Authored By: Ekta Gupta
Amity University Lucknow Campus, Uttar Pradesh
ABSTRACT
In Live in relationship, couples choose to live together under the same roof without being married and enjoy all the benefits arising out of marriage. They choose to live together to escape from the responsibilities arising out of marriage. They engage themselves to an intimate relationship where they conceive a child who is considered to be an illegitimate child of unwed parents by the Indian society. The Indian society do not accept the child born from such a type of relationship.
In the case of Tulsa v. Durghatiya, 2008 Supreme Court held that a child born out of wedlock cannot be deemed as legitimate if the parents have cohabited under the same roof for a considerable time period.
Despite the legitimacy provided to a child born out of wedlock in the above case, it still does not have the same legal rights as a child of married couples. They are provided inheritance rights under Section 16(3) of the Hindu Marriage Act,1955, only on their parents’ property & no right in ancestral property. No other personal law provides the right of inheritance to a child born out of wedlock. There is a need to be specific uniform law for the child of such a marriage.
The Bharatiya Nagarik Suraksha Sanhita under Section 144 provides the right to maintenance to children, whether legitimate or illegitimate.
The child of unwed parents have to face various legal ,social and psychological challenges in the society. They are still facing their inheritance right in ancestral property . They have to prove their parentage. They are not treated equally to the child of married couples. The are always recognized by the society as illegimate which as a result of it creates mental and emotional problem in child.
The child struggles to face the society at large. It sometimes isolate themselves from the society. For all this there has to be awarness among the society for their acceptance as a child and be considered as a part of their social environment.
There has to a uniform law to govern all these problem faced by the children of unwed parents .The government has to took the intiatives to focuse on constitutional morality rather than social morality.
KEYWORDS: Unwed parents, Child, Couples, Live-in relationship, Rights , Legitimate, Illegitimate etc.
INTRODUCTION
“Children born out of live-in relationships or to unwed parents occupy a complex position in Indian family law, where questions of legitimacy, inheritance, and social acceptance continue to evolve.”
A live–in relationship is where couples live together without being married, sharing a common household and engaging in intimate relations with each other.
Whereas Unwed Parents refer to those who have a child without being married.
In a live-in relationship, couples enjoy the benefit of living together without being married. They make decisions together, share common household chores, and responsibilities for each other. They also have the freedom to choose their lifestyle activities without interference from others.
Couples living together in a live-in relationship are not legally recognized under any Indian statutes and do not have the same legal rights as granted to married couples. In the 2010 landmark judgement, the Supreme Court of India held that living together without being married is not a criminal offense or illegal.
Nowadays, a Live-in relationship is most common among youngsters. The young generation doesn’t want to take any responsibilities arising out of marriage, but they want to enjoy all the benefits arising out of marriage. The young generation chooses to live together to explore their compatibility and commitment before making a permanent commitment through marriage. (legal service india , n.d.)[1]
In a live-in relationship, couples engage in an intimate relationship with each other, which results in a child born out of wedlock. The children of unwed parents have to face various social as well as legal challenges in society. They are considered illegitimate by the Indian society and do not have the same legal rights as a child of married couples.
In Indian society, a live-in relationship is a social stigma, so the child born out of wedlock. It is not accepted by our society, which involves family, friends, relatives, and neighbours. But our constitution under Article 21 of the Indian Constitution, provides the right to life and personal liberty serves as a foundation for the legal recognition of live-in relationships. The Supreme Court of India, exercising its interpretative jurisdiction, has expanded the scope of Article 21 to encompass the right of individuals to cohabit with a partner of their choice, irrespective of marital status.
LEGAL STATUS OF CHILDREN BORN OUT OF WEDLOCK
“There are no illegitimate children – only illegitimate parents.” – Leon R. Yankwich Under all societies in the world, the status of a child, i.e., whether it is born legitimate or illegitimate, has great consequences. Both in contemporary society and in historical society, there is a classification of children as legitimate and illegitimate.
Since time immemorial, there has been a social stigma surrounding a child who is not born to legally wedded/married parents. The illegitimate children never enjoyed equal status with the legitimate children. The society always discriminated the illegitimate children in many ways. Not only the society discriminate against them, but even law has also discriminated against them. The law has not given illegitimate children the same legal rights as legitimate ones. Under almost all the personal laws, the right to inheritance of the legitimate children and the illegitimate children are not the same. Illegitimacy carried a strong social stigma among all religions practised in the world.
Illegitimacy, as defined by the Oxford Dictionary, means “(Of a child) born of parents not lawfully married to each other”. This means that illegitimacy means that when the parents of a child are not lawfully wedded, the child will be considered illegitimate. (Arora, 2015)[2]
Under Hindu law, if the conditions given under Sections 5 &7 of the Hindu Marriage Act,1955, are fulfilled, it is considered a valid marriage, and a child born out of such is considered legitimate.
If the conditions of Section 5 are not fulfilled, then the marriage is considered as void and voidable under Sections 11 & 12 of the Hindu Marriage Act, 1955. Children born out of marriage, which are void and voidable, are considered legitimate children as stated under section 16 of the Hindu Marriage Act,1955.
Further, in 2008, there was a shift in the progressive judgment of the Supreme Court in the case of Tulsa v. Durghatiya. In this case Supreme Court of India held that a child born out of wedlock cannot be deemed as illegitimate if the parents have cohabited under the same roof for a considerable period.
