Redefining Legitimacy - Rights Of Children Born In Live-In Relationships In India
Author: LawSphereX
Category: Family & Personal Law
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REDEFINING LEGITIMACY: RIGHTS OF CHILDREN BORN
IN LIVE-IN RELATIONSHIPS IN INDIA
Abhimanyu S G, LLB (Hons), National Law School of India University, Bengaluru
ABSTRACT
This paper provides a critical analysis of the legal status and rights of children born in live-in relationships in India, a subject that is becoming increasingly important in today's changing social landscape. Although livein relationships are not officially recognized as marriages, they are treated similarly to marital unions under certain conditions, which raises complex legal issues regarding the legitimacy and rights of children born from these arrangements. The study delves into important topics such as inheritance, maintenance, and custody, while also examining the gaps in legislative frameworks and judicial interpretations. Employing a doctrinal research methodology, the paper thoroughly investigates primary sources, including key statutes like the Hindu Marriage Act of 1955 and the Hindu Minority and Guardianship Act of 1956, as well as landmark cases such as Tulsa v.
Durghatiya and SPS Balasubramanyam v. Suruttayan. Additionally, it includes a comparative analysis of scholarly views and judicial decisions to highlight inconsistencies within the current legal frameworks. The findings indicate that while courts have recognized the legitimacy of these children, their rights are largely confined to self-acquired parental property, leaving out ancestral claims. The study emphasizes the urgent need for legislative reforms to guarantee equal rights and comprehensive protections for these children. It concludes by calling for a uniform legal framework to clarify the uncertainties surrounding non-marital family structures.
1. Introduction.
In contemporary Indian society, live-in relationships have emerged as an alternative form of intimate partnership, challenging traditional notions of marriage and family. As more couples choose to cohabit without formalizing their relationship through marriage, questions arise regarding the legal status and rights of children born in such unions. This paper delves into the complex legal landscape surrounding live-in relationships in India, focusing particularly on the rights of children born in these arrangements. The concept of live-in relationships, characterized by cohabitation and emotional ties between partners, has gained recognition both in scholarly discourse and through judicial pronouncements.
Courts have elucidated criteria such as duration of cohabitation and public portrayal as spouses to define the nature of such relationships, often equating them with marriage under certain circumstances. However, while live-in relationships are increasingly acknowledged, gaps persist in legal frameworks governing rights and responsibilities, particularly concerning children born within these unions. Through an analysis of pertinent case law and legislative provisions, this paper aims to elucidate the legal status of children born in live-in relationships. It examines their rights to inheritance, maintenance, and custody, while also highlighting deficiencies in existing laws and judicial interpretations.
Ultimately, the paper underscores the necessity of legislative reforms to ensure adequate protection and recognition of the rights of children born in the evolving landscape of family structures shaped by live-in relationships.
2. Legal status of live in relationship in India.
To understand the rights of children born in a live in relationship it is first necessary to define what is a ‘live-in’ relationship. It is a type of cohabitation in which two people choose to live together for an extended period or permanently, engaging in close and emotional ties.1 The cohabitation forming the key aspect of such relationships, finds mention in several scholarships and in court decisions as one of the important metrics to be equated with marriage. Alternatively, ‘live-in’ is also being defined as a continuous cohabitation for a significant period of time, between partners who are not married to each other in a legally acceptable way and 1 Ritu Singh Meena & Arun Kumar, 'Living under the Same Roof: The Concept of Live-in-Relationship' (2023) Int'l JL Mgmt & Human 1827.
are sharing a common household. 2 The element of continuous cohabitation is in line with Supreme Court’s observation in Tulsa & Ors vs. Durghatiya & Ors3 which stated that such a relationship cannot be ‘walk-in and walk-out’ relationship, while upholding the validity of livein relationships it added that couples must have cohabitated under a ‘single roof’ for a ‘long period’ and should portray themselves as husband and wife to the society. The same point was reiterated in SPS Balasubramanyam v. Suruttayan4 where it was held that when a man and woman live together under one roof for long time they can be considered as husband and wife under Section 114 of the Indian Evidence Act. 5 There can be myriad of reasons why people may prefer live-in relationships over marriage, or any other formal relationships recognized by the law.
