LIVE-IN RELATIONSHIPS AND SAME-SEX MARRIAGES: A SHIFT IN THETRADITIONAL CONCEPT OF MARRIAGE IN INDIAN SOCIETY
ABSTRACT
Marriage is a complex social phenomenon and in Indian society it holds a profound
significance, deeply rooted in tradition, culture, and societal norms. However, in this era
of globalization the age old-concept of marriage being the union of the two sexes i.e., a
male and a female, has undergone significant shift to encompass unconventional forms of
marriages such as live-in relationships and same-sex marriages. These forms of
relationships though prevalent in the Indian society, still lacks the desired social acceptance
because of the social stigma and immorality attached to these kinds of relationships, and
also falls short of a concrete legislative development in this direction. Cohabitation without
marriage and homosexual intercourse are still a taboo in the Indian society and these
couples are looked down upon in society facing a lot of denunciation. The present article
attempts to understand the traditional concept of marriage in the context of religion and
also the legal status of live-in relationships and same-sex marriages in India.
Keywords: Marriage, Live-in relationship, Same-sex marriage, LGBTQ.
INTRODUCTION
Marriage is not simply a union of two people but a holy tie bond that stretches beyond the
couple to encompass families, communities, and even the divine. In India, marriage is
considered a sacred institution that marks the beginning of a new phase in one’s life,
symbolizing commitment, companionship, and continuity of family lineage.
Marriage in India implies not only the unification of two individuals but a merging of families,
a consolidation of social status, and a means of ensuring continuity through progeny. It is a
pivotal event in one’s life, often arranged by families based on factors like caste, religion, social
status, and horoscope compatibility. The institution of marriage is deeply ingrained in Indian
culture, with elaborate rituals, ceremonies, and traditions that vary across regions and
communities. It serves as a social contract that not only binds two individuals but also fosters
alliances, strengthens social ties, and upholds cultural values.
- 2 –
The traditional concept of marriage in India has been undergoing significant changes in recent
years, with the emergence of same-sex marriage and live-in relationships as alternative forms
of partnerships.
1 These shifts have been driven by evolving societal attitudes, legal
developments, and the pursuit of individual autonomy and equality. The growing recognition
of LGBTQ rights and the increasing acceptance of diverse forms of relationships have led to
the emergence of same-sex marriage as a viable alternative.2 Live-in relationships, on the other
hand, have gained acceptance as a form of cohabitation, with some legal recognition for samesex couples in the form of cohabitation rights. This shift reflects a more modern and progressive
outlook towards relationships, where individuals prioritize companionship, emotional
compatibility, and personal choice over traditional societal expectations.
RESEARCH OBJECTIVES
i. To understand the traditional concept of marriage in India.
ii. To examine the social and religious perception pertaining to live-in relationships and
same-sex marriages in India.
iii. To understand the legal implications of live-in relationships and same-sex marriages in
India.
RESEARCH METHODOLOGY
In this study, doctrinal research methodology has been employed, utilizing secondary sources
like textbooks, research papers, articles, journals, and online resources to comprehend concepts
thoroughly and gather information for a detailed study. Given the legal nature of the research,
a significant number of case laws have been consulted to ascertain the judicial perspective and
to reach an apt interpretation for the study.
1 Monali P. Gandhi, Changing Marriage Patterns in Hindu Society, 9 IJRISSIS 101, 6 (2023).
2
Ibid. - 3 –
CONCEPT OF MARRIAGE IN INDIA: A RELIGIOUS PERSPECTIVE
Marriage is an age-old concept, first recorded in 1250-1300 C.E. However, the idea of marriage
is widely believed to have existed long before the advent of recorded history. This notion
highlights the ancient origins of the institution of marriage, which predates the development of
written records and historical documentation.
The foundation of a society rests on the institution of marriage, which is crucial for various
reasons, including the fact that no individual can thrive without mutual support, home-making,
and personal growth at the levels of development be it biological, social, ethical, divine, etc.
3
This notion highlights the significance of marriage in fostering a well-rounded and fulfilling
life for both men and women.
Marriage is a socio-legally recognized union between two individuals, traditionally a man and
a woman, that is regulated by religious rules, customs, laws and beliefs. It is an essential
institution in human societies, serving various social and personal functions, such as “sexual
gratification and regulation, division of labour between the sexes, economic production and
consumption, satisfaction of personal needs for affection, status, and companionship, and
procreation and the care of children.”
4
Marriage is a dynamic social institution subject to evolution, and any divergent views on it are
often suppressed; among the various influences on marriage, religious viewpoints hold the most
significant sway in shaping societal perceptions.
Concept of marriage in Hinduism:
Marriage in Hinduism is a sacred and significant institution that goes beyond a mere contract
between two individuals. It is considered a sacrament, a lifelong commitment, and a union of
two souls that extends beyond this life.5 The institution of marriage, known as Vivaha, was a
sacred sacrament that every individual was obligated to undertake, and it marked the second of
the four stages of life, Grihasthashrama, in the Ashrama dharma.6
In ancient times, marriage
3 Pooja Mondal, “Marriage: Meaning, Definition and Forms of Marriage”, YOUR ARTICLE LIBRARY (Mar. 15,
2025, 11:15 PM), https://www.yourarticlelibrary.com/paragraphs/marriage-meaning-definition-and-forms-ofmarriage/31312.
4 THE WEEK, https://theweek.com/articles/528746/origins-marriage, (last visited on Mar. 15, 2025).
5 Liza Borah, “Philosophy of Hindu Marriage”, Pragyata (Mar. 15, 2025, 10:59 PM)
https://pragyata.com/philosophy-of-hindu-marriage/.
