Non-marital cohabitation or live-in relationships are rapidly emerging as an alternative to traditional institutions of marriage and kinship. Marriage forms the foundation of family building, procreation and lineage and remains a time-tested instrument of social control and peaceful coexistence. However, some individuals in every society, irrespective of their sexual orientation, prefer alternatives like live-in relationships to circumvent the archaic limitations and obligations imposed by marriage.
A live-in relationship is an arrangement in which couples live together in a relationship similar to marriage but without marital status and obligations. This arrangement between heterosexual or homosexual unmarried partners may be romantic or sexual, which may last for a short period or may be lifelong. Cumbersome family laws designed with religious overtones may induce disenchantment, leading to some couples choosing cohabitation in the hope of liberation and equity in their intimate relationship. Indeed, religion in traditional societies proscribes non-marital coitus and cohabitation to protect genetic purity and to observe social order and personal morality. Live-in, to some couples, is a trial marriage to test their compatibility before entering into conformist marriage.1
Several myths and fallacies about adultery and bigamy exist regarding live-in relationships. The common belief is that two persons living together in an intimate partnership without marriage are in a live-in relationship, which may not essentially fit in the prevalent legal regime. In the modern era, cohabitation has become a behavioural norm for courtship before marriage especially in developing countries.2 Non-marital cohabitation embodies the broader cultural shift in individualism. There is no scope to allege infidelity, an extramarital affair, or immorality by the other live-in partner.3 A live-in relationship is preferred over marriage because it provides a convenient escape if things fail to work between partners. If the couple wishes to break up, they enjoy the freedom to split unilaterally, irrespective of the consent of the other party and without having to go through the cumbersome legal formalities in the court. Thus, a live-in is preferred to enjoy freedom and equality in intimate relations without having to shoulder many obligations.
Social change is a dynamic process, and family affairs are no exception. Decisions about marriage, separation and divorce are no longer considered family affairs but an individual’s choice. Social acceptance of sex outside marriage, delay in marriage and marital discords are major reasons for the exponential growth of cohabitation. Education, economic security, independent decision-making, and an egalitarian mindset further contribute to females choosing live-in relationships over traditional marriage. The concept of cohabitation has gained socio-legal importance because the rate of childbirth to unmarried parents is increasing exponentially in the global landscape.4 Cohabitation is emerging as a social institution5 and policy interest demands that various issues like rights and liabilities of cohabiting partners, stability of new family forms, the welfare of their children, kinship relationships, etc., be addressed. The legitimacy of a child and rights, and duties of parents and their offspring inter se depend upon a valid marriage between the parents at the time of childbirth—this reality directly confronts the child born to an unmarried couple. Thus, various linkages between policy formulation and family behaviour as a sequel of live-in are active domains of research.6 This article illuminates at the global panorama, the legal status and various other intertwined notions regarding live-in relationships by using notions like governmentality and biopower propounded by Michel Foucault.
LOOKING AT COHABITATION THROUGH THE FOUCAULDIAN LENS
Cohabitation may also be understood from the standpoint of the concepts of “governmentality” and “biopolitics of marriage”, postulated by Michel Foucault.7 Michel Foucault opined that Biopower—the power over life—has two facets in the governance of modern society—Biopolitical and Anatomo- political. Biopolitics focuses on the administration of population, strengthening and enabling it through various techniques such as making various laws regulating inheritance, health, etc. The second facet, anatomo-political focuses on disciplining individuals through the power-knowledge dyad. This disciplinary mechanism deploys “power” to oppress the natural desires of an individual.8
Foucault emphasised on developing a scientific study based on “analytics of biopower” to unearth the truth of sex. He linked “power” and “control over sex” stating that power demands obedience through domination, submission, and subjugation. Sex, as Foucault observed, is nothing but pleasure for two individuals and based on this surmise he endorsed homosexuality. He believed diversification in relations would be a way of life irrespective of gender, age, status, and social activity. Such divergence may yield relations not resembling those that are institutionalised. In his view, a way of life can yield ethics and culture. Thus, cohabitation from the Foucauldian viewpoint may be considered as an individual’s choice to live together but it is biopower that controls such conduct through law and governance. This conceptual framework has been used for understanding socio-legal dimensions of cohabitation.
MYTHS AND MISCONCEPTIONS: CONCEPTUAL CLARITY
The notions of live-in relationship, adultery, and bigamy need brief deliberation for conceptual lucidity. Adultery under Section 497 of the Penal Code, 1860 in India deals with extramarital relationships and punishes only the man for having a sexual relationship with a woman already married to another man. The first information report of adultery can be filed by the husband of the woman against the man. The wife is not liable to be criminalised or punished for infidelity or even as an abettor to the crime of adultery since the law regards her as a victim. However, the civil law entitles the husband to file a divorce petition on the ground of adultery.9 In 2018, the Supreme Court struck down Section 497 of the Penal Code holding that the impugned provision of anachronistic law is discriminatory, irrational, manifestly arbitrary, and inconsistent with constitutional morality, and hence violative of Article 14 of the Indian Constitution.10 Section 497 treats a married woman as property of the husband, however, it does not bring within its purview an extramarital relationship with an unmarried woman or a widow, since it deals with only married woman. Pointing out the anomalies and inconsistencies in the legal provision of adultery, the Court concluded that Section 198(2) of the Criminal Procedure Code is inconsistent with Article 14 of the Constitution being manifestly arbitrary and discriminatory, since it considers the husband of the adulteress as the person aggrieved and gives no such right to the adulterer’s wife. Recently, the Rajasthan High Court observed11 that: (Vakeela case11, SCC OnLine Raj para 3)
- … married persons living with somebody else’s spouse would amount to committing an immoral act and a seal of approval cannot be given by this Court by directing the police to give them protection.
