The grandchildren claimed that the woman he had cohabitated with as a wife for 20 years was not entitled to inherit the property after his death for the reason of not being married and only being a mistress in a live-in relationship with the man.
The Court shot down this contention and applied the reasonable logic that continuous cohabitation of a couple would raise the presumption of valid marriage. The Court further added that it would be for the opposite party to prove that they were not legally married.
The Supreme Court has followed pro live-in relationship trends for some time now. It has repeatedly ruled in favour of couples living in together, with the woman having all the rights that a wife would in a legal marriage.
Hence, the Burden of Proof in cases where a man and woman have been cohabitating as husband and wife lies on the party trying to prove the relationship to be invalid. In other terms it can be said that once a couple stays together as husband and wife, any proof as to them cohabitating will be accepted in the eyes of the law for legal reasons, while the other party will first have to prove that there was no cohabitation in the first place and then go on to make their case further.
The Apex Court observed in the same case that "Where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage,". In the fact of the case, there is a strong presumption in favour of the validity of a marriage and the legitimacy of its child for the reason that the relationship is recognized by all persons concerned," the bench added.
The court also made it clear that continuous cohabitation as husband and wife and their treatment as such for a number of years might raise the presumption of marriage which could be rebutted only if there were circumstances which destroyed the presumption.
Dissecting the Legal Position of Live-In Relationships
What is not written in black and white is always prone to be misused or be exploited in society. The definition of live-in relationships is not clear as there is no specific law on the subject of live-in relationships in India. There is no legislation to define the rights and obligations of the parties to a live-in relationship, the status of children born to such couples.
The judiciary has stepped in due to the absence of any specific legislation to define the status of live-in relationships. In a brief summation of the legal position it can be said that- where a man and a woman live together as husband and wife for a long-term, the law will presume that they were legally married unless proved contrary.
Tracing back the judicial recognition of Live-in Relationships
The Supreme Court of India first recognized live-in relationships as a valid marriage in the year 1978. This was in the case of Badri Prasad vs. Dy. Director of Consolidation , in which the Court gave legal validity to a 50-year live-in relationship of a couple. The Apex Court held-
"If man and woman who live as husband and wife in society are compelled to prove, after half-a-century of wedlock by eye-witness evidence that they were validly married fifty years earlier, few will succeed. ` A strong presumption arises in favour of wedlock where the partners have lived together for a long spell 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 favour of legitimacy and frowns upon bastardy." The Allahabad High Court in 2001, recognised the concept of live-in relationship in the case of Payal Katara vs. Superintendent, Nari Niketan and others , wherein it held that live-in relationship is not illegal. The Court said that a man and a woman can live together as per their wish even without getting married. It further said that it may be immoral for the society but is not illegal.
The Allahabad High Court held- "a lady of about 21 years of age being a major, has right to go anywhere and that any one –man and woman even without getting married can live together if they wish"
The Apex Court in the case of Patel and Others ., held that live-in relationship between two adults without marriage cannot be construed as an offence. It further held that there is no law which postulates that live-in relationships are illegal.
The concept of a live-in relationship was again recognized in the case of Tulsa v. Durghatiya.
The apex court has said there was no law which prohibits live-in relationship or pre-marital sex. A three-judge bench of Chief Justice K.G. Balakrishnan, Deepak Verma and B.S. Chauhan observed. “When two adult people want to live together what is the offence? Does it amount to an offence? Living together is not an offence. It cannot be an offence”.
Facts- The controversy began when the actress Khusboo commented during an interview that there was nothing wrong with “sex before marriage” , provided girls took adequate protection against uncalled for pregnancy and sexually transmitted diseases (STD).
The arguments which were put forward against here were that her comments allegedly endorsed pre-marital sex somehow, and have an adverse effect on the minds of young people which is leading to the decay in moral values and country’s ethos.
The Apex Court came down hard on such invasive allegations on the actress. The Court went a step further and classified living together with someone you love as a Fundamental Right under Article 21. The Court came down hard on the opposing counsels and stated- “ Please tell us what is the offence and under which section. Living together is a right to life,” the apex court said referring to Article 21 which grants Right to Life and Liberty as a Fundamental Right.
Right to Maintenance
The Maharashtra Government in Oct. 2008 approved a proposal suggesting a woman involved in such a relationship for a 'reasonable period' should get status of a wife. The Malimath committee had also suggested that the word 'wife' under Cr.P.C. be amended to include a 'woman living with the man like his wife' which means the woman would also be entitled to alimony.
