Legal Position of Live-in Relationship in India | Shonee Kapoor

Live in Relationship in India: Indian Society, which prides itself on ‘sanskar’ and ‘family’, is undergoing a metamorphosis in the Twenty-First Century. The Familial bonds are weakening. Also, many people stay away from their families in cities, mini-metros, and metros. These people staying as singles get into relationships more often than any other generation and have started a trend of “Live-in relationships.” Live-in Relationships are not illegal in India. However, the same does not command as much respect. Most people of previous generations look at it as morally and socially improper. However, the new generation does not have much hang-ups about the same.

Legally, it has created a problem of sorts. The Protection of Women from Domestic Violence Act, 2005 (DV Act) made a vague attempt at bringing Live-in Relationships under the legal preview. It protects only female partners from domestic violence in “relationships like marriage.”

Relationship like Marriage: Though the makers of the Act may have anything in mind, the law defines the concept of “Like Marriage” as exhaustive and restrictive. Apex Court in S. Khushboo Vs. Kanniammal & Anr. [JT 2010 (4) SC 478] and D. Velusamy v.D. Patchaiammal [(2010) 10 SCC 469] held that the phrase like marriage would be akin to a common law marriage and would be subject to certain essential conditions or Characteristics. Which translated would be the following:

They should have the capacity to marry each other. A relationship between a married man and an unmarried woman or vice versa is not a “Relationship like marriage.” A woman in such a relationship would be a mistress or concubine.

The relationship should be established for a considerable time period. Or to borrow the phrase from Justice Shiv Narayan Dhingra, it should not be a Walk in and Walk out relationship. (As quoted in Alok Kumar v. State & Anr).

They should live in a shared household. Merely spending week-ends or one night stands can not be termed as “Relationship in the nature of Marriage.”

They should pool resources and have a domestic arrangement where responsibilities are shared. Where a man uses a woman for sexual purposes or as a servant and maintains financial won’t be considered a “Relationship like marriage.” Such a woman is not entitled to any protection under the DV Act.

They should have a Sexual Relationship not merely for pleasure but for emotional and intimate relationships. Having children out of such a relationship would be a strong indication.

They must hold themselves as husbands and wives to the public at large.

In Case of Bigamous Marriage: The benefits of the D.V. Act are not available in a bigamous marriage, regardless of whether the woman or the man was married. The courts have ruled that where the marriage is null and void, it cannot be said that the woman was in a domestic relationship with the man. Also, the second wife cannot challenge the reliefs granted to the first wife.

The drafters of the DV Act may have envisaged anything but the legislature when they came out with the law, which stated that men should not be allowed to benefit from legal loopholes by enjoying the advantages of a de-facto marriage. Recently, the Supreme Court also said that the laws are needed to protect such women who are living in bigamous marriages or with a married man, but that is for the future.

The latest position of the Law on the rights of a woman living in a Live-in was enunciated in the Indra Sarma judgement.

Rape Allegations in Live-in: This is a new trend which has come to light with the change in social dynamics. B S Bassi, the then commissioner of Police, said in 2015. “At least 25 per cent of the total 1,656 rape cases registered so far by Delhi Police have been because of terminated live-in partnerships or refusal to marry.” And to ward off this problem of false cases of Rape arising out of live-in relationships, a PIL was filed in Delhi High Court, which sought direction to the government to keep the instances of live-in relationships outside the purview of the offence of Rape under the Indian Penal Code (IPC). However, the said PIL was dismissed by the Hon’ble High Court with the direction to the Police that Police should not arrest a person only based on an allegation by a woman before conducting a preliminary inquiry and getting a medical report. Still, before arrest, sufficient cause should be recorded by a senior officer to avoid false implications.

Though cases of Rape in live-in relationships and Rape on the pretext of marriage have routinely resulted in acquittal, that still does not mean that a case of Rape won’t be registered against a man who has been in a live-in relationship.

The saving grace, if any, is that a woman who has stayed in a live-in relationship, though not legally married, can not file 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023).

This law does not protect men from Domestic Violence or abuse whether he was staying in a relationship in nature of marriage or otherwise.

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