Live In Relationship- Nuances In Law, Homosexuality And Gender Neutrality

By | July 21, 2021
Live In Relationship

It can be interpreted that live in relationships have been legalised as is stated in the several precedents of the apex court; the fact that several high courts still question the legitimacy of such a relationship leaves enough room for debate and deliberation and it can be assumed that live in relationships are neither legalised categorically and explicitly nor criminalised, and thus lies in an inconvenient spot of “in-betweens” and amid nuances in the law, maybe a step towards gender-neutral laws.

According to a survey by Inshorts, a news app, over a sample space of 1.4 lakh citizens, almost 80 per cent of women among those who participated have viewed live-in relationships favourably. IANS has this to report that 80 per cent of millennials think that live-in relationships are still considered taboo in Indian society while more than 47 per cent of Indians are of the opinion that marriage is better when choosing between marriage and lifelong live-ins.[1]

But recent judgements of many courts have left many questioning, when it was stated in one of the judgements that, if protection is given to runaway couples, the fabric of the society would get disturbed. A few days back, Karnataka High Court has stated that there may be illegitimate parents but not illegitimate children.

The problem of live-in couples and the ever-emerging debate starts with the fact that no definite laws governing live in couples exist and decisions are strictly based on Supreme Court interpretations and precedents that vary from case to case. At a time when statutory provisions and codified laws themselves cause such an acute state of confusion in their interpretation of clauses, it is only natural that un-codified laws based solely on interpretations would cause an uproar.

What is the legality of the situation?

It can be asserted with conviction that when two consenting adults decide to live under the same roof, however immoral it may be perceived by the society, it is not illegal, since they are protected under article 21 of the Indian Constitution – RIGHT TO LIFE AND PERSONAL LIBERTY, as living together is a right to life and who you live with is your right to privacy. The same progression of thoughts is reflected in the judgements of the Supreme Court in the cases of Lata Singh v. State of U.P and Khushboo vs Kanaimmal and another. [2]

However, problems and dissenting views arise with regards to maintenance, custody, succession and inheritance.

Illegitimate children are those who are born of void marriage, born of annulled/voidable marriage, children born of illicit relation or born through concubinage; and children born of a marriage which is not valid for want of proper ceremonies.

It has to be noted that children born out of wedlock are called illegitimate children (according to dictionary definition) but legitimacy is given to those children born out of the void and voidable marriages (which otherwise would have been held valid had it not been for the law) under sections 11 and 12 of Hindu Marriage act 1955. [3]

According to section 3(j) of Hindu Succession Act which states,

“related” means related by legitimate kinship: Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly.

This means that children born out of live-in relationships would have no share in the ancestral property (that of the father) and would only be entitled to the property of the mother to whom they shall be deemed to be related. But again, there appear to be dissenting views.

According to section 16 (3) of the Hindu Marriage Act 1955,

Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

So, if both these provisions are read with one another and if one listens to Justice AK Ganguly, in the case of Revansiddappa & Ors v. Mallikarjuna & Ors, (2011) 4 SCR 675,[4] who criticised such discrimination between legitimate and illegitimate children and opined that the legislature is silent on the word “property” used in the section and whether it is self-acquired or ancestral, the concerned child’s property rights cannot be denied, thus conferring upon illegitimate children the rights of both ancestral and self-acquired property and interpreting a wider meaning of the provision for the convenience of the child.

The Bench had said: “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role.” [5]

Indeed, there seems to be no justification as to why an innocent child should life-long bear the inconvenience due to the actions of his/her parents.

This happens to be one among the several nuances and discrepancies in a live-in relationship, that too, with regard to only property, let alone custody and maintenance. As far as maintenance goes, female partners in live in relationships and their illegitimate children till the time of majority, if any, are entitled to maintenance under section 125 of CrPc[6] and the mother is the natural guardian of the illegitimate child.

