NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

2015-16

FAMILY LAW-I

5TH TRIMESTER
LIVE IN RELATIONSHIP: IMPACT ON MARRIAGE INSTITUTION

SUBMITTED TO:

SUBMITTED BY:

MS. DEBASHREE SARKAR

VIVEK JAIN

ASSISTANT PROFESSOR

2014 B.A.LL.B. 71

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 3
Differentiations............................................................................................................................ 3
Research Plan .................................................................................................................................. 4
Aims and Objectives ................................................................................................................... 4
Research Methodology................................................................................................................ 4
Live-In Relationships In India ........................................................................................................ 4
Position Of Live-In Relationships Abroad ..................................................................................... 6
United Kingdom .......................................................................................................................... 6
United States ............................................................................................................................... 7
Rights Of Women In A Live-In Relationship In India ................................................................... 7
In order to get maintenance, the essential four conditions are: ................................................... 8
Rights of Child born through a Live-In Relationship ................................................................. 9
Inheritance Rights ....................................................................................................................... 9
Effect In The Society .................................................................................................................... 10
Breaking down of marriage institution...................................................................................... 10
In and out relationship ............................................................................................................... 11
Anti-Hindu and live-in relationship .......................................................................................... 11
Negative identity ....................................................................................................................... 11
Weakens social relationship ...................................................................................................... 11
Conclusion .................................................................................................................................... 12
Suggestions ................................................................................................................................... 12
Bibliography ................................................................................................................................. 13
Books Referred .......................................................................................................................... 13
Websites Referred ..................................................................................................................... 13

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INTRODUCTION
A live-in relationship is an arrangement where a heterosexual couple lives together, without
entering into formal relationship called marriage. It is also commonly known as Cohabitation.1
It need not necessarily involve sexual relations. It is a largely informal arrangement in most
places, although some countries do offer registration of such couples. People generally choose to
enter into such relations either to test compatibility before marriage, or if they are unable to
legally marry or simply because it does not involve the hassles of formal marriage with lengthy
divorces should partners decide to call it quits. It may also be that they see no benefit or value
offered by the institution of marriage or that their financial situation temporarily precludes it.
Whatever be the reason, it is quite clear that even in a traditional India, where the institution of
marriage is sacred, an increasing number of couples choose a live-in relationship, sometimes
even as a permanent arrangement over marriage. In such circumstances, various legal and social
issues have arisen and continue to do so.
DIFFERENTIATIONS
It is important at the outset, to differentiate live-in relationships from other similar cohabitations
such as:

A mistress (paramour or lover) refers to a man's long term female sexual partner and
companion, with whom he has intimate relations while married to another woman. The
relationship is semi-permanent and generally secret. The man may pay for some of the
woman's living expenses, or provide her with an allowance. However, they do not live
together, as in the case of a live-in relationship.

A concubine refers to a woman who cohabits with a man, in addition to his official wife.
The practice of keeping concubines was followed by many Asian, Arab and European rulers.
Their status is lower than that of the official wife and they hence enjoy limited rights. It was
an involuntary and servile practice and is regarded as a form of sexual slavery. In Hindu
Law, these women were known as Avarudha Stris.

These are clearly different from

women in live-in relationships, who generally enter into the relationship voluntarily. Live-in
relationships also need not solely be for the purpose of sexual relations as with concubines.
1

http://www.enotes.com/everyday-law-encyclopedia/cohabitation.

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Cohabitants is synonymous to live-in partners2

RESEARCH PLAN
AIMS AND OBJECTIVES

Through this project the researcher aims to provide the detailed socio-legal study of live-in
relationships and its impact on marriage institutions.

To analyze the law relating to matrimonial and proprietary rights of live-in partners besides the duties
and obligation of live in partners.

To compare the status of live-in relationship with the status of married couples and status of children
born out of live in relationship as well in this project.

RESEARCH METHODOLOGY
The researcher has adopted the doctrinal form of research in completing this project.