Bigamy deals with subsequent marriage of an already married individual.12 If someone who has marital obligations starts living with a person other than his/her spouse, it would amount to bigamy and is not to be confused with a live-in relationship. In the 227th Report,13 the Law Commission of India recommended that married persons cannot marry again even after changing their religion unless the first marriage is dissolved or declared null and void in accordance with the law. Monogamy is mandated as a socio-legal norm, and the Penal Code under Section 484 criminalises bigamy by prescribing a punishment of up to seven years.14 However, marriage falls under the dominion of civil laws and religion has direct bearing on family matters. Many religions including Christianity proscribe polygamy, but a Muslim male under the Shariat is allowed to have four wives at any point in time.15 However, a female counterpart does not have the same legal right, and she is severely punished for Zina,16 if held guilty of extramarital relations. This evident discrimination and unreasonable classification abridge the right to equality under Article 14, and fortifies the need for the Uniform Civil Code (UCC), as mandated under Article 44 of the Indian Constitution.
RELIGIOUS SANCTITY OF MARRIAGE AND LIVE-IN RELATIONSHIP
Live-in is a body-based relationship purportedly entered into to satisfy bodily (sexual) desires. Religion recognises sexual activities only for the purpose of procreation and only within the ambit of marriage. All religions in general proscribe third party intervention in marital affairs for genetic purity. Thus, non-marital cohabitation defies religious norms. Family laws are specific and provide religious stimulus for social control. Cohabitation at global platform is not well recognised under the archaic legal framework. In the traditional set up, marriage was considered to be the foundation of families and clan ties rather than merely a nuptial knot between two individuals. Even though sexual liaison without marriage has existed since time immemorial, customarily such behaviour has been a matter of criticism and indicative of low character, especially for the female partner. Often males with socio-economic or political dominance kept concubines who generally belonged to the lower strata of society. This concept of keeping concubines represented the misogynistic mindset of male dominated societies.
Live-in relationships are not merely a creation of the western world, they have also existed in traditional societies despite public opposition. In Hinduism, Gandharva Vivvah17 is akin to the modern live-in relationship and represents love marriage without the consent of the families of the couple. Under Hindu law, marriage is a sacrament but under Shariat, it is considered to be a civil contract. Muta, a “pleasure marriage”, is a temporary marriage agreement between heterosexual Muslims. Sunni Muslims forbid Muta and consider it prostitution. However, in Muta, the husband enjoys a unilateral right to revoke the marriage, positing his superior position in the relationship. A woman is permitted to refuse being intimate with her husband and is entitled to leave him but is then required to return the amount received from him under the marriage contract. Muta has few characteristics similar to a live-in but Muslim scholars largely consider Muta superior to live-in relationships.
Among Christians, the practice of cohabitation is on the rise globally despite being contrary to the fundamental teaching of Christianity which states that non-marital cohabitation breaches ethical considerations and social morality.18 The Biblical principles are overtly non-vocal on this emerging trend. However, the Bible says, “So God created man in his own image, in the image of God he created him; male and female. He created them. God blessed them and said to them: Be fruitful and increase in number …”.19 “For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh”.20 The Biblical view of marriage is that husband and wife should be one spiritually and physically; and physical unity should realise in the context of spiritual unity. Marriage represents spiritual union of two soulmates but cohabitation focuses on functionality to fulfil sexual desires by promoting sexual infidelity.21 Jenkins has observed, “Sex without a lifelong commitment violates the inner reality of the act; it is wrong because unmarried people thereby engage in life-uniting acts without a life-uniting intent”.22
Buddhism does not impose any obligation to get married. There is no specific reference to cohabitation in Buddhist scriptures criticising or promoting this practice, and does not prescribe any explicit religious ritual either. A Buddhist couple, whether heterosexual or homosexual, may prefer to cohabit either by marriage or civil partnership to practice love and compassion. Jainism is also not explicit on non-marital cohabitation, but largely stresses on high level of austerities and asceticism in life.
LEGITIMACY OF A CHILD BORN FROM COHABITATION
A valid marriage between parents at the time of childbirth is sine qua non for determining the legitimacy of children across the globe. Legitimacy is the fulcrum of the entire scheme of legal rights and obligations between parents, children and other kin. Legitimacy is an essential legal requisite to determine issues of custody of the child, inheritance, maintenance, etc. Section 112 of the Evidence Act, 1872 deals with childbirth during marriage and regards it as conclusive proof of legitimacy.23 Illegitimacy attributes the biggest curse to an innocent child and the stigma is carried for life. A live-in relationship not being equivalent to marriage in stricto sensu causes a legal conundrum on legitimacy of a child born to unmarried parents. Precisely, children born to cohabiting partners are not legitimate in the eyes of the existing legitimacy laws.