Live-in relationships provide an avenue for consenting adults, a reasonable way to understand each other before entering a formal wedlock6, They are also flexible and come without substantial obligation and duties. Partners in a live-in can also part without taking cumbersome recourse to legal proceedings. The Supreme Court observed7 the ability to form such relationships and the relationships themselves come under the purview of right to life under Article 218 and in Indra Sharma v VKV Sarma9 while determining the rights of the parties, the court observed that not all live-in relationships are not relationships in the nature of marriage. It provided following factors must be considered to call live-in a wedlock, which are: i. Duration of the period ii. Shared household iii. Pooling of financial arrangements iv. Domestic arrangements v. Sexual relationship vi. Children vii.
Portrayal as husband and wife in public and lastly vii. Intention and conduct of the parties. Narayan et al noted that live-in relationships are heavily tilted in favour of men10, as men who are married also can enter live-in and get way with it without being tried under bigamy under Hindu Marriage Act, 1955 (HMA). But regardless of the marital status of the partners, questions arise about rights of women and children under such relationships. To address this, 2 Choudhary Laxmi Narayan, Mridula Narayan and Mridul Deepanshu, ‘Live-In Relationships in India—Legal and Psychological Implications’ (2021) Journal of Psychosexual Health 18.
3 Tulsa & Ors v. Durghatiya & Ors, (2008) 4 SCC 520.
4 SPS Balasubramanyam v. Suruttayan, AIR (1994) SC 133.
5 Indian Evidence Act, 1872, Section 114.
6 Narayan, Narayan and Deepanshu supra note 2, at 21.
7 S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
8 The constitution of India, Article 21.
9 Indra Sharma v. V K V Sarma, (2013) 15 SCC 755.
10 Narayan, Narayan and Deepanshu supra note 2, at 21.
Section 2(f) of Prevention of Domestic Violence Act, 200511(PDV Act, 2005) defines ‘domestic relationship’ as “a relationship between two persons who live or have lived together, at any point of time, in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. ” This brings under its ambit live-in relationships which are in nature of marriage, that is, the couples who are living for a long period of time and present themselves as husband and wife to the society. The woman under PDV Act can claim maintenance as held in D. Velusamy v D. Patchaiammal12. Malimath Committee on Criminal Justice also recommended that definition of “wife” under Section 125 of the Criminal Procedure Code (Cr. P.
C) must be widened to include women who live with man as his wife for a reasonably long period of time. Essentially while determining the rights of the parties, the legal validity is painted by the courts to live-in relationships by elevating it to the status of marriage given certain conditions are met and also by certain statutes which see live-in as a type of domestic relationship in order to provide some relief to women. The live-in scenario gets complicated when couples end up having a child as questions arise with regards to maintenance, inheritance and custody of the child in case if couples decide to exit live-in relationships.
3. Legitimacy of children born in live-in relationships.
In Tulsa13, the supreme court established legal status for children born in a live-in relationship, it declared that child born in a live-in relationship shall have rights over its parents’ property given it is established that live-in couples lived under one roof for a long time. In SPS Balasubramanyam14 child born out of live-in relationships was held to be legitimate as its parents under li-in will be considered as husband and wife under Section 114 of Indian Evidence Act but such an assumption is rebuttable15. The same logic was applied in Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and Others16 where it was held that there was a presumption of marriage between the parents of the plaintiffs due to their long
11 Prevention of Domestic Violence Act, 2005, Section 2(f).
12 D Velusamy v. D Patchaiammal, (2010) 10 SCC 469.
13 Tulsa & Ors v. Durghatiya & Ors, (2008) 4 SCC 520.
14 SPS Balasubramanyam v. Suruttayan, AIR (1994) SC 133.
15 Revanasiddappa v. Mallikaruna, (2011) 11 SCC 1.
16 Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and Others, 2022 SCC OnLine SC 737.
cohabitation status enabling their offsprings to claim share in suit schedule property. It is clear from the above cases that the court is establishing live-in as akin to marriage if people cohabited for a considerably long period of time and deducing children begot thereby are legitimate. It is now pertinent to analyze the rights of children under different columns of inheritance, maintenance and custody.
