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Concept of Live-in Relationship and Maintenance

There is no particular law in India to lay down the rights and commitments for the parties in a live-in relationship, and for the status of children born to such couples. However, the court has clarified the concept of a live-in relationship through various judgments. In India, various legislations like the Domestic Violence Act, 2005 and Section 125 of Cr.PC provides for various provisions regarding maintenance.

Changing Dimensions of Institution of Marriage: Live-in Relationship

Live-in relation means cohabitation. It is an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally and sexually intimate relationship. The legal definition of a live-in relationship is “an arrangement of living under which the couple, that is unmarried, lives together to conduct a long-term relationship which is similar to marriage.” But it is informal in nature. In fact, this form of relationship does not force the typical responsibilities of married life on the couple living together. People generally choose to enter into such consensual arrangements either to test compatibility before marriage, or if they are unable to legally marry, or because it does not involve the difficulties of formal marriage.

Nature of live-in relationship

The nature of a live-in relationship is similar to marriage but unlike a marriage. In India, the legal status of live-in relationships is not clear, the Supreme Court has ruled that any couple living together for a long-term will be presumed as legally married unless proved otherwise. Thus, the aggrieved live-in partner can take shelter under the Domestic Violence Act, 2005, which provides protection and maintenance and thereby grant the right of alimony.

There are live-in partners who are consciously choosing to live as 'live-in'. They do not want a status of formal marriage, they are happy to continue to live as live-in partners only. Another reason is when a relationship occurs by circumstance, where one or both partners are under the mistaken assumption that a valid marriage exists between them or where parties thought they had validly divorced from persons married or even cannot afford to remarry again due to economic reasons. It is a form of interpersonal status which is legally recognized in some jurisdictions as a marriage, even though a legally recognized marriage ceremony is not performed or civil marriage contract is not entered into or the marriage is not registered in a civil registry. Such marriages are legally binding in some countries but have no legal consequences in others.

Legal Status of Live-in Relationship

In feudal society, sexual relationship between man and woman was totally prohibited and regarded with disgust and horror. After independence, when society became matured, bigamy was outlawed (banned, illegal) and women became more aware of their rights.

The traditional Indian society has not approved such live-in relationships till now, for many reasons:

  1. Society worshiped the institution of marriage.
  2. Also, if the woman was not financially independent, the instability of such a relationship created a low status for the woman.

There exists no law to deal with the concept of live-in relationships and their legality in India. No law like Hindu Marriage Act, 1955, the Special Marriage Act, 1954 or the Indian Succession Act, 1925 recognized live-in relationship directly.

Under Section 17 of the Hindu Marriage Act, children born out of such relationships are considered to be legitimate and have been granted the right to succession.

The legality of Marriage and Live-in Relationship

Presently in India, persons entering into marriage are recognized and governed either by their personal laws or by civil law like Special Marriage Act, 1954. In Hindus, Marriage is considered as Samskara (Sacrament), whereas under Muslim, Christian, Jewish, and Parsi laws marriages are contracts.

Due to non-recognition of live-in partner's relationship in India, women in such relationships are not recognized by their partner's surname, for any legal or financial matters including opening a bank account, submission of income tax return, applying for loans, etc. They have their individual identity and are not recognized as a domestic partner. They can separate informally without any formal divorce or court intervention.

Some important Judgments on Live-in Relationship over the Years

There are some important judgments of the Supreme Court on live-in relationships, which are as follows:
Badri Prasad V. Dy. Director of Consolidation, 1978
It was the first case in which the Supreme Court recognized live-in relationship in India and interpreted it as a valid marriage. In this case, the court gave legal validity to a 50-year live-in relationship of a couple.

Tulsa V. Durghatiya, 2008
In this case, Supreme Court provided legal status to the children born from live-in relationship.

D. Velusamy V. D. Patchaiammal, 2010
The judgment determined certain prerequisites for a live-in relationship to be considered as valid. It was stated that the live-in relationship partners must have voluntarily cohabited and held themselves out to the world as being akin to the couple for a significant period of time.

