RIGHTS OF CHILDREN BORN OUT OF LIVE-IN RELATIONSHIPS
Author: Snigdha Ghose, I year of B.S.C.,LL.B(Hons.) From Gujarat National Law University.
Co-author-1: Abhimanyu Vyas, I Year of B.A.,LL.B(Hons.) From Gujarat National Law University.
WHAT IS A “LIVE-IN” RELATIONSHIP?
Live-in relationships are a matter of great debate in conservative Indian society. “While the mainstream view of the Indian society is that sexual contact should take place only between marital partners, no statutory offence is committed when two consenting adults of heterogenic sex enter into a live-in relationship, with the exception of ‘adultery’ as defined under section 497 IPC”. While there is no clear legal definition of a ‘live-in’ relationship, it has been taken to fall within the ambit of the phrase 'relationship in the nature of marriage’ as stated in Section 2(f) of the Protection of Women from Domestic Violence Act, 2005.
Section 2(f) states: “ ‘domestic relationship’ means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, through a relationship in the nature of marriage, adoption or are family members living together as a joint family”.
“The phrase ‘relationship in the nature of marriage’ was interpreted by the Honourable Supreme Court to be akin to a common law marriage. Common law marriages require that, although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including
(d) They must have voluntarily cohabited and held themselves out to the world
as being akin to spouses for a significant period of time.
A 'relationship in the nature of marriage' under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a 'shared household' as defined in Section 2(s) of the Act.”
On the basis of the reasoning given above, a relationship in the nature of marriage can be categorised into five types of relationships:
“(a) Domestic relationship between an unmarried adult woman and an unmarried
(b) Domestic relationship between an unmarried woman and a married adult
(c) Domestic relationship between a married adult woman and an unmarried
(d) Domestic relationship between an unmarried woman unknowingly entering
into a relationship with a married adult male
(e) Domestic relationship between same sex partners (Gay and Lesbians)”
To examine whether a relationship will fall within the ambit of the expression ‘relationship in the nature of marriage’ within the meaning of Section 2(f) of the DV Act, the Supreme Court chalked out a few criteria:
(1) The length of the relationship
(2) Joint household
(3) Resources and financial arrangements are combined.
(4) Domestic Obligations
(5) Sexual Intimacy
(7) Public Interactions
(8) The parties' intent and actions
THE COURT’S STANCE
The Supreme Court addressed the legitimacy of children born from live-in relationships for the first time in the case of S.P.S Balasubramanyam v. Suruttayan. "If a man and woman have been living under the same roof and cohabiting for some years, there will be a 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 ruled.
The court later held in the case of Revanasiddappa v. Mallikarjun that "regardless of the legitimacy of the relationship between parents, the child born out of that relationship must be regarded separately from the relationship between his/her parents." According to Justice AK Ganguly, “the child born from such a relationship is innocent and has the right to all of the privileges and rights available to children born from valid marriages.”
Prior to 2010, children born from a live-in relationship were due to legal reasons considered to be 'illegitimate.' However, in Bharata Matha v. R. Vijaya Renganathan, the Supreme Court ruled that "children born out of the live-in relationship are legitimate and their inheritance right in the property is upheld." Even though the Hindu Marriage Act of 1955 does not explicitly recognise live-in relationships, Section 16 of the Hindu Marriage Act grants such children legitimacy and the right of inheritance.
RIGHTS GRANTED TO THE CONCERNED CHILDREN
Particular spheres are to be taken into consideration while deliberating on the nature of rights granted to children born out of live-in relationships. These can be broadly categorized into legitimacy, custody, property, and maintenance. To get a better understanding of each segment, we will now be elucidating on each of the categories in detail:
By legitimacy, one means the acceptance of the concerned child in all its legality. In the landmark case of Dimple Gupta v. Rajiv Gupta, the Indian judiciary used its power to achieve the ends of social justice. Herein, the Supreme Court ruled that an illegitimate child is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973 even if they are born of an illicit relationship. “Article 14 which ensures the Right to Equality can be violated in circumstances where unequal treatment of a child born from a live-in relationship and a child born from a marital relationship is perceived, even though both are legal.” The Supreme Court ruled in Vidyadhari v. Sukhrana Bai that children born from a live-in relationship should be considered "legal heirs" and have the right to inherit under section 16 of the Hindu Marriage Act.
