To wed or not to wed :  Cohabitation law reform

Ritika Bharti


A marriage is a legally recognized union of a man and a woman, which thereto raises rights and obligations between them. The ritual of marriage is not merely a social contract but also establishes a bond of fate which binds a family together and lays down grounds for the future generation. However, the concept of ‘marriage’ which involved the rituals and traditions and helped develop family value is diminishing and is being overshadowed by the term ‘cohabitation’. Cohabitation in the truest sense of the word means when two people live together in such a way that it resembles marriage but without a legal union. The foundation of live in relationship is individual freedom.

The author is now going to bring out certain differences between ‘marriage’ and ‘cohabitation’:

A marriage is a legally binding bond which before commencement requires the fulfilment of certain requisites like age limit, documentation while cohabitation is a system which can be incorporated by any two individuals without any formal requirements like age restriction.

For a marriage to end, divorce which is a well defined concept in family law needs to be applied. This annulment process can be complicated requiring the help of courts thus time consuming and emotionally draining. Cohabitation as already mentioned is not a legally binding bond so it can end anytime without any prescribed procedure even though even this just like marriage brings out an emotionally draining experience for the couple.

A divorcing couple has to follow regulations prescribing the distribution of property while in cohabitation the couple after separation can divide the estate according to their own wishes. During the death of a spouse, the other spouse has the legal right to inherit certain parts of the estate for their own personal well being and living while in cohabitation only if the spouse has explicitly given any part of the property to the other member that they can acquire it, in any other situation the estate of such a person will be acquired by the family members.

If one spouse becomes ill or incompetent, his/her partner has the right to make decisions on their behalf on any issue including finances. No matter how strong the bond is or how close two people are, under cohabitation, if a partner falls ill or is incompetent to take his/her own decisions, the next right to make decisions for such a person goes to their family rather than the person they were living with.

Children born during the marriage are presumed to be the offspring of the husband and wife.[1] Children born during the cohabitation period have to expressly prove their paternity by blood tests and other legal action for any legal documentation. While in marriage, the children have to be financially supported by their parents in cohabitation the man has no direct obligation to do so and can only be forced if the paternity has been proven.



In the recent times it has been noticed the number of couples considering cohabitation against marriage has increased drastically. This has led to the decline of the importance of the institution of marriage and has weakened the bonds formed between two families therewith. The very first argument that the author would like to raise is that as marriage involves some kind of positive commitment, cohabitating couples can completely avoid any kind of commitment issues. This very fact of failure in providing commitment raises a strong point that if the couples are not ready for any kind of commitment and want to avoid marriage, then they automatically refuse any kind of legal aid that should be provided to them. To be able to be in a position to ask for legal aid, they should have, in the first place followed the norms laid down by the law. A marriage is simple as it is followed according to set prescribed procedures. Cohabitation constitutes a wide range of relationships. The emotional commitment which is a key factor in such a relationship varies from couples to couples making it hard to determine the ones that will actually require legal aid in any circumstance.

In, Alok Kumar vs State & Anr[2], when the plaintiff filed a case where one of her allegations were that the defendant refused to marry her after a live-in relationship of 5 years, The Delhi High Court said that : “ ‘Live-in relationship’ is a walk-in and walk-out relationship. There are no strings attached to this relationship, neither this relationship creates any legal bond between the parties. It is a contract of living together which is renewed every day by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time. Those, who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage, where the bond between the parties has legal implications and obligations and cannot be broken by either party at will. Thus, people who chose to have ‘live-in relationship’ cannot complain of infidelity or immorality as live-in relationships are also known to have been between married man and unmarried woman or between a married woman and an unmarried man.’’[3]

One of the other significant issues raised is that children born out of this setting have to live in a sort of unhealthy environment. Yes, they get the love from their parents’ but they are deprived of a formal family setting which helps to inculcate moral values and discipline. They have to expressly prove fraternity through blood tests which sometimes make them conscious about their upbringing as their peers who are born out of conventional institution of marriage see them differently. Thus, it can majorly affect the emotional and mental development of children. Apart from the effect it has on the children, it harms the society at large. Families connect through marriage and then fulfil their social desires by meeting, celebrating festivals together and such but when couples just live together and fail to marry, there is no bond that can connect the families thus, disrupting the social structure which is important for society to sustain.



