Legal status of Child born in Live-in-Relationships

In a society based on traditional values like India, live in relationship is a concept which still has to come out of its closet and gain full recognition by a larger section of the society. Marriage has been considered to be forming the foundation of the society and governing all heterosexual relations in the society for a prolonged period of time and this informal setup of a live in relationship seems to be challenging the basic tenets of marriage as a sacrosanct institution.
 It is necessary to analyse the practical and legal aspect of such unions before entering into a debate based on morality concerning this issue. An increasing number of people have been willing to prefer live in relationship over a permanent arrangement called marriage and it will be incorrect to say that often these couples are not making informed choices as such decisions are often influenced by social and economic factors affecting the concerned individuals.
In order to understand live in relationship as an emerging concept, it is essential to classify it into various types.
This type of live in relationship is characterized by the couple having complete knowledge of the consequences of living together as a couple without a marital status or legal recognition and entering the same by their free will providing this relation an element of voluntariness. This is prevalent in major Indian metros like Mumbai, Delhi and Bangalore where couples prefer living together to increase cost efficiency and use this time as a trial period before marriage. As this relationship is primarily based on deriving mutual material benefits, it is perceived in a fictitious manner by law.
This type of relationship is characterised by its involuntary aspect and may occur in case where the man or woman was led to believe that the man was unmarried, divorced or widowed and married him. However, bigamy laws prevent this second marriage from being recognized. The relationship that subsisted thus becomes in the nature of a live-in.A similar situation occurs when the marriage is fake or invalid and the couple continue to live together. Such a live-in relationship is thus involuntarily entered into. It is important to note this difference as Courts and lawmakers now look to make laws to protect partners, especially women caught in circumstantial live-ins. But this often leads to misuse of these very laws by partners in relationships of choice. The challenge thus lies in balancing these opposite interests while framing laws.
“Maitri Karar” was a concept similar to the contemporary live in relationships and was practised in the state of Gujarat. It was a system in which a man and woman would live together and share an intimate relationship without being legally wedded, even during the lifetime of a wedded partner. The man was expected to provide financially for his companion who was in turn in a sexual relationship with him, even during the lifetime of his legally wedded first wife.These relationships could be registered with the District Collectorate and were a means of ensuring security to the companion woman. Minaxi Zaver bhai Jethva v State Of Gujarat on 15 December 1999held that this system was void ab initio and prior to this the Government of Gujarat had passed an Act in 1982 prohibiting this practice.
Patriarchy in Indian society also enable the practise of maintaining concubines or “avarudhstris” which was recognised before Independence and has also been mentioned in Raja Udeya Partap Singh and Another Mst. Shiva Kumari Devi Alias Munnaji. In this case this concept is defined and further the right of maintenance of an “avdrudhstri” has been dismissed.
Live in relationships, also called as ‘cohabitation’ is an alternative for marriage, by which two person of same or different sex can live together without any legal rights against each other. A proverb “marriage is happening in heaven” gives a very deep meaning of marriage. Marriage is one of the religious rituals by which two person of different sex gets committed for lifelong. Marriage can reinforce the family system and is very well accepted by the society.Although married couples do encounter rough waters, there is an effort made by them and their family and friends to get past the same. However this is not the case in alive in which can be broken easily as there is no socio legal backing to it.
A marriage is governed by a separate set of laws in all countries which safeguards the interests of both parties who enter into the union. Live-in relationships on the other hand have received due recognition in a few countries such as France and Philippines. In India, presently there is no law defining the maxims of a live-in relationship. Live in relationships are now becoming an acceptable option by the upper classes in Indian society, yet the middle class remains under societal pressure and the same cannot be seen in this strata of society
It is only just to say that marriage has always been a socially accepted, legally recognized institution that has great moral and religious attachment in India. It is the eternal binding of two people as one, in the journey of life.
