In a society that is still heavily dependent on traditional values, the concept of a live in relationship is yet to gain proper recognition. A proper legal definition of a live-in relationship does not exist in India and due to this reason the law is relatively vague when it comes to the status of unmarried couples living together. The same prevails when it comes to the rights of children born out of wedlock or in live-in relationships. These children are often deemed to be ‘illegitimate’ and their rights are challenged. In many cases purposive interpretation is given by the supreme court to ensure justice where the law lacks to provide the same.
A child born in a live-relationship has three major rights-
- Legitimacy
A child born out of a live-in relationship is legitimate in the eyes of law and is to be treated equally as a child born in a common law marriage. As seen in the case of Tulsa & Ors v. Durghatiya & Ors[1] the Supreme Court provided “a child born out of cohabitation is not to be treated as illegitimate but there are certain pre-conditions like the parents must have cohabited for a considerable amount of time under one roof so that the society recognizes them as husband and wife and in other cases it has been held that if a man and a woman have been cohabiting for a long period of time they will be presumed to be legally married.” Again, in the case of SPS Balasubramanyam v. Sruttayan[2] It was held “If a man and woman are living under the same roof and cohabiting for a number of years, there will be presumption under Section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.” The court interpreted the status of such a child in accordance with Article 39(f) of the constitution of India which states, “the State is responsible to provide the children with adequate opportunity to develop in a normal manner and also safeguard their interests.”[3]
- Maintenance
Under S.21 of the Hindu Adoption and Maintenance Act, 1956[4], maintenance of the child whether legitimate or illegitimate is stated as dependent on the child’s father or the estate of the child’s deceased father, which is not applicable for a child born in a live-in relationship. S.125 of the CrPC also encourages the maintenance of the child whether legitimate or illegitimate when they are minors or not capable of maintaining themselves. [5]
Under the circumstance, where live in partners are estranged, maintenance of the child remains the responsibility of the parents. Under Hindu law, the father is entitled to pay the maintenance, while under the Muslim law, the father is not obligated to do the same. However, S.125 of the CrPC essentially protects such children from exploitation and children can claim maintenance even if their personal law does not favour them.
In the case of Dimple Gupta v. Rajiv Gupta[6] social justice was provided by addressing that an illegitimate child that is born out of an illicit relationship was entitled to maintenance when they are minor or major and not able to maintain themselves. Hence, the court stated that children born to live-in parents are legitimate and have the same rights as in case of children from a legal marriage.
- Property
Under Section 16 of the HMA[7], children born out of live-in relationships are considered legitimate and have the right to self-acquired properties of parents, hence, enjoy all property rights due to them. However, under the Hindu Succession Act, 1956[8], both son and daughter are equal heirs of the property of a joint family but, the Hindu law states that an illegitimate child is only eligible to inherit the property of his mother and not the property of the alleged father. In Vidyadhari v Sukhrana Bai[9], the court granted the status of “legal heirs” as well as the right of inheritance to children born out of live-in relationships[10]
[1] Tulsa & Ors. v Durghatiya & Ors., AIR 2008 SC 1193
[2] SPS Balasubramanyam v Sruttayan AIR 1992 SC 756
[3] Article 39(f), Constitution of India
[4] Hindu Adoption and Maintenance Act, 1956
[5] Jha Enakshi,Status of Children born in Live in Relationships,( Legal Service India, 2013) <http://www.legalservicesindia.com/article/1622/Status-of-Children-born-in-Live-in-Relationships.html>, assessed October 29, 2020.
[6] Dimple Gupta v Rajiv Gupta AIR 2010 SC 239
[7] Hindu Marriage Act 1956, s. 21
[8] Hindu Succession Act, 1956
[9] Vidyadhari v Sukhrana Bai AIR 2008 SC 1420.
[10] ibid.
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