Presumption of Marriage and Custody of Children in the light of

Live-In-Relationship

Submitted by-

Submitted to-

Harshit Singh

Mr. Rabindra Pathak

Roll No.-66
Megha Purohit
Roll No.-71

List of Topics
Introduction
Legal Status of Live-in-Relationship
Rights under Live-in-Relationship
Constitutional Morality and Live-in-Relationship
Position of Live-In-Relationships in Abroad
Conclusion

Introduction
Live in relationship means a couple living together under same shed for an agreed
period of time and these two persons are called cohabiting couple.
According to legal dictionary Live in relationship means A living arrangement in which an
unmarried couple lives together in a long- term relationship that resembles a marriage.
India, known around the world, as a cradle of civilizations has always been a queer mixture
of various faiths, religions, a place where the culture of the world meet, constituting an
environment of composite culture. It was for this reason that Pandit Jawaharlal Nehru called
India the the museum of world religions.1 However, a distinction between private and
public has often made to mark the sphere of state authority and societal sanction. All civilised
nations accept a persons right to conduct his/her personal affairs independent outside
intrusion.2 However, we often see our personal conduct is being judge on generalised moral
principles and the moral argument has often used to dissuade a person from exercising her/his
will.3 It is noticeable point that Article 21 of Indian Constitution embodied the Right to Life
and Personal Liberty. Indeed, Personal Liberty enshrined under Article 21 is not absolute; it
is subject to procedure established by law. The Supreme Courts controversial observation in
the case of S. Kushbhoo v. Kanniammal and Anr4 where Apex Court held that a man and
woman living together without marriage cannot be construed as an offence because there is
no law which prohibits live-in relationship or pre-marital sex. On 15th December, 2008 in the
question hour, Mr.H.R.Bhardwaj , Honble Union Law Minister while answering to the
question related to live-in-relationships said that if live-in- relationships are acceptable by
society, then the government can make laws. Laws are made keeping in view societal trends.
It is hypothetical to ask a question whether we are contemplating a law to govern live-in
relationships. Less than one percent of the people are in such relationships. If a law is
enacted, it will only be misused. Live in relationship has always been the focus of debates
and discussions as it is challenging our fundamental societal system. In our society people are

Karandeep Makkar, Law As A Tool For Social Engineering In India, available at

http://www.manupatra.com/roundup/331/articles.html, retrieved on 23-03-12.
2
Tanvi Sirari, Caught In The Moral Dilemma, available at http://ccs.in/ecatalyst/caught_tanvi.asp, retrieved
on 24-03-12.
3
The eminent juris-prudes such as Savigny, Ehrlich and Devlin is of opinion that:for there are in the actual
working of democracy many forces likely to encourage the belief that the principle of democratic rule means
that the majority are always right.
4
2010 (4) SCALE 462.

in favour of marriage and they consider live together without marriage as immoral. Our law
too provides many rights and privileges to the married individual.
Legal Status Of Live In Relationship
There is no legal bar in India for women and men staying together because both are mature
enough to give their consent and live in relationship is not socially accepted in India and it is
still considered as taboo and sin. This relationship is so immoral that even the no one gives
house for rent to any couple unless they are convinced that couple is legally married. The
Supreme Court in a leading case that is actress Khusboo case, the court said that When two
adult people want to live together, it is not an offence living together is not an offence. It
cannot be an offence. The court opined according to Indian Mythology even Krishna and
Radha lived together.5 The apex court also cited Article 21 of the part 3 of the Constitution
of India which expressly guaranteed the right to life with dignity, liberty and respect and
court also stressed that the perceived immorality by a few protagonists of morality cannot be
branded as offence. The major girl is free to marry any one and she can live with anyone.
The live in relationship between two consenting adults does not amount any offence, which is
homosexual in nature which is contrary to Adultery which is an offence under Indian Penal
Code, 18726. The Khusboo case will be known for upholding of freedom of expression, free
speech, individual rights, she has right to express her views on any subject within parameters
of law.
In 2001, Payal Sharma vs. Superintendent, Nari Niketan and others case,7 the Allahabad
High Court held that in their opinion a man and women even without getting married can live
together if they wish to do so. This may be regarded as immoral by society but is not illegal.
There is difference in law and morality.
Presumption of Marriage: - Section 114, Indian Evidence Act, 1872, lays down that where
independent evidence of solemnization of marriage is not available, it will be presumed to be
a valid marriage by continuous cohabitation between the parties unless the contrary is proved.

