Legality of Inheritance Right in Nexus with Live- in Relationship

Introduction

In a country where new problems emerge almost every day, a problem that has lingered beneath India’s skin for several years is whether a MAN & WOMAN can live together without tying the sacred knot of marriage or we can say whether they can stay together in a LIVE-IN Relationship or not. It’s saddening that our society is modern, not comfortable enough to accept or even comprehend live-in relationships. Even the generation that has accepted Live-In Relationships, feels a tinge of unease just by uttering the word Live-In Relationship.

It is astonishing that, despite rising levels of education & literacy, societal prejudices do not erode. The judiciary has now declared that live-in relationships are not an offense and is a major’s unrestricted right to stay in a live-in relationship, even if it is unpalatable to the orthodox section of society. The basic concept of a Live-in Relationship emerges when two persons of heterogeneous or homogeneous sex stay together under the same roof and share a household like a married couple with or without any intention to establish a permanent relationship. Although, this paper will only focus on the live-in relationship between two Heterogeneous genders. The live-in relationship is not recognized by Indian law.

Although, the Indian judiciary has recognized the live-in relationship. Many judges have stated that a live-in relationship is akin to marriage if the couple lives together under the same roof for an extended period and it should not be a walk-in & walk-out relationship. The judges have recognized live-in relationships as marriage, but there is still uncertainty in the legislative and judicial predicaments regarding the property rights of children born from a live-in relationship. The legal position of inheritance rights is ambiguous & unclear in the absence of any legal framework governing live-in relationships.

In the majority of cases, judges ruled that children born from live-in relationships should be considered legitimate. Children born from a live-in relationship can inherit their parents’ self-acquired property but not their parents’ ancestral property, whereas children born from a solemnized marriage can inherit both their parents’ ancestral property and their parents’ self-acquired property.

On the one hand, our judiciary has stated in several cases that live-in relationships are analogous to marriage, and children born from such relationships are considered legitimate; therefore, why do these children not have the same rights as children born from a solemnized marriage.  Why is there a difference in inheritance right between children of a live-in relationship couple and children of a married couple when both are considered legitimate children?

Children born outside of a legally valid marriage have been granted legitimacy, but this does not grant them the right to inherit in the true sense. The courts have addressed the legality of live-in relationships, but not the issue of other rights & obligations that flow from such an association. In addition, there is no provision in the current legal framework that grants an individual any inheritance rights in a live-in relationship.

“Call it a clan, call it a network, call it a tribe, call it a family: Whatever you call it, whoever you are, you need one”.

  ~ Jane Howard

Concept of Inheritance

Inheritance means “the conveyance of the property, debts, titles, rights, and obligations to a person’s legal heir upon her or his death”.

A person can inherit the property through a will or without a will. The regulation of inheritance varies according to society, religion, and community.

Interstate succession basically deals with the case where there is no will. If a person dies without making a valid Will, then it means he died intestate. Hindu succession act,1956 would be applicable if there is no will. However, testamentary succession deals with the case where the will has been made.

As per the Indian Succession Act, will means “a declaration or a legal document that contains specific details like the name of one or more persons who will acquire, manage, and get benefitted from an owner’s estate after his/her death”[1].

 Live-In Relationship

A live-in relationship means two-person living together as a couple under the same roof without getting solemnized. The live-in couple conducts themselves as a married couple for all practical purposes, such arrangement is generally called a cohabitation.

As per Collins Dictionary Cohabitation means “in the state or condition of living together in the conjugal relationship without being married”[2]. And the couple who are cohabiting is known as Live-in partners.

Live-in Relation Couple doesn’t have inheritance right in the truest sense. The only way by which a couple can get the conveyance of property is by way of a gift or will. Further, the child who is born apart from a legally wedded marriage will not have the right of inheritance over the ancestral property but then can get right over their parents’ self-acquired property.

 Judicial Perspective Towards Live-In Relationship

“With changing social norms of the legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today”

~ Justice A.K. Ganguly

 In the case of Mohabhat Ali vs. Mohammad Ibrahim Khan[3], the privy council said that “the law presumes in favor of marriage and against concubinage when a man and woman have cohabited continuously for a number of years”.

In Dinohamy vs. W.L. Blahamy[4], the court held that “where a man and a woman are proved to live together as a man and wife, the law will presume, unless the contrary is proved that they were living together as a result of a valid marriage, and not in the state of concubinage”.

In the case of Badri Prasad vs. Dy. Director of Consolidation[5], it was held that “a Strong presumption arises in favor of wedlock where the partners have lived together for a long spell as husband and wife”.

From the above cases, we can conclude that the judiciary system of India starts considering a Live-in relationship akin to marriage. Judiciary was of the view that if two people lived together without getting solemnized for a reasonable period will be considered akin to a married couple. However, a reasonable period depends on the facts of the case.