RIGHTS OF A CHILD BORN FROM LIVE-IN RELATIONSHIP
No child choose the circumstance of their birth. The child of unwed parents are innocent same as the children of married couples. They are also entitled to all the same rights as the child of married couples. All the social stigmas of society should be removed from the child born out from live- in relationship.
Inheritance Right
In Revanasiddappa v. Mallikarjun and Ors, the Supreme Court stated that the child born to parents whose marriage is null and void under section 11 of the Hindu Marriage Act,1955, is declared as ‘legitimate’ by section 16(1) of the Hindu Marriage Act,1955. Likewise, where the decree of nullity has been granted under section 12 in respect of a voidable marriage, a child is deemed to be their legitimate child. Section 16(3) states that a child of a marriage that is null or void or voidable shall not have “any right in the property of any other person other than the parents. In Jinia Keotin v. Kumar Sitaram Manjhi,2003 Supreme Court held that Children born out of void and voidable marriages have been given special safeguards under section 16 of the Hindu Marriage Act 1955. They are not treated as children born within a lawful marriage for inheritance in the ancestral property of the parents. The court also held that in section 16(3) a child born from a void marriage and voidable marriage would have no right of inheritance in ancestral or coparcenary property. (casemine , n.d.)[3]
Maintenance Right
Section 20 of the Hindu Adoption and Maintenance Act, 1956 provides the right to a minor child, whether legitimate or illegitimate, to ask for maintenance from his parents (father/mother). (hindu adoption and maintenance act 1956) (hindu adoption and maintenace act ,1956)
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (125 of CrPC), provides maintenance to women in live-in relationships and their children, legitimate or illegitimate. (bare act )[4]
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha (2011), the Supreme Court of India held that women in live-in relationships are entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. (drishti judiciary , 2024)[5]
Right To Education, Health, and Identity
In the UNCRC, India is a signatory country, and it need to abide by it. Articles 28 & 29 of the United Nations Convention on the Rights of the Child (UNCRC) focus on the right to education to children.
Article 21A of the Indian constitution also provides free and compulsory for children aged 6 to 14 . the primary intent behind this provision is to ensure universal access of education to children eliminating barriers that might hinder a child’s ability to receive an education. (the constitution of india ) (UNCRC, n.d.)[6]
CHALLENGES
The Indian society is still not accepting the child of unwed parents despite of providing them the legal rights by the Supreme Court in various judgements. Although we have adopted the western way of living in couples still not provides the same status as couples living in western countries.
The legal challenge can still be viewed, where in the case of Tulsa v. Durghatiya and Revanasiddappa v. Malikarjun, the court has recognised such children as legitimate but ambiguity still exists in the ancestral property.
Another challenge for the child is proving of relationship. The child struggle to prove the parentage if the live-in relationship is denied by one parent.
The child has to face the illegitimate recognition in society due to his parents’ live-in relationship. They can also be treated unequally in their school due to their illegitimacy. This makes the child suffer from emotional as well as mental stress.
There is no uniform law for child of unwed parents. They are treated in different ways in personal laws. There is lack of uniformity across personal laws.[7]
CONCLUSION
The government has to take the initiative to reiterate the principle that “no child should suffer for the circumstances of their birth. Through various judgments of the Supreme Court, society will also make their shift towards accepting the child of unwed parents due to legal enforceability of laws laid down by the apex court. There has to be a uniform law for the children of unwed parents.
The apex court need to stress on the constitutional morality rather than social morality. Where every child should get all the benefits of the society . No child should be deprived off their rights due to their legitimacy or illegitimacy, religion, caste.
Due to their parents decision child need not suffer during his/her lifetime. He also has the right to enjoy all the privileges as an ordinary person. Overall, the legal framework for live-in relationships in India is still evolving, and there is a need for more comprehensive laws and policies to address the various issues and challenges faced by couples in such relationships. (legal services india , n.d.)[8]
REFERENCE(S):
- (n.d.). Retrieved from casemine : https://www.casemine.com/judgement/in/64f4c2a705580264ab4687da
- (n.d.). Retrieved from UNCRC: https://www.unicef.org.uk/rights-respecting-schools/the-rrsa/the-right-to-education/
- (n.d.). Retrieved from legal service india : https://www.legalserviceindia.com/legal/article-10718-live-in-relationship-laws-in-india.html
- (n.d.). Retrieved from https://www.legalserviceindia.com/legal/article-10718-live-in-relationship-laws-in-india.html
- (n.d.). Retrieved from legal services india : https://www.legalserviceindia.com/legal/article-10718-live-in-relationship-laws-in-india.html
- (2024, 09 09). Retrieved from drishti judiciary : https://www.drishtijudiciary.com/editorial/legal-status-of-live-in-relationships
- Arora, K. (2015). “Illegitimacy Under Hindu Law”. Law octopus.
- bare act . (n.d.). In The Bharatiya Nagarik Suraksha Sanhita,2023 . universal law.
- hindu adoption and maintenace act ,1956. (n.d.). In hindu law . universal law .
- hindu adoption and maintenance act 1956. (n.d.). In bare act of hindu law . universal law .
- the constitution of india . (n.d.). universal law .
[1] Live-in Relationship: Laws In India
[2] Illegitimacy under Hindu Law – Academike
[3] right+of+inheritance | Indian Case Law | Law | CaseMine
[4] (bare act )
[5] Legal Status of Live-In Relationships