LIVE-IN RELATIONSHIPS IN INDIA

The custom of men and women living together without marriage has been in practice for millenniums.
Since ancient times, the nawabs, princes and wealthy men in India not only had several wives, but also
several live-in women in their zenanas.3 It was not at all considered immoral for men to have live-in
relationships with women outside their marriage.4 Concubines (avarudh stris) were kept for the mans
entertainment and relaxation. Following independence, as society matured, bigamy was outlawed and
women became more aware of their rights. This practice thus died out.
The last few decades have however seen the advent of a new form of live-ins, where men and women
cohabit together without entering into marriage. The traditional Indian society however disapproved of
such living in arrangements, for several reasons. Firstly, society revered the institution of marriage. An
Indian woman was expected to remain a virgin till she married, but a live-in relationship contradicted this
tradition.5 Secondly, as women tended to be financially dependent on men, the instability of such live-ins
created a subservient status for the woman. There was much social criticism and stigma attached to such
relationships, forcing them to remain largely secretive. Neither statutes nor Courts supported such

. http://www.enotes.com/everyday-law-encyclopedia/cohabitation.
. The part reserved for the women of the household. [See http://www.thefreedictionary.com/zenanas]
4
.Vimla Patil, Do Live In Relationships Really Benefit Women, THE TRIBUNE, Chandigarh, Sunday, September
23rd, 2003, http://www.tribuneindia.com/2003/20030921/herworld.htm#1.
5
. Ibid.
3

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relationships. In 1988, the SC in the case of Yamunabai v. Anant Rao6 held that where a man married the
second time, his second wife had no claim to maintenance under Section 125 Cr.P.C 7, even though she
was unaware of his earlier marriage.8 The SC refused to recognize that they had lived together even if
their marriage was void. The man was allowed to take advantage of this, although he had defrauded the
woman by concealing his earlier marriage. The SC would not grant any rights to the woman in such a
live-in relationship of circumstance. Even as late as 2000, in Malti v. State of Uttar Pradesh9, the
Allahabad HC held that a woman living with a man could not be equated as his wife. In this case, the
woman was a cook in the mans house and she stayed with him and shared an intimate relationship. The
Court however refused to extend the meaning of the word wife in Section125 Cr.P.C to include a livein partners maintenance claims.
There are some incidents where Courts had recognized such relations though. A Dinohamy v. WL
Blahamy10 the PC held that "Where a man and a woman are proved to have lived together as a man and
wife, the law will presume, that they were living together in consequence of a valid marriage, unless the
contrary can be proven. Again in Gokal Chand v. Pravin Kumari11 the SC reiterated the same principle,
though it cautioned that the couple would not get legitimacy, if the evidence of them living together was
rebuttable.12 However, these judgements only served to recognize marriages which were doubted, on the
basis that a long term live-in relationship existed. They did not recognize live-in relationships as
independent of the institution of marriage.
The increasing incidents of live-in relationships, especially those which occur by circumstance
however ensured that the need for reforms was felt. In 2003, the Malimath Commitee report on Reforms
in the Criminal Justice System, suggested amendment of the word wife in Section 125, Cr.P.C to
include a woman who is living in with a man for a reasonable period. Last year, the Maharashtra
Government approved such an amendment to the Cr.P.C, but this now awaits approval by the Central
Government.

The National Commission for Women has recently made a similar recommendation, to

protect the rights of such women. Significantly, the Protection of Women from Domestic Violence Act,
2005 became the first statute to give live-in partners the same recognition as married couples. The
position of Live-in Relationships is not very clear in the Indian context but the recent landmark judgments

. AIR 1988 SC 644.

. Cr.P.C
8
. Kusum, Cases and Materials on Family Law, 1st. ed. 2007, p. 161
9
.2000 Cri LJ 4170 (All).
10
. (1928) 1 MLJ 388
11
. AIR 1952 SC 231
12
.Shoma Chaterjee, Living in: Shades of Gray,INDIA TOGETHER, http://www.indiatogether.org/2008/aug/soclivein.htm,
7

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given by the Honble Supreme Court provides some assistance when we skim through the topic of LiveIn and analyze the radius of the topic in Indian legal ambit.13
The Honble Allahabad High Court stated that a live-in relationship is not illegal. Katju J. and Mishra J.
stated 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.
The Honble Supreme Court accepted the principle that a long term of cohabitation in a live-in
relationship makes it equivalent to a valid marital relationship. The Supreme Court also held that live-in
relationships cannot be considered as an offence as there is no law stating the same. In the well talked
about case of S.Khushboo v Kanniammal,14 the Supreme Court gave its landmark judgment and held that
there was no law which prohibits Live-in relationship or pre-marital sex. The Supreme court further stated
that Live-in relationship is permissible only in unmarried major persons of heterogeneous sex.
In another case the Supreme Court stated that if man and woman are living under the same roof
and cohabiting for a number of years, there will be a presumption under section 114 of the Evidence Act,
that they live as husband and wife and the children born to them will not be illegitimate.
Hence, the High Courts and the Honble Supreme Court in a number of decisions delivered until
recently have showed the positive signs of recognizing the legitimacy of the live-in relationships and have
also shown the inclination for a legislation to be enacted with the objective of protecting the rights of
couples in a live-in relationship.