S. Khushboo V. Kanniammal and Anr, 2010
In this case, the court stated that living together is a right to life and therefore is not 'illegal'. The court held that living together is not illegal in the eyes of the law even if it is considered immoral in the eyes of the conservative Indian society.

Indra Sarma V. V.K. V. Sarma, 2013
Supreme Court explained the live-in relationship in the following categories in its recent judgments
  1. Domestic relationship between an adult male and female.
  2. Domestic relationship between a married man and an adult unmarried woman entered knowingly.
  3. Domestic relationship between an adult unmarried man and a married woman, entered knowingly. It can lead to a conviction under IPC for the crime of adultery.
  4. Domestic relationship between the same-sex partners (gay or lesbian).
The court stated that the expression “relationship in the nature of marriage” under Section 2 (f) of the protection of women against Domestic Violence Act, 2005, provided guidelines for such relationships.

Maintenance of Live-in Partners

In Abhijit Bhikaseth Auti V. State of Maharashtra and others case, Supreme Court stated that it is not necessary for a woman to strictly establish the marriage to claim maintenance. Under Section 125 of Cr.PC, a woman living in relationship may also claim maintenance under this section.

Inheritance Rights of Live-in Partners

The Supreme Court in Vidhyadhari V. Sukhrana Bai case stated that persons living together as husband and wife for a reasonably long period can receive property in inheritance from a live-in partner.

Rights of Children Born Out of Live-in Relationship

The child born through a live-in relationship enjoys the same rights of succession and inheritance as are enjoyed by a child through a married couple under the Hindu Marriage Act.

Homosexuality and Marriage

When two persons having same biological sex or gender marry each other, such marriage is known as same-sex marriage. Some of the related cases are:
  1. Parmasami V. Sornathammal
  2. Navtej Singh Johar V. Union of India

Maintenance

Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law. Under the Code of Criminal Procedure, 1973 (Section 125 to 128); right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives.

Maintenance Under Muslim Law

Persons are entitled for maintenance under Muslim law are as follows
The Wife in the following circumstances, husband has to maintain his wife:
  1. status arising out of a valid marriage.
  2. a pre-nuptial (existing before marriage) agreement entered into existence between the parties to the marriage.
  3. The husband's obligation to maintain his wife is only if the wife remains faithful and obeys his reasonable orders.

She does not lose her right to maintenance, if
  1. she refuses access to him on same lawful grounds, such as when the husband keeps a concubine, or is guilty of cruelty towards his wife,
  2. Marriage cannot be consummated owing to:
    1. husband having not attained puberty
    2. his absence from her without her prior permission, or
    3. his illness
    4. malformation (an abnormally formed part of the body)

Divorced Wife's Right to Maintenance and Dower

Before Supreme Court's decision in Md. Ahmed Khan V. Shah Bano Begum case, there was no provision for wife's maintenance entitled from her husband after the expiry of period of idda. But after the verdict came, the maintenance was granted to a wife under Section 488 of the Code of Criminal Procedure and she forfeited it if she was divorced by her husband.

Arrears for Maintenance

Under the Hanafi law, a wife cannot recover arrears of maintenance unless the amount of maintenance has been fixed by a court or by an agreement.

The Children
The primary obligation of maintaining children rests on father. In Muslim law, a person has no obligation to maintain his illegitimate children. The Hanafis recognized the obligation of maintenance in respect of illegitimate children up to the age of seven. Even no school of Muslim law recognizes any obligation of maintaining illegitimate children of either of the parents.

Parents and Grandparents
The obligation to maintain poor parents rests on sons and daughters, under Muslim law, provided they have means. If some of the children are themselves poor, then the obligation lies on them who are in better circumstances.

The parents are entitled to maintenance on the fulfillment of the following conditions:
  1. The maintainer should be in better circumstances.
  2. The claimant should be poor.
Under the Hanafi School of law, as between the father and the mother, the latter has a preferential right of maintenance.

Persons within Prohibited Relationship
A person who is in better circumstances, i.e. not poor, has an obligation to maintain his poor relations within the prohibited degrees.

