Living Relationship and Law

1. LIVING RELATIONSHIPS IN INDIA
Dr. Gagandeep Kaur
COLS, UPES, Dehradun
Dr. Gagandeep Kaur

2. INTRODUCTION
• Marriage in the Indian society
has been considered as a
sacred bond since the Vedic
period. This concept of
matrimony has continuously
evolved with time. With the
ever-changing society and
human psychology, the
concept of marriage and
relationship has also evolved.
Dr. Gagandeep Kaur

3. MARRIAGE AND LIVING
RELATIONSHIP: RELATION
• Marriage, also called as
matrimony or wedlock, is a
socially/ritually recognized
union or contract between
spouses that establishes
certain rights and legal
obligations towards each
other.
Dr. Gagandeep Kaur

4. • Live-in relationship in simple
terms can be explained as a
relationship in the nature of
marriage where both partners enjoy
individual freedom and live in a
shared household without being
married to each other.
• It involves continuous cohabitation
between the parties without any
responsibilities or obligations towards
one another.
Dr. Gagandeep Kaur

5. • Two people living together
without intending to establish any
kind of permanent relationship
between them.
• This kind of relationship has
emerged primarily out of
convenience.
• Partners in such kind of
relationship initially lack the
commitment with each other. The
main element that works in such
relationship is ‘compatibility’
between such partners.
Dr. Gagandeep Kaur

6. • Due to modernization and city culture, we
are observing this kind relationship in few
parts of Indian society.
• Different kind of persons may be involved
in such relations. Unmarried man and
unmarried woman or married man and
unmarried woman or unmarried man and
married woman or persons of same sex
may live together.
Dr. Gagandeep Kaur

7. MAJOR ISSUES
• a) whether the Indian society is prepared
to accept such new kind of relationship?
• b) What are the repercussions of
accepting or rejecting of such relations on
the continuity and progress of the Indian
society?
• c) Should the new law be made in India to
regulate such kind of relationship?
Dr. Gagandeep Kaur

8. • d) What are the consequences of
legalization of such relationship on married
partners? Should the existing laws relating
maintenance, guardianship, succession
and inheritance be amended to
accommodate such relationship?
• e) What is the role of Indian judiciary in the
sphere of emerging of such relationships?
Dr. Gagandeep Kaur

9. LAW ON LIVING RELATIONSHIP
• There is no statute directly dealing with
live-in-relationship in India.
Dr. Gagandeep Kaur

10. The Hindu Marriage Act, 1955
• Section 16:
• It confers the legitimacy on child born out
of ‘void’ and ‘voidable’ marriages and
establishes their succession and property
rights.
Dr. Gagandeep Kaur

11. The Protection of Women from Domestic
Violence Act, 2005 (PWFDVA)
• It provides some kind of protection to the aggrieved
parties from any kind of atrocities faced by the females
living in ‘relationship in the nature of marriage.
• This Act has been widely hailed as the first legal Act to
recognize the existence of non-marital adult
heterosexual relations.
• This Act defines an “aggrieved person” Section 2 (a) who
will be covered under this Act as “any woman who is, or
has been, in a domestic relationship with the respondent
and who alleges to have been subjected to any act of
domestic violence by the respondent.”
Dr. Gagandeep Kaur

12. PWFDVA 2005 DEFINES: DOMESTIC
VIOLENCE
Section 2 (f) ‘domestic relationship’ as ‘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.’
In having used the idea of “relations in the nature of
marriage”, the Act seems to have widened the scope of
legally recognised domestic relationships between men
and women.
Dr. Gagandeep Kaur

13. LANDMARK JUDGMENTS
Dr. Gagandeep Kaur

14. Badri Prasad vs. Dy. Director of Consolidation, AIR
1978 SC 1557
• This was the first case in which the Supreme Court of
India recognized live in relationship and interpreted it as
a valid marriage.
• In this case, the Court gave legal validity to a 50 year live
in relationship of a couple. It was held by Justice Krishna
Iyer that a strong presumption arises in favour of
wedlock where the partners have lived together for a
long term 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.
Dr. Gagandeep Kaur

15. Tulsa v. Durghatiya [(2008) 4 SCC 520]
• The Supreme Court provided legal status to the children
born from live in relationship. It was held that one of the
crucial pre-conditions for a child born from live-in
relationship to not be 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.
Therefore, the court also granted the right to property to
a child born out of a live in relationship.
•
Dr. Gagandeep Kaur

16. D Velusamy Vs D Patchaiammal, SC 2010
BENCH:Markandey Katju, T.S. Thakur
• The judgment determined certain pre-requisites for a live
in relationship to be considered valid. It provides that:
• 1. The couple must hold themselves out to society as
being akin to spouses and must be of legal age to marry
or qualified to enter into a legal marriage, including being
unmarried.
• 2. It was stated that the couple must have voluntarily
cohabited and held themselves out to the world as being
akin to spouses for a significant period of time.
Dr. Gagandeep Kaur