Child Born Out of Live-In Relationship

The child born out of a Live-in relationship is generally called an illegitimate child. In case of JiniaKeotin v. Kumar Sitaram Manjhi[6], the court determines whether a kid is legitimate or illegitimate based on the following criteria.

• a child born out of the lawful marriage of his or her father and mother that child would be considered a legitimate child. The child would be a legitimate child if she or he is born after their parent’s lawful marriage.
• A child who is born out of wedlock is considered an illegitimate child. If a child is born and the mother and the father of the child are not legally married to each other at the time of the birth child, then the child is considered illegitimate.

As per English Common Law, the illegitimate child is called filius nullius. Filius nullius means a child of nobody. However, with the changing times, the law amended its rationale on illegitimate children by passing the Family law reform of 1969, and the distinction between illegitimate and legitimate children is corroded.

In case of S.P.S. Balasubramanyam vs. Suruttayan[7], the first time when SC held the judgment on the legitimacy of children born out of the live-in relationship. The Sc stated in the landmark case 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[8]”.

So, it basically means if the live-in couple stayed together under the same roof, then their offspring who were born out of that relationship will be presumed to be a legitimate child. The section put forth the legal fiction that children born out of a couple who stayed together for all household purposes will be deemed, legitimate children.

Analysis Of Legal Framework In Relation To Inheritance Right  Of Live-In Relationship

It is a well-established legal stance that live-in relationships are not prohibited or illegal. However, in favor of such relationships, there is a rebuttable presumption of marriage. Like if a man and women live together without getting married for a reasonable period of time then that relationship would be considered akin to marriage.  Nonetheless, the legal position of inheritance rights is a bit confusing and uncertain, absence of any legislative framework regulating live-in relationships. However, children born out of live-in relationships will still be able to inherit their parent’s property. Children born outside the wedlock of valid marriages should be presumed legitimate, according to the SC[9]. However, for a child to be considered legitimate, the Live-in couple must have lived together for a significant period of time. Their relationship shouldn’t be like that of a “walk-in and walk-out”[10] relationship, & society should recognize them as husband and wife.

The illegitimate children have the right to inheritance. This inheritance right is mentioned in sec16 of the Hindu Marriage Act.

Section 16 (3) of the Hindu Marriage Act[11] states that “ Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case, where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents”.

This basically states that the illegitimate child can get right over his parent’s property and not on the ancestral property. S.16 of the HMA creates a legal fiction that permits children born out of such marriages to inherit their parents’ property. However, it should be highlighted that in order to invoke sec16 of the HMA, 1956 there must be either a de facto or de jure marriage in effect which becomes void or voidable when it is hit by sec 11 of sec 12 of the HMA[12]. The intent of legislature under S.16 is to create a legal fiction that allows illegitimate offspring to be considered akin to legitimate for inheritance purposes. It is constricted to the cases where the marriage is voidable or void, & it doesn’t applicable in cases where marriage has not been solemnized.  While interpreting a provision on the subject matter, the court does not have the authority to re-legislate against the legislature’s declared will as visioned by enactment. The couple who are in a live-in relationship is not married. In case of Ramkali v. Mahila Shyamwati[13], the court has defined a de facto marriage as an affair where the couple lives together for an extended time period with repute and habit. Henceforth, it would not be wide of the mark to say that a live-in relationship is deemed as a de facto marriage.

Inheritance Right of Offspring of Live-In Relation Partner

S.16 of the Hindu Marriage Act, 1955 vouchsafe legitimacy to the children born out of wedlock. But such vouchsafing of legitimacy is so frictional that it doesn’t equate to the right of actual legitimate children and frictional legitimate children. Such frictional legitimacy is only be acquired for the purpose of having inheritance right in their parent’s property[14]. The offspring who are born out of a live-in relationship can only inherit the self-acquired property of their parents. The offspring cannot acquire the ancestral property of their parents. Basically, section 16 (3) of HMA,1955 prohibits the children who are born out the wedlock to acquire the ancestral property of their parents. However, in case of Revansidapa v. Malikarjun[15] the court observed that the use of the word property in section 16 HMA,1955 doesn’t mention the ancestral or self-acquired property. The word property is left for judicial interpretation. In this case, the court held that illegitimate children can acquire both ancestral properties as well as the self-acquired property of their parents. This case gave a new perspective to section 16 of HMA despite the that there has been ambiguity in relation to the right of illegitimate children in inheriting ancestral property.

