Right to Maintenance in Live-in Relationship

Introduction

Marriages in India have always been considered to be a sacred/divine bond between the Husband and  Wife. From Ancient India to the current scenario, the notion of marriage has evolved significantly. The upcoming and future generations are considering relationships even more liberally. One such concept of live-in relationships is being adopted by numerous couples around the world. The Concept of a Live-in relationship is a relationship between couples who are unmarried but live together to conduct a long-going relationship similar to marriage. The concept of such a live-in relationship is a western concept that was developed in the late 20th century. This concept can be seen in almost all the countries of the world. This new concept of western is now challenging all the concepts of traditional marriages not only in India but in foreign also. The concept has paved its way in India which but majorly in Indian society is still considered to be taboo and immoral by many people. Although the legal status of live-in relationships in India is unclear, the Supreme Court has ruled in many cases that any couple living together for a long period of time will be presumed as legally married unless proved otherwise.

The Notion and its Validity

Since the time of the Privy Council, a presumption for couples living together without getting legally married had begun. This fact can be seen in the case of Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy^[1]where the Privy Council took a stand in favor of a live-in relationship and stated that “where a man and a lady are proved to have lived respectively as a spouse, the law will presume, unless the opposite isobviously demonstrated that they were living respectively in the result of a legitimate marriage, and not in a condition of concubinage”.

The concept of a Live-in relationship is being adopted worldwide by innumerable couples. The relationships where two people cohabit outside marriage without any legal obligations towards each other are known as live-in relationships. This is a relationship like marriage but not exactly a marriage. It is a western concept that is now being adopted by most countries. The concept of live-in has slowly made its way into the Indian scenario as well. However, such relationships are sometimes considered taboo and condemned and criticized widely in Indian society. Although the legal status of live-in relationships in India is unclear, the apex court of the land has made it clear through many precedents on Live-in relationships.

On 23.03.2010 the Hon’ble Supreme Court in S. Khushboo v. Kanniammal^[2], opined that a couple living together without marriage cannot be said to be an offense. “When two adult people want to live together what is the offense? Does it amount to an offense? Living together is not an offense. It cannot be an offense,” Chief Justice and two other judges observed. The court even referred to the mythology that Lord Krishna and Radha lived together in a similar relationship.

Also in the landmark case of Lata Singh v. the State of U.P^[3], the court held that two consenting peopleof contrary sex living together in the same household without marriage does not amount to any offense under the law. Although there are no laws on Live-in relationships, it has been made clear by the Apex Court of India that the practice of such Live-in relationships between couples cannot be considered illegal. The same can be observed from the above precedents.

Maintenance under Live-in Relationship

Wife in a narrower interpretation is ‘A woman who is a legally wedded partner of a Man’. It includes those partners only who are legally married i.e. as per the law of their land. So according to the traditional narrower interpretation of the wife definition, only those women who are legally married to their husbands were safeguarded of their rights under the Constitution of India. But Judiciary in the recent times of last two decades has developed a broader interpretation of the term ‘Wife’, which includes even those women also, who are living with a man as spouses but are not legally married to one another. The idea of expanding the interpretation of the term ‘wife’ is to safeguard the interest of all the women who are living in a Live-in relationship and prevent the misuse of the law by partners in such relationships. A live-in relationship where a man and a woman are living in the same household for a long period of time as akin to being spouses shall be called legitimate partners and the same marital laws as a husband and a wife will apply to them.

According to the 2003 report of the Malimath Committee on Reforms of Criminal Justice System[4], the recommendation to broaden the ambit of the word ‘wife’ under Section 125 CrPC in the new amendment to include a woman who was living with a man without marriage but like his wife for a reasonably long period of time.

In the landmark case of Chanmuniya v. Virendra Kumar Singh Kushwaha and another^[5], the paragraph 42 of the said judgment says

“We are of the opinion that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, to fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.”[6]

Section 125 of the Code of Criminal Procedure has enshrined the duty to provide maintenance to a wife/minor children/old age parents, to avoid destitution and the situation of homelessness. The Apex Court of India instead of adding a new concept of Maintenance to a Live-in partner in the Sec 125 CrPC, they have broadened the interpretation of the term ‘wife’ which also includes those relationships also who are not legally married but are considered to be a legitimate relationship. For a live-in couple to consider themselves as a couple in nature of marriage certain conditions were issued by the supreme court in the case stated below.

In the case of D.Velusamy vs D.Patchaiammal^[7], it was observed by the SC that a woman in a Live-in relationship is not qualified for maintenance under sec 125 crpc unless she fulfills certain parameters/conditions. SC further observed that couples spending weekends together or a one-night stand would not be amount to be considered a relationship in nature of marriage. A bench comprising Justices Markandey Katju and T S Thakur said that to get maintenance, a woman even if not married has to fulfill the following four conditions.

