Live-in Relationships and the Status of Children

    A live-in relationship is a practice that has been avoided by Indian society for a long time but nowadays it is in trend. People in India are now evolving and adapting to cultures from western countries. According to Indian law, live-in relationship is not an offense or crime but goes against religious faith in Hindu culture Dharma prefers ‘One man, one wife’. However, society is evolving with time and now people have come out of the shackles of their parochial mindset. Indians are finally ready to accept the change. One of the classic examples of this development is the recent judgment on the decriminalization of Section 377 of the Indian Penal Code, 1860, which shows how Indian laws are also evolving. This article aims to discuss various important aspects of live-in relationships and the status of a child born out of a live-in relationship. What are the remedies available for that child who is born and brought up from a live-in relationship which will not be continued till marriage?

    Meaning and Concept 

    A couple who is living together without marrying each other. It is a practical way to test whom you can live your whole life peacefully. There is no such legal definition of a live-in relationship given under Indian law but it depends on one’s perspective. It is a more modern and westernized culture with little relevance to Indian traditions. It differs from marriage as two people who marry according to all the ceremonies and rituals performed in Indian culture are considered as legally wedded husband and wife. They are bound to live together with their family or separately but in a live-in relationship, the couple resides separately and not recognized under the law, neither bound by the law nor accepted by society because they are legally not married. Having a physical relationship before marriage is considered taboo in Indian society. Partners living together in a live-in relationship do not force obligations on each other; they live freely without any restrictions. 

    In my opinion, there is no proper explanation to define whether it’s good or bad. It merely depends on the person and one’s own perspective (and also their personality) People from the younger generation would be in favor of live-in relationships but it can also happen but it is likely that their parents might oppose it. Hence, there is an equal probability of liking it or not. People ought to believe that when living together, they can understand each other in a better way and also for different reasons which cannot be denied. These things help them to understand that they can spend their whole life with their respective live-in partner or not. Many of the marriages happen where the bride and groom hardly know each other but their family fixes their marriage according to them after marriage when a couple starts living together differences arise and those marriages end up getting a divorce. Many times, the families conduct the matrimonial alliance without checking the compatibility of the couple. Statistics reveal that 80 percent of Indians now support the concept of live-in relationships.[1] 

    Judiciary On Live-in Relationships

    The only thing in this world which is constant is ‘change’. In Indian society, it is observed that there is a drastic change in its living pattern in the past few years. People are slowly and gradually opening up their minds and evolving towards the idea of pre-marital sex and live-in relationships. However, this idea of change is constantly being criticized and is highly debated in Indian society. This idea lacks legality and acceptance by society.  

    In Allahabad High court it is observed that the concept of live-in relationship in the case of Payal Sharma v. Nari Niketan[2], the bench consisting of Justice M.Katju and Justice R.B. Misra said that  “ a man, a woman, even without getting married, can live together if they wish to. They may be considered as immoral by society but it is not illegal or unlawful. There is a difference between morality and law.”[3]

    In the case of Indra Sharma v. V.K.V Sharma[4] in 2013. The Supreme Court stated that “live-in or marriage-like relationships are neither a sin nor a crime though it is not acceptable in some societies. It is also said that it is legally valid and because the marriage institutions are supported by the society which helps to create the likely conditions that the child would be stable because of the love, attention, pamper from both the parents and support from the relatives, friends, and society help to grow a child in a healthy environment”. Further, it is also said that such relationships fall in the ambit of the Protection of Women Against Domestic Violence Act, 2005.[5] 

    In the landmark case of S.Khushboo v. Kanniammal[6], the Supreme court stated that “the live-in relationship comes within the ambit of Article 21 of the constitution of India[7]. The court further stated that the live-in relationship is permissible and the act of two major people living together with their own choices cannot be considered unlawful or illegal”.

    Status of Children 

    Cohabitation between the two partners without any responsibility or accountability towards each other is a seemingly novel concept in India. These two people live their life with their own choices. Therefore it can be considered that there is no liability if one person decides to leave another partner as they are not bound to live together. But the status of the child born from the live-in relationship was never clarified by the court except in a few aspects. An unplanned pregnancy may happen in many cases of live-in relationships but, if after some time the couple is not marrying each other and decide to stay separately, it causes a significant impact on the mother’s life as well as the baby’s life. This might ultimately lead to depression, mental trauma, and non-acceptance in society. Alongside, it is also tough for those women who are not earning their livelihood. These children face difficulties in getting maintenance. Society does not accept such a pregnancy and there are so many difficulties that arise for that mother who is not married and conceiving a child. Society effectively boycotts these women. They face problems in raising a child. Due to the conservative mindsets of society, she cannot obtain jobs easily and children who are born from these types of pregnancy are also taunted and humiliated at every step of their life.

    https://legalreadings.com/marriage-equality-in-india-a-comparative-analysis/

    In the case of Tulsa & Ors. v. Durghatiya & Ors[8], the Supreme court said that “ the child born out of a live-in is not to be treated as illegitimate but there are some preconditions. And the same has been said in some other cases that the man and woman cohabiting together for an extended period of time are presumed to be legally married couples unless proved contrary. There is an urgent need for the legislature in India to regulate live-in relationships and provide requisite legal protection to the parties involved in the live-in relationships”.  