Section 6 of the Hindu Minority and Guardianship Act of 1956 states unequivocally that "the father is the natural guardian of his minor legitimate children, the mother becomes the natural guardian in the absence of the father, which means when the father is not capable of acting as the child's guardian." However, Sub-Section (6) of Section 6 of the same Act appears to deal with live-in relationships indirectly by granting custodial rights to the mother in the case of children born from illegitimate relationships. There is some definite uncertainty about how these personal laws apply to children born from live-in relationships, the term "relationship in the nature of marriage" has been interpreted by the court in the case of D. Velusamy v. D. Patchaiammal as follows: "Relationships like marriage are akin to a Common Law Marriage." Under the common law, not all marriages need to be the so-called ‘formal marriages’, though the following pre-requisites are to be fulfilled by the couple:
(a) they must hold themselves out to society as being akin to spouses
(b) be of legal marrying age
(c) be otherwise qualified to enter into a legal marriage, including being unmarried
(d) have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time
Custodial rights have been observed to require special legislation that could cover the custodial-related aspect of children born out of a live-in relationship. It has become even more salient in today’s world. Usually, when a couple decides to divorce, the issue of custodial rights arises. If a custody dispute arises, courts may decide the case as the child of a married couple or as the child of an unmarried single mother because there is no special legislation governing live-in relationships. Thus, it falls in the hands of the respective courts to decide on this matter.
The question of inheritance rights in most cases arises out of the question of the legitimacy of a child. As a result, the courts have always made certain that any child born after a reasonable period of live-in partnership is not denied the right to inherit, in accordance with Article 39(f) of the Indian Constitution. The Supreme Court made history in Vidyadhari v. Shukrana Bai by granting the right of inheritance to children born from a live-in partnership and granting them the status of valid heirs. However, for the first time, children born from live-in relationships were granted legal legitimacy in Balasubramanyam v. Suruttayan. According to the Supreme Court, Section 114 of the Evidence Act presumes that a man and a woman are married if they share a residence and live together for an extended period of time. As a result, the children they have will be recognised as their legitimate offspring and would have a right to a portion of the ancestral property.
In the landmark judgment of 2007 of Dimple Gupta v. Rajiv Gupta, the judges showed judicial activism and filled in the loopholes of law. They stated that “even an illegitimate child born from an illegal relationship is entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973, which provides maintenance to children, legitimate or illegitimate, while they are minors and even after they reach the age of majority if they are unable to support themselves.” As noted in Captain Ramesh Chander Kaushal v. Mrs Veena Kaushal, “Section 125 of the Code of Criminal Procedure, 1973 serves as a model of progressive legislation aimed at protecting child rights in situations where the people subjected to such laws are not at fault.” However, "the right to maintenance is a condition of establishing the fatherhood of the child."
RECENT DEVELOPMENT IN THE LEGAL LANDSCAPE
Facts of the case
Recently, the High Court of Kerala in the matter of XXXXXXXXXX v. State of Kerala gave a new dimension to this debate. The case pertains to a matter of adoption of a child arising out of a live-in relationship. John and Anitha, the couple in this instance (names altered to preserve their privacy), met during the Kerala floods in 2018. They were both active in NGOs. John is a Christian, and Anitha is Hindu by their faith. While working for the NGO the couple grew close and fell in love. Due to the fact that they practised different religions, their relatives opposed their plans for marriage. They were both waiting for their families to approve of their union. The pregnancy of Anitha occurred in the month of May 2019. On 3.2.2020, she gave birth to a girl at the Government Hospital in Aluva. The child's birth certificate lists the names of both the child's mother and father.
John was an artist. In order to appear in a Malayalam movie, he had travelled to Karnataka. The relationship between him and Anitha became strained as he remained elusive. Anitha made an effort to stay in touch with him, but in vain. Anitha had no choice but to contact the Child Welfare Committee in Ernakulam on 8.5.2020 because she was isolated, desperate, and repressed. On 8.6.2020, she signed a Deed of Surrender.
