A live-in relationship is a type of cohabitation where a couple shares a household, without being legally married. It is a voluntary agreement between the parties involved, although some countries such as The United States of America, United Kingdom, Canada allow registration of such cohabitations. People may opt for a live-in relationship for various reasons, such as to test compatibility before marriage, or if they face legal barriers to marriage, or if they want to conceal their relationship status from their parents, or simply because it does not entail the formalities of marriage. It may also be that they do not find the institution of marriage effective or that they cannot afford the financial costs of marriage. Whatever the reason, it is evident that people are increasingly choosing informal relationships before committing to a lifelong partner. This trend raises various social, economic and legal issues.
This paper attempts to analyse the current jurisprudence prevailing in India vis-à-vis the prevailing law in the United Kingdom. The paper also takes into account the recent developments which have recently taken place in India in the form of Uttarakhand Civil Code. The paper aims to compare and contrast the two legal systems and examine the implications of adopting a uniform civil code in India. The paper argues that while there are some similarities between the Indian and British legal systems, there are also significant differences that need to be considered before making any radical changes. The paper also explores the challenges and opportunities that a uniform civil code would entail for India’s diverse and pluralistic society.
Judicial Evolution: Recognizing Live-in Relationships in Indian Law
While there are no specific legislations or laws on live-in relationships in India, the Supreme Court has provided certain guidelines through its judgments over time. These pronouncements have helped in establishing guiding principles regarding the rights and obligations of the parties involved in such relationships.
Until recently, Live-in relationships were not formally recognized in India. However, the legal status has undergone a significant change in India. Such relationships are no longer considered illegal under Indian law, as in 2006, for the first time in the landmark judgment of Lata Singh v. State of U.P, such relationships between two heterosexual adults were not conceived as any offense under the law. [1]Another landmark case, Khushboo vs Kanaimmal[2] and another reiterated the stance, affirming that “Though the concept of live-in relationship is considered immoral by the society, but is not illegal in the eyes of the law.” Subsequently, this stance was solidified by stating that live-in relationships were no longer considered immoral and the two consenting adults had the right to live together without getting married. Furthermore, in D. Velusamy vs. D. Patchaiammal[3], it was held that long-term live-in relationships could be considered valid marriages under certain conditions. This also granted rights to women in such relationships, including the entitlement to maintenance from their parents after separation.
Despite the absence of specific legislation directly addressing live-in relationships in India, many legislations relate to and protect parties involved in live-in relationships, like, the Domestic Violence Act of 2005 which protects women in domestic relationships including those in live-in relationships According to the Act, live-in relationships “in nature of” marriage is recognized and protected. In the case of Indra Sarma v. V.K.V. Sarma[4], the Supreme Court ruled that women in live-in relationships have the right to protection under this act and are also eligible for maintenance.
It is imperative to understand the meaning of “in nature of marriage” as not all such relationships are to be recognized and protected but only those that meet certain criteria which were provided in D. Velusamy vs. D. Patchaiammal. To get recognized as “in nature of marriage”, the partners must
The watershed moment came in 2018 with the case judgment of Payal Sharma v. N. Talwar[6], where the honorable Supreme Court provided similar rights to women in live-in relationships to that of legally wedded wives under the Hindu Marriage Act, of 1955. Additionally, the children born out of such relationships were made entitled to maintenance under the Hindu Adoption and Maintenance Act of 1956. Subsequently, in Lalita Toppo v. State of Jharkhand[7], the court held that a couple could be considered married if they had been living together for a substantial period and had been accepted by society as a married couple.
Despite multiple progressive decisions by the Indian courts, the persistence of the “live-in” issue continues in India. Many judges still rely on their moral compass while dealing with such cases. The concept remains a taboo in society as many times the judgments are based on the judge’s perception of morality, whether the society accepts it or not. Moreover, the core conflict lies between constitutional morality and the personal morality of the lawmaker. Often, the entire judgment is based on the moral judgment of the judge hearing the case which becomes problematic when the couple seeks protection from the state.
In September 2023, Justice Swarana Kanta Sharma while quashing a rape case wherein the two individuals were in a live-in relationship, said that “The criminality in a case cannot depend upon appraisal by a judge of morality according to him. The objectivity of the judges is the key to the fairness of justice and the decisions have to be objectively determined according to the law of the land and not by moral principles of the judge concerned”[8]. However, with such progressive views, the inconsistencies persist. In November 2023, the Delhi High Court, in another case, refused to grant protection to a couple, as live-in relationships, in the opinion of the judges, were a mere infatuation that lacked stability and the couple could not be taken seriously unless they decided to marry. The debate continues how to objectively assess such relationships underscoring the necessity for a dedicated legal framework for live-in relationships.[9]
Uttarakhand Uniform Civil Code: A Step in the Right Direction?