3.1. Right to inherit.
It is clear from the jurisprudence of the above cases that children born from live-in are legitimate and have a right to property of their parents. In Vidyadhari v. Sukhrana Bai 17, the supreme court held that though the second marriage is not valid but the woman lived long enough with the man to be called as a partner and the four children born to them were given the status of “legal heirs”. Here the children were given a share in the movable property of the father. There is still contention as to the question if children from live-in are entitled to ancestral property of parents or only their personal acquired property. Section 16 of the Hindu Marriage Act, 195518, and Section 26 of the Special Marriage Act19 confer legitimacy upon children born from void or voidable marriages.
However, subsection (3) of these sections restricts their inheritance rights solely to their parents' property. Consequently, such children are not entitled to coparcenary rights in Hindu Undivided Family (HUF) property if their parents were not legally married. These provisions have been utilized to grant inheritance rights to children born from live-in relationships in their parents' self-acquired property, but they cannot claim coparcenary rights in their father's HUF property if their parents are not legally wed. As per the Hindu Succession Act, a child from a Hindu family is classified as a class-I heir. However, in accordance with Hindu legitimacy laws, an illegitimate child is entitled to inherit only the property of their mother, not that of their father, due to their illegitimate status.
In Revandsiddappa20, the court harmoniously read the Section 16(3) of HMA with the provisions of Hindu Succession Act, 1956 to hold that child who is conferred with legitimacy under subsections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The court in Bharata Matha and Ors. V R. Vijaya Renganathan and Ors21, had also
17 Vidyadhari v. Sukhrana Bai, AIR (2008) SC 1420.
18 Hindu Marriage Act, 1955, Section 16.
19 Special Marriage Act, 1954, Section 26.
20 Revanasiddappa v. Mallikaruna, (2011) 11 SCC 1.
21 Bharata Matha and Ors v. R Vijaya Renganathan and Ors, AIR (2010) SC 2685.
held that children born to live-in partners do have the status of legitimate child but will enjoy the inheritance rights with respect to his/her parent’s property only. 3. 2. Right to maintenance. Maintenance in law refers to the legal obligation of an individual to provide financial support to their spouse, children, or dependent relatives, typically in cases of separation, divorce, or familial disputes. It is also an aspect that needs to be explored from the angle of live-in relationship both for live in partners as well as for children born from such a union, but this paper is restricted to the scope of maintenance only for children.
Section 21 of Hindu Adoption and Maintenance Act, 195622 (HAMA) provides “a legitimate son, son of predeceased son or the son of predeceased son of pre-deceased son, so long he is minor and a legitimate unmarried daughter or unmarried daughter of son or the unmarried daughter of a pre-deceased son of pre-deceased son, so long as she remains unmarried shall be maintained as dependents by his/her father or the estate of his/her deceased father. ” It is interesting to note that it does not cover a child born in a live-in relationship. However, in Savitaben Somabhai Bhatiya v State of Gujarat23 the apex court held that woman who had taken the role of second wife in live-in relationship was not allowed maintenance, but the children born to her were allowed maintenance.
3.3. Custody.
Custody rights of child born for a live-in couple can be a problematic issue when the situation of breakup or departure arise between them. According to Section 6 of the Hindu Minority and Guardianship Act, 1956 (HMGA) father is the natural guardian of legitimate child and Section 6(3) of the same act makes mother a natural guardian of illegitimate child. Since legitimacy is conferred on the children born from live-in, Section 6 should be made applicable to them from positive interpretation of the law.