    In the landmark case of Dimple Gupta v. Rajiv Gupta[9], the Supreme court stated that “even if an illegitimate child born out of an illicit relationship is entitled to maintenance under section 125 of CrPc(Criminal Code of Procedure 1973)[10] which provide maintenance whether the child is legitimate or illegitimate when they are minor and after attaining majority those children who are unable to maintain themselves”. There are several cases upholding the maintenance rights of live-in partners where statues interpreted the female live-in partner as legally wedded wives.  

    Custody Of The Child

    The primary barrier faced in the live-in relationship in comparison to marriage is the issue of the custody of the child. There is a lack of legislation dealing with such unions, it makes it easier for individuals to enter into such relationships but it is hard to get out of one. At the time of split-up of live-in partners due to any reason in a live-in relationship dealt with custodial issues concerning children because of the absence of specific laws talking about this issue. 

    “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 the case of Gita Hariharan v. Reserve Bank of India[11], it was said that “the mother became a natural guardian in the absence of the child’s father when a father is incapable to perform the role of guardian according to Hindu Guardianship Act 1956[12] clearly states that the father is the natural guardian of his minor legitimate children but when a father is incapable then the mother will be a natural guardian”. However, Section 6(b) of the same act deals with the live-in relationship in an indirect manner to grant the custodial rights to the natural guardian in the case of children born out of illegitimate relationships. 

    Legal Provisions

    Children born out of a live-in relationship have to go through a lot of mental trauma and difficulties throughout their lives because of a lack of recognition under the law. There could be a custody problem, financial problem as the child grows. The court has declared those children to be legitimate. Additionally, there are few rights given to these children such as property rights. As there are no special provisions enumerated for the maintenance of the children born out of a live-in relationship but the lawmakers have decided to provide children protection evolved under section 125 of CrPc. This section includes all the rights of every child who cannot claim remedies under the laws. A couple living together cannot adopt a child according to the Indian law which is laid down by CARA(Central Adoption Resource Authority).[13]

    Therefore live-in relationships have become legally valid but it is still not legally binding on partners. It can be both, a benefit or a bane, depending on the exception of the couple. In our society pre-marital sex is shamed upon and practicing live-in is a big step forward for Indian society. Indian law and the Supreme Court is trying to bring a change into the nation and also trying to widen the legal prospect which is relevant to this foreign concept. The Supreme court has also stated that the live-in relationship is not approved by morals and the conservative Indian society, the law does not consider them illegal in the eyes of the law. 

    Analysis Of The Situation

    There should be a separate statute dealing with the current scenario of the live-in relationship so that the rights of live-in partners, children born out of their relationship, and those people who are likely to get affected by these relationships should be legally protected. Not all live-in should get legitimate status but those who satisfy basic requirements. Apart from this, there should be awareness among live-in partners about the consequences arising out from the live-in relationship.

    This is necessary to avoid any problem in the future, clear laws should be made and amendments should be amended to the terms which are not interpreted properly and are also vague in-laws. A clear view on the status of the child born out of live-in is to be given by the courts and the legislature. This will ensure uniformity and also secure the future of the child.  

    Conclusion 

    Live-in relationships have always been the center of attraction of debates; it is considered that it poses a threat to the societal framework. It is not an offense as there is no law regarding this until the date which prohibits live-in relationship. To bring justice to those females who are the victims of live-in relationships and those children who are born from them, the Indian judiciary should take a stand for these brought interpretations and make such valid arrangements. Still, India does not legalize the concept of live-in which means there is no specific legislation for it. As of now, legislation deals with the statutes specifically govern matters related to succession, maintenance, and guardianship in regards to live-in relationships. The Protection of Women from Domestic Violence Act, 2005 has acknowledged the rights of partners living in live-in relationships to get protection.

    There is going to be a steady growth of live-in relationships not only in India but all around the world because of the impact of globalization, families are broken up and this leads to life partners living outside and alone in different cities of different countries around the world away from their families. Some new cultures are taken in the society so there is a need for proper laws for the upcoming cultures taking place in the society. Society is witnessing the birth of new cultures and it is imperative that the law accommodates the same.

    References

    [1] National Commission for Women.

    [2] Payal Sharma v. Superintendent, Nari Niketan Kalindi Vihar, AIR 2001 All 254, 17-05-2001.

    [3]  Ibid.

    [4] Indra Sharma v. V.K.Sharma, decided on 23 November 2013.

    [5] Protection of Women from Domestic Violence Act, 2005, s. 2(f). 

    [6] S. Khushboo v. Kanniammal, (2010) AIR 2010 SC 3196. 

    [7] Constitution of India, a. 21.

    [8] Tulsa & Ors v. Durghatiya & Ors, AIR 2008 SC 1193.

    [9] Dimple Gupta v. Rajiv Gupta, AIR 2010 SC 239.

    [10] Order for maintenance of wives, children, and parents.

       (1) If any person having sufficient means neglects or refuses to maintain-

    1. his wife, unable to maintain herself, or
    2. b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. 

    [11] Gita Hariharan v. Reserve Bank of India, AIR 1999.

    [12] The Act provides that a Hindu father is entitled to act as the natural guardian of his minor legitimate.

    [13] Ministry of Women and Child Development, Government of India.

    BY- JUHI MAHESHWARI | NEW LAW COLLEGE

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