Introduction

“In the realm of relationships, legality shouldn’t dictate validity”

Almost every religion recognises the sanctity of marriage, from the Rig-Vedic period, marriage has been a well-recognised institution. Live-in relationship is generally said to be living together without tying the knot. The Hindu Dharma’s ‘Ekapatni Vrat’ promotes monogamy as a sacred form of matrimony, but contemporary practices are shifting. Hindu law views marriage as an act of worship, essential for societal protection and human continuity, with personal laws across religions aiming to safeguard marital bonds. Live-in relationships were considered to be void-ab-initio till the mid-70s, which changed in the landmark case of Badri Prasad v. Dy Director of Consolidation in 1978 where the Supreme Court declared these relationships as valid if the requisites of a valid marriage such as mental capacity, age of parties, free consent, prohibited degree of relationship, etc are satisfied. The couple can also be regarded as married if they live together for a considerably long period. In the seminal case of S. Khushboo v. Kanniammal & Anr (2010) , the Supreme Court definitively ruled that live-in relationships do not contravene the law, and no legislation exists to proscribe such arrangements or pre-marital intimacy. Furthermore, the court emphasized that cohabitation is protected under Article 21 of the Constitution of India. This landmark judgment solidifies the legal standing of live-in relationships and underscores individuals’ entitlement to exercise their personal choices within the framework of the Constitution of India.

Meaning

A live-in relationship, alternatively termed domestic cohabitation, denotes a scenario wherein two individuals romantically involved reside together without formalizing their union through marriage. Within this arrangement, the couple shares a common abode and engages in a consensual sexual relationship, yet abstains from legalizing their bond through matrimonial vows. In these dynamics, partners enjoy the advantages of cohabitation, including collaborative decision-making, shared household duties, and the autonomy to dictate their lifestyle choices without external interference. Notably, it is crucial to acknowledge that live-in relationships lack legal recognition as a legitimate marital union according to Indian law, consequently depriving couples of equivalent legal rights as married counterparts. Despite the absence of formal legal status , such arrangements allow couples to assess mutual compatibility and commitment levels before considering the prospects of matrimonial commitment.

Background History

Live-in relationships, though not unusual in ancient India, were epitomized by the practice of ‘Gandharva Vivaha’, where couples opted for collaborating without seeking societal approval or performing formal rituals. This tradition was prevalent during Vedic and medieval periods. But in today’s time a shift during the British colonial era with laws discouraging relationships outside marriage. Post-independence, India underwent a significant social and cultural transformation, altering perspectives on live-in relationships. Today, this practice is prevalent among the younger generation, often seen as a means to alleviate societal pressures and responsibilities.

In India, such relationships are relatively accepted in big cities while in rural India they are not. The National Commission for Women on 30th June 2008 recommended to the Ministry of Women & Child Development that the definition of wife under Section 125 Code of Criminal Procedure (CrPC), 1973 (Section 144 of Bhartiya Nagarik Suraksha Sanhita) should be amended to include women involved in live-in relationships. Justice Malimath’s Committee set up by the Supreme Court supported this view and said that if a man and a woman live together for a reasonably long time then the man should be deemed to be married to the woman.

The Malimath Committee

The Malimath Committee, formed in 2000, aimed to address gaps in maintenance rights for women in secondary relationships with married men. Their 2003 report suggested amending Section 125 of the CrPC to broaden the definition of “wife” to include these women. This was to protect women who unknowingly entered into a relationship with married men. In Chanmuniya v. Virendra Kumar Singh Kushwaha & Ors (2010), Justice G.S. Singhvi and A.K. Ganguly referenced the Malimath Committee, proposing that long-term cohabitation could imply a customary marriage under section 125 CrPC. However, they omitted the clause “during the subsistence of the first marriage,” which could have broader implications. This case shows how committee recommendations can influence judicial interpretation of laws on relationships and maintenance rights. While some see it as modernizing legal definitions to protect non-traditional relationships, others worry about impacts on traditional marriages and spouses’ rights. The debate highlights societal trends and ongoing legal discussions on intimate relationships.