Conditions Woman must Satisfy for Maintenance under Live-in Relationship

(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, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In another Supreme Court case of Madan Mohan Singh v. Rajni Kant^[8], the Court held that, the live-in relationship if continued for a reasonably long period of time, cannot be termed as a “walk-in and walk-out” relationship and that there should be a presumption of marriage between the parties living in such live-in relationship. By such approach of the Court, it can be concluded that the Court is in favor of creating a long-term living relationship as a marriage rather than giving or making it a new concept like a live-in relationship.

In Indra Sarma v. V.K.V. Sharma^[9]as to when a live-in relationship would fall within the expression “relationship like marriage”, the Bench said that the fact that twin children were born out of such a relationship itself shows the intention of the woman to treat this relationship as a long term living relationship and therefore she is entitled to claim interim maintenance.

InAbhijit Bhikaseth Auti v. State Of Maharashtra and Others^[10]the SC observed that it is not necessary for a woman to strictly establish the marriage to claim maintenance under sec. 125 of Cr.P.C. Therefore a woman who is not the wife of a man and merely just living in a relationship under one roof can be entitled to claim maintenance under the same section.

Like a woman partner in a live-in relationship is entitled to maintenance under section 125 CrPC, a child arising out of such relationships is considered to be a legitimate child and is also entitled to receive maintenance from his/her father under the same section of CrPC. A child who is born from a relationship that is not a marriage will still be considered a legitimate child of a legitimate couple unless the man or woman in this relationship has already a partner who is not divorced.

In the Landmark case of Champaben vs State of Gujarat^[11], the respondent and petitioner started to live in a live-in relationship after the respondent promised to marry the petitioner, After some time they had a baby, which the respondent refused to take care of. The petitioner sought maintenance of her child under sec 125 crpc. The matter after a couple of appeals went to HC and HC gave judgment in favor of the petitioner stating that the Respondent is directed to pay the amount of maintenance (Rs 500) to the petitioner based on the order passed by the learned Magistrate and clear the arrears of maintenance within two months from that day.

Therefore a woman living in a live-in relationship with a man is entitled to receive maintenance from her partner. Also if such a couple gives birth to a child during this kind of relationship it will be presumed that the couple was married and the man shall be liable to maintain the child and the child arising out of such relationship will be considered to be a legitimate child. The precondition to this kind of relationship would be that both partners living in a relationship with one another shall not be legally married to some other person while living in such a relationship, if any of the partners does then this relationship will be considered to be null and void and child arising out of such relationship will not be considered to belegitimate.

In case of Alok Kumar v. State^[12], the complainant was in a live-in relationship with the Appellant, who had not even divorced his previous wife and had a child of his own. The complainant was also with a child from her previous relationship. The Delhi High Court, therefore, tagged the nature of such a relationship as a walk-in and walk-out relationship with no legal strings attached in form of a relationship to be considered a marriage. To consider such relationships in the nature of marriage, it is necessary to fulfill all the conditions which were issued in the case of D. Veluswamy[13].

Legitimacy and Inheritance Rights of Child

“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”

— Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun^[14]

The first time when the Supreme Court held the legitimacy of children born out of live-in relationships was in S.P.S. Balasubramanyam v. Suruttayan^[15], the Supreme Court stated that, “If a man and woman are living under the same roof and cohabiting for some 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.”

In the recent case on the legitimacy of children of such relationships, the Supreme Court in the case of Tulsa v. Durghatiya^[16] has held that a child born out of a live-in relationship will no longer be considered an illegitimate child in the eyes of law. The important precondition for the same should be that the parents must have lived under one roof and cohabited for a significantly long time for the society to recognize the couple as the husband and the wife and it should not be merely a “walk-in and walk-out” relationship. In another case Bharatha Matha v. R. Vijaya Renganathan^[17], the Supreme Court held that a child born out of a relationship that is not of a marriage like a live-in relationship, the child may be allowed to inherit the property of the parents and therefore be given legitimacy in the eyes of law.

In the case of Revanasiddappa v. Mallikarjun^[18], it was remarked that irrespective of the relationship between parents, the birth of a child from a live-in relationship has to be viewed separately from the relationship of the parents. It is as clear as crystal that a child born out of such a live-in relationship is innocent and is entitled to all the rights and privileges available as given to the children born out of valid marriages.

The above-stated Judicial precedents are the classic examples that the Indian judiciary in the absence of the special legislation for Live-in relationship, have been protecting the rights of the children by giving the law a broader interpretation so that no child arises out of such live-in relationship where no marriage has taken place is considered to be “bastard” for not fault his/her own.

