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LIVE IN RELATIONSHIPS- A Socio-Legal Issue

By: Sarabpreet Singh, Advocate

Meaning and Concept:

Live-in Relationship refers to couples who live together without marriage. A live-in relationship, also known as cohabitation in some countries, is an arrangement when two adults above the age of 18 years, involved in a romantic and sexual relationship as partners for a long term or permanently, decide to live together without marriage. Unlike marriage, a live-in relationship has no legal implications.

Over the years, India has witnessed a drastic change in the way the present generation discerns their relationships. With society gradually accepting live-in relationships, the taboo that used to haunt people before moving on has started fading away. This has happened over the years with a right to freedom, privacy, professionalism, globalisation and education. Furthermore, it is not an escape from responsibilities; in fact, it is an attempt to know your partner better and to see compatibility, which would result in a decrease in divorce rates. While this concept has become common in recent years, live-in relationships are not given any legal status in India. The laws regarding live-in relationships are still evolving.
In Western countries, there is a broader acceptance of a couple in a relationship. This can be understood by their civil and union agreements, legal recognition, and prenuptial between couples. However, it is not similar in India. In most of the western Apex Courts, it was ruled that if a man and a woman have lived in a live-in relationship for a long term and even have children, the same marital laws as a husband and a wife will not be applicable to them.

Live-in relationship in India

A live-in relationship in India has been in talks for years, but there is no law that binds the partners with each other if any of the partners wants to walk out of a relationship. The legal definition of a live-in relationship is still unconfirmed, as there is no legal definition of the same.
As mentioned, the right of a wife to get maintenance is decided by the court under the Protection of Women under the Domestic Violence Act, 2005 and the individual facts.
Though the concept of a live-in relationship is still taboo in India and not openly accepted by society, the Protection of Women from Domestic Violence Act, 2005, offers maintenance and protection by providing alimony for an aggrieved live-in partner.

Status of Indian Courts on Live-in Relationship

Factors that the court considers in dealing with cases related to live-in relationships are- age, duration of the relationship, children, if any, born out of the relationship, financial stability and indulgence, intention and conduct of parties, domestic arrangement, etc.
The subject gained traction in May 2021 following two controversial judgements passed by the Punjab and Haryana High Court. First, in Gulzar Kumari v. State of Punjab and Ujjawal v. State of Haryana, the Court refused to grant protection to couples cohabiting in a live-in relationship, stating that such relationships are morally and socially unacceptable, capable of destroying the social fabric of the Indian society.
Shortly after this, the Punjab and Haryana High Court expressed that the right to choose whether to marry or adopt a non-formal approach to live-in relationships is inherent in the right to life and personal liberty.

Kamini Devi v. State of UP, W.P.(C) No.: 11108 of 2020; Paramjit Kaur v. State of Punjab, W.P. (Cri) No.: 5024 of 2020Various High Courts in cases have granted police protection to a live-in couple, upholding their fundamental right to life and personal liberty as envisaged under Article 21 of the Constitution of India

The concept of a live-in relationship may be socially unacceptable, but it has been made clear by the Apex Court in a plethora of judgements that adult unmarried couples with mutual consent have the right to live together even without marriage and is no longer a crime.
In the case Payal Sharma v. Nari Niketan, the Supreme Court affirmed that a man and woman could live together upon their willingness, even without getting married. Demarcating the difference between law and morality, the Court expressed that even if live-in relationships are regarded as immoral by society, it is neither illegal nor an offence. Two individuals cohabiting and staying in a live-in relationship are not criminal offenders. It clarified that although socially unacceptable in parts of India, live-in relationships are neither a crime nor a sin. the Apex Court even stated that a woman and a man living together is a choice and lies under the right to life. Hence, it is not a criminal offence. So, live-in relationships in India are legal.
However, Partners in a live-in relationship do not have the same legal rights as married couples such as divorce, maintenance, inheritance, etc., even though they are entitled to legal protection under certain laws.
As there is no existing framework for the regulation of Live-in relationships, the Hindu Marriage Act or the Code of Criminal Procedure does not recognise Live-in relationships. Thus, Partners in a live-in relationship cannot divorce, inherit each other’s property or claim any right in maintenance.
A recent judgement of X v. NIL by the Kerala High Court recently held that the law does not recognise a live-in relationship as a marriage, and hence, such a relationship cannot be recognised for the purpose of divorce either. The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract do not have any recognition under law for the purpose of divorce.
However, the Protection of Women from Domestic Violence Act 2005 has implications for the existence of live-in relationships. The act has ascribed rights and protection to those females who are not legally married but are living with an unmarried male individual in a relationship like that of marriage [Section 2(f) of the Domestic Violence Act, 2005].
The Supreme Court, too, over the years, has recognised the personal liberty of individuals involved and, in a number of judgements, conferred certain rights i.e. live-in relationships can be covered under the protection from domestic violence law. The objective of the act was not limited to the protection of single women from the abuse of fraudulent marriage and bigamous relationships but also from abusive partners in live-in relationships. Furthermore, which cohabitation of male and female will amount to live in a relationship has not been categorically defined in the Act and left open for the Courts to fill the lacunae; discretion is given to the common course of natural events, human conduct, public and private businesses, in relation to the facts of the particular case
In the case of Indra Sarma v. V.K.V. Sarma, the Supreme Court extensively deliberated on the subject of live-in relationships. The judgment delivered in this case serves as a basic framework or rulebook for matters of live-in relationships. In this case, the bench held that the words ‘relationship in the nature of marriage’ encompasses within itself live-in relationships.

However, it must be noted that the provisions of the Act do not cover all live-in relationships. In this regard, the Court reaffirmed the tests of

(i) holding out to society as being akin to spouses

(ii) being of legal age,

(iii) otherwise qualified to enter into a legal marriage,

(iv) voluntarily cohabited for a significant period, laid down in Velusamy v. Patchaiammal.
Additionally, the Court in Indra Sharma also laid down certain factors that need consideration while determining whether a live-in relationship falls within the expression ‘relationship in the nature of marriage’ under the Act, namely, duration of the period of relationship, shared household, pooling of resources and financial arrangements, domestic arrangements, sexual relationship, children, companionship, socialisation in public and intention and conduct of parties.

Few High Courts have frowned upon married persons leaving their spouse’s company and residing with another person in a live-in relationship or even the idea of a live-in relationship altogether.
In the case of Kusum v. State of UP, a married woman had ‘eloped with another man’, and continued to cohabit with him for five years. However, the Allahabad High Court disallowed the woman to seek protection under the garb of a live-in relationship since her marriage was not legally dissolved. Therefore, her new relationship could not be said to fall within the expression’ relationship ‘in the nature of marriage. Consequently, it was not covered under the ambit of Section 2(f) of the Act.
In the case of Kiran Rawat and another vs State of U.P. Thru. Secy. Home Lko. And Others, Allahabad High Court recently observed that the views expressed by the Supreme Court pertaining to ‘live-in’ relationships “cannot be considered to promote such relationships”.
On the other hand, the Punjab and Haryana High Court, in a case titled X v. State of Haryana & ors, made it clear that married individuals entering into live-in relationships cannot be denied police protection