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Short Note On Child Custody In Live-In Relationship

The position of Live-in Relationships is not very clear in the Indian Legal System. Children are the future of a contemporary progressive society, and the social relationships that control every aspect of their existence often influence how they will turn out. Children born out of live in relationships are often given the label "Legitimate in law, Illegitimate in fact", which is evidence of the everyday uncertainty these people experience, the bleak future they face and their placement in a distinct social class.

As there is no specific law governing such unions, it is simpler to get into such relationships but more difficult to leave them. This is especially true when it comes to the custody issue, which highlights the significant legal hurdle that such relationships confront in comparison to marriage. Hindu law explicitly specifies in Section 6 of the Hindu Minority and Guardianship Act 1956[1] that the father is the children's natural guardian when they are minors and, as stated in the case of Gita Hariharan v. Reserve Bank of India[2], the mother takes up guardianship when the father is unable to do so.

However, Section 6(b) of Hindu Minority and Guardianship Act 1956[3] appears to deal with live-in relationships indirectly by giving the mother (natural guardian) custody rights in cases where children are born through illegitimate relationship. As a result, according to a positivistic reading of the law, the husband will acquire custody of the concerned child in the event that the live-in partner and the child are no longer together because the husband is the child's natural guardian.

Numerous courts have regarded this to be problematic, and in a key decision, Gita Hariharan v. Reserve Bank of India, the SC emphasised the mother's equality to serve as a guardian since gender equality is one of our Constitution's fundamental values, the father cannot be said to have a preferential right over the other in the area of guardianship because both fall within the same category of dominant personality.

Based on the current scenario it is true to conclude that even though certain provisions grant legitimacy to children born out of live in relationships, their rights to ancestor's property and maintenance are still debatable and subject to change depending on the circumstances. Even though Section 6(b) of the HMGA 1956 exists, the custody of a child born of a live-in relationship is open to interpretation.

It is safe to say that given the current legal situation, a child of a live-in relationship will undoubtedly experience a lack of clarity regarding his or her legal status, origin, and subsequent rights. This can lead to instability in the child's life- both mentally and emotionally.

To prevent this, laws that are clear on the status and rights of children born in a live-in relationship should be created, and ambiguous terminology in existing laws should be amended. This will provide consistency and aid in establishing the child's emotional, mental, and physical security.

  1. The Hindu Minority and Guardianship Act 1956, §6, No. 32, Acts of Parliament,1956(India).
  2. Gita Hariharan v Reserve Bank of India AIR 1999, 2 SCC 228.
  3. The Hindu Minority and Guardianship Act 1956, §6(b), No. 32, Acts of Parliament,1956(India).
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