S. Khusboo V. Kanniammal, Criminal Appeal No. 913 of 2010[Arising out of SLP (Crl.) No. 4010 of 2008]
(2010) 5 SCC 600 Supreme Court quashed all 22 cases filed against her under section 499, 504, 505 IPC for her
remarks about pre- marital sex.
6
Lata Singh V. State of U.P & Anr., AIR 2006 SC 2522
7
AIR 2001 All. 254

In Gokal v. Parvin,8 the Supreme Court held that continuous prolonged cohabitation raises a
presumption in favour of marriage, and against concubinage.
Maintenance: - The courts have also conferred to a woman in a live-in relationship the right
to claim maintenance.
In Abhijit Bhikaseth Auti v. State of Maharashtra and others,9 the Supreme Court also
observe that it is not necessary for woman to claim maintenance under section 125 of the
Code of Criminal Procedure, 1973. A woman in a live-in relationship may also claim
maintenance.
LEGAL DEFINITION OF LIVE IN RELATIONSHIP
The Supreme Court said in Patchalammal case,10 relationship in nature of marriage are only
recognised and not all live in relationship is recognised. The court opined that merely
spending few weekend or one night stand would not make domestic relationship, while
disposing case filed under protection of women from Domestic violence Act 2005.
There four key requirement to fulfill the criteria of live-in relationship
1.

Legal age to marry,

2.

Qualify to enter legal marriage

3.

Must be unmarried

4.

Voluntary cohabitation should be for considerable period of time.

In June, 2008, The National Commission for Women recommended to Ministry of Women
and Child Development made suggestion to include live in female partners for the right of
maintenance under Section 125 of CrPC. This view was supported by the judgement in
Abhijit Bhikaseth Auti v. State Of Maharashtra and Others.11 The positive opinion in
favour of live in relationship was also seconded by Maharashtra Government in October,
2008 when it accepted the proposal made by Malimath Committee and Law Commission of
India which suggested that if a woman has been in a live-in relationship for considerably long
time, she ought to enjoy the legal status as given to wife. However, recently it was observed
that it is divorced wife who is treated as a wife in context of Section 125 of CrPC and if a

AIR 1952 SC 231

2009 CrLJ 889
10
2011 Crl. L.J. 320
11
2009 CrLJ 889
9

person has not even been married i.e. the case of live in partners, they cannot be divorced,
and hence cannot claim maintenance under Section 125 of CrPC.
Related cases:
1. In a case prior to independence, Dinohamy v. WL Blahamy12, the privy council laid
down a broad rule postulating that, where a man and a woman are proved to have
lived together as a man and wife, the law will presume unless the contrary be clearly
proved that they were living together in consequence of a valid marriage and not in a
state of concubinage13.
2. After independence the first case that can be reviewed is Badri Prasad v. Dy. Director
of Consolidation14, where the Supreme Court recognised live in relationships as valid
marriage, putting a stop to questions raised by authorities on the 5 yrs of life in
relationship of a couple.
3. In Patel and others case15, the Supreme Court observed that Live in Relation between
two adults without a formal marriage cannot be construed as an offence. It also stated
that there is no such statute which postulates that live in relationships are illegal. The
same proposition was upheld in the case of Tulsa v. Durghatiya16, where long term
live in relationship was recognised as equivalent to marriage.
Rights Under Live In Relationship
Protection of Rights of Female Partner in Live in relationship
The Rights of Women in such relationships do not have much condolence except some traces
of assistance offered by the Protection of Women from Domestic Violence Act which covers
in its ambit relationship similar to marriage or live-in relationships. The definition of
domestic relationship means a relationship between two persons who live or have, at any
point of time, lived together in a shared household, when they are related by consanguinity,
marriage, or through a relationship in the nature of marriage, adoption or are family members
living together as a joint family. Hence the words in the nature of marriage are self
explanatory and buy within its meaning the social concept of live-in.