In Tulsa v. Durghatiya24, the Supreme Court held that a child born from cohabitation must not be treated as illegitimate, and even though the second marriage is void for a person who has entered into the second marriage during the subsistence of his first marriage, the children born from the second marriage would be legitimate.25 The Supreme Court in Revanasiddappa v. Mallikarjun26 remarked that birth of a child out of such relationship has to be viewed independently of the relationship of the parents, the child is innocent and is entitled to all the rights and privileges available to children born from valid marriages. The Court further went on to observe that “some limitation on the property rights of such children is still there in the sense that their right is confined to the property of their parents alone”.27
The Supreme Court in Dimple Gupta v. Rajiv Gupta28 advanced social justice by holding that even an illegitimate child born out of an illicit relationship is entitled to maintenance. The rights of inheritance and legal status were granted by the Supreme Court to a child born from cohabitation in Vidhyadhari v. Sukhrana Bai.25 The Court, in Gokal Chand v. Parvin Kumari29 cautioned that the couple would not get legitimacy, if the evidence of them living together was rebuttable. The father is the natural guardian of a child in all religions. A Hindu mother becomes eligible for guardianship only when the father is incapable, but a Muslim mother does not get a guardianship right even after the death of child’s father. On the other hand, a mother in a live-in relationship gets the right of guardianship over her illegitimate children.30
The judicial approach again appears blurred on various facets such as if cohabiting partners after childbirth decide to marry or start living with someone else, whether that person would be considered to be the step-parent of the child and whether the child would be entitled to inheritance from him/her? Indeed, live-in relations have huge potential to cause multiple parentage to a child and kinship bewilderment resulting into chaotic social order. Procreation in a civilised society does not merely connote the birth of a child, but creates several rights and responsibilities necessary for generational perpetuity, care and compassion, and genetic purity.31 Laws are yet to be enacted for determining the father of children who were pronounced illegitimate in legal battles. In a plethora of cases, the judiciary has concluded, based on DNA and other evidence, that the child was born out of an extramarital relationship and has thus granted a divorce decree. However, the issue of who the father of such an unfortunate child would be was not addressed.32 The outcome of the current legal interpretation is that the child inopportunely becomes fatherless. Even in the celebrated Rohit Shekhar case33, the public at large believed that Rohit won the legal battle since DNA helped to recognise Narayan Dutta Tiwari as his father. Legally speaking, DNA could only prove biological paternity, which is not accepted under Section 112 of the Evidence Act, 1872.34 Legal framework at the national and international landscape cry for protecting the best interest of a child, but no remedy exists in law to identify the father of these children. This dichotomy in law needs immediate attention.
CONSTITUENTS OF A LIVE-IN RELATIONSHIP
A live-in arrangement is indeed de facto marriage; and partners, especially females, yearn for mutual commitment, which is inherently missing. In D. Velusamy v. D. Patchaiammal35 the Supreme Court culled out five conditions to qualify for live-in relations. These quasi-legal settings largely emulate traditional marriages, the only difference being the lack of a formal social ceremony and legal documentation. The notable conditions to qualify for cohabitation are the age of majority and “no previous marital obligation” on either partner in the live-in. It must be amply clear, that if any partner was earlier married to another person but has not legally dissolved the marriage (divorced), live-in would amount to an act of adultery. Staying together for substantial period is yet another pre-requisite for a live-in relationship. The Supreme Court has opined: (SCC p. 478, para 31)
- 31. … In our opinion a “relationship in the nature of marriage” under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a “shared household” as defined in Section 2(s) of the Act. Merely spending weekends together or a one-night stand would not make it a “domestic relationship”.35
Close scrutiny of the constituents reveals that the Court is tracing and enforcing stability to live-ins similar to marriage particularly to draw the presumption under Sections 114 and 50 of the Evidence Act.36 Reading both these legal provisions together, “it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.”37
CONTRACT IN LIVE-IN RELATIONSHIP
A live-in relationship is purely based on the volition of cohabiting partners, thus it is an ilk of contract, which may be implicit or expressed by a signed document (contract) that may also be registered for permeating legal validity. The cohabitation agreement may be comprehensive or specific, aimed at providing emotional and financial security to an unmarried couple living together without formal marriage. This contract ensures cohabitors’ right to have shared property, debt liabilities, child and spousal support similar to that of a married spouse.38 It may also specify conditions for separation and dispute resolution, or it may also have testamentary declarations. The contract may be annulled by mutual consent of contracting couple, and no legal formality is required unlike in divorce. In general, the courts do not enforce such contracts.
LEGAL STATUS OF LIVE-IN RELATIONSHIPS IN VARIOUS JURISDICTIONS
Non-marital cohabitation is an old Nordic tradition and has worldwide existence.39 Globally, laws on cohabitation are diverse and in many jurisdictions live-in relationships are regarded as contracts between two individuals to determine their legal rights irrespective of their marital status. Australia, Canada, China, Ireland and Philippines have legally recognised live-in partners under “common law marriage” by registration like in marriage. Other countries including the United States, the United Kingdom, India, etc. give no legal recognition to these couples. Further, the rights of children born to them are not sufficiently protected.
THE UNITED STATES
Judiciary in the USA, in order to strengthen the right to privacy, paved the way to declare anti-cohabitation laws unconstitutional. In Lawrence v. Texas40, the US Supreme Court held that US laws prohibiting private homosexual activity, sodomy and oral sex between consenting adults are unconstitutional. This case granted the right to privacy, freedom of sexual orientation and consensual carnal conduct. This recognition of the right to make private sexual decisions braced the right to cohabitation, but the legal response towards unmarried couples is not uniform among the States. The Supreme Court of Virginia in Martin v. Ziherl41, declared that Virginia criminal laws against fornication42 violate the Fourteenth Amendment of the US Constitution. In 2016, Florida abolished criminal provisions that considered cohabitation to be a misdemeanour. Mississippi and Michigan proscribe cohabitation among opposite-sex couples.43, 44
California does not permit common law marriage but recognises “domestic partners”45 and has created a Domestic Partners Registry. The California Family Code requires that (i) neither person has marital obligations towards someone else nor is a member of another domestic partnership, (ii) the partners are not related by blood prohibited for marriage, (iii) both persons are above 18 years of age, and (iv) both persons are capable of consenting to the domestic partnership. However, stability in such domestic relations in USA remained a challenge and often resulted in civil litigation. The term “palimony” was coined to grant maintenance (Marvin claims) to a woman who was deserted by the man with whom she lived for a substantial period without marrying him.46
THE UNITED KINGDOM
In the Victorian era, cohabitation was decried on the altar of high personal morality standards. Interestingly, in modern times, nearly half of the babies in the UK are born to unmarried couples.47 The social security (welfare) law48 in the United Kingdom treats live-in relations equivalent to marriage regardless of a formal marriage or civil union (domestic partnership). Increasing births outside marriage became a political issue to adjust existing legal regime. The key issue to be considered now is whether the State must promote marriage through added incentives or if it should focus on the status of parents rather than status of the spouse. Scotland adopted cohabitation laws more swiftly compared to England and Wales. In 2006, legal sanctity was conferred on live-in relations in Scotland based on duration of cohabitation, nature of relationship and financial arrangements as defined under Section of the . Section 28  of this piece of legislation empowers a partner to sue for financial support. An unmarried father in Scotland has parental responsibility if he is mentioned on the birth certificate.
