Legal Lore

RESEARCH PROJECT
FAMILY LAW

Name -Rohit Sharma

Email: [email protected]
College : Faculty of Law (LC-II) Delhi
University
Contract No: +91-7050795151
Table of Contents
INTRODUCTION ................................................................................................................................................................. 3
RESEARCH OBJECTIVES ................................................................................................................................................. 3
RESEARCH QUESTIONS................................................................................................................................................... 4
RESEARCH METHODOLOGY.......................................................................................................................................... 4
REVIEW OF LITERATURE ............................................................................................................................................... 4
LIVE-IN RELATIONSHIPS THROUGH THE EYES OF INDIAN JUDICIARY ............................................................ 5
LEGAL ISSUES INVOLVED IN LIVE-IN RELATIONSHIPS ........................................................................................ 8
ANALYSIS OF JOINT HINDU FAMILY PROPERTY WRT. LIVE-IN RELATIONSHIPS ........................................ 9
 PARTNERS ............................................................................................................................................................. 9
 CHILDREN .......................................................................................................................................................... 10
 BOTH WOMEN AND CHILDREN ................................................................................................................... 10
CRITICISMS AND RECOMMENDATIONS .................................................................................................................. 11
CONCLUSION .................................................................................................................................................................. 12

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 INTRODUCTION
Live-in relationships are not very frequent in India mainly owing to the societal stigma that is
associated with them. However, owing to industrialization and acceptance of western culture is we
can see more and more individuals opting for live-in over marriage. As the incidences of live-in
rise, so do the concerns associated to it. So, it becomes vital for the courts and the legislatureto
take up the topic unbiased from any conventional societal perspective.

The courts have declared that couples living in live-in relationships would be assumed legally
married provided it is not a walk-in-walk-out affair. The legislation maintained that live-in
partnerships are legally recognized and the partners enjoy all sorts of privileges which the married
couple has. For example, the right to maintenance, property rights, etc. The Supreme Court has not
only ruled that live-in relationship is not unlawful, but has gone to the level of pronouncing that
the kid born out of a live-in relationship is legitimate offspring and has the rightto inherit property.
Intestacy is a situation in which live-in partners have limited legal protection of their relationship.
For a surviving partner, this might result in full disinheritance and undermine the wishes of the
pair. The researcher also aims to identify the present ways in which live-in partners might gain
succession rights. This research paper also discusses the requirement of laws to safeguard the rights
of live-in partners and gives some ideas as to the possible remedies to address the uncertainties in
the law. In this regard, it is vital to assess the present legislation, judgements and legitimacy of
such law.

This study article aims to examine into current developments in the attitude of the Courts in
awarding different rights to live-in partners in India. It also aims to identify the necessity of an
appropriate legal framework for guaranteeing the succession rights of live-in partners in India,
especially in case of intestate succession.

RESEARCH OBJECTIVES
 To explore the present ways in which live-in partners can gain succession rights.
 To study the validity of live-in partnerships and the rights and duties that comes from
them.
 To evaluate the property rights as well as the appropriate explanation of “property” as
such with respect to live-in relationships.

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 RESEARCH QUESTIONS
 Should the property be handed down to the live-in partners and children born from the
relationship?
 Is there a need for a specific legislation defining rights of partners in live-in
relationships?

RESEARCH METHODOLOGY
This research study utilizes a doctrinal method. In referring to sources, the researcher will cite
online articles from various websites, news items, research reports from various Governmental and
Non-Governmental Organizations, and research papers published in various recognizednational
and international journals. The researcher has employed the available materials and provided them
a rigorous analysis.

REVIEW OF LITERATURE

 BAG, AMARTYA (2021) , SUCCESSION RIGHTS IN CASE OF LIVE-IN

RELATIONSHIPS: AN ANALYSIS IN THE INDIAN CONTEXT
The purpose of this article is to clarify the present legal status of live-in relationships in
India. The article also intends to investigate current trends in Indian courts' views toward
awarding separate rights to live-in spouses, as well as an analysis of such judgements and
a comparison with the trend in other legal systems and nations. The article also attempts to
emphasize the significance of a complete legal framework in India to preserve the
succession rights of live-in partners, particularly in circumstances of intestate succession.

