Legal status of children born of live-in relationships

A live in relationship is the relationship between an adult male and a female having sound mind without entering into any formal bond of marriage. The law seeks to protect the rights of child born out of such relationship. Both parents have the onus of bringing up their children irrespective of the fact that whether they are married lawfully and socially or just cohabiting.

Since there is no single dedicated statute that recognises the status of couples in a live-in relationship, the status of children born to such couples has historically been shaped largely by judicial precedent, and the courts have over time clarified their rights to legitimacy, inheritance and maintenance. The need to ascertain the status of such children obtains greater importance in a rights-based world where protection of child rights is the primary agenda in the corridors of judiciary.

With respect to this, legal precedents have gone on to hold tremendous value in tackling the issues faced by children of live in relations in identifying their position in the socio-legal setup. It is often argued that the HMA 1955 through Section 16 dealing with legitimacy of children of void and voidable marriages, the legislation indirectly ascribes a legal status to children born out of live in relations and it is only their property and maintenance rights subject to debate.

The presumption of legitimacy from birth during a valid marriage — earlier found in Section 112 of the Indian Evidence Act, 1872, and now contained in Section 116 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 (which replaced the Indian Evidence Act with effect from 1 July 2024) — addresses children born during the continuance of a valid marriage between the mother and the father, and so does not directly resolve the position of children born out of live-in relationships. Older commentary therefore described such children as “Legitimate in law, Illegitimate in fact.” That characterisation, however, has since been overtaken by the courts. In Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan (2022), the Supreme Court reaffirmed that a long and continuous period of cohabitation between a man and a woman raises a presumption of a valid marriage, so that children born of such a union are legitimate and entitled to inheritance. Building on this, in Revanasiddappa v. Mallikarjun (2023), a three-judge bench held that children of void and voidable marriages under Section 16 of the HMA are entitled to a share in their parents’ property, including ancestral or coparcenary property, to the extent of the parent’s own share. The status of these children is therefore far better protected today than the old “illegitimate in fact” label suggested.

The Supreme Court has asked the Parliament to bring in a law to protect children born out of live-in relationships.”Parliament has to ponder over these issues, bring in proper legislation or make a proper amendment of the Act, so that women and the children, born out of such kinds of relationships must be protected, though those types of relationship might not be a relationship in the nature of a marriage,” the Supreme Court said.

It is safe to conclude that with the position of the legal scenario presently the child of a live in relationship is bound to encounter a lack of clarity in life regarding his or her legal status, origin and subsequent rights. This can lead to instability in the child’s life- both mentally and emotionally.

To avoid this, clear laws should be made and amendments to ambiguous terms in present laws must be made to grant clarity on the status and rights of children born in a live in relationship. This will ensure uniformity and help establish emotional, mental and physical security for such a child.

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