In Indian culture, practice of two individuals (heterosexual) “living together” has existed since time immemorial. However, concubines were kept by men apart from their formally wedded wives for the sole purpose of entertainment and relaxation. After Independence, bigamy was outlawed in India in line with the secular format of family laws.49 There is no specific law in India for dealing with the nuances of a live-in partnership in holistic manner. The provisions under Section 125 of the Criminal Procedure Code and Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 have been expanded in scope to entitle an aggrieved person to maintenance and to secure legal protection against atrocities within domestic relationships.50 These provisions are neither designed nor adequately framed to define rights and duties of cohabiting partners or to deal with disputes that arise between them. The Indian judiciary over period of time, has assiduously addressed several allied issues but in the absence of legislation, piecemeal judicial approach has also impinged personal views of Judges causing legal conundrum, as deliberated in some of the landmark judgments.
The Privy Council in Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy51 had laid down a general principle: (SCC OnLine PC)
… where a man and a woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.
In Mohabbat Ali Khan v. Mohd. Ibrahim Khan52 it was held that: (SCC OnLine PC)
… The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years….
However, no court so far has specified the minimum number of years of cohabitation.
In Indra Sarma v. V.K.V. Sarma,53 the Supreme Court observed that “live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal.” The Court went on to observe: (Indra Sarma case53, SCC p. 787, para 59)
- 59. … since the appellant was aware that the respondent was a married person even before the commencement of their relationship, hence the status of the appellant is that of a concubine or a mistress, who cannot enter into a relationship in the nature of marriage. The long-standing relationship as a concubine, though not a relationship in the nature of a marriage, may at times, deserves protection because that woman might not be financially independent, but we are afraid that the DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and exhaustive.54
The Court also pronounced that: (Indra Sarma case53, SCC pp. 787-88, para 61)
- 61. … Unfortunately, there is no express statutory provision to regulate such types of live-in relationships upon termination or disruption since those relationships are not in the nature of marriage. We can also come across situations where the parties entering into a live-in relationship and due to their joint efforts or otherwise acquiring properties, rearing children, etc. and disputes may also arise when one of the parties dies intestate.55
In Indra Sarma case53, the Supreme Court also identified five categories of domestic relations to fall under Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.56 The Court culled out eight guidelines to determine a live-in relationship with the explicit disclaimer that these guidelines are not exhaustive.57 Madras High Court dealt with the legal contours relating to “domestic relationship” as defined under Section 2(f) of  the DV Act, 2005.58 The Court held that the said provision of law did not specify any particular period to live together to qualify for a domestic relationship. The Court upheld the maintenance award by observing that “at least at the time of having sex, they shared a household and lived together”. Such interpretation of this legal provision signifies the inclusion of cases where men and women shared a frequent sexual liaison, even if there were no explicit intentions to have a long-lasting obligation.
The Indian Courts have further dealt with the issue of “relationship in the nature of marriage” to adjudicate disputes relating to live-in relations.59 The constitutional courts have reiterated that live-in, despite not being socially accepted in India, does not contemplate any offence under law. Consequently, two consenting adults are at liberty to live together and no person would be permitted to interfere in their peaceful living.60 The High Court of Allahabad held61 that: (Payal Sharma case61, SCC OnLine All para 1)
- 1. … In our opinion, a man and a woman, even without getting married can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.
In Lata Singh v. State of U.P.62 the Supreme Court has reiterated the right of a major woman to marry or to live with anyone of her own free will. The Court also reflected on the barbaric, shameful and feudal-minded crime of “honour killing” of the couple undergoing inter-caste or inter-faith marriage. Poignantly, around two dozen criminal cases were slapped against noted cine actor Khushboo for endorsing pre-marital sex and live-in relationships which were quashed by the Supreme Court in S. Khushboo v. Kanniammal63. The Supreme Court for the first time in Badri Prasad v. Dy. Director of Consolidation64 recognised a nearly fifty year old live-in relationship between two individuals. The Supreme Court, in Vidhyadhari v. Sukhrana Bai65, entitled the female live-in partner of a deceased Hindu male to his estate despite the fact that he also had a legally wedded living wife. Thus, the Court has kindled the hope of inheritance rights being given to live-in partners staying together for reasonably long period as husband and wife.
Illegitimate children, under Hindu law, have the right to inherit property only from the mother, and not from putative father. Under the Muslim law, an illegitimate child has no right to inherit property even from mother. Thus, the prevailing laws in India debar a child from claiming inheritance who is born to a cohabiting couple. However, the Supreme Court in Revanasiddappa v. Mallikarjun26 had declared children to be “the legal heirs” of a man who was enjoying a live-in partnership with their mother and granted inheritance rights to these children. The Indian law does not allow couples living together to adopt a child as per the terms laid down by the Central Adoption Resource Authority (CARA).66 Though the Indian judiciary has accepted and upheld adoption rights of competent live-in partners under Article 21, but Indian Legislature is yet to amend and modify family and allied laws to recognise and accommodate cohabitation as family-making process.