Maintenance Under Hindu Law
Maintenance means provision for food, clothing, residence, education and medical attendance and treatment. Under Hindu Adoptions and Maintenance Act, 1956, in the case of an unmarried daughter, it includes reasonable expenses of her marriage.

The Hindu law of maintenance may be studied under the following three heads:
  1. Personal obligation to maintain certain relations,
  2. Obligation of the joint family to maintain its members, and
  3. Obligation to maintain the dependants of the person whose property had devolved on one.
In respect of aged parents and minor children, it is an obligation of every Hindu male or female under Hindu law. So, a Hindu has obligation to maintain Wife

Most systems of law recognized the obligation of the husband to, maintain his wife till the marriage subsists and the wife remains faithful. Wife's right to maintenance may arise in the following three situations:
  1. When the wife lives separate from her husband.
  2. When the wife lives with her husband.
  3. When the wife lives separate under a decree of the court or when the marriage is dissolved.

Children
The modern Hindu law imposes the obligation on both the parents and in respect of both legitimate and illegitimate children. The obligation extends during the minority of children.

Legitimate and Adopted Son
A Hindu is required to maintain his natural as well as adopted sons. If a son refuse to live with his father, it does not disentitle (deprive) him from claiming maintenance, but the quantum of maintenance may be affected. The same is true about a disobedient son. The obligation of parents to maintain the son ceases on his attaining majority, even if the son is incapable of maintaining himself due to temporary illness or disorder. But, if disability is of a permanent nature, it would be in consonance with the principles of Hindu law that parent's obligation to maintain him is recognised.

Illegitimate Son
Hindu law has never considered an illegitimate son as a filius nullius (a son of nobody) and along imposed an obligation on the putative father to maintain his illegitimate son. Such sons are entitled to maintenance during their minority. No illegitimate son can claim maintenance after he has attained majority.

Legitimate and Adopted Daughter
It is recognised that it is the father's obligation to maintain his legitimate daughter till her marriage and to pay for her marriage expenses.

Aged or Infirm Parents
The obligation to maintain aged or infirm parents is a personal obligation arising out of the parent-child relationship.

Section 20 of Hindu Adoptions and Maintenance Act includes a childless 'Stepmother' in the expression 'Parent.' The childless 'Stepfather' is still excluded from the purview of the expression 'Parent',

Daughter-in-law
Hindu Adoptions and Maintenance Act, 1956, purport to put the daughter-in-law as a class by herself by enacting separate section for her. Section 19 does not make it a personal obligation of the father-in-law to maintain his daughter-in-law. Further, the obligation is confined to the coparcenary interest of the father-in-law. Under Section 19, obligation of father-in-law arises, if
  1. the daughter-in-law is unable to maintain herself out of her own earnings or other property.
  2. the daughter-in-law is unable to obtain maintenance, in certain following conditions
    1. From the estate of her husband.
    2. From the estate of her father.
    3. From the estate of her mother
    4. From her sons or daughters or from their estate.

Maintenance of Dependants
Section 21 and 22 of the Act create a new right of certain persons called 'dependants'. Dependants are relatives of deceased Hindu and they claim maintenance against the property of the deceased in the hands of heirs. The term 'heir' includes all those persons on whom the estate of the deceased devolves. The rights of dependants exist against the property and not against the heirs personally.

Who are Dependants?
Under Section 21 of Hindu Adoptions and Maintenance Act, 1956, following are the dependants of a Hindu male or female:
  1. Father,
  2. Mother,
  3. Widow,
  4. Minor legitimate or illegitimate son,
  5. Minor legitimate or illegitimate unmarried daughter,
  6. Widowed daughter,
  7. Son's widow,
  8. Grandson's widow,
  9. Son's unmarried daughter, and
  10. Grandson's unmarried daughter.

Rules Related to Dependants
Obligations are tagged to the estate and not to the person. The liability of the heirs who take the property of the deceased is not a joint liability. A dependant will be entitled to claim maintenance only if he has not obtained any share in the estate of a Hindu dying after the commencement of this act by testamentary or intestate succession. Sub-section (4) of Section 22 imposes another limitation on the liability to maintain.