4. Gaps in the law.
The position is clear from the cases that children are legitimate and have every right to inherit property of their parents as “legal heirs”. While recognized as legitimate and entitled to
22 Hindu Adoption and Maintenance Act, 1956, Section 21.
23 Savitaben Somabhai Bhatiya v State of Gujarat23 (2005) 3 SCC 636.
inheritance in their parents' property, limitations exist. They're not granted ancestral or coparcenary rights, restricted to parents' self-acquired assets. Judicial interpretation aims to uphold legitimacy while clarifying inheritance boundaries. Yet, debates persist on extending inheritance to ancestral property. Clarity is sought as legal understanding evolves. In Jinia Keotin & Ors v Kumar Sitaram Manjhi & Ors,24 the Court emphasized that the primary intent of Section 16 of the Hindu Marriage Act, 1955, is to confer a level of legitimacy upon children born from void and voidable marriages, countering their potential classification as illegitimate. The Court warned against stretching the interpretation of this section to confer additional rights, as it might be perceived as the judiciary overstepping its role by effectively legislating rather than interpreting the law.
Restricting the rights of children born from live-in only to the property of their parents and not ancestral property which otherwise available to children begot from institution of marriage amounts to discrimination under article 14. 25 Kerala High Court observed in PV Susheela v Komalaavally 26 denial of maintenance to child born out of live-in relationship will amount to violation of fundamental right under Article 21 and could be challenged under Article 3227 as It will be a deprivation of right to life with dignity. But as noted earlier there is a glaring gap in terms of legislation that Section 21 of HAMA doesn’t cater to children from live-in relationships.
Courts have provided maintenance and inheritance rights to children disregarding the relationship of women in live-in relationships in Savitaben28 and Vidhyadhari29 but there is no statutory recourse available these children as of except section 125 of the CrPC which generally provides for claiming maintenance by wives, children and parents. 30 It can be argued by positive interpretation Section 6 of the HMGA can be made applicable to children born out of live in relationship as they are considered legitimate now by various decisions of the court. This will result in arbitrariness and unfairness for the mother in a livein relationship, though courts have equated it to the status of marriage to determine the rights, statute cannot be read narrowly to confer the custodial right only to the father.
This would amount to grave violation of article 14 for the mother and would not be in the best interest of
24 Jinia Keotin & Ors v Kumar Sitaram Manjhi & Ors, (2003) 1 SCC 730.
25 The constitution of India, Article 14.
26 PV Susheela v Komalaavally , (2000) DMC 376.
27 The constitution of India, Article 32.
28 Savitaben Somabhai Bhatiya v State of Gujarat28 (2005) 3 SCC 636.
29 Vidyadhari v. Sukhrana Bai, AIR (2008) SC 1420.
30 Narayan, Narayan and Deepanshu, supra note 2, at 20.
the child as enunciated in section 13 of the HMGA31 which provides for custody in paramount consideration of the child’s welfare.
5. Conclusion.
Live-in relationships are becoming increasingly common in modern times, despite around 80% of millennials considering them taboo. Surprisingly, around the same percentage of millennials prefer live-in relationships over marriage. 32 The perceived instability and moral ambiguity associated with such arrangements have been addressed by the Supreme Court in the Supriyo v Union of India33. The court emphasized that legal regulation alone does not guarantee stability in marriage, nor does it imply that non-marital relationships lack seriousness. The absence of comprehensive legal frameworks for governing live-in relationships poses challenges during separation.
While couples often enter such arrangements without much difficulty, exiting them can be complex, posing a Chakravyuha challenge of difficult exit, particularly when children are involved as issues surrounding custody, maintenance, and inheritance further complicate the process.
31 The Hindu Minority And Guardianship Act, 1956, Section 13.
32 IANS, ‘More Indian Women Supporting Live-in Relationships: Survey’ News 18 (21 May 2018)
accessed 10 May 2024.
33 Supriyo v Union of India, 2023 SCC OnLine SC 1348.