SOCIO-LEGAL COMPLEXITIES ASSOCIATED WITH LIVE-IN RELATIONSHIPS
Traditional societies blended with religious sentiments still hold the notion that marriage is the best institution to build a stable family. Marriage provides socio-economic and legal security to the stakeholders especially the wives and children. Females in live-in relationships retain individual identity. They are not recognised as wives or domestic partners stricto sensu and are thus not required to use their husband’s surnames for any legal or financial purpose like opening a bank account, applying for loans, insurance claims etc.67 Consequently, cohabiting partners can separate informally without observing any legal proceeding for divorce. It appears on close scrutiny that similar to that in traditional marriages, it is the woman who is found to be more aggrieved compared to her male live-in partner. In case of failed partnerships, it is she who runs from pillar to post for an award of maintenance, children’s rights and so on. Empirical studies reveal that the children born to cohabiting couples are more insecure, neglected, and often exploited on various accounts and are therefore at a higher risk of giving poor results in future.68 Thus, live-in relationships do not meet the full spectrum of expectations of cohabiting partners and the situation appears to be just as grim as in a marriage.
There have been multiple cases in which female partners have levied allegations of “rape on the false promise to marry” on their partners when disputes arose within the live-in relationship. Investigating such allegations are challenging because when sexual liaison is based on competent consent, it is unlikely to find injuries that indicate sexual aggression. Recently, the Chief Justice of India observed that “Making a false promise of marriage is wrong. No one should falsely promise marriage and break off but that is different from saying that the act of sexual intercourse is rape”.69 Legally speaking, marriage provides sexual access as a matter of right70 to a husband over his wife irrespective of her consent, since marital rape is not criminalised in India. The sexual right of the husband and wife ceases during “separation” without mutual consent.71 Stricto sensu, the law does not extend such sexual access to a male partner without the female partner’s consent in a live-in relationship.
Rising trends of extant social phenomenon may likely enhance “social load”, causing emotional instability at subsequent stage of life, and in turn may likely to burden responsibility of governing bodies. Further, cohabitors, as a sequel of deficit of faith and commitment, are more hesitant to beget children in their prime youth and are more likely to have abortions than normal married couples.72 The children born to cohabitors are more likely to suffer from anxiety, depression and neglect which may further escalate if the mother changes her partner several times.72 A female child may be exposed to the possibility of sexual abuse by the new partner such possibilities may potentially disturb the health of women and children as well as kinship relations in a society. Thus, a holistic and society-specific understanding of live-in relationships is needed for the greater good of society.
LIVE-IN IN INDIA: WAY FORWARD
Marriage necessitates commitment but a live-in relationship is based on the freedom to withdraw from the partnership. Empirical studies have revealed that cohabiting females face more frustration and burden due to inherent fragile nature of this mode of family building.73 These couples, if  marry, also suffer from higher rate of divorce compared to normally married people.22,74 The process of family progression also gets hampered due to lack of trust and commitment between cohabiting partners. The legal battles for asserting various rights like maintenance, inheritance, etc. are also common among cohabitors. Global evidence suggests that cohabitation may not yield a stable family to build contented society; and India, being characterised by a traditional outlook face added challenges. Sexual freedom alone cannot be the only basis for building a lifelong intimate relationship, trust and commitment are essential important between partners.
Judiciary has recognised long term live-in relationships equivalent to marriage, but have refused to expand the definition of “wife” beyond legally wedded wife. Thus, a live-in partner is not legally considered equivalent to a wife, except for granting maintenance.75 In view of the increasing cult of cohabitation there is a need to widen the scope of definition of “wife” under Section 125 of the Criminal Procedure Code to include cohabiting partner as suggested by the Malimath Committee.76 The judicial trend globally is marching towards liberalism to strengthen the right to privacy with regard to sexuality.77 Referring to the evolving notions of transformative constitutionalism and constitutional moralism, the Supreme Court has observed that legal provisions criminalising adultery have lost their significance, and struck down Section 497 of the Penal Code and Section 197 of Criminal Procedure Code.10 This judicial approach has expanded sexual liberty but may promote tendency for infidelity among married couples. Live-in may eventually lead to new form of serial monogamy by changing partners due to lack of faith and instability in relationship. This may adversely affect kinship relations and may create a requirement for robust welfare schemes for abandoned children and the old-aged persons.
There is dire need to have an in-depth understanding and analysis to explore subtle balance between marriage and cohabitation. Society must provide more space and liberty to the youth to opt for their partners, and if needed, their interests must be protected by the State. In absence of legal clarity, sometimes, judiciary refused to provide protection to the cohabitors in the guise of protecting the social norms.78 Recently P&H High Court,  based on morality, refused to approve a contract (registered deed) of live-in relationship.79 Legislature, religious heads and the society at large must consider relaxing the cumbersome process of separation and divorce. Parliament must meticulously legislate to deal with live-in relationships broadly to ascertain rights and duties of the partners. The cohabiting couples must get entitlement to partner’s assets under intestacy rules, insurance and pension benefits, as well as tax exemption for capital gains tax, inheritance tax, stamp duty.80 They must be treated as coparcener, member of Hindu undivided family and they must be allowed as beneficiary to various government schemes. These couples must be granted the right of child adoption on similar conditions as married couples. Cohabitation is a social reality but a fragile communal construct for stable family building, that needs to be addressed with due care, sensitivity and attention.
The choice between the institution of marriage and a live-in relationship reveals the underlying conflict between social security and individuals’ liberty. Cohabitation may not be an alternative per se to completely replace the institution of marriage, but today cohabitation is biographical option that is here to stay as an alternative to the marital arrangement, despite its fragile nature and to a greater extent, lack of protection under law.81 Live-in relationships call for legal recognition to define role and responsibilities for strengthening and ensuring protection of rights and liabilities. Cohabitation has not been recognised under the prevailing matrimonial legal regime as a sovereign social institution independent of marriage. At global landscape, the contemporary law on cohabitation is woefully out of date and there is a clarion call to address “the normal chaos of family law”. Archaic dogma of marriage also needs to adapt to modern necessity of the educated, rights-oriented and egalitarian partners. Precisely, the family law should protect the function rather than the form of relationship.