Maintenance of the Members of the Joint Family
When the family remains joint, all its members have a right of maintenance against the joint family property. The persons who claim maintenance, out of the joint family funds may be classified under the following three heads:
  1. Coparceners, qualified as well as disqualified,
  2. Wives, widows, unmarried daughters of the coparceners, and
  3. Other members of the family, which includes:
    1. Those male members, who are not coparceners.
    2. Concubines and illegitimate children of the father.

Quantum of Maintenance
There are some provisions which the court will take into account in fixing the amount of maintenance under the Hindu Adoptions and Maintenance Act, 1956. In respect of quantum of maintenance of wife, children and aged or infirm parents, following considerations are kept in mind:
  1. Reasonable wants of the claimant;
  2. The position and status of parties;
  3. If the claimant is living separately, whether he is able to justify it;
  4. The number of persons entitled to be maintained under the Act;
  5. The value of the claimant's property and any income derived from such property or from claimant's own earning or from any other source.

Maintenance Under Muslim Women Act, 1986
The Act makes provision for matters connected therewith. It is apparent that the Act nowhere stipulates that any of the rights available to the Muslim women at the time of the enactment of the Act are taken away or abriged.

The Act lays down that:
  1. A divorced woman is entitled to have a reasonable and fair provision and maintenance from her former husband and the husband must do so within the period of idda and his obligation is not confined to the period of idda.
  2. If she fails to get maintenance from her husband, she can claim it from relatives failing which, from the Wakf Board.
  3. An application of divorced wife under Section 3(2) can be disposed of under the provisions of Section 125 two 128, Cr.PC if the parties so desire.
  4. Applications pending under Section 125, Cr.PC are required to be disposed of under the Act (Section 7).
  5. There is no provision in the Act which nullifies orders passed under Section 125, Cr.PC. The Act also does not take away any vested right of the Muslim woman.
  6. The provision is made under the act and the rules framed for the expeditious disposal of applications and hearing should be ordinarily continued from day-to-day.
  7. All obligations of maintenance end with her remarriage.
Thus, the Act secures to a divorced Muslim woman sufficient means of livelihood so that she is not thrown on the street without any means of sustaining herself.

Dower (Mahr)
DS Mulla defines 'Dower' as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage.”

Whereas 'Mahr' has been compared to the price in a contract of sale because a marriage is a civil contract and sale is a typical contract to which Muslim jurists are accustomed to refer to by way of analogy. Dower is not a consideration proceeding from the husband for the contract of marriage, but it is an obligation imposed by law on the husband.

Quantum of Dower
The peculiarity of the Muslim concept of dower is that no school of Muslim law fixes the maximum amount of dower. Usually, dower is fixed in terms of money, but it may include any type of property, anything which falls within the meaning of mal and has value. So, as per instruction in the Quran, a prayer carpet, land or house may form the subject-matter of dower. No writing is required, though usually a written deed, known as Mahr-nama (dower-deed) is executed.

Classification of Dower
Dower is classified into two ways:
  1. Specified Dower: It means the mutual agreement between the parties.
  2. Proper Dower: It is also known as customary dower, i.e., arising out by the operation of law.
Dower's Nature and Mode of Enforcement
Dower vests in the wife and she can recover it like an actionable claim. She has also the power to assign it. Dower is a debt in nature, but it is an unsecured debt. It being an unsecured debt, the wife has to stand in the queue along with other creditors of the husband. However, a wife who is in possession of her husband's properties has power to retain them in her possession till her dower is paid.

Right to Retention
It is the right of Muslim wife to continue to be in possession of her husband's property in those cases where her dower has not been paid. It has following implications:
  1. She has no right to alienate the property.
  2. The widow is liable to render full account of all the income and profits.
  3. Her right of retention does not bar her suit for the recovery of her dower-debt.

Widow's Liability to Render Accounts
The Muslim widow holding the possession of property in her right to retention is liable to render full accounts of all rents and profits of property received by her to those who are entitled to the property. Widow has the right to sue for the recovery of her dower-debt. She will have to give-up possession on the recovery of her dower-debt.