 BARUAH, ARINDAM (2019), LIVE-IN RELATIONSHIPS IN

INDIARECOGNITION UNDER HINDU PERSONAL LAW
Marriage is just a socially sanctioned relationship between a man and a woman. Any other
form of connection is considered impure and immoral. It is made up of centuries- old
customs and practices that have been consistently and widely practiced for a long time and
have achieved legal authority among Hindus in any local area, tribe, community, group,
or family.

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  AGGARWAL, SHREY (2020) , INHERITANCE RIGHTS IN A LIVE-IN
RELATIONSHIP: AN EXAMINATION OF THE INDIAN LEGAL
FRAMEWORK
A live-in relationship is a sort of relationship in which two people share a home but do
not have marital rights or responsibilities. The current legal structure of the country
prohibits this type of link. The goal of this article is to look at the current legal status of
live-in relationships in India, as well as the rights that a person in one enjoys.

 DHOLAM, SWARUPA (2015), Socio-legal dimensions of 'live-in relationship' in

India
This article discusses the socio-legal concerns of a live-in relationship in India. Live-in
relationships have been one of the most controversial legal problems in recent years. The
characteristics of a live-in relationship in India were not adequately defined until the
Hon'ble Supreme Court issued a landmark ruling in D Veluswamy Vs D Patchaiammal
on October 21, 2010 under the Protection of Women from Domestic Violence Act, 2005,
about a relationship in the form of marriage.

LIVE-IN RELATIONSHIPS THROUGH THE EYES OF INDIAN JUDICIARY

Live-in relationship in India is typically considered as a taboo and a sin. However, it is not very
rare to encounter people in big metros remaining together as husband-wife without any marriage.
None of the legislation dealing with succession or marriage such as the Hindu Marriage Act, 1955,
the Special Marriage Act, 1954 or the Indian Succession Act, 1925 acknowledges live-in
relationship explicitly. Under the Hindu Marriage Act, children born out of such relationships are
regarded to be legitimate and have been awarded the right to succession. However, Protection of
Women from Domestic Violence Act, 2005 recognises the right of protection of a person in
“relationship in the nature of marriage” from domestic violence and can seek monetary and other
reliefs under the Act. 7 Section 2 (f) of the Domestic Violence Act defines "domestic relationship"
as “a relationship between two persons who live or have at any point of time lived together in a
shared household, where 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.” Inspite
of no clear and explicit legal repercussions, there has been a tremendous sociological change in
the attitude towards live-in partnerships, the multinational organizations offering health insurance
coverage to domestic partner of the employees.

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In the judgements before 2000 there is barely any situation where the Courts have used the word
“live-in relationship” to define the legal status of a domestic partner or in any other similar
connections. In 2001 case of Payal Sharma v. Superintendent, Nari Niketan, Agra1, the
Allahabad High Court declared that a major man and woman can stay together without being
married if they choose and this is not illegal.

In the landmark case of Vidyadhari v. Sukharana Bai2, because the deceased partner preferred
the other spouse, the Supreme Court awarded a succession certificate to a live-in partner. This
offers a unique twist to the notion of live-in relationship. In the past, the court had often showed
predisposition to assume valid marriage between a man and a woman who lived together as
husband and wife for 'many years' without clarifying the inherited rights of the woman in such a
relationship. In this ruling, the court issued succession certificate to the live-in partner on the
premise that the children born out of the relationship were legitimate despite the fact that the man
had a legally-wedded wife, who never resided with him.

A person may make a will in the name of one or more others to transfer property upon the testator's
death, according to the law. In Koppisetti Subbharao Subramaniam v. State of A.P.3, the Supreme
Court expanded the protection against dowry under Section 498 A of the Indian Penal Code to
"cover a person who enters into marital relationship and resorts to cruelty or torture to the women
under the color of such proclaimed or feigned status of husband."