From the Vedic Period the value and significance of marriage as an institution was reiterated and the Aryan ideal of marriage was held in high respect. Marriage was considered to be a necessary samskara (sacrament)for all Hindus. Thus the importance of marriage has been well recognised in Indian society relating to Hindu Personal Law.
Although in Islam marriage is considered a civil contract between two consenting parties, the institution of marriage is considered very important for not only society as a whole but also for the well-being of a family. The existence of laws and acts such as the HMA 1956, The Special Marriage Act 1954 give legal backing and teeth to this institution .Thus it is apt to say that in India ,Marriage has been given legal and social recognition .
On the other hand live-in partners have no means of recognition as such. While some countries have recognised the concept of a live in relationship and granted it legal recognition by introducing the concept of “registration” of a live in relationship which is merely a cohabitation contract. This system is followed in countries like Canada and China. Some countries like the United States of America specify that a live in cannot be equated to marriage in the legal status, yet they recognise a cohabitation agreement between partners. However this is not the case in India. Yet there has been a gradual change in this. Although live in relationships have not been granted legal status or recognition, this concept is slowly emerging and is visible in recent legal developments. In 2003, the Supreme Court set up the Malimath Commission for reforms in the Criminal Justice System. The report submitted by this Commission mentioned that-
“The definition of the word ‘wife ‘in Section 125 should be amended so as to include a woman who was living with the man as his wife for a reasonably long period, during the subsistence of the first marriage.”
This entitles a female live in partner to the right to claim alimony. This has further been reiterated by a report from the National Commission for Women in 2008, which reiterates the same demand in order to protect women in, live in relationships.
In 2005 The Protection of Women from Domestic Violence Act 2005, brought about a reform to protect women in live in relationships by the inclusion of Section 2 (f) that states –
“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”
Section 2 (a) defines an aggrieved person who can claim protection. This has highlighted the recognition of live in partners and granted them legal protection. Further in 2008, the Maharashtra Government approved a proposal which stated that a woman involved ina live in relationship for a “reasonable period “ should get the status of a legal wife.The reasonable period would be determined by facts and circumstances of each case.
Furthermore SC in the landmark case of Tulsa and ors. v Durghatiya and ors. held that when a man and a woman have cohabited for a long period of time they will be considered to be married unless there is an evidence to the contrary .This judgement illustrates the courts attempt to treat a live in similarly to marriage.
Live in relationship is an aspect of a westward looking India society which has still not attained recognition and consequently, there are no laws dealing with the legality of such a relationship per se. It can be defined as,
“an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage.”
It is interesting to note that even though there is no legal bar in India for a woman and a man staying together as it is a matter between two consenting adults yet this relationship existing between two individuals is looked down upon by a society which continues to attach sacramental value to the concept of marriage- philosophically and practically. Live-in-relationships are not new in our society. “The only difference is that now people have become vocal about it. Earlier they were known as “maitraykarars” in which heterosexual couples would enter into a written agreement to be friends, live together and look after each other”
In Indian context there is an urgent need to recognize such relationship through legislation which would empower both the parties with rights and create obligations with duties thereby confining the ambit of such relationship. The first case in which the Supreme Court of India first recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Dy. Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple. The Supreme Court of India has taken a step further by giving landmark judgments particularly in the year 2010 which provides some clarity to the stand of such relationships in Indian context through the judgements of Justice Markandey Katju and TS Thakur.
As laid down in the D. Velusamy v D. Patchaiammal case, the Supreme Court of India has laid down 4 conditions for a live in relation to assume the status of marriage subsequently resolving numerous disputes associated with such assumption-
(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, and in addition the parties must have lived together in a ‘shared household’ as defined in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.”
The Fundamental right under Article 21 of the Constitution of India guarantees all its citizens “right to life and personal liberty” and taking this into consideration, live in relationship may be immoral in the eyes of the conservative Indian society but it is not “illegal” in the eyes of law. “In case of SS. Khushboo vs Kanniammal, the south Indian actress, Khushboo who endorsed pre- marital sex and live in relationship, 22 criminal appeals were filed against her which the Supreme Court quashed saying that how can it be illegal if two adults live together, in their words “living together cannot be illegal.” The court cited the example of Radha and Krishna to substantiate its judgement.