POSITION OF LIVE-IN RELATIONSHIPS ABROAD

With the Supreme Court declaring that the right to live together is a part of the right to life, it is necessary
to look at the legal rights and obligations for live-in couples around the world. While heterosexual
couples who are in a live-in relationship are called co-habitant, same sex couples are legally defined as
civil partners. But the law on cohabitation rights is largely evolving and many participants are still
unaware of their rights and duties to each other.

UNITED KINGDOM
Live-in relationships in the United Kingdom are largely covered by the Civil Partnership Act, 2004.
Though a man and woman living together in a stable sexual relationship are often referred to as "common
law spouses", the expression is not wholly correct in law in England and Wales. The Government feels
13
14

. http://www.lawyersclubindia.com/articles/The-Socio-Legal-Dimensions-of-Live-In-Relationships-3966.asp
. 2010 AIR SCW 2770

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that live-in partners owe each other more than that to be worthy of the term. As per a 2010 note from the
Home Affairs Section to the House of Commons, unmarried couples have no guaranteed rights to
ownership of each other's property on breakdown of relationship. If a cohabiting couple separates, the
Courts have no power to override the strict legal ownership of property and divide it as they may do on
divorce. Unmarried partners have no automatic inheritance over their partner's assets on death. Cohabiting
couples are treated as unconnected individuals for taxation purposes.

UNITED STATES
Cohabitation was illegal in the United States prior in 1970, but went on to gain status as a common law,
subject to certain requirements. The American legal history was then a witness to several consensual sex
legislations, which paved the way for living together contracts and their cousins, the "prenuptial
agreements". The country later institutionalized cohabitation by giving cohabiters essentially the same
rights and obligations as married couples, a situation similar to Sweden and Denmark. Those living
together are not recognized as legal parents

RIGHTS OF WOMEN IN A LIVE-IN RELATIONSHIP IN INDIA

The Rights of Women in such relationships do not have much condolence except some traces of
assistance offered by the Protection of Women from Domestic Violence Act which covers in its ambit
relationship similar to marriage or live-in relationships. The definition of domestic relationship
means 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. Hence the words in
the nature of marriage are self-explanatory and buy within its meaning the social concept of live-in.
Furthermore, in the recent years the recommendations by various committees and NGOs have
awaken the spirits of justice in the interest of women specially aggrieved by such relationships. Apart
from this the Honble Supreme Court has also given landmark judgments make its stand clear on the
issue. For instance in the landmark case of D. Veluswami v D. Patchaimmal15 it was held a woman in a
live-in relationship is not entitled to maintenance unless she fulfills certain parameters, the Supreme court
had observed that merely spending weekends together or a one night would not make it a domestic
relationship.

15

. AIR 2011 SC 479

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IN ORDER TO GET MAINTENANCE, THE ESSENTIAL FOUR CONDITIONS ARE:16

a) The couple must hold themselves out to society as being akin to spouses.
b) They must be of legal age to marry.
c) They must be otherwise qualified to enter into a legal marriage.
d) They must be voluntarily cohabited and held themselves out to the world as being akin to spouses for a
significant period of time.
The Supreme Court observed that not all Live-in relationships will amount to a relationship in
the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005.
If a man has a keep whom he maintains financially and uses mainly for sexual purpose and/or as a
servant it would not be a relationship in the nature of marriage.
The National Centre for Women made recommendations to the Ministry of Women and Child
Development to include female live-in partners within the ambit of section 125 of Cr.PC in order to
establish their rights and make them entitled to right to maintenance. The Honble Court also in the case
of Abhijit Auti v. State of Maharashtra17 and others supported the above principle and furthermore the
Maharashtra Government showed a positive sign by accepting the Malimath Committee Report and also
the Law Commission Report and held that if a live-in relationship continues for a very long time she is
entitled to enjoy the rights of a wife but it was recently ruled out that a wife under section 125 of Cr.PC is
a divorced wife and the right to maintenance should only be enjoyed by a divorced wife and not by a
female partner who merely cohabited with her male partner. Since, in case of a live-in relationship there
exists no marriage and hence no concept of divorce. Therefore a female partner under live-in relationship
should not be construed as a wife under section 125 of the Cr.PC. The decision of the Honble Court is in
the righteous spirit as empowering any women who cohabited with a man would result in misuse of the
legal provisions under section 125 and would therefore be unfair on the part of the male partner as well.
Definition of the word "wife" in section 125 of the Code be amended to include a woman who was living
with the man like his wife for a reasonably long period.
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-ins 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.