12

(1928) 1 MLJ 388 (PC)

Mohabhat Ali v. Mohammad Ibrahim Khan, AIR 1929 PC 135
14
AIR 1978 SC 1557
15
(2006) 8 SCC 726
16
(2008) 4 SCC 520
13

For instance in the landmark case of D. Veluswami v. D. Patchaimmal,17 it was held a

woman in a live-in relationship is not entitled to maintenance unless she fulfills certain
parameters, the Supreme court had observed that merely spending weekends together or a one
night would not make it a domestic relationship.
In order to get maintenance there must be fulfilment of following conditions:
The couple must hold themselves out to society as being akin to spouses
They must be of legal age to marry.
They must be otherwise qualified to enter into a legal marriage.
They must be voluntarily cohabited and held themselves out to the world as being
akin to spouses for a significant period of time.
The Supreme court observed that not all Live-in relationships will amount to a relationship in
the nature of marriage to get the benefit of the Protection of Women from Domestic Violence
Act, 2005.If a man has a keep whom he maintains financially and uses mainly for sexual
purpose and/or as a servant it would not be a relationship in the nature of marriage.
Rights of child born under live in relationships
The Child born through a Live-In Relationships enjoys the same rights of succession and
inheritance as are enjoyed by a child through a married couple under the Hindu Marriage
Act. Notwithstanding that marriage is null and void under section 11, any child of such
marriage who would have been legitimate if the marriage had been valid, shall be legitimate,
whether such child is born before or after the commencement of the Marriage Laws
(Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in
respect of that marriage under this Act and whether or not the marriage is held to be void
otherwise than on a petition under this Act.

Thus in order to keep up the spirits of law in the righteous direction and to subside the social
evils wherein illegitimate child was denied his rights the Hindu Marriage Act has granted
legitimacy to children born through marriages which are not valid. Hence such definition
brings within itself the ambit of live-in relationships and children born through such relations.
While still the other laws have not guaranteed such legality to children born through such
relationships and therefore the status is dwindling for legal status of children which results in
extensive misuse of the provisions and still escape liability. In case the parties to live-in17

(2010) 10 SCC 469

relationship decide to move out of it, to secure rights of child whom none of the parents want
to keep, there must be a provision that any of them would be responsible to look after the
child. To ensure that his rights are actually given, Court may appoint a guardian. The child is
entitled to get a share in the property of both the father as well as the mother.18
The Supreme Court on 13 August 2010 in the case of Madan Mohan Singh & Ors v. Rajni
Kant & Anr.,19 has once again entered the debate on legality of the Live-in Relationship as
well as legitimacy of Child born out of such relationship. The Court while dismissing the
appeal in the property dispute held that there is a presumption of marriage between those who
are in live-in relationship for a long time and this cannot be termed as 'walking-in and
walking-out' relationship.
In the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors.,20 dealing with the
legitimacy of child born out of a live-in relationship and his succession of property rights, the
Supreme Court held that child born out of a live-in relationship may be allowed to succeed
inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu
ancestral coparcenary property..
The Privy Council in A Dinohamy v. W L Blahamy,21 laid down the principle that Where a
man and a woman are proved to have lived together as a man and wife, the law will presume,
unless the contrary be clearly proved, that they were living together in consequence of a valid
marriage and not in a state of concubinage. Furthermore the Supreme Court granted legality
and validity to a marriage in which the couple cohabited together for a period of 50 years.
The Supreme Court held that in such a case marriage is presumed due to a long cohabitation.
In Radhika v. State of M.P. the SC observed that a man and woman are involved in live in
relationship for a long period, they will treat as a married couple and their child would be
called legitimate.

Salaam Namaste is a 2005 Indian Bollywood film, in which two Indians, Nikhil
Arora (Saif Ali Khan) and Ambar Malhotra (Preity Zinta) who left their families in
India to pursue their educational and professional dreams in Melbourne, Australia.
Ambar and Nikhil meet at a wedding and they decide to move in to a place together to
try out their relationship, as they are both apprehensive about the idea of marriage.