The Supreme Court on 13 August 2010 in the case of Madan Mohan Singh & Ors v Rajni Kant & Anr has once again entered the debate on legality of the Live-in Relationship. The Delhi High Court in its decision on 10 August 2010, in Alok Kumar v State & Anr while dealing with the validity of live in relationship held that ”
“Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time.”
The position of Live-in Relationships is not very clear in the Indian context but the recent landmark judgments given by the Honourable Supreme Court provides some assistance when we skim through the topic of Live-In in a socio legal context.
Unlike India, various other countries all over the globe have ensured the recognition and ascribed legal status to such a relationship for the purpose of avoidance of any legal complications concerning such ties governing the modern society.
“In France, there is the provision of “Civil Solidarity Pacts” known as “pacte civil de solidarite” which was passed by the French National Assembly in October 1999 that allows couples to enter into a union by signing before a court clerk and allows them to enjoy the rights accorded to married couples in the areas of income tax, housing and social welfare. In Philippines, live in relationship couple’s right to each other’s property is governed by co- ownership rule. In the UK, live in couples do not enjoy legal sanction and status as granted to married couple. There is no obligation on the partners to maintain each other. Partners do not have inheritance right over each other’s property unless named in their partner’s will. However, the law seek to protect the right of child born under such relationship. Both parents have the onus of bringing up their children irrespective of the fact that whether they are married or cohabiting. Our neighbour country China adopting a progressive attitude also recognises live in relationship where the couple can sign a contract to do so.”
The Indian Legal system has devised new strategies in order to counter the present existing problems of live-in, however, it is the duty of the legislation to tackle the existing problem as the Court doesn’t possess the power to amend or abrogate the existing laws.
Children form the most fundamental unit of a modern day progressive society and their fate is often determined by the social relations governing every sphere of their lives. In light of this, couples involving in any form of relation and subsequently engaging in procreation leading to the birth of such children significantly decides the placement of such newly born individuals in the society.
It is often argued that the HMA 1955 through Section 16 dealing with legitimacy of children of void and voidable marriages, the legislation indirectly ascribes a legal status to children born out of live in relations and it is only their property and maintenance rights subject to debate. Section 112 of the Indian Evidence Act also provides that the legitimacy of a child is proved only if he/she was born during the continuance of a valid marriage between the mother and the father and consequently fails to address the issue of such children born out of live-in relationships. As a result, in India, such children have been given the status of- “Legitimate in law, Illegitimate in fact” which is proof of the insecurity such individuals face on a daily basis, the gloomy future awaiting them and their placement in a different strata of the society.
Since there is no specific law that recognizes the status of the couples in live in relationship, hence the law as to the status of children born to couples in live in relationship is also not very clear. The need to ascertain the status of such children obtains greater importance in a rights-based world where protection of child rights is the primary agenda of every legislation. With respect to this, legal precedents have gone on to hold tremendous value in tackling the issues faced by children of live in relations in identifying their position in the socio-legal setup.
In SPS Bala subramanyam v Sruttayan, the SC had said, “If a man and woman are living under the same roof and cohabiting for a number of years, there will be 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.” This was a landmark case wherein the apex court upheld the legitimacy of the children born out of live in relationships and interpreted the statutes in concurrence with Article 39(f) of the Constitution of India which lays down the responsibility on the state to provide children with opportunities to develop in a healthy manner and safeguard their interests.
