The Indian society and the laws are ever-changing and evolving. There have been various changes made in the law in line with the changing social morals and traditions of the society and vice versa. The concept of ‘live-in relationships’ is one such change that has been introduced by the courts as an acceptable form of relationship within society. A live-in relationship has not been clearly defined however, there is a consensus that it includes couples living together or cohabiting without being legally married under any of the laws existing in India.

However, recently, there has been an issue with regard to legally married people entering into live-in relationships with other individuals and have claimed protection for doing the same. This article addresses the stance of the Supreme Court on live-in relationships and the varied and contradictory pronouncements of various High Courts regarding the dilemma.

Supreme Court: Introduction of the Concept of Live-In Relationships:

The Hon’ble Supreme Court in the case of S. Khushboo vs. Kanniammal & Anr. (MANU/SC/0310/2010) discussed the concept of live-in relationships in terms of sexual relations outside marriage and held that “the mainstream view of society is that sexual contact should take place only between marital partners, but there is no statutory offence that takes place when adults willingly engage in sexual relations outside marital setting, except in case of adultery”.

This was followed by another landmark judgment by SC in D. Velusamy vs. D. Patchaiammal (MANU/SC/0872/2010) which affirmed the above judgment and observed that “live-in relationships are to be covered in the expression ‘domestic relationship’ in the Protection of Women from Domestic Violence Act, 2005 which not only includes the relationship of marriage, but also a relationship ‘in the nature of marriage’.” It held that “Parliament in this Act has drawn a distinction between the relationship of marriage and a relationship in the nature of marriage and has provided that in either case the person who enters into either relationship is entitled to the benefit of the Act.” It further observed that not all live-in relationships amount to relationships in the nature of marriage. For them to be qualified, they must fulfil the requirements of a common law marriage including living together in a ‘shared household’ as defined in S. 2(s) of the Act.

This was again reaffirmed by the Hon’ble Supreme Court in Indra Sarma vs. V.K.V Sarma (MANU/SC/1230/2013) by defining ‘relationship in the nature of marriage’ or ‘de facto relationship’ as one “which has some inherent or essential characteristics of marriage though not a marriage legally recognized”.

The SC observed two major differences between marriage and a live-in relationship, firstly, the former is a legal arrangement while the latter can be ended if a party does not wish to live in such a relationship, and secondly, in the latter, the party asserting has the burden to prove that the identifying characteristics of such a relationship are present. Further, it laid down guidelines to identify such relationships including duration of the relationship, shared household, and children, among others.

However, the SC also stated in Gokal Kand vs. Parvin Kumari (MANU/SC/0077/1952) which observed that ‘the continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them’ and held that “a polygamous or bigamous marriage and/or an adulterous relationship cannot be said to be a relationship in the nature of marriage.” Thus, all live-in relationships are not ‘relationships in the nature of marriage’.

High Courts: The Dilemma regarding Protection:

Various High Courts have come up with various pronouncements on the concept of live-in relationships, however, they lack a consensus as to what the position is on the parties involved in a live-in relationship, who have legally wedded spouses at the time of such relationship, availing protection against the threat to life and liberty from their family members or the society.

The Delhi High Court in the case of S. Rajaduari vs. State (NCT of Delhi) (MANU/DE/6447/2023) held that the Court could not address the issue of the morality of such a relationship because the Court is neither authorized to do so by law nor own their own they are commenting, as the Court cannot impose their own perception or morality on adults who can make free choices. It observed that “moral wrongdoing from the societal perspective and legal criminal wrongdoings are two separate issues” and “immorality cannot be punished by law unless so provided by a statute.” Further, it stated that “Courts can provide protection only for acts for which lawful protection is available through the legal system…the statute does not extend its benevolence and protection to people who voluntarily enter into unions or acts for which protection of law is not available. In this regard, a sexual relationship between two individuals, legally married to other partners, cannot be considered an act for which legal protection is available”.

On the same lines, the Gujarat High Court in Bhagwan Rajabhai vs. State of Gujarat (MANU/GJ/0443/2023) refrained from commenting on the issue with regard to the live-in relationship and permitted to withdraw the petition. However, it also imposed a cost of Rs. 5,000/- stating that it cannot entertain such petitions.