The Uttarakhand government recently introduced the ‘Uniform Civil Code Uttarakhand 2024 Bill’ in the state legislative assembly. The recognition of live-in relationships was a welcome step but the bill has raised many questions as many provisions under the bill negate the very fundamental aspects of live-in relationships, such as privacy and flexibility. The third part of the bill, particularly, has stirred public interest as it addresses the regulation of live-in relationships. As mentioned earlier, there are no legislations related to live-in relationships in the nation but this step taken by the state government of Uttarakhand has attracted criticism, specifically for the policies made on live-in relationships.
Sub-section 4(b) of Section 3 of the draft UCC Bill defines live-in relationships as “It is a relationship between a man and a woman cohabiting in a shared household through a relationship in the nature of marriage”. [10]
Section 378 of the draft bill makes it obligatory for partners to register their relationship by submitting a statement to the registrar. Those who have been in such a relationship for over a month and fail to register could be liable for imprisonment of up to 3 months, or a fine of 10,000 rupees, or both. Additionally, the minimum age for entry into such relationships has been set to 18 years. [11]
Moreover, the registrar cannot register such relationships if either party’s consent was obtained through fraud, coercion, undue influence, misrepresentation, or fraud concerning the identity of the other partner. He is also required to conduct a summary inquiry to ensure that the relationship doesn’t fall under specific categories. For instance, if either party is already married, a minor, or in another live-in relationship, it cannot be registered. Section 385 (1) requires the registrar to inform the parents of both parties if either of them is under 21 years old.[12]
These provisions have garnered criticism from the public as they are seen as a violation of personal privacy and freedom due to excessive government interference. While the government intended to introduce a legal framework, it has been widely criticized for being regressive and excessively intrusive.
If comparisons are drawn to other legislations, the proposed bill is much stricter since the couple is required to mandatorily register after one month of their relationship, which needs to be relooked since in countries like the United Kingdom, the registration isn’t mandatory but is required only to seek protection and legal recognition. Moreover, in the European Union, the couple needs to register only for a long-term relationship. Informing the parents also poses a challenge to personal liberty to choose a life partner and the right to privacy as it seems to be an unwanted interference on the part of the authorities.[13] Additionally, the punishment prescribed for failing to register a relationship seems unnecessary as an illegal act does not necessarily have to be a criminal act. The mere act of not registering a relationship does not cause any harm to society as a whole. Therefore, making it a civil offense would have been a more appropriate decision on the part of the government.
The introduction of the draft bill marks a significant step as it reflects the state’s recognition of live-in relationships. However, the bill requires thorough reconsideration of various aspects, particularly its impact on an individual’s privacy and liberty to choose a partner. The effective implementation of these provisions is crucial, striking a balance between individual liberties and legal recognition of live-in relationships.
Civil Partnerships in United Kingdom
The Indian Legal system draws its roots from United Kingdom, introduced during the British imperialism. The common law system has been seamlessly woven into the fabric of Indian Jurisprudence, intellectually and institutionally, hence the current legal status of live-in relationships in the United Kingdom becomes an essential case to analyse.
In United Kingdom, the Catholic Church held immense sway over social norms and morality. Marriage was a sacrament and any deviation from the relationship of wedlock was strictly discouraged, children born out of wedlock were considered illegitimate. As the protestant reformation challenged the authority of Catholic Church over people’s lives and choices, marriage also became a contested point. The idea of marriage based on companionship and mutual affection gained prominence, while the formal marriage remained ideal, cohabitation became more common.
Although, The United Kingdom has still not enacted a common code for cohabiting couples, nor does it uses a common expression for referring to these relationships, but the Acts of parliament have tried to encompass these relationships, for couples who live together’[14]
The standard test for evaluating ‘living together’ was pronounced in the landmark case of welfare benefits law.[15] The test laid-out six standards as deciding if a live-in relationship is akin to marriage:
Not all standards are required to be fulfilled by couples in order to qualify as being ‘living together’, like having children, but legislation requires them to be living together i.e., membership of same household.