16

.http://articles.timesofindia.indiatimes.com/2010-10-21/india/28237348_1_live-in-relationship-dv-act-live-inpartners
17
. AIR 2003 Bom 304

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RIGHTS OF CHILD BORN THROUGH A LIVE-IN RELATIONSHIP

The Child born through a Live-In Relationships enjoys the same rights of succession and
inheritance as are enjoyed by a child through a married couple under the Hindu Marriage Act.
Notwithstanding that marriage is null and void under section 11, any child of such marriage who would
have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before
or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or
not a decree of nullity is granted in respect of that marriage under this Act and whether or not the
marriage is held to be void otherwise than on a petition under this Act. Thus in order to keep up the spirits
of law in the righteous direction and to subside the social evils wherein illegitimate child was denied his
rights the Hindu Marriage Act has granted legitimacy to children born through marriages which are not
valid. Hence such definition brings within itself the ambit of live-in relationships and children born
through such relations.
While still the other laws have not guaranteed such legality to children born through such
relationships and therefore the status is dwindling for legal status of children which results in extensive
misuse of the provisions and still escape liability. Hence the legality of a child is doubtful in other laws
and has to be proved beyond reasonable doubt. Furthermore if the live-in partners decide to separate the
question of the future of the child is tossed. Therefore the laws regarding the guardianship should be
amended to include within its ambit the guardianship of children born through such relationships.

INHERITANCE RIGHTS
The Supreme Court held that a child born out of a live-in relationship is not entitled to claim inheritance
in Hindu ancestral coparcenary property (in the case of an undivided joint Hindu family) and can only
claim a share in the parents self-acquired property. The Bench set aside a Madras High Court judgment,
which held that children born out of live-in relationships were entitled to a share in ancestral property as
there was a presumption of marriage in view of the long relationship.
Reiterating an earlier ruling, a Vacation Bench of Justices B.S. Chauhan and Swatanter Kumar
said,
In view of the legal fiction contained in Section 16 of the Hindu Marriage
Act, 1955 (legitimacy of children of void and voidable marriages), the
illegitimate children, for all practical purposes, including succession to the
properties of their parents, have to be treated as legitimate. They cannot,

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however, succeed to the properties of any other relation on the basis of this
rule, which in its operation, is limited to the properties of the parents.18
A child can only make a claim on the person's self acquired property, in case the child is
illegitimate. It can also be interpreted in a way in which a child could lay a claim on the share of a
parents ancestral property as they can ask for that parents share in such property, as Section 16 permits a
share in the parents property. Hence, it could be argued that the person is not only entitled to self
acquired property but also a share in the ancestral property.
The Apex Court also stated that while the marriage exists, a spouse cannot claim the live-in
relationship with some other person and seek inheritance for the children from the property of that other
person. The relationship with some other person, while the husband is living is not live-in relationship
but adultery. It is further clarified that live in relationship is permissible in unmarried heterosexuals (in
case, one of the said persons is married, the man may be guilty of adultery and it would amount to an
offence under Section 497 of the Indian Penal Code).

EFFECT IN THE SOCIETY

This fashion of live-in relation has effected all the youth of the society for various reasons.
Nothing escapes without leaving drawbacks. No doubt such relation gives two partners the maximum
opportunity to right to liberty, right to privacy, right to life. But the negative point has to be realized as
well. Below I have list few point resulting to such relationship.

BREAKING DOWN OF MARRIAGE INSTITUTION

Marriage is a social union or legal contract between people that creates kinship. It is an institution
in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways,
depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding
ceremony, may also be called matrimony. Therefore, it would be easily mentioned that live-in
relationship is but degrading the valued of marriage which is recognized as social union unlike live-in
relationship where there is only well of two person. Marriage leads to a bonding between a man and
woman and this ensures security for children. Let us also caution the protagonists of live-in relationships
that parting of ways, for one reason or the other, will leave behind deep scars of being used and rejected.
Progenies of such relationships will also end up as misfits in society.

18

. http://barandbench.com/brief/2/762/supreme-court-says-live-in-relationships-are-fine-but-dont-expect-ancestralproperty

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IN AND OUT RELATIONSHIP

Other easy way of defining the term live-in, is walk-in and walk-out relationship which
entails no obligation on the parties. It (live-in relationship) is a contract of living together which is
renewed every day by the parties and can be terminated by either without the consent of the other. Thus
people who choose to have a live-in relationship cannot complain of infidelity or immorality. Therefore,
we can say it nothing more than personnel enjoyment.