The Allahabad High Court has taken a different approach in Kiran Rawat vs. State of UP (MANU/UP/1736/2023) noting that the Supreme Court has observed that a man and a woman living together without marriage cannot be construed as an offence, however, “this cannot be considered to promote such relationships…it is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life”. Further, it added that the “writ jurisdiction being extraordinary jurisdiction is not made to resolve such type of dispute between two private parties. It is a social problem which cannot be uprooted by intervention of the Writ Court in the garb of violation of Article 21 of the Indian Constitution unless harassment is established beyond doubt. If there is a real grievance, the parties are at liberty to lodge an F.I.R with the Police or move an application before the competent Court”.

In line with the above, the Allahabad High Court in Bharti vs. State of U.P. (MANU/UP/1893/2023) held that the petitioner had a legally wedded wife and thus, “the petitioners have no legal right to seek protection on the facts of present case.”

The Allahabad High Court in Suneeta vs. State of U.P. (Writ-C-No. 2723 of 2023) also stated that “this Court does not deem it proper to permit the parties to such illegality as tomorrow petitioners may convey that we have sanctified their illicit relations. Live-in relationships cannot be at the cost of the social fabric of this Country. Directing the police to grant protection them may indirectly give our asset to such illicit relations.”

The Punjab and Haryana High Court in X vs. State of Haryana (CRWP-7908-2023), in line with the Delhi High Court, held that “the key issue at hand was not the legality of the relationship of the petitioners qua which they may be liable for civil and criminal consequences under law, but the protection of fundamental rights”. It further noted that “the Fundamental Right to Life guaranteed by the Constitution of India stands at a higher pedestal, being sacrosanct, regardless of the legitimacy of relationship and/or even the absence of any marriage between the parties” and the Petitioners cannot be deprived of their fundamental right. It also laid down a few guidelines to sensitize police officials to deal with such cases.

Similarly, the Court in a series of cases including Sahila vs. State of Punjab (MANU/PH/2640/2023), Gagandeep Kumar vs. State of Punjab (MANU/PH/2557/2023), Pratibha vs. State of Punjab (MANU/PH/2533/2023), Harjeet Kaur vs. State of Punjab (MANU/PH/2471/2023) and Komal vs. State of Punjab (MANU/PH/2075/2023) has a consensus on this issue and held that “if the petitioners are living in a “Live in Relationship”, they are entitled to the protection of their life and liberty”. The Court relied on Ishrat Bano and another vs. State of Punjab (LPA-796-2021) to hold that “the protection of life and liberty is a basic feature of the Constitution of India as emanating out of Article 32. Every person, more so, a major, has the right to live his/her life with a person of his/her choice subject to the law as applicable”. However, the Court also stated, “that this order does not debar the State and/or any person aggrieved from initiating appropriate proceedings against any or both of the petitioners, if any cause of action arises by the petitioners ‘living in’ together or if they are involved in any case”.

However, in Binder Kaur vs. State of Punjab (CRWP-9114-2023), it was held by the Punjab and Haryana High Court that this petition “is an abuse of process of law to cover up the illicit relationship of the petitioners on being caught”. The Court further added that “one’s choice to live outside wedlock does not mean that married persons are free to live in live-in relationship with others during subsistence of marriage, as it would amount to transgressing the valid legal framework” and dismissed the petition with a cost of Rs. 2,500/- to be paid by the petitioners.

Conclusion

The Supreme Court has accepted live-in relationships as acceptable social relationships and interpreted it as a ‘relationship in the nature of marriage’. It has included it within the ambit of The Protection of Women from Domestic Violence Act. But has held that polygamous or bigamous relationships and/or adulterous relationships are not ‘relationship in the nature of marriage’. However, from the above discussion, it is clear that the High Courts do accept and acknowledge that a person, legally married to a person and has entered into a live-in relationship with another person but there also remains a lot of confusion as to whether such persons are entitled to legal protection in case of threat of to life and liberty from their parents or the society. It is also noted that HCs do not debar any appropriate legal proceedings against the parties in lieu of their live-in relationship. Yet there is a case where the Court states that such a petition is an abuse of the process of law and such a relationship transgresses the valid legal framework.

Hence, the unclear position on the issue of granting married parties in a live-in relationship with another individual protection against any threat to life and liberty remains. There is no straight jacket formula to decide, and we are yet to have a conclusive pronouncement from the Supreme Court on the same.

– By Lakshita Bhati