Also in a landmark judgment of DhannuLal v. Ganeshram ^[19],the Supreme Court decided that the couples in live-in relationships will be presumed legally married as if their marriage has taken place according to their rituals and traditions. The same will differ on the merits of the case. It was also held that the woman in the live-in relationship would be eligible to inherit the property of her partner after his death.

Merits

• A live-in relationship is almost similar to marriage without any social or legal obligations. Live-in relationships have lesser responsibilities and burdens on the couples in comparison to a marriage
• Live-in relationships have lesser legal issues in comparison to marriage as no one is obligated to one another.
• Financial freedom of the couples. The advantage for which most people hop in is that to not distribute their income and assets and if in the future if any separation happens, the couples won’t have to divide and lose their assets to the other partner.
• Recognition of women’s rights under live-in relationships. In the last two decades, the apex court of India has passed many such precedents in favor of women living in a live-in relationship where they are exploited and treated unwell by the opposite partner. Several legal remedies stand exclusively for women in such relationships. Eg- Maintenance, Domestic violence, etc.
• Legitimacy and Inheritance to the child born out of such a relationship.

Demerits

• Non-acceptance of such relationships in society. The live-in relationship has paved its way in India but widely the notion is considered to be a taboo. It is also considered to be immoral and sinful in their respective cultures. They are often harassed by a society which also sometimes results in violent activities. Traditional conservative people with higher status practice honor killing also as they think that it is unacceptable for a woman to sleep with anyone before being married.
• Women suffer most in this type of relationship. Women suffer and bear the worst burns of stepping out of such conventions. Women are the ones who are questioned for their integrity and character in our Indian society and are often humiliated for failures in such kinds of relationships. Often it is seen in Indian Society that if the relationships don’t work out then it is more likely for women to get into the condition of destitution.
• Lack of commitment. Any of the partners can leave this type of relationship anytime. A quarrel or an argument can even also break the relationship and the partner can walk out anytime without any reasoning or an explanation. Often after coming into a relationship one of the partners may feel ‘suffocated’ in the relationship due to the lack of personal space or some come for sexual desires, in both cases early exit can be seen.

Conclusion

The notion of a Live-in relationship is a new social change that will need time to adapt by the majority of the people. The judiciary of India according to me has handled brilliantly the new concept of western. The apex court in its early years of entry of such a new concept has adjudicated upon and set guidelines to differentiate a relationship in nature of marriage and a relationship of concubinage. There have been numerous judgments by the apex court on the Maintenance ofa Live-in Partner and also a child arising out of such a relationship. Whereby in most cases, it was granted to the women and the children insuch a relationship. However, the amount of maintenance will always depend upon the merits of the case. Further, the lack of special legislation upon the new social change awaits which will fill the other half also. The legislation is also not the only solution to make it acceptable among Indians- Education and awareness both are needed to make it acceptable to 1.4 billion people. It will not be an easy task but as Heraclitus has said “There is nothing permanent except change”. It is a matter of time that in a few years, it will not be considered as taboo anymore, as it is being considered now.

This article is authored by Mahir Shah, student at GLS Law College.

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[1] Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy AIR 1927 PC 185

[2] S . Khushboo v. Kanniammal(2010) 5 SCC 600

[3] Lata Singh v. the State of U.P (2006) 5 SCC 475

[4] https://www.legalservicesindia.com/law/article/1983/39/The-Report-Of-Malimath-Committee-On-Reforms-Of-Criminal-Justice-System?id=1983&u=39

[5] Chanmuniya versus Virendra Kumar Singh Kushwaha and another (2011) 1 SCC, 141

[6] Supra

[7] D.Velusamy vs D.Patchaiammal (2010) 10 SCC 469

[8] Madan Mohan Singh v. Rajni Kant (2010) 9 SCC 209

[9] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 

[10] Abhijit Bhikaseth Auti v. State Of Maharashtra and Others, 3 Cri.LJ, 889, 892(Bom.2009)

[11] Champaben vs State of Gujarat SCA/11087/2011

[12] Alok Kumar v. State 2010 SCC OnLine Del 2645

[13] supra

[14] Revanasiddappa v. Mallikarjun (2011) 11 SCC 1

[15] Balasubramanyam v. Suruttayan AIR 1994 SC 133

[16] Tulsa v. Durghatiya AIR 2008 SC 1193

[17] Bharatha Matha v. R. Vijaya RenganathanAIR 2010 SC 2685

[18] Asok Kumar Ganguly in Revanasiddappa v. Mallikarjun(2011) 2 UJ 1342

[19] DhannuLal v. Ganeshram (2015) 12 SCC 301 

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