Partners in live-in relationships in India can hope for better rights, if earlier verdicts are anything to go by
The Supreme Court currently examining a case to determine whether a live-in relationship can be treated as a de-facto marriage and whether a man can be held liable to pay his partner maintenance if the relationship ends because of refusal to marry.
In the past, courts in India have accorded rights similar to those available to a married couple to partners in a live-in relationship. However, the Supreme Court has another question before it at present — in an ongoing case, the top court is examining whether a live-in relationship can be treated as a de-facto marriage and whether a man can be held liable to pay his partner maintenance if the relationship ends because of refusal to marry.
Provisions in Indian laws relating to maintenance
Section 25 of the Hindu Marriage Act, which codifies the law on marriages among Hindu families, provides for "permanent alimony and maintenance". This section allows either partner in a marriage to claim maintenance from the other while a case filed under the law is pending; for instance, in case of dissolution of a marriage. However, the Act applies only to a Hindu marriage solemnised in accordance with customary rites and ceremonies such as "saptpadi" (Section 7) and does not recognise live-in relationships.
Section 125(1)(A) of the Code of Criminal Procedure (CrPc) states that a woman who has divorced and not remarried can claim maintenance from her ex-husband in cases where he neglects or refuses to help her financially. This provision also applies only to married couples who subsequently divorce.
Under the Protection of Women from Domestic Violence Act, 2005, a magistrate may order monetary relief in the form of maintenance to an aggrieved person who has suffered domestic violence under Section 20(D). Notably, this Act covers a broader range of relationships as a "domestic relationship" — as defined in Section 2(F) — rather than marriages alone.
Indian courts on the right to maintenance in live-in relationships
Notwithstanding the absence of laws granting the right to maintenance in live-in relationships, Indian courts have readily granted this right to partners who live together on a number of occasions.
In October 2010, the Supreme Court, in the Veluswamy vs Patchaiammal case, recognised the right to "palimony" — the equivalent of alimony in live-in relationships — but limited it to genuine relationships alone, not ones in which the partners lived together only for sexual reasons and ones where either partner was married to someone else.
In this case, the court also laid down a number of criteria to determine whether a couple was in a "relationship in the nature of a marriage" (under Section 2(F) of the Protection of Women from Domestic Violence Act, which defines a "domestic relationship"). The relevant factors are: 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, including being unmarried; and they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Additionally, the couple must have resided in a "shared household" (as defined under Section 2(A) of the Protection of Women from Domestic Violence Act).
In May 2015, the Supreme Court had ruled that under the Hindu Marriage Act, a man in a live-in relationship was obliged to pay maintenance to his partner and children from the relationship after it ended. In this case, the man was married to someone else and was in a live-in relationship with another woman for nine years.
In July 2016, the Gujarat High Court had recognised that a woman was entitled to seek maintenance under Section 125 of CrPC even if she had not married the man but had been living with him for a reasonably long period of time as his wife.
More recently, in April 2018, the Bombay High Court allowed a married woman who was in a live-in relationship with another man for 15 years to claim maintenance from him under the Protection of Women from Domestic Violence Act. The court had emphasised the welfare objective of the Act to protect women from violence and held that the term "domestic violence" encompassed physical abuse as well as "economic abuse" (Section 3(A) of the Act).
Courts have also recognised other rights in live-in relationships. For instance, in April 2015, the Supreme Court had ruled that couples in live-in relationships would be presumed to be married, and the woman would be entitled to inherit her partner's legal property. Further, the burden of disproving the presumption of marriage would lie on the party refuting the presumption. The Supreme Court recognised this presumption as early as in 2010 in the case of Madan Mohan Singh vs Rajni Kant, where the court had to rule on the legitimacy and right to inheritance of children born out of a live-in relationship.
In December 2013, the top court had framed guidelines on the Protection of Women from Domestic Violence Act applying to live-in relationships, recognising that the legislation would apply in case of relationships "in the nature of marriage".
Right to maintenance in live-in relationships in other jurisdictions
The right to "palimony" is also recognised in the United States, where certain states, including California, have palimony laws in place.
Interestingly, in the United Kingdom, a "common-law marriage" — or an informal marriage/marriage in fact —is not recognised. Therefore, cohabiting couples do not have any right to maintenance or property when they break up. The UK Parliament is in the process of considering a Cohabitation Rights Bill to grant certain rights to couples in live-in relationships.
Court precedents in India indicate a strong inclination of judges to rule in favour of granting maintenance to a woman in a live-in relationship. In the current case in the Supreme Court, it was alleged that the man had promised to marry the woman eventually, which further strengthens the case that the couple was in a de-facto or "common-law" marriage. It is likely that in this case, the Supreme Court will uphold the social welfare objectives of family laws, instead of adopting a formalistic approach, and allow the woman's claim for compensation from her partner.
The author is an LLM candidate at University of Cambridge
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