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Children Born of Live-in Relationships are Legitimate: Supreme Court
Apr 26, 2014

Giving an important clarification on live-in relationships, the Supreme Court has said that if a man and woman lived like husband and wife for a long period and had children, the judiciary would presume that the two were married. 

A Supreme Court bench issued the clarification on a petition, who had questioned certain sweeping observations made by the Madras High Court while dealing with the issue of live-in relationships. Importantly, the Supreme Court said children born out of prolonged live-in relationships could not be termed illegitimate. The petition had challenged the High Court’s observation that "a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized". 

The bench went through the judgment and said the High Court's observations could not be construed as a precedent for other cases and would be confined to the case in which these were made.  In fact, what the High Court wanted to say is that if a man and woman are living together for a long time as husband and wife, though never married, there would a presumption of marriage and their children could not be called illegitimate. 

In 2010, the apex court had in Madan Mohan Singh vs Rajni Kant case said, "The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence." 

The same year, the court had in another judgment hinted at the legitimacy of children born out of such relations. "It is evident that Section 16 of the Hindu Marriage Act intends to bring about social reforms, conferment of social status of legitimacy on a group of children, otherwise treated as illegitimate, as its prime object." 

Section 16 of Hindu Mariage Act provides,"Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of the marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act."

At the end of last year Supreme Court framed following guidelines for Live-in relations:

  • Duration of relation, shared household and pooling of resources are some of the guidelines the Supreme Court has framed for bringing live-in relationship within the expression 'relationship in the nature of marriage' for protection of women under Domestic Violence Act.

  • Pooling of financial and domestic arrangements, entrusting the responsibility, sexual relationship, bearing children, socialization in public and intention and conduct of the parties are some of the other criteria to be considered for determining the nature of relations between parties.

  • For duration of period of relationship, the bench said Section 2(f) of the Domestic Violence  Act has used the expression at any point of time, which means a "reasonable period of time to maintain and continue a relationship which may vary from case to case, depending upon the fact situation."

  • Pooling of resources and financial arrangements meant "supporting each other, or any one of them, financially, sharing bank accounts, acquiring immovable properties in joint names or in the name of the woman, long term investments in business, shares in separate and joint names, so as to have a long standing relationship, may be a guiding factor".

  • Domestic arrangements where there is entrustment of responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up-keeping the house are indication of a relationship in the nature of marriage.

  • The guidelines include presence of sexual relationship and children which mean, marriage like relationship refers to sexual relationship, not just for pleasure, but for emotional and intimate relationship, for procreation of children, so as to give emotional support, companionship and also material affection, caring etc.

  • Having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship. Sharing the responsibility for bringing up and supporting them is also a strong indication.


In 2010, Supreme Court opined that a man and woman living together without marriage cannot be construed as an offence. “When two adult people want to live together what is the offence? Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three judge bench of then Chief Justice K.G. Balakrishnan, Deepak Verma and B.S. Chauhan observed.

The apex court said there was no law which prohibits live-in relationship or pre-marital sex. It made the observation on a special leave petition filed by noted south Indian actor Kushboo seeking to quash 22 criminal cases filed against her after she allegedly endorsed pre-maritial sex in interviews to various magazines in 2005.

The Bench said apparently referring to Article 21 which granted Right to Life and Liberty as a Fundamental Right, “Please tell us what is the offence and under which section. Living together is a right to life.” 

 

 

 


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