Indeed, live-in is a legally evolving social phenomenon, and there is pressing need to address various emerging facets such as legitimacy, custody of children, protection of their separate or joint property on separation, inheritance, etc. Empirical studies must be conducted for building robust jurisprudential epistemology to investigate cause-effect relationship for prescribing evidence-based solutions. Indian courts have made sincere efforts to confer legal validity to cohabitation, but rights and obligations are neither defined, nor binding on the partners. Judicial verdicts in India, for want of law, are diverse and manifestly lacking consistency exposing the idiosyncratic approach to legal interpretation. Family structures are a culture driven, diversified and everchanging social phenomenon, and the law makers must acknowledge the dynamics of social change to update the legal provisions governing these structures. This will help to avoid conflict and confusion between society and law. In fact, the law must ensure subtle balance between competing individuals’ right and wider interest of a just society.82
**The article has been published with kind permission of Eastern Book Company. Cite as (2021) 7 SCC J-25
† LLM, PhD, DSc (Law and Forensic Sciences). Honorary Professor of Law in NLU, Delhi; NFSU, Gandhinagar; RRU, Gandhinagar; and JGLS, Sonipat. Serving member of the Indian Police Service in the State of Uttar Pradesh. (The author may be contacted at: email@example.com)
‡ Candidate of BA, LLB from Jindal Global Law School, Sonipat, India.
1 P. Roger Hillerstrom and Karlyn Hillerstrom, The Intimacy Cover-Up: Uncovering the Differnce Between Love and Sex, (Kregel Publications, Grand Rapids, Michigan, 2004). “It is just a trial run. If you fail, I will leave” in Karlyn’s Thought, “I Love You … I Think” at p. 51.
2 Judith A. Seltzer, “Cohabitation in the United States and Britain: Demography, Kinship and the Future” 66 Journal of Marriage and Family 921 (2004).
3 Alok Kumar v. State, 2010 SCC OnLine Del 2645. Delhi High Court has observed that person entering into such relationship are debarred from complaining of infidelity or immorality of the other partner.
4 In the United Kingdom nearly half of the babies were born to unmarried couples (47.3% in 2011, and 96% of mothers under 20 were unmarried).
5 N. Hudson, and Keith Warrington, “Cohabitation and the Church” 13 Journal of the European Pentecostal Theological Association 63 (1994).
6 Éva Beaujouan and Máire Ní Bhrolcháin, “Cohabitation and marriage in Britain since the 1970s” 145 Population Trends 35 (2011). Also see, A. Barlow, R. Probert, “Regulating Marriage and Cohabitation: Changing Family Values and Policies in Europe and North America — An Introductory Critique” 26(1) Law & Policy 1 (2004).
7 Michel Foucault, The History of Sexuality (French — L’Histoire de la sexualite), (Editions Gallimard: Paris, 1976). He argued that “… construct an analytics of power that no longer takes law as a model and a code, and announcing that a different form of power governs sexuality. … We must, at the same time conceive of sex without the law, and power without the king.” (pp. 77-91)
8 Michel Foucault, Society Must Be Defended, Lecture at the College de France 1975-1976 (Trans. David Macey, London), pp. 249-256. Also see, J.R. Cadwallader and D.W. Riggs, “The State of the Union: Towards a Biopolitics of Marriage” 15(6) M/C Journal 585 (2012).
10 Joseph Shine v. Union of India, (2019) 3 SCC 39.
11 Vakeela v. State of Rajasthan, 2020 SCC OnLine Raj 2620.
12 T.C. Hartley, “Bigamy in the Conflict of Laws” 16(3) The International Law Quarterly 680 (1967). Also see, Abha Thapalyal, “Proving Bigamy: Unfair Burden?”, (1986) 4 SCC J-11. Bigamy: It is polygyny, if a man has more than one wife; and polyandry means a woman having more than one husband at a time.
13 Preventing Bigamy via Conversion to Islam — A Proposal for giving Statutory Effect to Supreme Court Rulings, 227th Report, the Law Commission of India (August 2009).
14 Section 494 of the Penal Code deals with “marrying again during lifetime of husband or wife” (bigamy). It prescribes punishment with imprisonment, which may extend to seven years. Section 495 IPC punishes with imprisonment extended to ten years for marrying again by concealing the fact of former marriage.
15 Qur’an, Sura 4 (An-Nisa), Ayat 3.
16 Qur’an, Sura 17 (Al-Isra), Ayat 32. Zina means illicit sexual relationship (adultery and extramarital sex). Both in Quran and Hadiths, consider it a hudud offence (sin or crime) against God.
17 In Manu Smriti, eight types of marriages (Vivvah) are defined, namely: Brahma, Daiva, Arsha, Prajapatya, Gandharva, Asura, Rakshasa and Paishacha marriage.
18 Francois P. Möller, “Cohabitation and Christian faith” 47(1) Skriflig (Online) Pretoria, January 2013. Available at:<http://www.scielo.org.za/scielo.php?script=sci_arttext &pid=S2305-08532013000100003> (Last accessed 12-8-2021).
19 Bible, Genesis 1: 27-28.
20 Bible, Genesis 2: 24.
21 N. Vorster, “Trou of sommer saamwoon?” [Marriage or simply live together?], 112 (3233) Die Kerkblad 9 (2010). Also see, H. Thielicke, The Ethics of Sex (James Clarke and Co. Ltd., London, 1964).
22 G.J. Jenkins, “Cohabitation” in D.J. Atkinson & D.F. Field (Eds.), New Dictionary of Christian Ethics and Pastoral Theology, (Inter-Varsity Press: Leicester, 1995), p. 238.
Birth during marriage, conclusive proof of legitimacy— The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
24 (2008) 4 SCC 520.
25 Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238.
26 (2011) 11 SCC 1.
27 Id, para 39.
25 Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238.