In the modern context, cases like Tulsi v Darghatiya held that children born from such relations will no more be considered illegitimate. The crucial pre-conditions for a child born from live-in relationship to be not treated as illegitimate are that the parents must have lived under one roof and co-habited for a considerably long time for society to recognize them as husband and wife and “it must not be a “walk in and walk out” relationship, as the court pointed out in its 2010 judgment in Madan Mohan Singh v Rajni Kant. The Courts in India have continued to support the interpretation of law in a manner to ensure that no child is bastardised” for no fault of his/her as was seen in Bharata Matha & Ors. v R. Vijaya Renganathan & Ors. where in the Supreme Court of India had held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any and subsequently given legitimacy in the eyes of law.
Therefore, even though there has been emergence of statutes like the Protection of Women from Domestic Violence Act 2005 to protect the rights of female live-in partners, the legislature has failed to handle the issues concerning the legal status of children arising from such relations and in such a situation, the Indian judiciary has taken control of the driver’s seat and passed path breaking judgements.
Maintenance which is often explained as the obligation to provide for another person forms an integral aspect of the legal angle of live in relationships with respect to the rights of the live in partners and the children born out of such a union. Under the Hindu Adoptions and Maintenance Act, 1956, section 21, a legitimate son, son of predeceased son or the son of predeceased son of pre-deceased son, so long he is minor and a legitimate unmarried daughter or unmarried daughter of son or the unmarried daughter of a pre-deceased son of pre-deceased son, so long as she remains unmarried shall be maintained as dependants by his/her father or the estate of his/her deceased father. A child born out of a live in relationship is however, not covered under this Section of the given Act and consequently, denied maintenance rights under this statute.
The Indian judiciary using its power to achieve the ends of social justice in a landmark case Dimple Gupta v Rajiv Gupta wherein the Supreme Court held that even an illegitimate child born out of an illicit relationship is entitled for maintenance under Section 125 of the CrPC (Code of Criminal Procedure 1973)which provides maintenance to children whether legitimate or illegitimate while they are minors and after they attain majority where such child is unable to maintain himself/herself. Even though there have been a number of cases upholding the maintenance rights of live in partners wherein the statutes were interpreted in a broad manner to included female live in partners as “legally wedded wives”, however, Savitaben Somabhai Bhatiya v State of Gujarat made an exception where the live in partner who had assumed the role of second wife was not granted any maintenance whereas the child was granted maintenance.
Section 125 of the Code of Criminal Procedure 1973forms the model of a progressive legislation aiming to protect child rights in a situation where the people subjected to such laws are in no fault of their own as noted in Captain Ramesh Chander Kaushal v Mrs.Veen Kaushal. However, “the right to maintenance is condition to the fatherhood of the child being established.”
Since the Court seem to be treating children arising from legitimate and illegitimate relationships alike when it comes to maintenance rights, this has formed the foundation for the demand of equal treatment of such children when it comes to property rights which will be discussed in the next section.
The denial of maintenance rights to children born out of live in relations can also be challenged under Article 32 amounting to violation of fundamental rights guaranteed under the Constitution such as- Article 21 which provides the right to life and personal liberty and the such denial can deprive such individuals of their right to lead their lives with dignity and this upheld by the Kerela High Court in PV Susheela v Komalavally.
The unequal treatment of children of live in relationships and marital relationships even though both are perceived as legitimate in the eyes of law can amount to violation of Article 14 which promises equality before law [Bharata Matha & Ors. v R. Vijaya Renganathan & Ors]. The rights concerning such maintenance give effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves as discussed in Savitaben Somabhai Bhatiya v State of Gujarat Thus, maintenance rights continues to be a sensitive issue for children with respect to live in relationships.
Property rights basically refer to the inheritance rights of children born out of sexual union revolving around live in relationships. Under the Hindu Succession Act, 1956, a legitimate Child, both son and daughter form a Class-I heir to the joint family property. On the other hand, under Hindu law an illegitimate child inherits the property of his mother only and not putative father as the illegitimacy makes it difficult to carry out such inheritance from the father’s side.