17. • 3. The court held that not all relationships will amount to a
relationship in the nature of marriage and get the benefit of the
Domestic Violence Act.
• 4. It further clarified that, if a man keeps women as a servant and
maintains her financially and uses mainly for sexual purposes, such
relationship would not be considered as marriage in the court of law.
Therefore to get such benefit the conditions mentioned by the Court
must be satisfied, and has to be proved by evidence.
• Here, the court relied on the concept of ‘palimony’ which was used
in the USA for grant of maintenance in live in relationships. The
concept of palimony was derived in the case of Marvin vs. Marvin,
a landmark judgment of the California Superior Court.
Dr. Gagandeep Kaur

18. CONCEPT OF PALIMONY OF USA
• The term "palimony" is not a legal or historical term, but
rather a colloquial portmanteau of the words pal
and alimony coined by celebrity divorce attorney Marvin
Mitchelson in 1977 when his client Michelle Triola Marvin
filed an unsuccessful suit against the actor Lee Marvin.
• States With Recent Palimony Use (since the year
2000)
• California (2010), Colorado (2012), Florida recognizes
palimony suits, Georgia (2015), Hawaii (2015), Illinois
(2015), Maryland (2010), Michigan (2006)
Dr. Gagandeep Kaur

19. Decision in Marvin v. Marvin 1976 USA
• Under a 1976 California Supreme Court decision known
as Marvin v. Marvin 18 Cal.3d 660 [134 Cal.Rptr. 815,
557 P.2d 106], non-marital partners have the right to
enforce expressed or implied agreements for support or
property sharing in the event of a separation. Such
a claim must be brought to court in a civil action.
• In USA the expression `palimony’ was coined which
means grant of maintenance to a woman who has lived
for a substantial period of time with a man without
marrying him, and is then deserted by him. The first
decision on palimony was the well known decision of the
California Superior Court in Marvin vs. Marvin.
Dr. Gagandeep Kaur

20. S. Khushboo Versus Kanniammal &
Anr. (2010) 5 SCC 600
• The appellant is a well known actress who has
approached this Court to seek quashing of criminal
proceedings pending against her. As many as 23
Criminal Complaints were filed against her, mostly in the
State of Tamil Nadu, for the offences contemplated
under Sections 499, 500 and 505 of the Indian Penal
Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of
the Indecent Representation of Women (Prohibition) Act,
1986 [hereinafter `Act 1986'].
Dr. Gagandeep Kaur

21. FACTS
• In September 2005, `India Today' a fortnightly news
magazine had conducted a survey on the subject of the
sexual habits of people residing in the bigger cities of
India. One of the issues discussed as part of this survey
was the increasing incidence of pre-marital sex.
• As a part of this exercise, the magazine had gathered
and published the views expressed by several
individuals from different segments of society, including
those of the appellant. The appellant expressed her
personal opinion wherein she had noted the increasing
incidence of pre-marital sex, especially in the context of
live-in relationships and called for the societal
acceptance of the same.Dr. Gagandeep Kaur

22. • However, appellant had also qualified her remarks by
observing that girls should take adequate precautions to
prevent unwanted pregnancies and the transmission of
venereal diseases. This can be readily inferred from the
statement which was published, a rough translation of
which is reproduced below:
"According to me, sex is not only concerned with the body; but also
concerned with the conscious. I could not understand matters such as
changing boyfriends every week. When a girl is committed to her
boyfriend, she can tell her parents and go out with him. When their
daughter is having a serious relationship, the parents should allow the
same. Our society should come out of the thinking that at the time of the
marriage, the girls should be with virginity. None of the educated men, will
expect that the girl whom they are marrying should be with virginity. But
when having sexual relationship the girls should protect themselves from
conceiving and getting venereal diseases."
Dr. Gagandeep Kaur

23. ALLEGATIONS
• Most of the allegations have pertained to
offences such as defamation (Sections
499, 501 and 502 IPC), obscenity (Section
292 IPC), indecent representation of
women and incitement among others.
Dr. Gagandeep Kaur

24. DECISION
• In conclusion, we find that the various
complaints filed against the appellant do
not support or even draw a prima facie
case for any of the statutory offences as
alleged. Therefore, the appeals are
allowed and the impugned judgment and
order of the High Court dated 30.4.2008 is
set aside. The impugned criminal
proceedings are hereby quashed.
Dr. Gagandeep Kaur

25. JUSTIFICATION
• Freedom of expression which is legitimate and
constitutionally protected, cannot be held to ransom by
an intolerant group of people. The fundamental freedom
under Article 19(1)(a) can be reasonably restricted only
for the purposes mentioned in Article 19(2) and the
restriction must be justified on the anvil of necessity and
not the quicksand of convenience or expediency.
• Open criticism of government policies and operations is
not a ground for restricting expression. We must practice
tolerance of the views of others. Intolerance is as much
dangerous to democracy as to the person himself.
Dr. Gagandeep Kaur