The Supreme Court reaffirmed the norm that there is a presumption of marriage when there has
been continuous cohabitation in Tulsa v. Durghatiya4. The year 2010 was a watershed moment
in the legal realm of live-in relationships, with the judges in both the Supreme Court and the
High Courts issuing multiple rulings on the legal status of live-in relationships. In S. Khushboo
v. Kanniammal5, the Supreme Court held that a live-in relationship is permissible only in
unmarried major persons of heterogeneous sex and is not a criminal offence under any law, citing
its earlier decision in Lata Singh v. State of U.P.6. According to mythology, Lord Krishna and
Radha also lived together, according to the court. According to the Supreme Court, there is

1
AIR 2001 All 254
2
(2008) 2 SCC 238
3
Crl. Appl. No. 867/2009 MANU/SC/0689/2009 (S.C. September 24. 2009)
4
2008 (4) SCC 520
5
(2010) 5 SCC 600
6
AIR 2006 SC 2522

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no statute that bars live-in relationships or pre-marital sex. The statement was made by the
Supreme Court while reserving its decision on a special leave petition filed by famed south Indian
actress Khusboo. "Living together is a right to life," the Supreme Court declared, probably
referring to Article 21 of the Constitution, which grants the right to life and liberty as a
Fundamental Right. "It's preferable to have a live-in relationship than to live a divorced life!" This
is a frequent and sensible argument in favor of live-in relationships across the world.

The Supreme Court held in the case of Bharata Matha v. R. Vijaya Renganathan7, dealing with
the legitimacy of a child born out of a live-in relationship and his succession of property rights,
that such a child may be allowed to succeed inheritance in the property of the parents, if any, but
has no claim as against Hindu ancestral coparcenary property. The Supreme Court, in the case of
Madan Mohan Singh v. Rajni Kant8, entered the discussion on the legality of a live-in relationship
as well as the validity of a child born out of such a relationship on August 13, 2010. While
dismissing the appeal in the property dispute, the Court stated that there is a presumption of
marriage between persons who have been in a long-term live-in relationship and this cannotbe
described as a "walking-in and walking-out" relationship.

The Delhi High Court in its ruling in Alok Kumar v. State9 while dealing with the legitimacy of
live-in relationship remarked that, "‘Live-in relationship’ is a walk-in and walk-out relation. There
are no strings associated to this connection, neither this relationship creates any legal commitment
between the participants. It is a contract of living together which is renewed every day by the
parties and can be dissolved by any of the parties without approval of the other party and one party
can walk out at whim at any moment."

The Supreme Court stated in the case of Chanmuniya v. Virendra Kumar Singh Kushwaha10
that "in those circumstances when a man, who has lived with a woman for a long time and even
though they may not have through the legal conditions of a legitimate marriage, may be found
liable to give the woman maintenance if he deserts her." The man should not be permitted to gain
from the legal loopholes by enjoying the perks of a de facto marriage without assuming the

7
C.A. No. 7108/2003 MANU/SC/0400/2010, (S.C. May 17, 2010).
8
(2010) 9 SCC 209
9
Crl. M.C. No. 299/2009 MANU/DE/2069/2010, (Del. H.C. Aug. 9, 2010)
10
(2011) 1 SCC 14

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duties and obligations.” Court also wished to interpret the meaning of “wife” widely under Section
125 of Cr.Pc. for claim of maintenance, so that even women in live-in relationship can claim
maintenance. The Court additionally stated that a woman in a live-in relationship in allowed
demanding any relief mentioned under Protection of Women from Domestic Violence Act,
2005.

The Supreme Court in the case of D. Velusamy v. D. Patchaiammal11 found that, a ‘relationship
in the form of marriage’ under the 2005 Act must also meet the following criteria:

(a) The couple must hold themselves forth to society as though they are spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to engage into a legal marriage, including being unmarried.

