Status of Children Born Out of Live-in Relationship

1. Introduction

When a child is born, he doesn’t know whether he is born in or out of wedlock. Keeping all this in account law seeks to protect the interest of the child and also ensures that no child should be treated wrongly. The main concern of the law is to give rights and privileges to the child, notwithstanding whether the child is born in or out of wedlock. The Supreme Court in the case of Revanasiddappa v. Mallikarjun[1]held that the birth of the child has to be seen independently of the relationship between the parents. The court also held that the child born would be entitled to all the rights and privileges available to the child born out of legal marriage. Supreme Court held this as the crux of sec 16(3) of the Hindu Marriage Act. The child born out of cohabitation is not to be treated as illegitimate but there are certain pre-conditions like, The parents must have cohabited for a considerable amount of time under one roof so that the society recognises them as husband and wife.[2]

The Supreme Court in the case of S.P.S. Balasubramanyam v. Sruttayam[3] held that “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.” Also in the number of other cases the Supreme Court gave a similar kind of verdict and protected the interest of children born out of a live-in relationship.

2. Maintenance

The Supreme Court in one case of Dimple Gupta v. Rajiv Gupta[4] has answered the question of the legitimacy and maintenance of children in a live-in relationship. In this case, the court held that an illegitimate child born out of live-in relationship is still entitled to maintenance under sec 125 of Cr.P.C. Section 125 of Cr.P.C providesfor maintenance to children whether legitimate or illegitimate while they are minor and even after attaining the age of majority if they are unable to maintain themselves.

A. Maintenance under sec 20 of Hindu Adoption and Maintenance Act, 1956

Maintenance under Hindu law according to Sec 3(b) of Hindu Adoption And Maintenance Act includes in all cases provision of food, clothing, residence, education, and medical attendance and treatment; In the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage[5];

A child born out of the live-in relationship is entitled to maintenance under the Indian laws by various interpretations of personal laws and substantive law. Though a specific law related to maintenance has not been provided for children born out of a live-in relationship but its essence is reflected in various interpretations.

Maintenance can be provided to a Hindu minor whether legitimate or illegitimate under sec 20 of the Hindu Adoption and Maintenance Act. Under this sec both the father and the mother are bound to maintain their child whether legitimate or illegitimate.

Under sec 20 of HAMA, 1956 both the father and the mother of the unmarried daughter are bound to maintain her till her marriage. Provided she is unable to maintain herself out of her own earning or other property.

B. Maintenance under sec 125 of Cr.P.C 1973

Sec 125 of Cr.P.C provides the right of maintenance to a minor. It provides the minor child whether legitimate or illegitimate, a right to claim maintenance when the minor child himself is not able to maintain oneself. It also provides a right of maintenance to those children whether legitimate or illegitimate, who has attained majority and is incapable to maintain himself because of physical or mental abnormality.[6] Sec 125 provides maintenance to both legitimate child as well as an illegitimate child, so the child born out of live-in relationship may claim maintenance under sec 125of Cr.P.C.

In the landmark case of Dimple Gupta v. Rajiv Gupta[7], the Supreme Court, in this case, held that children born out of live-in relationship or children born out of an illicit relationship is entitled to claim maintenance under sec 125 of CrPC, 1973.

Also in the case of Savitaben Somabhai Bhatiya v. the State of Gujarat[8], a right of maintenance though was not granted to the women under sec 125 of Cr.P.C, 1973 but the child born out of the said relationship was held entitled to maintenance.

The denial of the right of maintenance can also be challenged on the grounds of violation of article 21 which provides for the “Right to life and personal liberty”. Such a denial can deprive an individual of his/her right to lead his/her life with dignity[9]. This can also be challenged under Article 32 of the Indian constitution.

In the case of Bharatha Matha v. R.Vijaya Renganathan[10] , the court held in this case that the unequal treatment of child born out of a live-in relationship and a child born out of wedlock even though both are to be considered equal in the eyes of law would amount to a violation of Article 14 of the Indian constitution which provides for Equality before law.