The Committee initiated the procedure as per law. Anitha's Deed of Surrender gave the Committee permission to place the kid up for adoption. Noting that Anitha was an unmarried mother, the Committee adhered to the guidelines established under the Adoption Regulations, 2017 for the giving up of a child by an unmarried mother. After the process was complete, the Committee stated that the infant could legally be adopted on 17.8.2020 in the manner envisioned by Section 38 of the Juvenile Justice Act, 2015. On 2.2.2021, the child was given in adoption to a couple by order of the Family Court, Ernakulam.
Post the adoption of the child, Anitha and John approached the High Court of Kerala with a writ of habeas corpus on 10.2.2021. The Court, recognising the legal significance of the Juvenile Justice Act proceedings, was of the firm opinion that a writ of habeas corpus would not lie. However, the Court transformed it into a Revision Petition in accordance with Section 102 of the Juvenile Justice Act.
Issues for consideration before the court
Based on the facts of the case, the following issues were to be addressed by the court:
The legality and propriety of the declaration made under Section 38 of the Juvenile Justice Act, 2015.
Does the law differentiate between an unwed couple and a legally wed couple to recognize biological parents?
Judgement of the Court
The bench comprising Justice A Muhammed Mustaque and Justice Kauser Edappagath ruled “Whether a married couple includes a couple in a live-in relationship must be considered in the context of juvenile justice under the law.” “Marriage as a social institution depends upon personal law or secular law like Special Marriage Act.” It is irrelevant to the idea of juvenile justice. The biological parent's parental rights are an inherent entitlement that are unrelated to the institutionalisation of legal marriage. A couple who cohabitates acknowledges their respective rights and responsibilities. It resembles a contract more. In such a relationship, the offspring acknowledges both biological parents' parental rights.
The context of juvenile justice is necessary to comprehend the married couple and the unmarried mother. For the purposes of juvenile justice, a mother must be recognised as an unwed mother if she denies having any kind of relationship with the biological parent. A woman who becomes pregnant by rape, sexual assault, or by accident does not want to identify or recognise the biological father. Such a mother must be treated as an unmarried mother. For the purposes of juvenile justice, a woman in a live-in relationship who acknowledges the biological father of the child born from such a relationship must be recognised as a married woman.
The court determined that since the distinction between a couple who are "legally married" and those who are "not legally married" has no influence on the law's ultimate goal, the court must adopt an interpretation that furthers that goal. An unmarried woman and a married couple are distinguished by the law primarily based on the type of inquiry that must be made in order to locate the child's biological parents in order to reunite the child with them or a guardian. Legal marriage is completely irrelevant in these situations. No such investigation is made when an unmarried mother surrenders a child because she denies having a relationship with the biological father. The woman must determine whether to acknowledge the child's father and how to do so. The father has the right to be acknowledged as the child's biological father if she decides to do so at the time of conception.
In the current situation, the child's birth certificate lists the names of the mother, the father, and the child. The child's last name bears the father's name. The authority needs the child's birth certificate to determine whether or not the child was born to a married pair. The Committee is not required to find out the marriage's legal status because they lack the authority to make such a determination. If a child born to a married couple is given up for adoption, the Deed of Surrender must be signed by both parents in accordance with Reg. 7(5) of the Adoption Regulations. The kid must be treated as abandoned if one of the parents gives up custody and the whereabouts of the other parent are unknown (7(6)). Reg. 6 deals with the matter of an abandoned child, which entails tracing the child’s biological parents. No such process was used in the current situation. “That is legally unsustainable as the child was to be treated as one belonging to a married couple.” The declaration made under Section 38 was judged to be invalid because the required procedure was not followed. Therefore, all subsequent legal proceedings would also fail.
Invalidating the certificate issued in accordance with Section 38 of the Juvenile Justice Act, the High Court of Kerala allowed the Revision Petition. In light of the father's willingness to provide for the child, the Court ordered the Committee to take into account the father's rights to the claim for restoration under Sections 37 and 40 of the Juvenile Justice Act and to take the necessary steps for initiating the legal restoration proceedings within a month.
Though, throughout many years, multiple landmark judgments have ensured the rights of children born out of live-in relationships. It goes without saying that various loopholes in the rules and regulations governing our nation, particularly in relation to this matter, need to be rectified. There is still ample ambiguity that needs to be resolved when it comes to dissenting or contrasting opinions. Appropriate amendments and bills to promote transparency in the system to guarantee the rights of children born out of a live-in relationship are the need of the hour.