Right of retention is lost in the following cases:
  1. On satisfaction of the amount of dower out of the income and profits of the property.
  2. On her alienation of property together with possession.
  3. On her voluntarily handing over possession to heirs.
The law is still uncertain as to whether or not the right of retention is heritable and transferable.

Maintenance from Other Relations and Wakf Board
Section 4 lays down that notwithstanding anything contained in Section 3, a divorced woman is entitled to file an application for maintenance from her relatives or Wakf Board, if she is not in a position to maintain herself and if he has not been able to obtain any fair and reasonable maintenance from her husband. For the application of Section 4, following two requirements should be satisfied:
  1. She is not able to maintain after the idda period,
  2. She had not remarried.

Stridhan
In our modern society, 'Dowry' is one of the biggest social evil. This evil has taken the lives of many girls, while many continue to suffer because of it like slow poison throughout their lives. So, it is important to remove such social evils from the society.

Stidhan is the biggest issue which we need to understand. Meaning of Stridhan is woman's property. According to Smritikars, Stridhan constitutes that property, which is mostly immovable in nature and mainly gifted by her relatives. It also includes the gifts which she receives from strangers during the marriage ceremony like ornaments, cloths and jewellery.

Some of the categories which constituted Stridhan are given below:
  1. Property purchased with Stridhan.
  2. Gifts and bequests from relations.
  3. Gifts and bequests from strangers.
  4. Property acquired by self-exertion and mechanical arts.
  5. Property acquired by compromise.
  6. Property gained by adverse possession.
  7. Property gained in lein of maintenance.

Estate of Women
Property obtained by inheritance and share received on partition are together constituted as the estate of women. Limited ownership is provided to the female in case of estate of women. However, she is an owner of the property in the same way as like other person is the owner of his property. The old law related to Stridhan is Hindu Succession Act, 1956. However, new Sections 15 and 16 have been laid down in the Hindu Succession Act, 1956, which states:
General Rules of Succession in the Case of Female Hindus (Section 15)
The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16:
  1. firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
  2. secondly, upon the heirs of the husband;
  3. thirdly, upon the mother and father;
  4. fourthly, upon the heir of the father; and
  5. lastly, upon the heirs of the mother. [Section 15(1)]

Notwithstanding anything contained in sub-section (1):
  1. any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
  2. any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. [Section 15(2)]

Order of Succession and Manner of Distribution Among Heirs of a Female Hindu (Section 16)
The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place, according to the following rules, namely:
Among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.

The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.

Power of the Holder of Women's Estate
Holder is superior than others and holds all the powers related to the management. Being a holder of estate, she has limited powers of alienation.

Estate Reverts to Next Heir of the Lawful Owner
In this respect, female owner does not form independent stock of descent in respect of it. On her death, estate transfer to the heir or heirs of the last full owner.
Right of Reversionary
  1. They can sue the woman holder for an injunction to restrain the waste.
  2. They can sue for a declaration that an alienation made by the widow was null and void and also after the death of widow, it will not be binding on them.
  3. They can sue for a declaration that an alienation made by the widow was improper and also not binding on them.

Section 14 of Hindu Succession Act, 1956
Before or after the commencement of Hindu Succession Act, 1956, a Hindu female who possess any property, shall have full ownership as per the sub-section (1) of Section 14 of the Hindu Succession Act, 1956.

Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Pre-Act of Estate of Woman
Section 14 is implemented retrospectively. This section is helpful in converting the already existing estate of woman into absolute estate or you can say 'Stridhan'.
Two mandatory conditions are:
  1. She must be the owner of the property.
  2. When the act came into force, she must be in possession of the estate.

Post-Act Property of Woman
A Hindu female who acquires property after the commencement of Hindu Succession Act, 1956, will be her absolute property despite she acquires with limitations. Sub section 2 of Section 14 of the Hindu Succession Act, 1956, lays down those limitations as mentioned above

Decree
Under any decree or award, any Hindu female may acquire the property. In Seth Badri V. Kanso, properties were allotted to a Hindu female as her share under the partition decree.

Compromise
Under any agreement or compromise, any Hindu female may acquire the property. For example, in Mahadeo V. Bansraji and Lakshmi V. Sukhdevi.

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