(d) They must have freely cohabited and held themselves forth to the world as being equivalent
to spouses for a long period of time, and in addition the parties must have lived together in a
‘shared household’ as defined in Section 2(s) of the Act.

LEGAL ISSUES INVOLVED IN LIVE-IN RELATIONSHIPS

Though there have been a few recent judgements involving live-In partnerships as stated above,
there are few concerns which have not been addressed or not sufficiently addressed. One of the
primary problems which remain unclear is what length of time of cohabitation will enable the
individual to be classified as domestic partner. While a casual “walk-in walk-out” relationship
cannot qualify a partner for succession rights, extended time-period of continuous cohabitation has
been recognised as a marker for grant of successful succession or maintenance rights. It is required
to statutorily set a defined time or make difference between a “walk-in walk-out live-in
relationship” and a live-in relationship which will make a person qualified for a succession rights.
Another connected difficulty is the subject of “proof of continuous cohabitation like married
couple”. It is crucial that the party represents themselves as married couples to the society and
there has been societal acknowledgment to that effect. The Courts have particularly

11
AIR 2011 SC 749

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noted any unfavorable evidence about the length of continuous cohabitation might undermine the
case.

The law of succession relies on the religion of the deceased person. However, there may be
disagreement surrounding the rights of children born out of inter-religious live-in partnerships.
These problems need to be addressed by an appropriate process.

ANALYSIS OF JOINT HINDU FAMILY PROPERTY WRT. LIVE-IN RELATIONSHIPS

 PARTNERS
Considering the above examination of property rights of live-in partners, there can be a debate as
to whether a live-in partner is included as sharer of a Joint Hindu Family (JHF) property by
virtue of the presumption of being a lawfully wedded wife.

As examined before, that a live-in partner or also known as a cohabiting partner would be
deemed to be legally married in the eyes of law. So, in such situations will the female live-in
partner or cohabiting partner be entitled to any participation in the joint hindu family property?
Yes, in the case of Rajagopal Pillai & Ors v. Pakkiam Ammal & Anrs 12, it was found that the
presumption under section 114 of evidence act, 1872, is so high and exclusively falls in the favor
of legality. It is the task of the opposing party to adduce evidence and dispute that presumption. In
this instance, the partners were deemed to be legally wedded wife and husband and the
woman was demanding the portion in the joint hindu family property. The trial court found in
favor of the wife of the deceased and the same was again upheld by the high court of madras.
The same was again upheld by the Supreme Court as well 13.

The widow in the foregoing case was allocated one-sixth of the share in the Joint Hindu Family
property as per section 3(2) of the Hindu Women's Right to Property Act, 1937. This age-old case
establishes that the female live-in partner is allowed to be a sharer in the joint hindu family property
if she enjoys the advantage of presumption in the eyes of law.

12
1967 SCC Online Mad 100
13
(1976) 1 SCC 299

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  CHILDREN
As we have seen earlier that several courts have declared that children born to live-in couples are
not illegitimate and the partners are recognized as a husband and wife unless proved differently. 14
Therefore, it may be fairly ascertainable that the children born to live-in partners should be entitled
to property rights of joint hindu family property 15 and the kid should be able tobecome a sharer or
coparcener (if he passes the essential qualifications) (if he satisfies the necessary conditions). 16
Therefore, in our opinion, a child should not be declared ineligible for the property rights of a joint
hindu family property only because the child was born out of a live- in relationship.