18

http://www.indialawjournal.com/volume2/issue_2/article_by_saakshi.html
AIR 2010 SC 2933
20
AIR 2010 SC 2685
21
AIR 1927 P.C. 185
19

They move to living together before marriage so that by spending time with each
other they can realize whether lifelong adjustment would be possible. Things run
pretty smoothly until they succumb to sexual temptation and Ambar becomes
pregnant. Despite Nikhils insistence on an abortion, she decides to keep the baby,
which results in the breaking of their relationship. But, later on Nikhil accepted her.
It can be inferred from the acts of the both that the following requirements have fulfilled in
this movie.
1. Legal age to marry
2. Qualify to enter legal marriage
3. Must be unmarried
4. Voluntary cohabitation should be for considerable period of time.
So, there is presumption of marriage and the Child will enjoy the same rights of succession
and inheritance as are enjoyed by a child through a married couple under the Hindu Marriage
Act. If Nikhil had not accepted Amber and his children, then she could have approached the
judiciary and claimed maintenance for herself and the new borns under the provision of
Hindu law.
Constitutional Morality and Live in Relationship
The notion of Constitutional Morality has long informed and shaped the contours of various
fundamental rights. The Apex Court in catena of cases 22 highlight the central role that
Constitutional Morality has played in defining the content of fundamental rights. Now
before we can assess Whether recognizing and allowing live-in relationship in the light of
Right to Life and Personal Liberty transgresses Constitutional Morality, we need to go into
the question of what live-in relationship is.
After having an understanding of live in relationship we are now considering the main core
issue i.e. whether recognizing and allowing live-in relationship in the light of Right to Life
and Personal Liberty transgresses Constitutional Morality. A rich confluence of various
values, not all of them equally harmonious, may be seen in the field of rights of sexual

22

State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699. , K.A. Abbas v. Union of India, (1970) 2
SCC 780. Nashirwar v. State of M.P, (1975) 1 SCC 29. . Mr. X v. Hospital Z (1998) 8 SCC 296. State of
Punjab v. Devans Modern Breweries Ltd. (2004) 11 SCC 26.

minorities. These lie at the intersection of complex issues of law, morality and health and
throw up various questions23.
In the Payal Sharma Vs Superintendent, Nari Niketan & Anr,24 a bench of Justice
Markandeya Katju and Justice R B Mishra in Allahabad High Court in 2001 said, In our
opinion, a man and a woman, even without getting married, can live together if they wish to.
This may be regarded as immoral by society, but is not illegal. There is a difference between
law and morality.
It is noticeable point that in the case of S. Kushbhoo v. Kanniammal and Anr,25 where Apex
Court held that a man and woman living together without marriage cannot be construed as an
offence because there is no law that prohibits live-in relationship or pre-marital sex. Further,
it is also observe that Parliament under the Domestic Violence Act, 2005 has taken notice of
a new social phenomenon, which has emerged in our country known as live-in relationship.
In Madan Mohan Singh & Ors v. Rajni Kant & Anr26 Apex Court held that there is a
presumption of marriage between those who are in live-in relationship for a long time and
this cannot be termed as 'walking-in and walking-out' relationship.
In the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors.27 , dealing with the
legitimacy of child born out of a live-in relationship and his succession of property rights, the
Supreme Court held that child born out of a live-in relationship may be allowed to succeed
inheritance in the property of the parents, if any, but doesn't have any claim as against Hindu
ancestral coparcenaries property.
Apex Court also recently in 2011 D. Velusamy v. D. Patchaiammal28, give green signal to
the emerging trend of live in relationship.
Thus in the light of above cited judgements we can concludes and assert that the Constitution
of India protects and promotes diversity and ensures an egalitarian society where freedom is
no longer a privilege. The Fundamental right under Article 21 of the Constitution of India
grants to all its citizens right to life and personal liberty which means that one is free to live

23

Supra f.n. 4.
AIR 2001 All. 254.
25
2010 (4) SCALE 462.
26
AIR 2010 SC 2933.
27
AIR 2010 SC 2685.
28
AIR 2011 SC 479.
24

