Property Rights of a Child Born Out of Live-In Relationship: A Study
The article provides the reader the property rights of a child who is born out of live-in-relationship and whether live-in-relationship is a marriage or not because in live-in-relationship both partners live together under one roof without marriage. The article says also says about the legitimacy of the child and the laws available for it followed by case laws.Live-in relationship in simple terms is a relationship in which both partners enjoy their individual freedom and live in a house together without being married to each other.
A live-in-relationship is relationship where both partners live-in under one roof without marriage. It can be termed as cohabitation between the partners. In simple terms, it is a relationship in which both the partners enjoy their individual freedom without any responsibility of the other partner. In such a case, no laws tie those persons and they can leave each other at any time. There is no legal definition of live-in-relationship and so there is no provision of it in Indian Law. The status of children born out of live-in-relationship has never been clarified by the courts. In the case Tulsa & others v Durghatiya& others, the Supreme Court provided that the children born out of cohabitation for a considerable amount of time and under one roof so that the society recognises them as husband and wife.
Live-in-relationship in India and the related laws
The live-in-relationship where two individuals lives together under one roof without being married has been in practice for a long time. In the earlier days, it was considered immoral and was not at all allowed but with the change of time the people’s thinking and mindset is also changing and now the live-in-relationship is in practice. But still now many are there in the society who are against this and considers it immoral. The outlook of the people is changed over the years especially the way of the judges in the courts see them now and because of the verdicts given in different cases. Unlike the foreign countries, India has still not recognised any such kind of relationships because of old and traditional values and beliefs. There is no specific law on the subject of live-in relationships nor is it recognized by the Hindu Marriage Act, 1955. In the absence of any statute, the court did try to shed light on it through the judgment given in different cases.
Legitimacy of Child
When a child is born out of a live-in-relationship the first and foremost question asked is about his legitimacy. Despite the increasing trend of couples entering in live-in-relationship, the children born from these relationships face serious legal implications. Marriage is also referred to as wedlock and is socially and by rituals is regarded as a union or a contract between the two that goes on to establish certain rights and legal obligations towards one another. As per the existing law and social framework it is only children who are born to the married couple are legally entitled and recognized in the society. Marriages in Islam is considered very significant as it is a civil contract between the two parties and marriage is considered good not only for the individuals but for the good of the family as well. But, living without marriage has not been recognized till date.
In the case of SPS Balasubramanyam vSruttayan, the SC had said, if a man and woman are 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. This was a landmark case wherein the apex court for the first time upheld the legitimacy of the children born out of a live-in relationship. The court interpreted the statute of such a child to be in concurrence with Article 39(f) of the Constitution of India which lays down the responsibility of the State to provide the children with adequate opportunity to develop in a normal manner and safeguard their interests.
The Supreme Court in Malimath Committee report there it had defined the word ‘wife’ in Section 125 of CrPC and asked to be amended to also include any woman who was living with a man as his wife for a long period of time even when had a wife at that time from the first marriage.
Right to property
Right to Property is when there’s an inheritance right to the person concerned. Under Hindu Succession Act,1956 it gives right and tells that a legitimate child has the right including both son and daughter from Class-I heirs in the Joint Family Property. But in Hindu Law, a child which is illegitimate could only inherit the property from his/her mother’s side and not the alleged father. The legitimacy of the child has always been a subject of debate and legitimacy has always been considered a serious factor while considering the inheritance rights under Hindu Law. Courts have but always said that the child born out of the live-in relationship will not be denied the inheritance of property when born after a considerable period of time.
Under Muslim law there is no provision as such.
Class I Legal Heirs under Hindu Succession Act, 1956
In case of Vidyadhari v SukhranaBai, a landmark judgment was passed where the court granted the right of inheritance to the child born out of live-in-relationship and ascribed them with the status of “legal heirs”.
Many judges have criticized the thought of giving legal status to children born out of the live-in relationship. Justice Ganguly while criticizing the Bharat Mata v Union of India case talked on the issue of live-in relationship and their rights to the property. He said that the legislature has used the word “property” in Section 16(3) of HMA, 1955 and has been silent on the subject that whether the property in question should be ancestral or self-acquired property. In such situations, the court has decided to not to deny a child the right to property in an arbitrary manner.
Though the courts have given many landmark judgments still it is not acceptable. There are many people who still believes live-in relationships are immoral and are not allowed in our traditions and customs.By interpreting the cases and the landmark judgment we can conclude the issue. The society prefers to have children born out of proper legal marriage and they consider only those children as legitimate. Also, there has been steady growth in the live-in relationships with development in people and with change of time the mindset and thinking of the people is changing. This change is all over the world and with that India is also changing. As per Hindu Succession Act, 1956, whether a child is born out of live-in relationship or out of marriage, the child has the right in the property, he will not be considered illegitimate and his right will not be strike out.
There are people with old thinking but still there are chances of changes. To bring a clear idea and to avoid all the confusions and loopholes, the law should be made clear and amendments should be made to the ambiguous terms in present laws. The courts should grant clarity on the status and rights of children born out of a live-in relationship.
 2008 SC 1193 https://www.makaan.com/iq/legal-taxes-laws/property-rights-in-live-in-relationsh [Last accessed on 30th April, 2020]  1994 AIR 133 https://blog.ipleaders.in/rights-child-born-live-relationship/ [Last accessed on 30th April, 2020]. Modern Hindu Law by Paras Diwan AIR 2008 SC 1420
Author Details: Surabhi Rathi (Amity University, Kolkata)
The views of the author are personal only. (if any)