Rights arising out of legal recognition
The legal status of cohabiting couples in England is different from that of married couples in several aspects, the rights granted to live-in couples is relatively limited when compared to their formal counterparts, although some legislation has been introduced to address the disadvantages faced by cohabiting couples, such as the Civil Partnership Act 2004 and the Inheritance (Provision for Family and Dependants) Act 1975, these laws are still limited in scope and do not grant cohabiting couples the same level of recognition and security as married couples
.
Property and Finances:
At the death of the partner
In a case of live-in partner being dead intestate, the other partner or survivor will be entitled to have certain tenancies over rental properties held by the deceased, although, the living partner doesn’t acquires automatic rights over other properties if the partner dies without the will. If the deceased partner died in accident, without any fault of the other partner, the survivor can claim compensation, if they were cohabiting together, continuously for the past two years. And in same manner the survivor can apply for financial provision from the deceased partner’s estate, when the will or the intestate rules do not give the other partner a reasonable financial provision for their maintenance.[16] The extent and amount of provision for the survivor in such a case is a discretionary matter that depends on all the circumstances of the case, including the situation of other individuals who either have already benefited from the estate or who are also making a claim. However, the provision for the surviving partner can only cover their ‘maintenance’ or needs – unlike the provision for a widowed spouse, which can go beyond what they need to sustain themselves.
Property and finances if the couple separates
The live-in partners rights during their separation are limited when compared to their married counterparts. While decreeing a divorce, court wields extensive powers to distribute partners’ income and property but in case of live-in partners only financial remedies exist for children born out of the cohabitation, no partner has any liability to shoulder the financial burden of their ex-partner’s children. The only power that court wields is to rejig their property rights on separation, i.e., transferring tenancy from joint names to just one of them, apart from it there are no financial remedies for their own benefit, other than for the benefit of the children.
Tax benefits
Live-in partners, unlike married partners are not considered a single economic unit for calculating tax, there tax assessment consider them to be an individual person, which denies them of 100 per cent exemption from inheritance tax enjoyed by the surviving spouse in case of married couples, moreover for calculating means-tested benefits they are treated as an individual units which results in loss of their entitlement, if assessed individually.[17] These measures clearly dissuade couples from living together for the purpose of yielding financial benefits without binding them in the institution of marriage.
Law relating to children
The law does not creates a difference between children born within the institution of marriage and children born within cohabitation, as unmarried couples can become parents together via adoption, surrogacy and through other reproductive technologies. The parental responsibility of father who is not married to the mother is only prescribed by the law if he is registered as the father on the birth certificate of the child, or through obtaining the mother’s consent, or by the way of court’s order. Therefore, parental responsibility subsists for the live-in partners in the same manner as it subsists between divorced spouses,[18] and the courts also have an authority to order financial reliefs keeping in mind the welfare of the children which is the same case for estranged spouses.[19]
Conclusion
The evolving jurisprudence of live-in relationships in India reflects a progressive shift in the society. Despite lingering taboos, these relationships are increasingly prevalent, particularly in urban areas. This societal transformation necessitates a delicate balance from the government between offering legal protection to couples while safeguarding their individual liberties and privacy. In this context, recent tragic incidents of violence within live-in relationships underscore the pressing need for legitimate solutions that ensure the social security of such couples. While the Uttarakhand government’s proposed Uniform Civil Code (UCC) draft is subject to critique, especially concerning its stringent provisions, it does indicate a step in the right direction.
The legal recognition of live-in partners in the United Kingdom depict a nuanced scenario. Unmarried couples are provided legal rights, although comparatively restricted and limited to their married counterparts. Legislation such as the Civil Partnership Act 2004 and the Inheritance (Provision for Family and Dependants) Act 1975 aims to address the disadvantages faced by cohabiting couples, yet gaps persist. In Indian context, the legal conditions for live-in couples are not that conducive marked by ambiguity and less social acceptance. Indian law does not specifically recognize or define the legal status of cohabiting couples, leaving them in state of uncertainty regarding their rights and responsibilities. Unlike the United Kingdom, there is no specific legal framework tailored to the need live-in partners.
First, there is a need for a comprehensive legislation describing cohabitation and its rights and duties arising out of the relationship. The lack of clear rules for property and financial rights of cohabiting couples in India. Without guidelines for the allocation of property and financial obligations in situations of separation or death, cohabiting couples face uncertainties and injustice. Therefore, it is necessary to introduce a legal framework that can address these issues and ensure fairness.
Second, parental responsibility and children’s rights in the context of live-in relationships require explicit clarification. Strengthening legal provisions and specifying the rights and obligations of both parents would contribute to a more robust legal framework.