the way one wants. Live in relationship may be immoral in the eyes of the conservative
Indian society, however it is not, illegal in the eyes of law.
In his work entitled A Theory of Justice John Rawls rejects the notion of the omnicompetent laicist state since according to him, from the principles of justice it follows that
government has neither the right nor the duty to do what it or a majority (or whatever) wants
to do in questions of morals and religion. Its duty is limited to understanding the conditions
of equal moral and religious liberty.29 Therefore, ban on live-in relationship or pre-marital
sex runs counter to that of Constitutional morality.
Position Of Live-In-Relationships in Abroad
Scotland: - Family Law (Scotland) Act, 2006, for the first time identified, and in the
process by default, legalised live-in relationships of over 150000 cohabiting couples in the
country. Section 25(2) of the Act states that a court of law can consider a person as a cohabitant of another by checking on three factors; the length of the period during which they
lived together, the nature of the relationship during that period and the nature and extent of
any financial arrangements.
France: - Live-in relationships in France are governed by the Civil Solidarity Pact of pacte
civil de solidarite or PaCS, passed by the French National Assembly in October 1999.
Cohabitation is defined as a "de facto stable and continuous relationship" between two
persons of different sexes or of the same sex living together as couple. The pact defines the
relationship as a contract, and the couples involved as contractants". The contract binds "two
adults of different sexes or of the same sex, in order to organise their common life." For a
valid contract to exist, the contractants "may not be bound" by another pact, "by marriage,
sibling or lineage."
United Kingdom: - A live-in relationship in the United Kingdom has covered by the Civil
Partnership Act, 2004. Though a man and woman living together in a stable sexual
relationship are often, referred to as "common law spouses", the expression is not wholly
correct in law in England and Wales. The Government feels that live-in partners owe each
other more than that to be worthy of the term. As per a 2010 note from the Home Affairs
Section to the House of Commons, unmarried couples have no guaranteed rights to

29

Supra at f.n. 4.

ownership of each other's property on breakdown of relationship. If a cohabiting couple

separates, the Courts have no power to override the strict legal ownership of property and
divide it as they may do on divorce. Unmarried partners have no automatic inheritance over
their partner's assets on death. Cohabiting couples are treated as unconnected individuals for
taxation purposes.
Canada: - Living together in Canada is legally recognised as "common law marriage". In
many cases, common law couples have the same rights as married couples under the federal
law of the country. A common law relationship gets legal sanctity if the couple has been
living in a conjugal relationship for at least 12 continuous months, or the couple are parents
of a child by birth or adoption, or one of the persons has custody and control of the child and
the child is wholly dependent on that person for support.
Ireland:- Though living together is legally recognised in Ireland, news reports says the
public is up in arms against a new legislation to introduce legal rights for "separated" live-in
couples to demand maintenance or share their property with their dependent partners. The
scheme will apply to both opposite sexes and same sex unmarried couples who have been
living together for three years, or two years in the case of a cohabiting couple with children.
The Government, with this legislation, intends to provide legal and financial protection for
the vulnerable and financially dependent cohabitants in the event of death or the breakup of a
relationship.
Australia :- The Family Law Act of Australia states that a "de facto relationship can exist
between two people of different or of the same sex and that a person can be in a de-facto
relationship even if legally married to another person or in a de-facto relationship with
someone else.
United States: - Cohabitation was illegal in the United States prior in 1970, but went on to
gain status as a common law, subject to certain requirements. The American legal history was
then a witness to several consensual sex legislations, which paved the way for living together
contracts and their cousins, the "prenuptial agreements". The country later institutionalized
cohabitation by giving cohabiters essentially the same rights and obligations as married
couples, a situation similar to Sweden and Denmark. Those living together are not recognized
as legal parents.

Conclusion
It should not be denied that our culture does need a legislature to regulate relationships
which are likely to grow in number with changes in the ideology of people. The right time
has come that efforts should be made to enact a law having clear provisions with regard to the
time span required to give status to the relationship, registration and rights of parties and
children born out of it. It is true that live in relation is considered as immoral in our society
but we cannot consider it as an offence. If a girl and a boy wants to live together and know
each other whether both are fit for each other or not, what is the problem in it. They have full
right to take decision for each other. They are eligible to give consent. That is why live in
relationships should be granted a legal status and it also provide the partners as well as the
child born out of such relationship with all the legal rights of maintenance, succession,
inheritance as available to a married couple and their legitimate offspring and also to secure
their rights after dissolution of such relationship due to break up or death of one of the
partners. Legalizing live in relationship means that a totally new set of laws need to be
framed for governing the relations including protection in case of desertion, cheating in such
relationships, maintenance, inheritance etc.