Right To Maintenance & Property

In Abhijeet Bhikaseth v. State of Maharashtra (2009), the Supreme Court observed that a woman is not required to strictly establish a formal marriage to claim maintenance under Section 125 CrPC (Section 144 BNSS). This means a woman in a live-in relationship also can claim maintenance. The Supreme Court also observed if a man and a woman are involved in a live-in-relationship they shall be treated as husband & wife and any child to them will be legitimate. These Supreme Court observations have alarmed many conservative groups, fearing they may undermine the sanctity of marriage. Some social scientists have highlighted serious issues in such relationships, including adolescent pregnancies, violence, and juvenile delinquency.

In the landmark case of Indra Sarma v. V.K.V.Sarma (2013), it was held that live-in relationships fall within the ambit of Section 2(f) of the Protection of Women against Domestic Violence Act, 2005 as the cases of violence & harassment against women involved in such relationship was increasing. The victims were provided relief under this statute as the act does not specify marriage but a relationship that has a nature of marriage. Partners in such relationships are advised to draft formal agreements outlining rights and financial obligations to prevent legal disputes post-separation. In India, despite no formal recognition, child custody issues are handled similarly to formal marriages, prioritizing the child’s welfare in court decisions.

Status Of Live-In Relationships in Other Countries

The legal embrace of live-in relationships often known as cohabitation, differs greatly amongst major countries. While some countries recognize and protect unmarried couples living together, others do not.
In France, the “Pacte civil de solidarite” (PACS), introduced by the French Parliament in November 1999, provides couples with a legal framework for partnership. Through this agreement, couples, regardless of gender, can formalize their relationship before a court clerk, granting them certain rights akin to those of married couples. These rights include provisions in areas such as taxation, housing, and social welfare. Notably, the PACS contract allows for unilateral or bilateral termination with a three-month written notice to the partner. Since its inception, PACS has remained accessible to both same-sex and opposite-sex couples, even following the legalization of marriage and adoption rights for same-sex couples in 2013.

In the United States, the concept of “Palimony”, referring to maintenance provided to women in live-in relationships, is undergoing transition. In the case, Velusamy v. D. Patchaiammal (2010), adjudicated by Justice Markandey Katju and T.S. Thakur, the Supreme Court explored the possibility of adopting or considering the applicability of the “Palimony” concept, stemming from notable cases such as Marvin v. Marvin (1976) & Taylor v. Fields (1986) in California Supreme Court, within the legal framework of India.

In Canada, live-in relationships are legally recognized under the term “Common Law Marriage”. A recent ruling in British Columbia has further underscored the significance of these partnerships by granting Common- Law Partners the same fundamental rights as married couples following two years of cohabitation. This decision sheds light on the evolving treatment of common-law couples within the legal system. Notably, the presence of children can significantly impact the legal perspective on common-law relationships in various provinces.

In Australia, family law recognizes “De Facto Relationships,” while Ireland is moving toward greater legal recognition of live-in relationships. However, cohabiting in Ireland lacks the same legal rights as married couples or civil partners, affecting inheritance, property, child custody, and adoption. A redress scheme exists to address this disparity.

Conclusion

Live-in relationships have become a commonplace occurrence in Indian society, challenging the longstanding dominance of traditional marriage institutions. While marriage remains a fundamental aspect of societal norms, the rise of live-in relationships signifies a shift in cultural attitudes. Factors such as the dissolutions of joint family systems, increased education and economic independence among women, and the globalized nature of modern life have contributed to the proliferation of live-in arrangements. This trend reflects a broader societal transformation, promoting a reassessment of legal frameworks to accommodate changing relationship dynamics. Regardless of personal opinions, the prevalence of live-in relationships underscores the need for laws to evolve in response to shifting social norms.

Harshit Choubey is a third-year student at the Maharashtra National Law University, Aurangabad.