ANTI-HINDU AND LIVE-IN RELATIONSHIP

The Bharatiya Janata Party (BJP) has agitation over legalising live-in relationship as anti-Hindu19.
The party state that according to the Hindu Marriage Act, 1955, there is 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

NEGATIVE IDENTITY
Everyone has the moral liability to adhere to life-enriching norms to enable the future generations
to be proud of their birth, cultural traditions and national identity. Why should children be made to bear
the cross of the skewed behaviour of their parents? Responsible parents will leave a valuable legacy and
not vicarious liabilities to the progeny.

WEAKENS SOCIAL RELATIONSHIP

As such relationships are choice of two individual wish to make their own family without the will
of their parents there is always expectation of weak relation between the parents of the spouse family.
Therefore it is no doubt that there is always change of conflict of ideas and opinion in the family as a
result it will laterally lead to weaken the relation between other member of the family. So over all it is no
it has a better negative effect in the society.

19

. http://www.dnaindia.com/mumbai/report_live-in-relationship-is-anti-hindu-bjp_1197128, Saturday, Oct 11, 2008

(27 febuary 2012)

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CONCLUSION
The decisions by the Indian Court is discerning as in some cases the Courts have opined that the live-in
relationship should have no bondage between the couples because the sole criteria for entering into such
agreements is based on the fact that there lies no obligation to be followed by the couples whereas in
some instances the Court has shown opposite views holding that if a relationship cum cohabitation
continues for a sufficiently and reasonably long time, the couple should be construed as a married couple
infusing all the rights and liabilities as guaranteed under a marital relationship.
It also appears strange if the concept of live-in is brought within the ambit of section 125 of the
Cr.PC where the husband is bound to pay maintenance and succession as the ground of getting into livein relationship is to escape all liabilities arising out of marital relations. If the rights of a wife and a live-in
partner become equivalent it would promote bigamy and there would arise a conflict between the interests
of the wife and the live-in partner. Apart from lacking legal sanction the social existence of such
relationships is only confined to the metros, however, when we look at the masses that define India, there
exists no co-relation between live-in relationships and its acceptance by the Indian society. It receives no
legal assistance and at the same time the society also evicts such relationships. The Parliament should try
and enact a separate branch rather than trying to bring live-in within the ambit of the existing laws as such
futile approach would further adversely complicate the judicial mechanism.

SUGGESTIONS
The Indian Legal system should devise new strategies in order to counter the present existing
problems of live-in.

The live-in relationships should be presumed as permanent after a specific period of time.
Furthermore, the children born through such relationships irrespective of the parents religion
should be guaranteed the rights of inheritance, succession etc.

The female partners role to prove the burden of such relationship should be relaxed.

Persons who enter into a live-in relationship with a living spouse should be convicted for bigamy.

A separate legislation should only be competent enough to grant assistance to the female partners
aggrieved by such relationships.

At last, the sooner our society accepts live-in relationships, the better chances the Indian Judiciary
has for passing judgments which are in the righteous spirit of law and in the interest of justice,
equity and good conscience.

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BIBLIOGRAPHY
BOOKS REFERRED

Kusum, Cases and Materials on Family Law, 1st. ed. 2007, Universal Law Publishing Co.,
Delhi.

Kusum, Family Law Lectures, 1st ed. 2003, Lexis Nexis, New Delhi

Paras Diwan and Peeyushi Diwan, Family Law, 7th ed. 2005, Allahabad Law Agency,
Allahabad.

Debashree Sarkar, Course Material-2014, IV Trimester

WEBSITES REFERRED

http://www.tribuneindia.com/2003/20030921/herworld.htm#1

http://www.thefreedictionary.com/zenanas

http://www.indiatogether.org/2008/aug/soc-livein.htm

http://timesofindia.indiatimes.com/India/NCW_wants_change_in_definition_of_livein_relationsh
ips/rssarticleshow/3864127.cms

http://timesofindia.indiatimes.com/articleshow/2708525.cms

http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm

http://epaper.timesofindia.com/Repository/ml.asp?Ref=VE9JQkcvMjAwNy8wNS8yMyNBcjAw
MTA0&Mode=HTML&Locale=english-skin-custom

http://www.tribuneindia.com/2006/20060827/society.htm

http://www.ohhoo.com/cohabitation.php

http://www.oneplusone.org.uk/marriedornot/PDF/Cohabitation.pdf

http://www.lawcom.gov.uk/cohabitation.htm

http://news.bbc.co.uk/2/hi/uk_news/6923373.stm

http://caselaw.lp.findlaw.com/cacodes/fam/297.ht

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