29 AIR 1952 SC 231.
30 Hindu Minority and Guardianship Act, 1956, S. 6(b).
31 G.K. Goswami, “The genetic truth of surrogate parents” 83(4) Medico-Legal Journal 188 (2015).
32 Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365. Also see, Jitendra Singh Kaurav v. Rajkumari Kaurav, 2019 SCC OnLine MP 4373 : (2019) 3 MP LJ 150; Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576; G.K. Goswami, “Forensic Law” 51 ASIL 597 (2017).
34 G.K. Goswami and Siddhartha Goswami, “Three Decades of DNA Evidence: Judicial Perspective and Future Challenges in India” in Hirak Ranjan Das et. al. (Eds.), DNA Fingerprinting: Advancements and Future Endeavours (Springer Nature: Singapore, 2018), pp. 181-205.
35 (2010) 10 SCC 469 at p. 477, para 31. The Court construed:
- In our opinion a “relationship in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses;
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried,
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(emphasis in original)
36 In S.P.S. Balasubramanyam v. Suruttayan, 1992 Supp (2) SCC 304, the Supreme Court held that if a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate. Also see, Tulsa v. Durghatiya, (2008) 4 SCC 520; S. Khushboo v. Kanniammal, (2010) 5 SCC 600; and Ganesh v. Sau. Nikita, 2021 SCC OnLine Bom 1290, para 23.
37 Tulsa v. Durghatiya, (2008) 4 SCC 520 at p. 525, para 11. At para 15, the Court observed: (SCC p. 525)
- Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. Also see, Badri Prasad v. Dy. Director of Consolidation, (1978) 3 SCC 527.
38 Frederick Hertz and Lina Guillen, Living Together: A Legal Guide for Unmarried Couples (Nolo: California, 17th Edn., July 2020)
39 Jan Trost, “A Renewed Social Institution: Non-marital Cohabitation” 21(4) Acta Sociologica 303 (1978).
40 2003 SCC OnLine US SC 73 : 539 US 558 (2003). Also see, Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L.Ed.2d 147 : 410 US 113 (1973). The US Supreme Court struck down US Federal and State laws on abortion in order to protect a pregnant woman’s liberty to choose for an abortion under the right to privacy.
41 607 SE 2d 367 (Va 2005).
42 Sexual act between unmarried persons.
43 Miss. Code 97-29-1.
44 Mi St. 750 335, NC Code § 14-184.
45 California Family Code — FAM § 297: The domestic partners are two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring, having a common residence, and are the same sex or persons of opposite sex if one or both of the persons are over the age of 62.
46 Marvin v. Marvin, 18 Cal 3d 660 : 134 Cal Rptr 815 : 557 P.2d 106 (1976). The California Supreme Court declared that for granting Marvin claims, the courts should examine parties’ conduct to determine whether an implied contract existed and that quantum meruit or equitable remedies were available. Also see, Taylor v. Fields, 224 Cal Rptr 186 (California CA, 1986). In Devaney v. L’Esperance, [195 NJ 247 (2008)], the Supreme Court of New Jersey held that cohabitation is not necessary to grant palimony. The Court kept on observing, “it is the promise to support, expressed or implied, coupled with a marital type relationship, that are indispensable elements to support a valid claim for palimony”. In 2010, New Jersey has legislated that for palimony claim, there must be a written contract between the cohabiting parties.
47 Amelia Hill, “Cohabiting Couples Fastest Growing Family Type, Says ONS”, The Guardian, dt. 7-8-2019. Available at:<https://www.theguardian.com/uk-news/2019/aug/07/cohabiting-couples-fastest-growing-family-type-ons> (Last accessed 12-8-2021).
48 Living together remained welfare law since 1948. The term “living together as husband and wife” was introduced from 4-4-1977 in the UK, which got amended to “living together as married couple” in October 2017.
49 Section 494 of the Penal Code deals with “marrying again during lifetime of husband or wife”. However, the Personal Law like the (Shariat Act) permits polygamy for a male under Section 2 of this Act.
50 Ajay Bhardwaj v. Jyotsna, 2016 SCC OnLine P&H 9707. The Court at para 18 has observed: (SCC OnLine P&H),
- … Section 125 CrPC was incorporated in order to avoid vagrancy and destitution for a wife/minor child/old-aged parents, and the same has now been extended by judicial interpretation to partners of a live-in relationship.
51 1927 SCC OnLine PC 51 : AIR 1927 PC 185. Also see, Mohabbat Ali Khan v. Mohd. Ibrahim Khan, 1929 SCC OnLine PC 21 : AIR 1929 PC 135 : ILR (1929) 10 Lah 725; Gokal Chand v. Parvin Kumari, AIR 1952 SC 231; Pardeep Singh v. State of Haryana, 2021 SCC OnLine P&H 921.
53 (2013) 15 SCC 755, para 1.
54 Id, para 59.
55 Id, para 61.
56 Id, para 38. The five categories include: (i) Domestic relationship between an unmarried adult woman and an unmarried adult male; (ii) Domestic relationship between an unmarried woman and a married adult male; (iii) Domestic relationship between a married adult woman and an unmarried adult male; (iv) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male; and (v) Domestic relationship between same sex partners (gay and lesbians).
57 Id, para 56. The guidelines are: (i) Duration of period of relationship; (ii) Shared household; (iii) Pooling of resources and financial arrangements; (iv) Domestic arrangements; (v) Sexual relationship; (vi) Children; (vii) Socialisation in public; and (viii) Intention and conduct of the parties. Earlier, in D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, p. 477, para 31, the Supreme Court has observed:
- In our opinion a “relationship in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
(emphasis in original)
58 M. Palani v. Meenakshi, 2008 SCC OnLine Mad 150, para 13: AIR 2008 Mad 162.
59 Kala Devi v. Mehar Singh, 2019 SCC OnLine HP 3202 : (2020) 2 DMC 561; D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469. The Supreme Court in Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238, issued a succession certificate to the live-in partner, who was nominated by the deceased partner.