Taxation laws, which currently do not consider live-in partners as a single economic unit, merit review. Aligning tax laws with the recognition of cohabiting couples as a unit for certain benefits can contribute to financial equity and incentivize formalization of relationships.
Lastly, public awareness campaigns are recommended to foster understanding and acceptance of cohabiting relationships within Indian society. Societal perceptions play a pivotal role in shaping legal frameworks, and a more inclusive environment can pave the way for comprehensive legal reforms.
In conclusion, the legal status of cohabiting couples in the UK reflects a nuanced approach, with specific criteria and legislation addressing their rights. In contrast, Indian jurisprudence lags behind, necessitating tailored legal reforms. The recommendations outlined here aspire to bridge these gaps, offering a roadmap for a more equitable and legally secure environment for cohabiting couples in India. Legislative reforms and a shift in societal attitudes can together herald a new era of inclusivity and legal clarity.
The author Anil Mehta, is an advocate and Special Cousel, ED. Former Senior Standing Counsel, UT Chandigarh; Managing Partner, Lex Solutions; Advocates, Solicitors & Consultants.
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[1] Lata Singh v. State of U.P, (2006) 5 SCC 475.
[2] S. Khushboo vs Kanniammal & Anr, (2010) 5 SCC 600.
[3] D. Velusamy v. D. Patchaiammal, (2010)10 SCC 469.
[4] Indra Sarma v. V.K.V Sarma [AIR 2014 SC 309].
[5] Shah, H. (2023, December 14). Live-In Relationships & legal implications in India. https://www.linkedin.com/pulse/live-in-relationships-legal-implications-india-harshad-shah-md78f/
[6] Aishwaryasandeep, & Aishwaryasandeep. (2023, December 7). Live in relationship and Hindu Divorce Laws – Aishwarya Sandeep- Parenting and Law. Aishwarya Sandeep- Parenting and Law – Simplifying Law for Common Man and Students. https://aishwaryasandeep.in/live-in-relationship-and-hindu-divorce-laws/#:~:text=Delhi%20High%20Court%20In%20Case,Hindu%20Adoption%20and%20maintenance%20act.
[7] Lalita Toppo v. State of Jharkhand, 2019 (3) SCC 796.
[8] Thapliyal, N., & Law, L. (2023, September 21). Live law. Live Law. https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-live-in-relationship-married-individuals-morality-238364?infinitescroll=1.
[9] Welle, D. (2023, November 4). Live-in relationships in India are legal but taboo. Hindustan Times. https://www.hindustantimes.com/lifestyle/relationships/livein-relationships-in-india-are-legal-but-taboo-101699086768759.html.
[10] Vishwanath, A. (2024, February 8). Uttarakhand Uniform Civil Code: Registration of live-ins, jail term raise questions of privacy & liberty. The Indian Express. https://indianexpress.com/article/explained/explained-law/uttarakhand-uniform-civil-code-registration-of-live-ins-jail-term-raise-questions-of-privacy-liberty-9147711/.
[11] Garg, K., & Law, L. (2024, February 13). Live law. Live Law. https://www.livelaw.in/articles/live-in-rights-under-scrutiny-examining-privacy-concerns-in-uttarakhand-ucc-249352.
[12] Singh, A., & Law, L. (2024, February 8). Live law. Live Law. https://www.livelaw.in/articles/a-critical-view-of-the-provisions-on-live-in-relationship-in-the-uttarakhand-ucc-bill-248881?infinitescroll=1.
[13] Jain, A., & Jain, A. (2024, February 10). ‘Civil partnership’ in UK, ‘cohabitation’ in France — how other countries view live-in relationships. ThePrint. https://theprint.in/world/civil-partnership-in-uk-cohabitation-in-france-how-other-countries-view-live-in-relationships/1960919/.
[14] Despite the use of ‘husband and wife’, such provisions are now to be read
as referring equally to same-sex couples: Marriage (Same Sex Couples)
Act 2013, Sch 3, para 2.
[15] Crake v Supplementary Benefits Commission [1982] 1 All ER 498.
[16] Inheritance (Provision for Family and Dependants) Act 1975, as amended.
[17] For example, Social Security Contributions and Benefits Act 1992, ss 124, 134, 136–7; and, for Universal Credit, see Universal Credit: further information for couples – GOV.UK (www.gov.uk)
[18] Child Support Act 1991, as amended.
[19] Children Act 1989, Sch 1; compare similar powers to benefit children under the Matrimonial Causes Act 1973, Part II.
