Live-in Relationship between two consenting adults is not an offence

The Indian Society, in the past few years, has seen a drastic change in its living pattern. Concepts like Live-in relationships, etc. have come into existence which is slowly and gradually changing the mindsets of the people in India. However, such a shift from marriage to a live-in relationship is being highly criticized and condemned by the society since in India, marriage is regarded as a legitimate and a legal relationship between a man and woman while in the case of a live-in relationship, the man and woman are not married but are living together with their free consent and will and the legal status of such live-in relationship is not clearly defined in any of laws which exist in India[1].

Recently, on 3rd December 2020, the Allahabad High Court gave a landmark judgment on the subject of Live-in relationship in India. The Allahabad High Court in the case of Kamini Devi v. State of Uttar Pradesh[2] where it held that where a boy and a girl are major and are living together with their free will then nobody, not even their parents, have a right to interfere with their living together. The court while deciding the same took into consideration the case of Lata Singh vs. State of U.P.[3], where it was held that a live-in relationship between consenting heterosexual adults does not amount to any offence even though it is regarded by society as immoral.

The Allahabad High Court, in this particular case, also upheld the right to life and personal liberty which is enshrined in Article 21 of the Indian Constitution and thus no one shall be deprived of such right. The Allahabad High Court, earlier on 11th November, had also upheld in the case of Salamat Ansari & Ors. v. State of UP and Ors[4], that the right to live and marry with a person of his or her choice irrespective of the religion professed is an integral part of the right to life and personal liberty under Article 21.

The concept of Live-in relationship since time immemorial has been a subject of debate as the concept has a western origin and is regarded as immoral by the people of India and thus the courts, through its various precedents in the past have tried to determine the position and status of live-in relationship which are as follows:

A. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy[5]: It was the first case relating to a Live-in relationship. The Privy Council observed that a man and a woman who live together respectively as spouse then the law shall take the presumption unless the opposite is demonstrated that they were living together in respect of a legitimate marriage and not in a condition of concubinage. A similar decision was also given in the case of Mohabbat Ali Khan v. Md. Ibrahim Khan[6].

B. Payal Sharma v. Nari Niketan[7]: The Hon’ble Allahabad High Court, in this case, observed that a man and woman can cohabit together without marriage if they wish to. It is regarded as immoral by society but it is not illegal. The Petition was filed before the Hon’ble Allahabad High Court praying right to live anywhere and with anyone as the petitioner was a major.

C. Madan Mohan Singh v. Rajni Kant[8]: The Hon’ble Supreme Court held in this particular case that the live-in relationship which has been in existence for a longer period is not a walk in- walk out relationship and the court takes the presumption that the marriage has occurred.

D. Tulsa & Ors. v. Durghatiya & Ors.[9]: The Hon’ble Supreme Court held that a long-term live-in relationship will be recognized as equivalent to marriage.

E. S. Khushboo v. Kanniammal[10]: The Hon’ble Supreme Court observed in this case that there is no law which prohibits pre-marital relationship and cohabiting together is regarded as right to life under Article 21 of the Indian Constitution.

F. D.Veluswamy v. D. Patchaimmal[11]:  The Hon’ble Supreme Court division bench comprising of Justice M. Katju and Justice T.S.Thakur laid down 5 parameters under which a girl, in a live-in relationship, can claim maintenance from the boy:

1. The boy and the girl have to be of a marriageable age i.e. 21 years and 18 years.

2. The boy and girl are staying together with their free consent.

3.  The boy and the girl must cohabit together for a considerable period.

4. The boy and the girl staying together should be akin to the society as if they are married.

5. The boy and the girl that the society knows that they are in a live-in relationship will later get married.

G. Indira Sarma v. V.K.V Sarma[12]: The Hon’ble Supreme Court laid down the 6th parameter which states that: if the boy without giving divorce to his wife enters into a live-in relationship with another woman but later realizes his mistakes and goes back to his wife then the girl cannot claim maintenance since this wasn’t a live-in relationship. The court also held that the claim for maintenance can be made in the Domestic Violence Act of 2005[13].

Conclusion:

The concept of a Live-in Relationship is slowly and gradually being accepted by Indian society. The only problem which lies in the aspect of live-in relationship is that there is no law which regulates it even after so many years of its existence and thus in my opinion, the courts should direct the Parliament to make a separate law which governs and regulates live-in relationships in India as it becomes difficult, even for the judiciary, to decide in such cases. Statutes such as the Domestic Violence Act of 2005[14] have although recognized the right of persons cohabiting in a live-in relationship to get protection. Several judgments have been passed relating to live-in relationships but still, it seems obvious that the Indian Judiciary is still not prepared to treat all the living relations as similar to marriage[15]. Positive efforts have been put forth from the side of the judiciary in the case of live-in relationships but still clarity on the legal status of live-in relationship is the need of the hour.


[1] Astha Saxena, Live-In Relationship and Indian Judiciary, SCC Online (Dec. 7, 2020, 18:57 PM), https://www.scconline.com/blog/post/2019/01/23/live-in-relationship-and-indian-judiciary/.

[2] Kamini Devi v. State of Uttar Pradesh, Writ ­ C No. ­ 11108 of 2020.

[3] Lata Singh v. State of U.P., (2006) 2 S.C.C. (Cri) 478 (India).

[4] Salamat Ansari & Ors. v. State of U.P. & Ors., Crl. Mis. Writ Petition No- 11367 of 2020.

[5] Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Blahamy, A.I.R. 1927 P.C. 185 (India).

[6] Mohabbat Ali Khan v. Md.Ibrahim Khan, A.I.R. 1929 P.C. 135 (India).

[7] Payal Sharma v. Nari Niketan, 2001 S.C.C. OnLine All 332 (India).

[8] Madan Mohan Singh v. Rajni Kant, (2010) 9 S.C.C. 209 (India).

[9] Tulsa & Ors. v. Durghatiya & Ors., A.I.R. 2008 S.C. 1193 (India).

[10] S.Khushboo v. Kanniammal, (2010) 5 S.C.C. 600 (India).

[11] D.Veluswamy v. D Patchaimmal, (2010) 10 S.C.C. 469 (India).

[12] Indira Sarma v. V.K.V.Sarma, (2013) 15 S.C.C. 755 (India).

[13] Protection of Women from Domestic Violence Act, 2005, 43, Acts of Parliament, 2005 (India).

[14] Id.

[15] Supra note 1.


Authored By: Abhay Saxena, 2nd Year, BBA LL.B, New Law College Pune, Bharati Vidyapeeth Deemed to be University, Pune.

Edited By: Yamya Pandey


Disclaimer: Views and opinions as expressed in the blogs are solely of the author and any member of the core team of the website shall not be liable for the same.

Related posts