How is live-in defined under Indian Law?
The following article is for couples seeking to live-in together before marriage and the responsibilities and obligations that follow in such a relationship.
India has witnessed a drastic change in the way the present generation perceive their relationships. The taboo that used to haunt partners in live-in relationships has also started to fade away with society opening up about the idea of pre-marital sex and live-in relationships.
This improved mindset is a result of freedom, privacy, profession, education and also globalization. Moreover, for most of us – it is not an escape from responsibilities but a way to understand our partner and to check if at all we are compatibility.
A live-in relationship not only gives the couple an opportunity to know the partner without having to engage into a legally binding relationship but also excludes the chaos of family drama and lengthy court procedures in case the couple decides to break up.
It involves continuous cohabitation between the partners without any responsibilities or obligations towards one another. There is no law tying them together, and consequently, either of the partners can walk out of the relationship, as and when they want.
The Supreme Court in Indra Sarma vs. V.K.V. Sarma defined live-in relationships in five distinct ways- A domestic cohabitation between an adult unmarried male and an adult unmarried female. This is the simplest kind of relationship.
A domestic cohabitation between a married man and an adult unmarried woman (entered mutually). A domestic cohabitation between an adult unmarried man and a married woman (entered mutually).
These two are the most complex grey areas of acknowledging live-in relationship. Furthermore, the second type of relationship mentioned is adultery which is punishable under Indian Penal Code.
A domestic cohabitation between an unmarried adult female and a married male entered unknowingly is punishable under Indian Penal Code as well. A domestic cohabitation between two homosexual partners, which cannot lead to a marital relationship in India as no marital laws against homosexuality are defined yet.
Legal Status of Live-in
In most western countries there is a broader understanding of the idea of a couple in a relationship, which is evident in their legal recognition of prenuptial agreements, civil and domestic union of couples etc. However, it is not the same in India.
The Apex Court in so many of its judgments has stated that if a man and a woman “lived like husband and wife” in a long-term relationship and even had children, the judiciary would presume that the two were married and same laws would be applicable.
In another instance, the Apex court even declared that for a man and a woman in love to live together is part of the right to life and not a “criminal offence”. Therefore, live-in relationships are legal in India.
Difference between marriage and live-in relationship
The institution of marriage is a socially and ritually accepted union and a contract between spouses that institutes rights and legal obligations towards each other. In light of the diverse culture in India, separate laws have been formulated which lay down the procedure and guidelines for proper execution of marriages in various religions. Marriage laws have been created to provide remedies for disputes arising out of marriage in different religions.
In addition to the law of maintenance under personal laws, Section-125 of the Code of Criminal Procedure also provides for maintenance if the wife is cannot maintain herself. Women can also seek extra-maintenance apart from the maintenance received by her under any other law as per Section- 20 (1) (d) of the Protection of Women from Domestic Violence Act.
There is no law binding the partners together, and subsequently, either of the partners can walk out of the relationship, as and when they wish to do so.
There is no legal definition of live-in relationship, and therefore, the legal status of such type of relations is also unconfirmed. The right to maintenance in a live-in relationship is decided by the court by the Domestic Violence Act and the individual facts of the case.
Though the common man is still hesitant in accepting this kind of relationship, the Protection of Women from Domestic Violence Act provides for the protection and maintenance thereby granting the right of alimony to an aggrieved live-in partner.
Protection against exploitation of women and children in live-in relationships
Maintenance of lady partner
The right of maintenance is available to wives under all personal laws in India. However, none of the religions recognises and accept live-in relationships. Since no remedy is granted to women involved in a live-in relationship, Indian Courts have widened the scope of maintenance under the Criminal Procedure Code.
Therefore, Section- 125 of the Criminal Procedure Code has been provided to give a legal right of maintenance to lady partners in or out of a marriage.
The Domestic Violence Act was enforced as an attempt to protect women from abusive (physical, mental, verbal or economic) marital relationships. However, as per Section- 2 (f), it not only applies to a married couple, but also to a ‘relationship in nature of marriage’.
Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.
Children out of marriage
Partners living together for a long time may have kids together. However, live-in couples are not allowed to adopt kids as per the Guidelines Governing the Adoption of Children as notified by the Central Adoption Resource Authority. In case of dispute with respect to custody of the child, you may also consult a Child Custody Lawyer.
Legitimacy and inheritance rights of children
Inheritance rights of children are mentioned in Section- 16 of the Hindu Marriage Act, where the legal status of legitimacy is provided even to illegitimate children (those born out of marriage) for the sole purpose of inheritance. Therefore, inheritance rights have been granted to children born out of a live-in relationship. These rights are available in both ancestral and self-bought properties.
Custody and maintenance rights of children
The position on the maintenance rights of children out of marriage varies in personal marriage laws. For instance, under the Hindu Law the father has to maintain the child, whereas under the Muslim Law the father has been absolved of such an obligation.
However, under Section- 125 of the Criminal Procedure Code, remedy is available for children who are unable to claim maintenance under personal laws. Section- 125 provides a legal right of maintenance to wives, children.