Legitimacy forms a pre requisite for inheritance rights under Hindu law and reasonable period of time is the primary condition to be fulfilled for this purpose. Consequently, the Courts in the past have always ensured that any child born from a live in relationship of a reasonable period of time should not be denied inheritance rights and this practice is keeping in sync with Article 39(f) of the Constitution of India which supports the cause of State role in Child development even though theoretically such relationships often do not involve an attempt to marry and subsequently are illegitimate in nature. The Supreme Court in Vidyadhari v Sukhrana Bai passed a landmark judgement wherein the Court granted inheritance to the children born from the live in relationship in question and ascribed them the status of “legal heirs”.
The issue of property rights has been dealt with in an incomplete manner under the HMA 1955. Section 16 of this Act which talks about legitimacy of children of void and voidable marriages addresses this aspect of live in relations in an indirect and incomprehensive manner which has often led to contradicting judgements and legal complications clearly seen in the two cases of – Bharata Matha & Ors. v R. Vijaya Renganathan & Ors and Revanasiddappa v Mallikarjun. The question raised in both the cases was whether the children of void/voidable marriages have a right to only the self-acquired property of their parents? Since, there is no attempt to marry, theoretically it is often argued that live in relationships should not be granted any form of legitimacy in the eyes of law and the children born out of such sexual unions cannot be provided with any inheritance rights. However, in such a situation the Courts have exercised the authority vested in them and interpreted the statutes in a broader manner to ensure that the children do not suffer as a result of the wrongs of their parents and consequently face problems in their economic as well as social life. Apart from the presumption of marriage in case of existence of such relations for a reasonable period of time, the Court have adopted a liberal approach towards the inheritance rights of children specifically.
In the Bharata Mata case, the Court held that a child born out of a void or voidable marriage was not entitled to claim inheritance in ancestral coparcenary property but was entitled to claim only self-acquired properties. Using the ratio of Jinia Keotin & Ors v Kumar Sitaram Manjhi & Ors., the Court held that the main purpose of Section 16 of the HMA1955 dealing with legitimacy and property rights of children of void and voidable marriages is to provide children who otherwise would have been branded illegitimate certain degree of legitimacy in the eyes of law; Inferential reasoning to grant any further rights under this section would amount to court relegislating under the guise of interpretation.
However, the judgement of this case was highly criticised by Justice Ganguly in the Supreme Court. Justice Ganguly deliberated on the issue of live in relationships and child property rights stating that the legislature has used the word “property” in Section 16(3) of the HMA 1955 and is silent on whether such property is meant to be ancestral or self-acquired and in light of such ambiguity, the concerned child’s property rights cannot be arbitrarily denied. Clauses (1) and (2) of Section 16 expressly declare that such children shall be deemed to be legitimate in the eyes of law. Thus, subsequent discrimination against them and unequal treatment with respect to other legitimate children who are entitled to all the rights in the property of their parents, both self-acquired and ancestral will amount to the amendment made to this section losing its value. Consequently, the Judge stated Parayan kandiyal Eravath Kanapravan Kalliani Amma (Smt.) & Ors. vs K. Devi and Ors wherein it was held that the HMA1955, a beneficial legislation, has to be interpreted in a manner which advances the object of the legislation.
The intention of the HMA 1955 with respect to Section 16 and the following amendment eliminating distinction between children born out of valid/void/voidable marriages is to bring about social reforms and conferment of social status of legitimacy on innocent children which would be undermined by imposing restrictions on rights guaranteed under this section. The Constitution of India which forms the Bible for the Indian Court under Article 39(f) as part of the Directive Principles of State policy states:
“that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”
Acting as a guiding value for our judiciary decisions as laid down in Article 37 of the Constitution of India and ascribing a duty on the State to apply such principles in governance of the country. Therefore, Justice Ganguly keeping in consonance with such values passed the abovementioned judgement. It needs to be noted that Apart from Article 39(f), Article 300A also comes into play while interpreting the concept of property rights. Article 300A is as follows:
“Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law.”