3. Property Rights

The right to property has always been one of the most debatable topics concerning children born out of a live-in relationship. The right to property or inheritance means a person has a share in the property of his father or his forefather. In the case of children born out of a live-in relationship, nothing is mention in the Hindu Succession Act, 1956 which could govern the law related to share of the property of a child born out of a live-in relationship. Hindu Succession Act, 1956 deals about the distribution of property among the legitimate children from class I heir and then II and then III of the joint family. However, the researcher presumes that the child has the right related to the property of his mother.

However, the illegitimate child or the child born out of a live-in relationship cannot be denied the right over the property of his father or his ancestral property. Further, provided that the child is born after a reasonable time.

In the case of Vidyadhari v.Sukhrana Bai[11], the court decided to give legal status to the child born out of a live-in relationship and also granted the child the right of inheritance. But the idea of giving legal status was criticised by many judges. Justice Ganguly also criticised the case of Bharatha Matha v. R.Vijaya Renganathan[12]and said that sec 16(3) of the Hindu Marriage Act only talks about the word “Property” it doesn’t define an ancestral property or self-acquired property of the father.

Sec 16 of HMA, 1955 gives equal footing to children born out of a valid marriage and also to children born out of the void or voidable marriage and confers every right to the illegitimate child as if the marriage was a valid one. The main part of this sec which is in favour of the illegitimate child is that sec 16(iii) doesn’t make any distinction between the ancestral property and the father’s property. It only mentions the word “property”. Hear property can be both ancestral as well as father’s property, So it can be understood that the child can claim both the father’s property as well as the property of his ancestor. But one major thing to be noted in this sec is that for application of this sec there should be a marriage.[13] But if we consider the judgment of Tulsav. Durghatiya[14], where the court held that if a man and a woman are cohabiting for a long time together under one roof then they would be considered as legally married to one another unless proven contrary.

Also, the Madhya Pradesh High Court observed in the case of Radhika v. State of M.P.[15] that if a man and a woman are involved in a live-in relationship for a long time then they would be treated the same as a married couple and also the children born out of them would be considered legitimate.

The judgment of Tulsav. Durghatiya[16] can act like a tool to attract sec 16 of the HMA, 1955. Which otherwise cannot be attracted because in the live-in relationship there is no marriage but to attract sec 16, marriage is the crux.

In the case of Parayankandiyal Eravath Kanapravan Kalliani Amma v. K. Devi[17] , wherein it was held that “the HMA, 1955, beneficial legislation, has to be interpreted in a manner which advances the objective of the law.” This judgment is in the support of interpreting sec 16 of the Hindu Marriage Act, 1955 for the benefit of or for the protection of rights of illegitimate children.

Article 300A of the Indian Constitution speaks about the right to property where it says “No person shall be deprived of his property save by authority of law.”[18] In a case concerning a child born out of a live-in relationship, he should have a right on the self-acquired father’s property as well as ancestral property. Since there is nothing mentioned on sec 16(3) regarding the distinction of the property of father whether self-acquired or ancestral.

4. Conclusion

The society as a whole is revamping, the subject of the society i.e the people living in the society, are bound to adopt or at least accept such changes. With the modernisation of the society, live-in relationship has become very much common, it acts as a support for an individual living in big metropolitan cities. The issue arises when these relationship break off, the issue arises as to whether the women and the child born out of such relationship will be allowed for maintenance or whether the child born bout of such illicit relationship shall be entitled to property of his biological father.

It is to be noted that the Indian society is moving from the patriarchal structure to modern legal structure. Evolution and widening of thoughts is much needed for a society to grow and prosper. A law with strict interpretation cannot serve good to the society, rather it has be interpreted in the interest of the society and for the benefit of all class of people.

Though there is no specific law to govern these relationship but a positive interpretation has been made by the judiciary to fill in the gaps. The court in various cases has allowed maintenance and property right to child born out of live-in relationship. Here, the basic aim of the law should not be to strictly apply the laws but to serve justice to the needy.

The researcher is of view that a child does not know whether he was born in or out of wedlock and therefore he shall not suffer for the same. He shall be given as much rights and privileges as any other child born out of wedlock is entitled too.


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