7. Recent Trends in the Institution of Marriage — Live-in Relationships, Choice, and the Limits of Reform
Every topic so far in this unit has been about marriages that clearly happened — a ceremony, a registration, a decree of nullity. This final post is about the harder cases: couples who never had a wedding at all, couples whose families never accepted their choice of partner, and couples the law itself has not yet decided how to fully recognise. Courts have had to build real, working answers for all three, and those answers are exactly what "recent trends" means in this subject.
The Problem This Topic Solves
Neither the eight classical forms of marriage nor the Hindu Marriage Act, 1955 itself was designed with long-term unmarried cohabitation, cross-community elopement under family threat, or same-sex partnership in mind. Yet all three situations reach courts constantly, and each has produced a distinct, now well-settled line of reasoning — a presumption for long cohabitation, a specific four-part test for domestic violence protection, strong constitutional protection for the right to choose a partner, and, most recently, a firm judicial statement about the limits of what courts alone can do for marriage equality.
Live-in Relationships — the Presumption from Long Cohabitation
Long before any statute addressed live-in relationships directly, courts had already developed a practical evidentiary tool: if a man and woman live together continuously for a long period, openly as husband and wife, the law presumes — rebuttably — that a valid marriage exists between them.
**Badri Prasad v. Deputy Director of Consolidation, AIR 1978 SC 1557** — The Supreme Court held that a strong presumption of marriage arises in favour of a couple who have lived together as husband and wife for a long time, and that this presumption can only be displaced by strong, cogent evidence to the contrary. The Court expressly disapproved of treating long-standing conjugal relationships as suspect, favouring legitimacy over technicality wherever the facts genuinely support it.
Live-in Relationships Under the Domestic Violence Act
The Protection of Women from Domestic Violence Act, 2005 extended protection to women in a "relationship in the nature of marriage," not only to legally wedded wives. The Supreme Court had to work out exactly what that phrase means.
**D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469** — The Supreme Court laid down four conditions for a live-in relationship to count as being "in the nature of marriage" for protection under the Act: the couple must hold themselves out to society as spouses; both must be of legal age to marry; both must otherwise qualify to enter a legal marriage, including being unmarried at the time; and they must have voluntarily cohabited and held themselves out as spouses for a significant period.
**Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755** — Applying and refining Velusamy, the Supreme Court held that a relationship where one partner is already validly married to someone else is an adulterous relationship, not a "relationship in the nature of marriage," and so falls outside the Act's protection — even where the parties had cohabited for many years and had children together.
Protecting the Right to Choose — Inter-Caste and Inter-Religious Marriages
A separate but related trend concerns adults whose choice of partner is opposed by their own families on grounds of caste or religion, sometimes to the point of violence.
**Lata Singh v. State of Uttar Pradesh, (2006) 5 SCC 475** — The Supreme Court held that an adult has an absolute right to marry a person of their own choice, and that inter-caste and inter-religious marriages are, if anything, in the national interest. The Court directed authorities to take strict action against anyone who threatens or harasses couples for marrying outside their caste or community.
**Shakti Vahini v. Union of India, (2018) 7 SCC 192** — The Supreme Court laid down preventive, remedial, and punitive guidelines to protect couples from honour crimes and from interference by khap panchayats or similar assemblies, holding that the right of two consenting adults to marry is protected under Article 21 of the Constitution and cannot be subordinated to community or family disapproval.
**Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368** — In the widely reported "Hadiya case," the Supreme Court set aside a Kerala High Court order that had used habeas corpus jurisdiction and the doctrine of parens patriae to annul the marriage of a 24-year-old woman who had converted to Islam and married a man of her own choice, at her own father's instance. The Court held that habeas corpus jurisdiction ends once the detenue confirms she is not under illegal restraint, that parens patriae cannot be invoked over a capacitous adult merely because a court considers her "vulnerable," and that an adult's choice of faith and spouse falls within the protected zone of privacy and personal liberty under Article 21.
Same-Sex Marriage — Where the Law Stands Today
The most recent major development concerns whether marriage law should extend to same-sex couples at all.
**Supriyo @ Supriya Chakraborty v. Union of India (2023)** — A five-judge Constitution Bench split 3:2. The majority (Bhat, Kohli and Narasimha, JJ.) held that there is no unqualified fundamental right to marry, declined to read a right to same-sex marriage into the Special Marriage Act, 1954 or other existing marriage laws, and held that the Court could not itself mandate legal recognition of queer civil unions or extend joint adoption rights to queer couples — that creating any such framework is a matter for Parliament and the executive, not the judiciary. Chandrachud, C.J.I. and Kaul, J. dissented, holding that the right to enter into a union attracting legal entitlements flows from Articles 15, 19 and 21 even without formal "marriage," and that the State's failure to recognise such unions was itself unconstitutional. All five judges agreed that transgender persons in heterosexual relationships already have the right to marry under existing law, and that queer couples are entitled to protection from discrimination and harassment — the Union Government subsequently issued administrative clarifications (e.g. on joint bank accounts) in response, but these were not binding directions in the majority's operative order.
Four Fronts of Judicial Development
- Badri Prasad: long, continuous cohabitation as husband and wife raises a rebuttable presumption of a valid marriage.
- D. Velusamy: four conditions define a "relationship in the nature of marriage" under the Domestic Violence Act, 2005.
- Indra Sarma: an adulterous cohabitation, where one partner is already married elsewhere, does not qualify for Domestic Violence Act protection.
- Lata Singh and Shakti Vahini: an adult's choice of spouse across caste or religious lines is constitutionally protected under Article 21, with specific guidelines against honour-based violence.
- Shafin Jahan: a court cannot use habeas corpus or parens patriae to annul a capacitous adult's own marriage — her choice of faith and spouse is protected under Article 21 privacy and autonomy.
- Supriyo: the Supreme Court declined to extend marriage law to same-sex couples through judicial interpretation, leaving legislative reform to Parliament.
- The Badri Prasad presumption is rebuttable — it can be displaced by cogent evidence that no marriage actually took place.
- Domestic Violence Act protection for live-in partners is a specific statutory remedy, not a general declaration of marital status for all legal purposes.
A Practical Example
A man and woman live together openly as a couple for over twenty years, are known throughout their community as husband and wife, and raise children together — but no one can produce a marriage certificate or witnesses to an actual ceremony. Following Badri Prasad, a court examining their status would presume a valid marriage exists from this long, open cohabitation, placing the burden on anyone disputing it to produce strong evidence to the contrary — rather than requiring the couple to prove a ceremony that, after two decades, may be genuinely difficult to establish.
Quick Revision Points
- Badri Prasad (1978): long cohabitation as husband and wife raises a rebuttable presumption of valid marriage.
- D. Velusamy (2010): four-part test for "relationship in the nature of marriage" under the Domestic Violence Act.
- Indra Sarma (2013): an adulterous live-in relationship falls outside that protection.
- Lata Singh (2006) and Shakti Vahini (2018): strong constitutional protection for adults choosing a spouse across caste or religious lines, with guidelines against honour crimes.
- Shafin Jahan (2018): habeas corpus jurisdiction ends once a major confirms she is not under illegal restraint; parens patriae cannot be invoked over a capacitous adult; choice of faith and spouse is protected under Article 21.
- Supriyo (2023): Supreme Court left same-sex marriage recognition to Parliament, declining to read it into existing marriage statutes.
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