Kerala HC Says Live-In Couples Can't Get Divorced: What Does The Law Say?

An interfaith couple (although not married) wanted a divorce under the Special Marriage Act.

(Photo: Vibhushita Singh/The Quint)

In what the Kerala High Court termed a “peculiar” development, an interfaith couple who have been in a live-in relationship for 17 years, sought a divorce through mutual consent.

The couple, with a 16-year-old child, claimed that they “no longer wanted to live together” and “both of them wanted to get rid of the relationship.”

The High Court, however, turned down their petition.

It observed that such a relationship could not be recognised for divorce because, “the law recognises divorce as a means of separating a legal marriage.”

So, what reasons did the High Court give for dismissing their petition? And what does the law say about live-in relationships, marriage & divorce? The Quint explains.

Why Did The High Court Deny Divorce?

The couple, one of them a Hindu and the other Christian (although not married) wanted a divorce under the Special Marriage Act.

Note: In India, the Special Marriage Act governs interfaith marriages.

Prior to approaching the High Court, they had gone to a family court seeking a divorce, but that court too had dismissed their petition noting that their “marriage was not solemnised under the Special Marriage Act.”

A division bench of High Court Justices Muhamed Mustaque and Sophy Thomas, thereafter, said (in their order):

“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”

They added, “If the parties decide to live together by virtue of an agreement, that by itself will not qualify them to claim it as a marriage and claim divorce thereon. The law recognises divorce as a means of separating a legal marriage.Such a relationship cannot be recognised for the purpose of divorce.”

Live in Relationships & Marriage: What Have Courts Previously Said?

While the Kerala High Court observed that the “law is yet to recognise the live-in relationship as marriage,” constitutional courts have previously held differently:

- The Supreme Court in a 1978 ruling (Badri Prasad Vs Deputy Director Of Consolidation) held that a “presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife.”

- The Domestic Violence Act of 2005 also recognises “relationships in the nature of marriage". Section 2 (f) of the act reads:

“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."

- In 2010, the Supreme Court in Velusamy Vs D Patchaimal laid down the specific criteria for a couple in a live-in relationship to be  considered “akin to spouses":

> The couple must be of legal age to marry

> They must be otherwise qualified to enter into a legal marriage

> They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. Thus certain live-in relationships, where one married and another unmarried person are staying together, do not have legal sanctity.

So, if Live-in relationships are like Marriages, Then Why Can There Be No Divorce?

“While, live-in relationships in India are considered to be marriage-like, the purpose of those judgments is to give them legal protection in cases of harrassment, domestic violence, custody disputes and so on. But the claim for divorce is slightly different," Yashaswini Basu, a Bengaluru based lawyer, explained to The Quint.

Laws mandate that divorce claims can be maintainable only when there is a marriage. So, the claim for divorce in the case of a live-in relationship is not maintainable because there was no marriage to begin with, " Basu explained.

Basu thus added that the Kerala High Court judgment saying that divorce can’t be granted to a live-in couple because it had not been solemnised under relevant laws, is legally sound.

“Additionally, when the parties involved in live-in relationships can claim rights similar to that of a married couple like maintenance, custody and so on in the event of separation, do they really need divorce?” Sehaj Uban, a Delhi-based lawyer, questioned.

What Rights Can Live-In Couples Have While Separating With Mutual Consent?

Maintenance: In Chanmuniya vs Virendra Kumar Singh Kushwaha (2010), the top court observed that the ambit of the term ‘wife’ under Section 125 of the CrPc (order for maintenance of wives, children and parents) should be expanded to include women who have been in a live-in relationship for a reasonably long period of time.

What this did was grant women in live-in relationships right to maintenance after separation, Uban pointed out.

Custody disputes: Basu pointed out that under Indian laws, the biological parents of a child don’t need to be married to be recognised as their legal guardians and live-in couples can approach the court under The Guardians and Wards Act 1980 if there's a dispute.

According to the act, in the event of a separation, the custody of the child till the age of five is usually given to the mother. And after that the court takes a call on which parent is better suited to take care of the child.

What happens to children born in live-in relationships?

In this regard too, judgments have granted ‘legitimacy’ to children born out of live-in relationships and have recognised their right over ancestral property.

For instance, in Tulsa & Ors vs Durghatiya & Ors, (2008), the Supreme Court held that for a child to claim the status of a ‘legitimate child’  born through live-in relationships, the partners must have resided under the same roof for a long period. Such a child can then claim the right to inheritance

Similarly, in Revanasiddappa & Anr vs Mallikarjun & Ors(2011) too, the apex court ruled that the right to property is a constitutional right of children born out of live-in relationships

So, What Should The Couple Ideally Have Done?

“All in all, the Kerala High Court was right in saying that the couple in question can’t be granted divorce because they were not married. But the court shouldn’t have said that the Law is yet to recognise the live-in relationship as marriage,” Advocate Uban pointed out.

“If the couple wanted the court to act on some aspect of their relationship, instead of seeking for a decree of divorce, they could have demanded maintenance, or filed a domestic violence dispute because the law makes room for such petitions when it comes to live-in couples,” Advocate Basu added.