“However, right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law and this weakens the case of child property rights with respect to live in relationships compared to the period before such constitutional amendment. In light of this, Section 16(3) as amended does not impose any restriction on the property right of such children.” Therefore, the researcher finds more logic in the argument that children born out of such contentious relationships will have a right to whatever becomes the property of their parents whether self- acquired or ancestral in light of the laws of equity, lack of clarity with respect to concerned sections of specified statutes and child oriented beneficial interpretation of law which forms a primary duty of the Indian Judiciary.
Issue of custody is an aspect of live in relationship which emphasises on the major legal barrier faced by such relationships in comparison to marriage as the lack of legislation dealing with such unions makes it easier to enter into such relations but hard to get out of one. Custodial issues with respect to children of live in partners arise usually at the time of a split up and dealt with in a similar manner as in case of marriage due to absence of specific laws talking about such a scenario.
“When a relationship fails either party, male or female uses the child to browbeat the opposite partner into submission. In the emotional battle of parents the child is often held hostage by whosoever has physical custody. This has multiplied the significance of legislative and judicial action to prevent either parent from alienating the child from the estranged partner.”
In Hindu law, the Hindu Minority and Guardianship Act 1956 clearly states in Section 6 that the father as the natural guardian of his minor legitimate children and as laid down in Gita Hariharan v Reserve Bank of India, the mother becomes the natural guardian in his absence which means when the father is incapable of acting as the guardian. However, Section 6(b) of the same act seems to be dealing with live in relationships in an indirect manner as it grants the custodial rights to the mother (natural guardian) in case of children born out of illegitimate relations.
Consequently, on a positivistic interpretation of the law, it can be concluded that in case of a break up between the live in partner by virtue of being the natural guardian, the husband will acquire the custodial rights of the concerned child. This has been deemed to problematic by various courts and in a landmark judgement Gita Hariharan v Reserve Bank of India the Supreme Court driving home the equality of the mother to fulfil the role of a guardian held that –
“Gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the other in the matter of guardianship since both fall within the same category.”
Section 13 of HMGA 1956 goes on to talk about the welfare of the minor to be of paramount consideration and thereby negates the effect of previous provisions if in contravention of the said section [Shaleen Kabra v Shiwani Kabra]. In Shyam Rao Maroti Korwate v Deepak KisanRaoTekam, it was held that the word, “welfare” used in section 13 of the Act has to be construed literally and must be taken in it wide sense and such an interpretation is in concurrence with the development of the child as an independent individual. “Apart from this, there is the Guardians and Wards Act 1890 (GWA) which is complementary to HMGA 1956. These Acts are to be read together and implemented in the matter of child custody and appointment of guardian for the minor in a harmonious manner” Therefore, even in live in relations, the law might guarantee natural guardianship to the male partner however, at the time of a break-up subjective interpretation of law in favour of the child prevails.
It is paramount to keep in mind that the law needs to be reformed with the evolution of society. Even though certain verdicts given by Indian Courts and reports of Committees have recognised live in relationships, an equal number of verdicts have done the opposite. Hence it is essential for the law to take a stance on this emerging form of relationship whose pace is catalysed by the booming economy and modernisation of culture in India. Once this is dealt with the key issue of the impact of live in relationships on children must be analysed.
Based on the current scenario it is true to conclude that even though certain provisions such as Section 16 of the HMA 1955 grant legitimacy to children born out of live in relationships, their rights to ancestral property and maintenance remain questionable and vary from case to case .This is in contravention to Article 39 (f) and makes the current scenario ambiguous. The same can be held about custody of the child born out of a live in relationship which is open to interpretation despite the presence of Section 6 (b) of the HMGA 1956.It is safe to conclude that with the position of the legal scenario presently the child of a live in relationship is bound to encounter a lack of clarity in life regarding his or her legal status, origin and subsequent rights. This can lead to instability in the child’s life- both mentally and emotionally.

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