61 Payal Sharma v. Supt., Nari Niketan, 2001 SCC OnLine All 332 : AIR 2001 All 254.
62 (2006) 5 SCC 475, para 14.
63 (2010) 5 SCC 600.
65 (2008) 2 SCC 238.
26 Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1.
66 The CARA in its Circular dated 31-5-2018 has barred applicants in live-in relationship from adopting a child arguing that “the Authority would like the children to be placed only with a stable family and individuals in a live-in relationship cannot be considered as stable family”.
67 Malti v. State of Uttar Pradesh, 2000 SCC OnLine All 1275, para 8: (2001) 1 DMC 204. Also see, Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636. The Supreme Court held that: (SCC p. 643, para 18)
- … However desirable it may be, as contended by the learned counsel for the appellant to take note of the plight of the unfortunate woman, the legislative intent being clearly reflected in Section 125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include a woman not lawfully married in the expression “wife”.
68 W.D. Manning, “Cohabitation and Child Well-being” 25(2) The Future of Children 51 (2015). Available at:<https://doi.org/10.1353/foc.2015.0012> (Last accessed 12-8-2021).
69 Aneesha Mathur, “False marriage promise wrong, but if couple living together, can intercourse be termed rape, ask CJI”, India Today, dt. 1-3-2021. Available at:<https://www.indiatoday.in/india/story/supreme-court-false-marriage-promise-wrong-live-in-couple-intercourse-rape-cji-sc-1774369-2021-03-01> (Last accessed 12-8-2021).
71 During divorce proceedings, the civil court provides an opportunity to the contesting couple to reconcile. For this purpose, ‘judicial separation’ (e.g. under Section 10 of the Hindu Marriage Act, 1955) is ordered for specified period in order to protect interest of wife from any atrocity committed by the husband or his family. During separation, husband cannot compel his wife to stay together or to have intercourse without her explicit consent.
72 A. Ambert, “Cohabitation: A recipe for marital ruin”, Zenith Daily Dispatch, dt. 17-9-2005.
73 Éva Beaujouan and Máire Ní Bhrolcháin, “Cohabitation and marriage in Britain since the 1970s”, 145 Population Trends 31 (2011); Olga Stavrova, Detlef Fetchenhauer and Thomas Schlösser, Cohabitation, “Gender, and Happiness: A Cross-Cultural Study in Thirty Countries”, 43(7) Journal of Cross-Cultural Psychology 1063 (2012); Cohabitation: Effects of Cohabitation on the Men and Women Involved, American College of Paediatricians, March 2015. Available at:<https://acpeds.org/position-statements/cohabitation-part-1-of-2-effects-of-cohabitation-on-the-men-and-women-involved> (Last accessed 12-8-2021).
22 G.J. Jenkins, “Cohabitation” in D.J. Atkinson & D.F. Field (Eds.), New dictionary of Christian Ethics and Pastoral Theology, (Inter-Varsity Press: Leicester, 1995), p. 238.
74 J. Van Wyk, “Kerklike sanksie vir saamwoon? Die”, 50 grootste geloofsvrae, Carpe Diem Media, Vanderbijlpark (2009).
76 Malimath Committee on Reforms in the Criminal Justice System, Report — 2003, at p. 189.
10 Joseph Shine v. Union of India, (2019) 3 SCC 39.
78 Ujjawal v. State of Haryana, 2021 SCC OnLine P&H 914. The High Court denied to provide protection of the life to 18 and 21 years old couple residing in live-in relationship by observing, “In the considered view of this Bench, if such protection as claimed is granted, the entire social fabric of the society would get disturbed. Hence, no ground to grant the protection is made out.” Also see, Nandakumar v. State of Kerala, (2018) 16 SCC 602; Harpreet Kaur v. State of Punjab, 2021 SCC OnLine P&H 1522; Manpreet Singh v. State of Punjab, 2021 SCC OnLine P&H 1139; Manpreet Kaur v. State of Punjab, 2021 SCC OnLine P&H 1400; Monika Rani v. State of Punjab, 2021 SCC OnLine P&H 1413; Gulza Kumari v. State of Punjab, 2021 SCC OnLine P&H 896; Sunita Kaur v. State of Punjab, 2021 SCC OnLine P&H 1097; Seema Kaur v. State of Punjab, 2021 SCC OnLine P&H 1841; Kawaljeet Kaur v. State of Punjab, 2019 SCC OnLine P&H 2170; Savita v. State of Haryana, 2019 SCC OnLine P&H 941.
79 Moyna Khatun v. State of Punjab, 2021 SCC OnLine P&H 920, decided on 10-5-2021. The Bench of Arvind Singh Sangwan, J. on 10-5-2021 has disapproved “new concept of contractual Live-In Relation” backed by the deed. Also see, Kamini Sharma, “Contractual live-in relationship has no recognition in law; HC terms it “misuse of process” and against morality”, SCC OnLine Blog, dt. 23-3-2021. Available at:<https://www.scconline.com/blog/post/2021/03/23/live-in-relationship/> (Last accessed 12-8-2021).
80 Stewarts LLP, A Guide to “Common Law Marriage”, dt. 2-2-2021. Available at:<https://www.lexology.com/library/detail.aspx?g= 329182a9-8eab-4771-b254-0060a086e405> (Last accessed 12-8-2021).
81 P. Roger Hillerstrom and Karlyn Hillerstrom, The Intimacy Cover-Up: Uncovering the Differnce Between Love and Sex (Kregel Publications, Grand Rapids, Michigan, 2004), p. 44. Hillerstrom observed that only 30%-40% of cohabiters marry eventually, and usually cohabiting relationships do not last for more than two years.
82 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, para 1478.