The apex court said unfortunately, there is no express statutory provision to regulate live-in relationships upon termination as these relationships are not in the nature of marriage and not recognised in law.
In the landmark judgement, a bench headed by Justice K S Radhakrishnan framed guidelines for bringing live-in relationship within the expression ‘relationship in the nature of marriage’ for protection of women from Domestic Violence Act.
“Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships be protected, though those types of relationship might not be a relationship in the nature of a marriage,” the bench said.
“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 bench said, adding that various countries have started recognising such relationship.
The apex court said a legislation is required as it is the woman who invariably suffer because of breakdown of such relationship.
“We cannot, however, lose sight of the fact that inequities do exist in such relationships and on breaking down such relationship, the woman invariably is the sufferer,” it said, noting “Live-in relationship is a relationship which has not been socially accepted in India, unlike many other countries”.
The bench, however, said that legislature cannot promote pre-marital sex and people may express their opinion, for and against.
“Such relationship, it may be noted, may endure for a long time and can result pattern of dependency and vulnerability, and increasing number of such relationships, calls for adequate and effective protection, especially to the woman and children born out of that live-in-relationship. Legislature, of course, cannot promote pre-marital sex, though, at times, such relationships are intensively personal and people may express their opinion, for and against,” it said.
The bench, however, said that maintaining an adulterous relation would not come within the ambit of live-in relationship which is to be protected by law.
“Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one’s husband or wife, cannot be said to be a relationship in the nature of marriage,” it said.
The bench said that although Parliament has recognised a ‘relationship in the nature of marriage’ but not a live-in relationship which should also be given recognition.
It said that various other countries have started recognising such relations.
“Courts and legislatures of various countries have now begun to think that denying certain benefits to a certain class of persons on the basis of their marital status is unjust where the need of those benefits is felt by both unmarried and married cohabitants.
“Courts in various countries have extended certain benefits to heterosexual unmarried cohabitants. Legislatures too, of late, through legislations started giving benefits to heterosexual cohabitants,” the bench said.
Framing guidelines for determining live-in relations, the bench said that duration of period of relationship, shared household, pooling of resources and 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 criteria to be considered for determining the nature of relations between parties.
The apex court passed the verdict while adjudicating dispute between a live-in couple where a lady had sought maintenance from a man after the relationship came to an end.
The apex court said for relationship to be in nature of marriage, sexual relationship should not be 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.
It also said having children is a strong indication of a relationship in the nature of marriage. Parties, therefore, intend to have a long standing relationship and sharing the responsibility for bringing up and supporting them is also a strong indication.
“Holding out to the public and socializing with friends, relations and others, as if they are husband and wife is a strong circumstance to hold the relationship is in the nature of marriage,” it said.
“Common intention of parties as to what their relationship is to be and to involve, and as to their respective roles and responsibilities, primarily determines the nature of that relationship,” it said.
The bench said entrusting the responsibility, especially on the woman to run the home, do the household activities like cleaning, cooking, maintaining or up keeping the house, etc. is an indication of a relationship in the nature of marriage.
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, it said.