on 26-11-2013 (SC): 2013 (14) SCALE 448 [K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.]
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