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'Immoral, But not Illegal': Fate of Live-in Relationships in India Lies in the Hands of Judiciary; Here's How

It may be considered immoral in the eyes of society but it is not at all illegal in the eye of the law, has been the stance of the judiciary regarding live-in relationships

It may be considered immoral in the eyes of society but it is not at all illegal in the eye of the law, has been the stance of the judiciary regarding live-in relationships

It may be considered immoral in the eyes of society but it is not at all illegal in the eye of the law, has been the stance of the judiciary regarding live-in relationships

In yet another verdict pertaining to a live-in relationship, the Allahabad court ruled that such a relationship cannot thrive at the cost of the country’s social fabric and imposed a Rs 5,000 fine on a married woman, who is living with her partner and sought protection from her estranged husband.

Emphasizing that the court is not against a live-in relationship, a bench of judges observed they are not in favour of sanctioning an illicit relationship between a married woman and her partner apart from the husband which is a serious dent on the social fabric of the country and also a violation of the Hindu marriage act.

The legality of live-in relationships in India is arbitray. The law is still unclear about the status of such relationships yet few rights have been granted by interpreting and amending the existing so that misuse of such relationships can be prevented by the partners. While there’s no legislation defining live-in relationships in the country, a look at a series of judgements passed by the judiciary over the years reveals that it hasn’t been averse to the idea.

It may be considered immoral in the eyes of society but it is not at all illegal in the eye of the law, has been the stance of the judiciary regarding live-in relationships in cases sprawling over the last few years. Here’s a look at a few

  • The Allahabad High Court recognised the concept of live-in relationship in Payal Sharma v. Nari Niketan, wherein the Bench consisting of Justice M. Katju and Justice R.B. Misra affirmed that a man and woman could live together upon their willingness even without getting married This may be regarded as immoral by society, but it is not illegal. Two individuals cohabiting and staying in a live-in relationship are not criminal offenders. It clarified that although socially unacceptable in parts of India, live-in relationships are neither a crime nor a sin.
  • In Badri Prasad v. Director of Consolidation, the Supreme Court legitimised a 50-year long relationship of a couple. The bench stated that since the couple had lived together for a long time, they will be treated as a married couple. And their child would be called legitimate.
  • In Lata Singh v. State of U.P. and Anr. the Apex court held that live-in-relationships is permissible only in unmarried major persons of heterogeneous sex. While in Abhijit Bhikaseth v. State of Maharashtra and Anr. the Apex court observed that it is not necessary for a woman to strictly establish the marriage to claim maintenance under section 125 of Criminal Procedure Code, 1973.

While the most accepted and pervasive form is the type of live-in relationship where two unmarried heterosexual individuals willfully cohabit, legal issues arise in cases of domestic relationships between same-sex partners or adulterous live-in relationships.

  • In Kusum v. the State of UP, a married woman who had ‘eloped with another man’ continued to live with him for five years. However, the Allahabad High Court disallowed the woman to seek protection under the garb of a live-in relationship since her marriage was not legally dissolved. Therefore, her new relationship could not be said to fall within the expression relationship ‘in the nature of marriage.
  • On the other hand, notwithstanding that same-sex relationship, not legally competent to enter into a marriage, the Indian judiciary has extended the right to cohabit in live-in relationships to same-sex couples, but only to some extent.
  • In Chinmayee Jena v. State of Odisha, Justice Ratho observed that “love knows no bound has expanded its bounds to include same-sex relationships.” In this recent case, the Orissa High Court confirmed the right of a transgender man and a woman to be in a live-in relationship.
  • However, while conjecturing upon granting validity to one-night stands or spending weekends together as a live-in relationship, the apex court in Velusamy v. Patchaiammal answered in the negative. To qualify as ‘relationship in the nature of marriage’ under the Act, the parties must prove that they fulfil the requisites mentioned above and live or have lived together in a ‘shared household’ as defined in Section 2(s) of the Act. In this particular case, the Supreme Court held that merely maintaining the finances and fulfilling sexual desires doesn’t fall within the relationship in nature of marriage. Therefore, simply spending weekends together or a one-night stand does not constitute a domestic relationship.
  • In June, the Punjab and Haryana high court refused to intervene in a couple’s decision to stay together in a live-in relationship without the sanctity of marriage stating that if a couple has decided, it is not for the courts to judge them on their agreement.”The petitioners herein have taken a decision to reside together without the sanctity of marriage and it is not for the courts to judge them on their decision,” the bench of justice Sant Parkash observed while hearing the plea filed by a 17-year-old girl and a 20-year-old boy from Bathinda in Punjab.

In most western countries there is a broader understanding of the idea of a couple in a relationship, which is evident in their legal recognition of prenuptial agreements, civil and domestic union of couples etc. However, it is not the same in India. Though live-in relationships are granted the legal status by virtue of many judicial judgements, no remedy is granted to women involved in a live-in relationship. In this light, Section- 125 of the Criminal Procedure Code has been provided to give a legal right of maintenance to lady partners in or out of a marriage.

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first published:August 07, 2021, 11:17 IST