But perhaps for the first time, under Protection of Women against Domestic Violence Act, 2005, live in relationships were recognised with section 2(f) which defines domestic relationships and incorporates the phrase “relationships in the nature of marriage” implying live in relationships and provides remedies to “aggrieved persons” (victims of violence).

In Muslim law, be it in classical text or modern jurisprudence, illegitimate child has no right to inherit property from the father. This is followed in Shia and Sunni sects but under Hanafi law, an illegitimate child can inherit the property of his/her mother.

Societal impacts

Thus, it can be interpreted that live in relationships have been legalised as is stated in the several precedents of the apex court; the fact that several high courts still question the legitimacy of such a relationship leaves enough room for debate and deliberation and it can be assumed that live in relationships are neither legalised categorically or explicitly nor criminalised, and thus lies in an inconvenient spot of “in-betweens”. It must, however, be noted that the duty of a court of law is to see as to the legality of the subject matter and not deliberate on the societal fabrics because had it been the court’s duty to maintain the social fabric of the society, section 377 of IPC criminalising homosexual relationships could never have been de-criminalised.

Sociologically, live in relationships are unacceptable forms of deviant behaviour that disagrees with the norms of our society and thereby, are stigmatised and ostracised and a sociological process of “labelling” takes place after which the entire practice is immediately cancelled out.

Homosexual live in couples and step towards gender-neutral laws

While we have talked at length about hetero-sexual live-in couples, the subject of homosexual live in couples almost always evades the conversation. This seems to be an extremely problematic area because if live in relationships and who you live with are protected under article 21 and if homosexual relationships are decriminalised, there is no argument as to why homosexual couples should not engage in a live-in relationship.

Homosexual live in couples first have to be given adoption rights since single parents have a right to adopt a child but same-sex couples “collectively” have no such provision. Problems of inheritance and custody would remain the same. As far as maintenance is concerned, while under Hindu law, both the man and the woman are liable to be paid maintenance, the Supreme Court has put on an additional pre-requisite that only that man will be paid maintenance when he will be mentally incapable or physically handicapped to work and not otherwise.

This sharp yet bitter discrimination has to be addressed and discussed at length with regard to gay live-in couples and also it might pave way for Domestic Violence Act and other laws such as rape to be finally gender-neutral. One cannot criticize patriarchy and take advantage of patriarchal measures and concepts such as “the man’s inevitable duty to pay alimony” at the same time. After assessment of assets, the wealthier person (man or woman) would pay alimony to the other and the quantum of maintenance shall be decided therein.

Conclusions

“There are no illegitimate children – only illegitimate parents.” – Leon R. Yankwich.

As is reflected in the judgement of Indira Sharma v. VKV Sharma[7] that walk in walk out relationships will not come under the purview of law since they will tend to disrespect judicial discipline but those relationships, wherein the interaction and socialisation has taken to be like a husband-wife, duration of the relationship has been for a reasonably long period, they live in a “shared household” among other parameters, would have to pass through this entrance test before court deliberates on it and it shall be assumed under section 114 of Evidence Act[8] that the couple has been living as husband and wife unless proved otherwise.

Thus, the only baby steps to the solution would now be to introduce laws governing live in couples in the secular Special Marriage Act that would keep the personal laws unaffected while providing provisions to unmarried live-in couples too.


Author: Parthiv Chakraborty is a student of law at the Indian Institute of Legal Studies, Siliguri. He writes columns on society, law, gender and politics.


[1] More Indian Women Supporting Live-in Relationships: Survey, NEWS 18, Available Here

[2] S. Khushboo v. Kanniammal, Available Here

[3] The Hindu Marriage Act, 1955, Available Here

[4] Revanasiddappa & Anr v. Mallikarjun, Available Here

[5] J. Venkatesan, Justice Ganguly, noted for frank and forthright views, retires, Available Here

[6] The Code of Criminal Procedure, Available Here

[7] Indra Sarma v. V.K.V. Sarma, Full Judgment, Available Here

[8] The Indian Evidence Act, Available Here


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