The Hindu Marriage Act, 1955 does not recognise ‘live-in-relationship’; neither does the Criminal Procedure Code, 1973. The Protection of Women from Domestic Violence Act, 2005 (PWDVA) perhaps comes to the rescue for the purpose of providing protection and maintenance to women by stating that an aggrieved live-in partner may be granted alimony under the Act. Section 2(f) of The Protection of Women from Domestic Violence Act, 2005 states that: “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, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;[4]. This definition not only includes the relationship of marriage, but also ‘a relationship in the nature of marriage’, henceforth, providing protection to cohabitating couples and resolving their grievances.

Even so, the court has held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship. One of the first cases, that is, in  Badri Prasad vs. Deputy Director of Consolidation, the Supreme court gave validity to a 50 year old live in relationship of a couple. But, “Merely spending weekends together or a one-night stand would not make it a domestic relationship,” said a bench of Justices Markandey Katju and TS Thakur. This was observed in,  D. Velusamy v. D. Patchaiammal, where case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with certain conditions. The conditions that were laid down were:

(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 being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.[5]


Two consenting adults should be allowed to make their own decision and live according to their wishes. When the constitution provides its citizen with the right to liberty and personal freedom, it guarantees that people can choose how they want to live.

In Lata Singh vs. State of U.P. & Anr[6], it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery’), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or “live with anyone she likes”.[7] Another case, supporting the stand is, S. Khushboo vs Kanniammal & Anr,  Khusboo commented during an interview that there was nothing wrong with sex before marriage, provided girls took adequate protection against uncalled for pregnancy and sexually transmitted disease. This was later reported as offensive and a source of public nuisance, to which the court said “If living together is an offence, then the first complaint should be filed against the Supreme Court, because we have permitted living together,”[8] the bench also remarked that, it is part of right to life to go away with someone you love.

The underlying need for a formal law reform for grievances arising out of cohabitation between people should be established to dispense justice. Even though it is known that the degrees of cohabitation may differ but once this relationship is terminated either through separation or death, the parties face problems both financially and mentally. This is a quasi-matrimonial situation and with termination it is certain that one of the parties will be in a less advantageous situation and it is up to the court to look into the matter and right this wrong. The parties should have certain basic remedies in such cases which provides them with regular pays or part of the property so that can have enough to start afresh. This termination also brings hardship for the children and proper procedures should be laid down which will protect the interest of these children and provide them with basic amenities of life.

One of the most important and recent case discussing the issue is, Indra Sarma vs V.K.V.Sarm , in which the court said that, “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. Long-standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and Exhaustive.” The court also requested to bring in proper amendments to the Protection of Women from Domestic Violence Act, 2005 or enact a suitable legislation so that women and children born out of live-in relationships are protected. The five kinds of live-in relationships that the Supreme Court identified in Indra Sarma case are as follows:

a) Domestic relationship between an unmarried adult woman and an unmarried adult male:

b) Domestic relationship between an unmarried woman and a married adult male

c) Domestic relationship between a married adult woman and an unmarried adult male

d) Domestic relationship between an unmarried woman unknowingly enters into a relationship with a married adult male

e) Domestic relationship between same sex partners (Gay and Lesbians)

Even though, the court has mentioned that these are only illustrations.

After a recent incident, a bench constituting of Justices MY Eqbal and Amitava Roy said that if a man and a woman have cohabited continuously for a long time, the law presumes they are married, the Supreme Court has said while holding that a woman is eligible to inherit her partner’s property after his death.[9] The Supreme Court is against concubinage and also promotes marriage in regarding a relationship between two individuals who have lived together for a long time.




In today’s society marriage is no longer a life binding commitment. The divorce rates are increasing drastically, hence, people are opting to live in together to establish a sense of comfort before marrying one another.

Thus through this project the author brought out the pros and the cons of cohabitation as a developing institution. The judiciary should demark and set out certain guidelines as by determining under what situation a couple living under such a system will be liable for legal aid. With the developing times, the orthodoxy among family lawyers should be subsided and an era of new change should be expected as the number of people cohabiting is increasing and there is a serious need to regulate this before the situation is out of control and unmanageable. Even though the cohabitants cannot have the same rights as the married couples, certain regulations will keep a check and will prevent them from disrespecting law. Right to life, which is a fundamental right provided to every citizen of the country, includes and gives the citizens the liberty to choose their way of life and it, is the duty of the state to protect it.

There are several other countries that have accepted this form and have been successful in implementing it. It is time that other than providing relief by judging each case differently and judges applying their own interpretation of how justice should be delivered, an organised reform should develop. A formal legislation will set out regulations and thus will ensure the implementation in a systematic manner.




[2] Crl.M.C.No. 299/2009

[6] AIR 2006 SC 2522