 BOTH WOMEN AND CHILDREN

There is one landmark case, which deals with the property rights of the woman (live-in
partner/cohabiting partner) and children (born out of such live-in or cohabitation relationship). In
the case of Sree Rangammal (dead) & Ors v. E B Venkatasubramanian & Ors 17, where the lady
was cohabiting partner was assumed to be legal wife even if stated by other opposing partiesthat
no marriage solemnized between these two. The court decided- “the children were deemed to be
legitimate and they are entitled to relief of partition and separate ownership of one-half share in
the suit property which is joint hindu family property with damages recognized. As for the claim
of maintenance, the deceased died on 23rd August 1985 and the Hindu Succession Act came into
force in 1956. The suit property being a joint family property and herself being a widow of a
coparcener, she is entitled to maintenance from the estate of her deceased husband which is in the
hands of his surviving coparceners”. So, the court decided in this case that proof of marriage being
solemnized is not necessary and no discrimination between type or sort of property is made.

As the instances were of old times, presently the law stipulates the wife is a sharer in JHF property
via testamentary or intestate succession but not survivorship. 18 So, this summarizes up

14
Vidyadhari v. Sukhrana Bai, (2008) 2 SCC 238
15
SPS Bala Subramanyam v. Sruttayan, AIR (1994) SC 133
16
D Velusamy v. D Patchaiammal, AIR 2011 SC 479
17
1985 SCC Online Mad 242
18
The Hindu Succession (Amendment) Act, 2005, No. 39, Acts of Parliament, 2005

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that a live-in partner if benefiting by the presumption of being legally married, then she will be a
sharer and their children are coparceners in the joint hindu family property.

CRITICISMS AND RECOMMENDATIONS

Live-in relationships got a legal standing in India through court rulings but will it ever be equated
to the level of marriage is still not apparent. Though the definition of marriage has been degraded
over the years from the sacred connection to a contractual obligation, it doesn't imply live-in
spouses are exempt from critiques. They are as follows: -

1. The notion of live-in itself is considerably more difficult in a nation like India as compared to
western nations due to numerous laws recognizing the married couple as one and culture not
advocating any other sort of relationship as a substitute to marriage.

2. Live-in promotes bigamy and infidelity which can impact the married wife. 19

3. In the event of live-in relationships, children are typically vulnerable as none of the parties are
prepared to take responsibility.20

4. The live-in female partners are supplied with rights and claims equivalent to those of a married
wife which is useful for the protection of women, perhaps the law is only biased towardsone gender
which must be balanced.

5. The partners are having no commitment or duty towards the other partner, at the end, it turns
out to be a walk-in-walk-out relationship if nothing works out. 21

In regard of the aforementioned criticism giving property rights is risky. Less than 1 percent of the
population are live-in partners, still, it seems the judiciary must come up with properguidelines for
determining the status of the partners with respect to property inheritance and exceptions to legality
of live-in to avoid fraud committed for property inheritance and other offenses.

19
Payal Sharma v. Nari Niketan, (2001) SCC Online All 332: AIR 2001 All 254
20
Revanasiddappa v. Mallikarjuna, (2011) 11 SCC 1
21
Alok Kumar v. State, (2010) SCC Online Del 2645

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It is advised that the lawmakers evaluate the changing society and provision for live-in partners
to claim the status of marriage under personal law22 or under civil marriages law23 to be made.
This will be convenient to deal with situations of property rights of such partners. Additionally, it
is highly suggested that if any legislation is developed covering live-in partnerships it should be
gender-neutral.

CONCLUSION
According to a succession of judgements in Indian courts and international cases, live-in partners
do have a legal right to claim inheritance, but only if there is a lawful partnership within the criteria
outlined in the Velusamy Case and an express or implicit contract exists between the two partners.
It is simply a matter of time till the legal situation of palimony and inheritance rights of live-in
partners would be apparent in India.

Historically, Indian judiciary has accepted the inheritance right in circumstances where there has
been long cohabitation between two partners which is equivalent to a marriage. Live-in
relationship is not a particularly new occurrence; by whatever name it could be termed, its legal
status has been accepted for long. The Courts has awarded inheritance rights in such circumstances
of long cohabitation. What is needed is an unique statutory law, coupled with a hybrid model to
include optional registration procedure to bring about greater clarity about the legal situation of
such inherited right of such live-in partners and explicitly putting down the rights and duties of
each party.

22
Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955
23
The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954

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