Inheritance Right of the Live-In Partner

In a live-in relationship, partners do not have an inherited right to their partner’s property. The Hindu Succession Act of 1956 does not address the inheritance rights of a partner in a live-in relationship. However, in Vidhyadhari vs. Sukhrana Bai[16] case, the court held that a couple who are living together for a reasonable period of time can inherit property from either partner. Live-in partners can inherit each other’s property either through a will or by way of a gift. Furthermost, it must be noted that a live-in partner can only acquire their partner’s property through a will, excluding the partner’s ancestral property. The live-in couple can also inherit the property through gifts. Live-in partners can inherit the property by gift under the Transfer of Property Act. Live-in partners can voluntarily transfer the property in the name of other partners. The gift is distinct from a will, will only be applicable post the demise of one partner who has written a will but the gift is voluntarily transferred during the lifetime of a person which we called an inter vivos transfer. Through gifts, both immovable and movable property can be transferred. For a live-in relationship, there is no law in the current legal framework that grants a person any succession or inheritance rights. The legality of live-in relationships has been addressed by Indian courts, but they have not addressed the issue of other rights & obligations that arise from such a relationship. The majority of Indian courts have attempted to mold such an enduring relationship into marriage, but with no rights. The only best possible way for inheritance is by way of gift or will.

Ambiguity in Inheritance Right of Live-In Partner’s Offspring

Time and again Indian courts have reiterated that offspring who are born out of a live-in relationship is presumed legitimate. Those offspring would not be considered illegitimate and they will be considered legitimate for all practical purposes. Indian courts have equated Illegitimate offspring to legitimate offspring, however, mere equating illegitimate offspring to legitimate offspring does not provide similar rights. The legitimate offspring can inherit the ancestral property of their parents but illegitimate offspring who are deemed as legitimate do not have the same right. If illegitimate offspring of the live-in partner is considered legitimate offspring, then why cannot get similar rights of inheritance? So, there is ambiguity in the judicial pronouncement in relation to the inheritance rights of the live-in partner’s offspring.

De-Facto Marriage Act- A Perspective toward Evolving Legal Framework

Since Indian courts have addressed live-in relationships akin to marriage, a befitting name for new legislation governing live-in relationships could be “The De Facto Marriage Act,” which would be based on the secular concept. The act wouldn’t only codify the necessary rights & obligations for people in live-in relationships, but it would also establish specific criteria for qualifying to be in one. An unmarried adult who is not prohibited from marrying owing to a prohibited degree or any sapinda relation must share a common household and live together under the same roof as a primary qualification for entering into a live-in relationship. The principles outlined in the D. Velusamy v. D. Patchaiammal[17] the case can be adopted as the basis for new legislation, but the condition of marriage must be excluded. Considering the nature of live-in partnerships, a person may form such an alliance solely to gain access to another person’s property. To eradicate this issue legislature might fix a reasonable time period to stay in a live-in relationship and once they stayed for a reasonable period of time together, they can have inheritance right over the property.

Conclusion

In India, live-in relationships are seen as a modern occurrence, as well as a taboo, because they are seen as an invasion of other religious groups’ cultures. Legislation that is well-implemented requires the approval of the general public, and a number of the times, it must be in nature to be in line with the majority’s wishes. The legal position governing a partner’s inheritance rights in a live-in relationship is murky. In the skiving of a legal framework, the current law is riddled with inconsistencies and ambiguities. Individuals’ rights & obligations have been greatly ambiguous as a result of the failure to recognize & support relationships other than lawful marriages. The lack of legally recognized substitutes for marriage has resulted in unequal treatment of couples in similar situations.

About the Author: Manisha is 4^th year student at Bennett University, Greater Noida.

Note: The views in this article are personal only.

References

[1] Indian Succession Act, 1925

[2] Cohabitation, Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/cohabitation.

[3] Mohabhat Ali V. Mohammad Ibrahim Khan, AIR 1929 PC 135

[4] Dinohamy V. W.L. Blahamy, AIR 1927 PC 185

[5] Badri Prasad V. Dy. Director of Consolidation, (1978) 3 SCC 527

[6] Jinia Keotin V. Kumar Sitaram Manjhi, (2003) 1 SCC 730

[7] S.P.S. Balasubramanyam V. Suruttayan, (2013) 15 SCC 755

[8] Ibid

[9] Parayankandiyal Eravath Kanapravan Kalliani Amma V. K. Devi, (1996) 4 SCC 76

[10] Tulsa V. Durghatiya, (2008) 4 SCC 520

[11] S.16(3), Hindu Marriage Act,1955

[12] Reshamlal Baswan V. Balwant Singh Jwalasingh Punjabi, (1994) (0) MPLJ 446

[13] Ramkali V. Mahila Shyamwati, AIR 2000 MP 288

[14] Bharatha Matha V. R. Vijaya Renganathan, (2010) 11 SCC 483

[15]Revansidapa V. Malikarjun, (2011) 11 SCC 1

[16]Vidhyadhari V. Sukhrana Bai, (2008) 2 SCC 238

[17] D. Velusamy V. D. Patchaiammal, (2010) 10 SCC 469