26. • It is, therefore, not only desirable but imperative that
electronic and news media should also play positive role
in presenting to general public as to what actually
transpires during the course of the hearing and it should
not be published in such a manner so as to get
unnecessary publicity for its own paper or news
channel.
Dr. Gagandeep Kaur

27. • The Supreme Court in this case dropped all the charges
against the petitioner who was a south Indian actress.
The petitioner was charger under Section 499 of the IPC
and it was also claimed that the petitioner endorsed pre-
marital sex and live in relationships.
• The court held that living together is not illegal in the
eyes of law even if it is considered immoral in the eyes of
the conservative Indian society.
• The court stated that living together is a right to life and
therefore not ‘illegal’.
Dr. Gagandeep Kaur

28. Indra Sarma v. V.K.V. Sarma,
Decided on 26-11-2013 (SC): 2013 (14) SCALE 448
[K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.]
• The recent judgment of the Supreme
Court has illustrated five categories where
the concept of live in relationships can be
considered and proved in the court of law.
• Following are the categories:
Dr. Gagandeep Kaur

29. 1. Domestic relationship between an adult male and an
adult female, both unmarried. It is the most
uncomplicated sort of relationship
2. Domestic relationship between a married man and an
adult unmarried woman, entered knowingly.
3. Domestic relationship between an adult unmarried man
and a married woman, entered knowingly. Such
relationship can lead to a conviction under Indian Penal
Code for the crime of adultery.
4. Domestic relationship between an unmarried adult
female and a married male, entered unknowingly
5. Domestic relationship between same sex partners ( gay
or lesbian).
Dr. Gagandeep Kaur

30. In 2010, SC in Madan Mohan Singh vs
Rajni Kant
• In a landmark judgement, the Supreme Court has has
ruled that an unmarried couple living together under the
same roof are now going to be presumed married,
and the woman would be eligible to inherit any legal
property after death of her partner.
• The bench reportedly said, "It is well settled that the law
presumes in favor of marriage and against concubine,
when a man and woman have cohabited continuously for
a long time. However, the presumption can be rebutted
by leading unimpeachable evidence. A heavy burden lies
on a party who seeks to deprive the relationship of legal
origin."
Dr. Gagandeep Kaur

31. In Nutshell: SC guidelines relating to live-in
relationship
1) Duration of period of relationship
Section 2(f) of the DV Act has used the expression “at
any point of time”, which means -
a reasonable period of time to maintain and
continue a relationship which may vary from case
to case, depending upon the fact situation.
2) Shared household
The expression has been defined under Section 2(s) of the
DV Act and, hence, need no further elaboration.
Dr. Gagandeep Kaur

32. 3) Pooling of Resources and Financial Arrangements
Supporting each other, or any one of them, financially, sharing bank
accounts, acquiring immovable properties in joint names or in the
name of the woman, long term investments in business, shares in
separate and joint names, so as to have a long standing relationship,
may be a guiding factor.
4) Domestic Arrangements
Entrusting the responsibility, especially on the woman to run the
home, do the household activities like cleaning, cooking, maintaining or
up keeping the house, etc. is an indication of a relationship in the
nature of marriage.
Dr. Gagandeep Kaur

33. • 5) Sexual Relationship
Marriage like relationship refers to sexual relationship, not just for
pleasure, but for emotional and intimate relationship, for
procreation of children, so as to give emotional support,
companionship and also material affection, caring etc.
6) Children
Having children is a strong indication of a relationship in the
nature of marriage. Parties, therefore, intend to have a long
standing relationship. Sharing the responsibility for bringing up
and supporting them is also a strong indication.
Dr. Gagandeep Kaur

34. 7) Socialization in Public
Holding out to the public and socializing with friends, relations and
others, as if they are husband and wife is a strong circumstance to
hold the relationship is in the nature of marriage.
8) Intention and conduct of the parties
Common intention of parties as to what their relationship is to be
and to involve, and as to their respective roles and
responsibilities, primarily determines the nature of that
relationship.
Dr. Gagandeep Kaur

35. CONCLUSION
• Emphasizing that law should evolve according to
changing times, SC said that live-in relationships, which
were earlier considered to be a taboo, has now become
a acceptable norm in society and is not considered a
prohibited relationship.
The Supreme Court over the years has recognized live-
in relationships and has recently held that if a man and
woman "lived like husband and wife" for a long period
and had children, then the judiciary would presume that
the two were married and the woman would be eligible to
inherit the property after death of her partner.
Dr. Gagandeep Kaur

36. "Live-in relationship has become acceptable norm
in modern times and it is not a crime. But if a
public figure has indulged in such relationship then
exposing it is not wrong," the bench said.
Dr. Gagandeep Kaur

37. Conclusion
Dr. Gagandeep Kaur

38. REFERENCES
• Internet Sources
• Judgments
• The Domestic Violence Act, 2005
• The Hindu Marriage Act, 1955
Dr. Gagandeep Kaur