Ritu Bhatia and Manas Agrawal 

The law should define family by looking at the functions and not the form of the unions. With this shift, the definition of family will be broadened, vesting succession rights to cohabitees and their children.

Introduction

On 10th April 2021, the Kerala High Court held that a child born in a live-in relationship would be treated as a child born to a married couple to surrender for adoption under the Juvenile Justice Act, 2015. By stating this, the judges have opened a Pandora’s Box. The reason being that at present there exists no framework for the rights of the cohabitee or their offspring and this judgement, by treating a child of cohabitee at par with a child of married couples, raises questions of what further rights cohabitees in a live-in relationship are entitled to. One such question pertains to the inheritance rights that they should be entitled to. This is also the crux of this article, which analyses the succession rights of cohabitees and their child. 

The article can be broadly divided into two segments. Firstly, it argues that the conventional understanding of family, which is intertwined with marriage, must be reformed. Secondly, it puts forth a broad framework to vest inheritance rights to cohabitees and offspring.

Moving Away From A Conventional Understanding to A Functional Understanding Of A Family 

A recent national poll revealed that 80% of the women in the age group of 18-35 years prefer live-in relationships. Furthermore, 26% of the participants will choose long cohabitation over marriage. Despite this inclination towards live-in relationships, it is still taboo in India. The primary reason being the inseparable and intertwined relationship between family and marriage. The family was confined to legally married spouses and blood relations, and other unions were illegitimate. There was no family outside marriage and all the laws were framed in conformity to the marital framework. In India, marital and procreative family is the heart of family law legislation, reinforcing the conventional understanding of family. As a result, these laws are biased towards marriage and vests rights and privileges for ‘family’. 

An example of a law enforcing conventional notions on ‘family’ is the succession laws, which seek to preserve private property by giving inheritance rights to progenies only. Thus, they reinforce the conventional understanding of family by limiting the property to the marital domain. Thus, the deceased person’s property was inherited by his/her ‘family’, aligned with societal norms of family. The Hindu Marriage Act, 1955, which gives limited legitimacy and share in the self-acquired property to illegitimate children and Protection of Women from Domestic Violence Act, 2005; which protects ‘relationship in nature of marriage’ from domestic violence; are the only two sections conferring substantial rights to the cohabitees and their offspring’s. There are no inheritance rights for cohabitees or their offspring under the Christian, Parsi or Muslim personnel laws. Thus, there is an exclusion of social unions that are not matrimonial as they are not considered as ‘family’. 

Hence, it is submitted that the family must be defined not on blood relations but the function and responsibilities that the individual plays in another’s life. We should recognise the functional aspect of the family [love, care, support and happiness] rather than the form of the family [marriage]. That is, ‘what the family does’ should take precedence over ‘what the family looks like’. This way, chosen family of any form, including live-in, who gets excluded due to the conventional understanding of ‘family’ will be entitled to inheritance rights.

A Framework For Vesting Inheritance Rights To Cohabitees And Their Offspring 

It is already established that since a live-in relationship performs the same family functions as marriage, it should also be given inheritance rights. In this section, we will see how this can be implemented. 

As a rule of thumb, if a man and woman have lived together as husband and wife there is a presumption of marriage unless the contrary is proved. The Supreme Court has upheld this presumption in its various judgments. In 2015, the Supreme Court using this presumption, held that a female in a live-in relationship will be entitled to inherit her partner’s property. Furthermore, it has also been held that there will be a presumption of marriage in the issue of the legitimacy of children born in cohabitation.

These judgements depict a significant shift from the marital framework certified and valued by society in comparison to other social unions. Nevertheless, it does not discount the fact that such presumption is problematic due to two reasons. Firstly, equating long cohabitation to marriage takes away the autonomy of this social union, limiting it to the marital framework. Such a presumption reinforces the conventional idea that family consists of husband, wife and their children. Secondly, the presumption of marriage after long cohabitation excludes same-sex cohabitation. Different personal law only consider marriage between a male and a female. Thus, cohabitation among the LGBTQIA+ community will not be presumed as marriage, robbing them of inheritance rights. Lastly, leaving the succession rights of cohabitees and their children to the court’s discretion as to whether a particular cohabitation can be presumed as marriage or not, is leaving their rights hanging by a thin rope. 

In light of the reasons mentioned above, it is submitted that separate legislation must be enacted which grants inheritance rights to cohabitees and their children. Countries like New Zealand, the Philippines and Scotland have all enacted similar legislation. However, there is no law in India governing live-in relations, let alone providing succession rights to cohabitee and their children. 

The issuing of a succession certificate to the nominated live-in partner of the deceased is the best way through which cohabitees can transfer inheritance rights to their other partner and children. The legislature can make provisions where cohabitees can register them and nominate one another for inheritance. Though this is the ideal way, this does not mean that there must be no law governing intestate succession for cohabitee. As death is sudden and inevitable, though the deceased might intend to confer property rights, they might have died intestate. The legislature must also protect marginalised communities who might not be able to register such succession certificates due to social, economic and infrastructural barriers.   

It is submitted that a model must be adopted for the intestate cohabitee and their children, based on Professor Waggoner and Spitko’s work. Waggoner and Spitko have individually provided a framework for determining the inheritance rights of cohabitees using different factors. Thus, a model designed by combining both their approaches will be a better framework for vesting rights. In ‘Marital Property Rights in Transition’, Professor Waggoner  laid down the framework for intestate succession by ‘de facto partners’. He evaluated the quality of the relationship to determine the share in the property. He devised a test to know who is a ‘committed domestic partner’ for conferring inheritance rights. He looked at the following parameters: age, marital status, must have lived in shared household, prohibited degrees of relation and ‘marriage-like’ relationship. Furthermore, Professor Spitko’s model focuses on the following parameters: donative intent of the deceased, reliance on the partner, duration of the relation, reciprocity and administrative process.

It is submitted that the Indian Parliament must draft a legislation, using the components from the Waggoner and Spitko’s model, providing succession rights to cohabitees and offspring. However, the legislature, instead of burdening the already over-burdened courts, should appoint government officers for this purpose. A system similar to Goa’s inheritance law can be adopted, where the notary ex officio after scrutinising the declarations made, divides the property. Similarly, cohabitee partner of the deceased can approach that officer for the division of share between the cohabitee, their children and the blood relatives. The government officer after looking at different factors, can divide the property accordingly. 

Thus, the legislature should follow a hybrid model where the registration process is optional, as inheritance can be sought through a combination of Waggoner and Spitko’s model. Once a couple has registered, they will be exempted from proving the conditions mentioned in the legislation for inheritance. This is a broad framework that the legislature can implement to vest rights to cohabitees and their children.

Conclusion

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

–  Hon’ble Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun

As stated by Justice A.K. Ganguly, with the changes of society what was once illegitimate can be legitimate now. Cohabitation may have been considered illegitimate before, but now, with changes in society, and its thought process, it is one of the preferred forms of unions. Thus, it must be recognised and vested with rights at par with married couples. 

The recent Kerala High Court judgement is only the first step towards recognising a live-in relationship and not an end in itself. With this as the context, we argued for the grant of succession rights to cohabitees and their children. It was submitted that the law should define family by looking at the functions and not the form of the unions. With this shift, the definition of family will be broadened. Furthermore, since cohabitation performs the same family functions like any other marriage, succession rights must vest to cohabitees and their children as well. It is also submitted that legislation vesting inheritance rights must be enacted along the lines of Professor Waggoner and Spitko’s model.

The authors are 3rd Year B.A. L.L.B. students at the National Law School of India University, Bangalore (NLSIU).