Is there a lack of judicial clarity over live-in relationships?

Courts must recognize the fundamental right of individuals to choose to cohabit without marriage.

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ON April 13, the Indore bench at Madhya Pradesh High Court, in the case of Abhishek versus State of Maharashtra, took note of the "spurt of offences in recent times arising out of live-in relationships", and observed that "the bane of live-in-relationship is a by-product of Constitutional guarantee as provided under Art.21 of the Constitution, engulfing the ethos of Indian society, and promoting promiscuity and lascivious behaviour [sic], giving further rise to sexual offences". The court added that those who wanted to "exploit this freedom" are quick to embrace it, but are totally ignorant that it has its own limitations, and does not confer any right on any of the partners in such a relationship.

In this case, the accused, apprehending arrest following his live-in relationship with the complainant having been registered as an offence of rape, sought anticipatory bail. The court, which felt that his custodial interrogation is required for investigation, denied him bail, and observed: "The applicant appears to have fallen into this trap and portraying himself as a victim, has assumed that once he has a relationship with the prosecutrix, he can also force himself upon her for all the time to come, having her various photographs and video clips etc…" In the instant case, the prosecutrix filed a first information report against the complainant on February 15 for the offences of committing rape on her, consistently threatening her, and forcing her to undergo multiple abortions.

Justice Subodh Abhyankar's order, referring to live-in relationships as a practice that is "engulfing the Indian society", is indicative of the restrictive and restraining notions that our judiciary still holds towards cohabitation between two consenting adults. The seemingly rigid opinion, evident from the judgment, goes to the extent of casting doubts over the rights guaranteed under Article 21 of the Constitution that protects such engagement, by alleging the couples choosing live-in relationships "exploit this freedom".

The court drew a disturbing connection between the rise in the number of sexual offences and live-in relationships. The non-compatibility of live-in relationships with the traditional concept of marriages and its lack of acceptance by the Indian society can, however, hardly be explained by describing it as a catalyst to sexual offences. This raises a question of whether the High Court is right in interpreting sexual offences as a by-product of sexual autonomy.

Also read: The lottery of protection orders by High Courts in the case of "forbidden romances"

How do Indian laws protect live-in relationships?

Article 21 protects the fundamental right to life and personal liberty, including the freedom to cohabit with another without any interference.

Section 2(f) of The Protection of Women from Domestic Violence Act, 2005 defines 'domestic relationship' as "a relationship between two persons who live or have, at any point of time, lived together in a shared household, …through a relationship in the nature of marriage…" Thus, under the Act, women in live-in relationships are protected against domestic violence on an equal footing as those in a marriage.

How has the judiciary interpreted the legal status of live-in relationships?

Over the last two decades, courts in India have attempted to legally interpret the practice of live-in relationships. In 2010, in the landmark case of S. Khushboo versus Kanniammal & Anr., the Supreme Court upheld the right of individuals to engage in live-in relationships, as protected under Article 21, and addressed them as "domestic relationships". Notably, the court highlighted: "notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy".

In the case of S.P.S. Balasubramanyam versus Suruttayan Andalli Padayachi & Ors. (1991), the Supreme Court mean presumed that a long live-in relationship takes the form of marriage and proffers legitimacy on children from it to receive a share in their ancestral property of the parents.

Disturbingly, recent court opinions signify a step back in the liberal perspective adopted towards the practice of live-in relationships. For instance, on May 12, 2021, the Punjab and Haryana High Court, in the case of Ujjawal & Anr. versus State of Haryana & Ors., refused to grant protection to a young couple from threats received from the girl's family, stating, "if such protection as claimed is granted, the entire social fabric of the society would get disturbed".

Also read: Why the Punjab & Haryana High Court's recent order denying protection to live-in couple gets it wrong

How are live-in relationships interpreted by other countries?

Countries like Canada recognise live-in relationships as Common Law Marriages. Canadian couples in live-in relationships have same the rights as a married couple after being in a conjugal relationship for at least 12 consecutive months. Whereas countries like the U.S.A. continue to distinguish between legal rights allotted to couples in cohabitation or marriage.

As is evident from the judgment by Justice Abhyankar, live-in relationships are demonized, which scares the society that is still warming up to the idea of cohabitation without marriage. It begs the question if we are, in fact, upholding the idea of forcing couples to enter the institution of marriage, in a bid to maintain social ethos. However, legislation in other jurisdictions can be studied to inspire us treat live-in relationships as legally legitimate.

Way forward

In 2015, in another landmark case, the Supreme Court interpreted the familial rights of unmarried couples in the case of Dhannu Lal versus Ganeshram and noted: "it is well settled that the law presumes in favour of marriage and against concubinage, when a man and women have cohabited continuously for a long time". 

Also read: Live-in Relationships and the Judiciary

In this case, the employment of the notion of cohabitation for a long time, to presume marriage, suggests that it is possible to enact a legislation that provides legal legitimacy to live-in relationships on the specific factor of long cohabitation. However, a good start can be for the courts to recognize the fundamental right of individuals to choose to cohabit without marriage.