Indians torn between law and “morality” on live-in relationships

Live-in relationship is legal, but sections of the judiciary and society are still not reconciled to it

There is confusion in Indian society and its judiciary over the legitimacy of live-in relationships, which appear to be growing, despite the fact that India is still a very traditional country. Urbanization, rapid economic development and social mobility are disrupting the traditional concepts of marriage and family at least in the upwardly mobile middle class in the cities. 

Though there is no specific law on live-in relationships, the Indian Supreme Court has recognized live-in relationships as being legal and has defined such a relationship.  But still,there are variations in the way Indian judges look at it. Some look at it legally and allow it, while others look at it from the traditional moralistic point of view and frown on it. 

There have been contradictory judgements, even recently. The Punjab and Haryana High Court had said that a live-in relationship is “morally and socially unacceptable” while dismissing a petition filed by a runaway couple seeking protection against angry family members. The court said that no protection order could be passed in that case. But the Supreme Court came to the protection of the couple, stating that protection must be provided, “uninfluenced by the observations of the High Court.”

The Allahabad High Court followed the Supreme Court’s line and observed in another case that two adults in a live-in relationship have the right to cohabit peacefully, and ordered the police to provide security against hostile family members. The Allahabad High Court Justices, Anjani Kumar Mishra and Justice Prakash Padia said: “Honourable Apex Court (Supreme Court), in a long line of decisions, has settled the law that where a boy and a girl are major and are living with their free will, then nobody, including their parents, has authority to interfere with their living together.”

Like the judiciary, Indian society is also divided on the question. A recent survey conducted among Netizens by the agency Inshorts and reported by News18 found that in the age group 18 to 35, 80% preferred a live-in relationship before marriage and 26% said that such relationships should be life-long. However, in actual fact, very few Indians opt for live-in relationships whether short or long term. Most reject it in practice because of parental disapproval. When they do live-in with their partners, it is kept a secret. 

Legal Position

In their 2021 paper Live-In Relationships in India—Legal and Psychological Implications published in Journal of Psychosexual Health, Choudhary Laxmi Narayan et.al, say that there is no specific legislation, or social rules, or customs in India regulating live-in relationships. Therefore, Indians have to go by the judgments of the Supreme Court on the matter at different times.  In the “Khushboo vs Kanaimmal and another,” the Court observed that “though the concept of live-in relationship is considered immoral by the society, it is definitely not illegal in the eyes of the law. Living together is a right to life and therefore it cannot be held illegal.”

To get a live-in relationship recognized as “in the nature of marriage,” certain conditions were set by the Supreme Court in the D. Velusamy and D. Patchaimal case. The court said:  “The couple must hold themselves out to society as being akin to spouses. They must be of legal age to marry. They must be otherwise qualified to enter into a legal marriage. They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.” 

In “Indra Sarma vs VKV Sarma,” case, the Supreme Court ruled that all live-in relationships are not relationships “in the nature of marriage.” Those which endure for a long time are in the nature of marriage because such relationships are marked by “dependency”it said.

In the case of married couples, spouses are eligible for Social Security benefits based on the other spouse’s earnings. But those couples who live together, but are not married, are not eligible for their partner’s dependents’ or survivors’ benefits 

The Indian Penal Code prohibits extra-marital relations within the lifetime of her/his husband or wife and even makes it punishable (unless it is permitted by the personal law of the concerned person). Therefore, a live-in relationship of a married man with a woman or of a married woman with a man cannot be recognized as in the “nature of marriage” as it is expressly prohibited by law. However, children born out of such relationship would have all the rights. 

In the “Tulsa vs Durghatiya,” case, the Supreme Court observed that children born from a live-in relationship would not be treated as illegitimate if their parents had lived under one roof and cohabited for a considerably long period of time so as to be recognized as husband and wife. In 2010, the Delhi High Court decided in Alok Kumar v. State that a partner in a live-in relationship cannot complain of desertion or immorality as there is no formal commitment of any kind in that kind of relationship unlike in a marriage.   

Going by the world trend, Indian society and its legal system may have to contend with increasing live-in relationships and device suitable laws, as some Western countries have done. 

Global Trend 

Research papers written on live-in relationships in various countries of the world show that the live-in pattern is becoming popular for various reasons; though proper, registered marriages and even serial marriages are still the dominant pattern. Ever changing interests and social mobility combined with the high cost of divorce are pushing people to opt for a non-binding live-in relationship. 

According to USA Today, between 1960s and 2000, about 10 million Americans were living-together without being married. Most unmarried couples who live together are in the age group 25 to 34. The 2009 American Community Survey which was conducted by the Census Bureau, found that those in the age group 30 to 44, who were living- together, had doubled since 1999 from 4% to 8%.

Since live-in relationships have come to stay, some States in the US have provision for “Palimony” which is “alimony” for unmarried cohabitating couples. Specifically, it’s a spousal support payment that may be available to unmarried partners who are separating after living together for a fairly lengthy period of time. Some live-in couples may also sign a legally drafted ‘Cohabitation Agreement’ which can be enforced.

In the case of married couples, spouses are eligible for Social Security benefits based on the other spouse’s earnings. But those couples who live together, but are not married, are not eligible for their partner’s dependents’ or survivors’ benefits. 

In Quebec, Canada, about 40% of women aged 25 to 30 years old were in a live-in relationship in 2006. In the UK, in the 2010s, live-in relationship couples constituted 17.9% of the population and were the second largest family type in the country. High divorce rates and rising rents and house prices were making young men and women chum together without getting married.

In France, unmarried couples had quadrupled to two million in the last two decades. Fear of divorce and the high cost of divorce are making the French opt for the live-in relationship. One third of French marriages end up in divorce. About 40% to 50% of the couples who are married had already lived together for two years before marriage.

The French legal system has distinguished between official and unofficial live-in relationships.Couples who are living officially will have the same privileges in law as married couples which also includes social security.
Given the global trend towards live-in relationships, both advanced and developing societies are constrained to make special laws catering to live-in couples and their progeny.