In Abhijit Bhikaseth Auti v. State Of Maharashtra and Other 16.09.2009, the SC also observed that it is not necessary for a woman to strictly establish the marriage to claim maintenance under Section 125 of Cr.P.C. A woman living in a relationship may also claim maintenance under Sec.125 Cr.P.C.
The Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfil some basic criteria. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’. It also held that if a man has a ‘keep’ whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’.
The Apex Court in October 2010 came up with a remarkable turnaround judgment with respect to an attempt to put a certain definition to live-in relationships with respect to the right to obtain maintenance as would be provided for in a legally recognized marriage. The Order of the Supreme Court states that the relationships in the nature of Marriage and relationships which are Live-ins are both quite different from each other.
Four important grounds were laid out for a live-in relationship to be recognized as a relationship in the nature of Marriage. When a live-in partner satisfies these four conditions in addition to living together under one roof, only then a deserted woman can seek Maintenance. This judgement is drawn the Ruling of a California Court in the US which had ordered similar relief by invoking the doctrine of a “Palimony”. These 4 conditions are:
- A live-in couple must hold themselves out to Society as being akin to spouses.
- They must be of legal age to marry.
- They must be unmarried or be otherwise qualified to enter into a legal marriage.
- They must have voluntarily cohabited and held themselves out to World as being akin to spouses for a significant period of time.
It is further clarified that merely spending weekends together or a one-night stand would not make it a live-in relationship. Similarly, if a man has a “keep” whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would also not amount to a relationship in the nature of marriage. Some people are not at liberty to choose marriage over live-in. Although Homosexuality is not a crime in India, gay couples do not have the right to marry and so also the live-in relationship. This means their relationship does not have the protection that the law offers to Heterosexual couples.
Conscious of the fact that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live-in relationship’. The court cannot change the language of the statute.
Legitimacy of Children born out of Live-in Relationships
Section 16 of Hindu Mariage Act provides that- "Notwithstanding that a 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 a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."
Therefore the Hindu marriage Act, 1955 grants the status of legitimacy to every child irrespective of his birth out of a void, voidable or a legal marriage. But there is no specific law that raises any presumption of legitimacy in favour of children of live-in partners. Recently in a case, a petition was filed questioning certain sweeping observations made by the Madras high court while dealing with the issue of live-in relationships.
The Madras High Court had in an earlier Order noted that "a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized". The petitioners had sought deletion of the HC's observations terming them as untenable in law. He apprehended that these remarks could demolish the very institution of marriage.
Justices Chauhan and Chelameswar said,"In fact, what the HC wanted to say is that if a man and woman are living together for a long time as husband and wife, though never married, there would a presumption of marriage and their children could not be called illegitimate."
In 2010, the Apex Court had in Madan Mohan Singh vs Rajni Kant stated that, "The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence." The same year, the Apex Court had in another judgment hinted at the legitimacy of children born out of such relations. "It is evident that Section 16 of the Hindu Marriage Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object."
RIGHTS OF A FEMALE IN LIVE-IN RELATIONSHIP
In June 2008, it was recommended by the National Commission for Women to the Ministry of Women and Child Development to include live-in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973. The view was also supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. In October 2008, the Maharashtra Government also supported the concept of live-in relationships by accepting 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 a considerably long time, she ought to enjoy the legal status as given to the wife. However, recently it was observed that it is divorced wife who is treated as a wife in the context of Section 125 of CrPC and if a 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.
The partner of a live-in relationship was first time accorded protection by the Protection of Women from Domestic Violence Act, 2005, which considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which 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. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage’.
In a case in Delhi, the Delhi High Court awarded Rs. 3000/- per month as maintenance to a maid who was in a live-in relationship with her widower employer. In Varsha Kapoor vs UOI & Ors., the Delhi High Court has held that female living in a relationship in the nature of marriage has right to file a complaint not only against husband or male partner but also against his relatives.
In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the defendant used to harass his live-in partner for dowry. In this case, the Supreme Court held that the nomenclature ‘dowry’ does not have any magical charm written over it. It is just a label given to demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him. Thus, the Supreme Court took one more step ahead and protected the woman in a live-in relationship from harassment for dowry.