This article was written by Aman Agarwal, a student of ICFAI LAW SCHOOL, Hyderabad.
In recent time there is a wave of change that has totally revolutionalized the Indian judicial system in regards many controversial matters like homosexuality(sec 377), adultery(497), etc.this has inspired the Indian judicial system to come up with proper legislation for the above-mentioned issues. But still, issues like live in relationship which has been present in Indian society for quite some time remain with any proper legislation.
Though in the case of D.Velusamy vs. D.Patchaiammal, 2010
The honorable court discussed certain pre-requisites for a live-in relationship to be considered valid. It provides that the couple must hold themselves out to society as being akin to spouses and must be of legal age to marry or qualified to enter into a legal marriage, including being unmarried. It was stated that the couple must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. The court held that not all relationships will amount to a relationship in the nature of marriage and get the benefit of the Domestic Violence Act. It further clarified that, if a man keeps women as a servant and maintains her financially and uses mainly for sexual purposes, such a relationship would not be considered as marriage in the court of law. Therefore, to get such benefit the conditions mentioned by the Court must be satisfied and has to be proved by evidence.
This was not the first time where the legality of live in relationship was questioned in the year 0f 1978 Badri Prasad vs. Dy. Director of Consolidatio, This was the first case in which the Supreme Court of India recognized live in relationship and interpreted it as a valid marriage. In this case, the Court gave legal validity to a 50 year live in relationship of a couple. It was held by Justice Krishna Iyer that a strong presumption arises in favor of wedlock where the partners have lived together for a long-term as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law leans in favor of legitimacy and frowns upon bastardy.
The legislation has recently included a live-in relationship in the purview of domestic violence ac Indra Sarma case has allowed live-in relationships to be covered within the purview of this legislation, it also categorized live-in relation into five types of relationships.
Following are the categories:
- Domestic relationship between an adult male and an adult female, both unmarried. It is the most uncomplicated sort of relationship
- Domestic relationship between a married man and an adult unmarried woman entered knowingly.
- Domestic relationship between an adult unmarried man and a married woman entered knowingly. Such a relationship can lead to a conviction under the Indian Penal Code for the crime of adultery
- Domestic relationship between an unmarried adult female and a married male entered unknowingly
- Domestic relationship between same-sex partners ( gay or lesbian)
The Court stated that a live-in relationship 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. It stated that there should a deep analysis of the relation on the individual level to come under its purview.
India legislation has also failed to make laws for the children born out this kind of relationship. However, the supreme court in the Tulsa & Ors vs. Durghatiya & Ors provided legal status to the children born from the live-in relationship. It was held that one of the crucial pre-conditions for a child born from live-in relationship to not be treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife and it must not be a “walk in and walk out” relationship. Therefore, the court also granted the right to property to a child born out of a live-in relationship.
Though the concept of live-in relationship is considered immoral by the society but is definitely not illegal in the eyes of the law. The Supreme Court states that living together is a right to life and therefore it cannot be held illegal. In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court has held that living together is a right to life. The Court held that how can it be illegal if two adults live together cannot be illegal.but all these doesn’t change the fact in a certain section of society live-ins the considered as taboo committed by two people with full consent.
In the landmark case of Indra Sharma Case, the Court declared that such relationship might endure for an extended time and may result in a pattern of dependency and vulnerability, and increasing range of such relationships, needs adequate and effective protection, particularly to the woman and children born out of that live-in-relationship. law-makers, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may put forward their opinion, for and against. so the Parliament has got to think over these problems, usher incorrect legislation or build a proper amendment of the Act, in order that women and the children, born out of such varieties of relationships are protected, though such relationship may not be a relationship within the nature of a wedding
The recent times have been influential in arousing response on the matter of live-in-relationships in India. It shouldn’t be denied that our culture will want a legislature to control relationships that are probably to grow in number with changes within the ideology of individuals. the right time has come back that efforts ought to be created to enact a law having clear provisions with relevancy the time span needed to offer
D. Velusamy vs. D. Patchaiammal (21.10.2010 – SC) : MANU/SC/0872/
Badri Prasad vs. Dy. Director of Consolidation and Ors. (01.08.1978 – SC) : MANU/SC/0004/1978
 D. Velusamy vs. D. Patchaiammal (21.10.2010 – SC) : MANU/SC/0872/2010