6
ITHIHAS, https://ithihas.wordpress.com/2016/10/26/institution-of-marriage-in-ancient-india/ (last visited on Mar.
15, 2025). - 4 –
served as a means to unite the two separate halves of life, the man and the woman, into a
harmonious whole.7
In the case of Tikait v. Basant8
, the court characterized Hindu marriage as a “sacramental and
indissoluble union of the flesh and bones, which remains intact even after death.” Similarly, in
Shivonandh v. Bhagawanthuma9
, the court viewed marriage as a “lifelong commitment, with
the performance of saptapadi before the sacred fire rendering it a religious bond that cannot be
severed.”
However, with the legislative developments10, the idea of marriage has undergone significant
changes to encompass the concept of judicial separation and divorce, which finds no reference
in the Vedas or post-Vedic literature. Similarly, no traces of the same-sex marriage are
expressly found in the mythology. Furthermore, the concept of same-sex marriage is not
allowed and the Hindus widely condemn this practice as being detrimental to the very concept
of Hindu marriage. The concept of live-in relationship is also regarded to be immoral as it leads
to widespread sexual promiscuity which goes against the very basis of religious concept of
marriage among Hindus.
Concept of marriage in Islam:
Marriage in Islam is a highly valued and sacred institution, viewed as being half of one’s faith.
The Holy Qur’an emphasizes the importance of marriage stating that, “it is a union of two souls
that are one in essence, and that it is the means by which the relations of a child to the
community are determined.” In Islamic law, marriage, referred to as “Nikah”, is seen as the
formal union of individuals through a contractual agreement aimed at legitimizing sexual
relations and facilitating the procreation of offspring.11
In order for a Nikah to be valid according to Muslim law, three prerequisites must be met: the
initial step involves “proposal and acceptance”, followed by the requirement for “competent
parties”, and finally, the condition of “absence of legal impediments.”12 The marriage contract
in Islamic law is established through an offer, referred to as “ijab”, and its acceptance, known
7
Ibid.
8
(1901) ILR 28 Cal. 751.
9 AIR (1962) Mad. 400.
10 THE HINDU MARRIAGE ACT, NO. 25, Acts of Parliament, 1955 (India).
11 DR. PARAS DIWAN, FAMILY LAW, 25, (13th ed. 2023).
12 I. A. KHAN, MOHAMMEDAN LAW, 114, (27th ed. 2022). - 5 –
as “qabool”, with the entire “ijab-o-qabool” process mandated to occur in a single meeting,
whether verbally or in writing, with the voluntary consent of all parties involved.13
According to Islamic teachings, all human beings are born with a natural inclination towards
heterosexuality, and homosexuality is considered to be a deviation from this norm. Thus, the
concept of homosexuality is condemned in Islam. Therefore, the concept of same-sex marriage
is highly offensive to the basic tenet of Islam and is considered to be a sin of one of the highest
degrees. Further, Islam considers the pre-marriage relationship between a man and a woman to
be “Haram”, thereby, strictly prohibiting any kind of sexual relationship before marriage. Thus,
like the same-sex marriage, live-in relationships do not find acceptability in Islam and is also
considered to be a sin.
13 Ibid. - 6 –
EMERGENCE OF NEW FORMS OF MARRIAGES
With modernization and recent developments, India is getting strongly impacted by the western
culture, leading to the slow perishing and overshadowing of the tradition and culture it has
inherited from its culturally rich past. In India, marriage is construed as a sacrament regulated
by religion and the cultural beliefs prevailing in society.
However, the conventional idea of marriage has gone through notable shifts in recent decades,
leading to the emergence of new forms such as live-in relationships and same-sex marriages.14
This shift in the definition of marriage has been driven by the ongoing modernization of gender
roles and social values, as well as the desire for greater equality and inclusivity in society.
LIVE-IN RELATIONSHIPS:
The institution of marriage has undergone significant changes with due course of time. In the
recent years, India has witnessed a surge in the frequency of live-in relationships due to the
wide acceptance of the western culture by the country’s youth thereby renouncing the popular
family traditional values.
15 Live-in relationship is basically an alternative to marriage
facilitating cohabitation between individuals without the need of actually getting into a
marriage setting.16 This is basically as an opportunity to test the compatibility between couples
before getting into marriages, wherein the couples are not bound by any legal obligation and
can easily part their ways without State’s intervention.
Although, this notion of live-in relationship has not been widely accepted in the society due to
the social stigma considering pre-marital sex as inappropriate and unethical, it has been
recognized by the Apex Court through its judicial pronouncements. This recognition can be
traced back to the decision of the Privy Council in the case of A. Dinohamy v. WL Blahamy17
,
wherein it was held that, “if two individuals are living together by their own will as legally
wedded partners, the law will suppose, in the consequence of their living together as such of a
valid marriage, and not in a state of concubinage.”
14 CANYON WALKER CONNECTIONS, https://canyonwalkerconnections.com/the-shifting-definition-of-marriage/
(last visited Mar. 15, 2025).
15 Kumar Saurav and Antariksh Anant, Socio-Legal Aspects of Live-in Relationships: Indian Scenario, 2 IJIRL 1,
29 (2022) https://ijirl.com/wp-content/uploads/2022/02/SOCIO-LEGAL-ASPECTS-OF-LIVE-INRELATIONSHIPS-INDIAN-SCENARIO.pdf.
16 Prof. (Dr) Priya Sepaha, Live-in Relationship in India: Laws and Challenges, 1 LCJLS 1, 6 (2021)
https://www.researchgate.net/publication/351358748_Live-in_Relationship_in_India_Laws_and_Challenges.
17 AIR 1927 PC 185. - 7 –
Later in the case of Gokul Chand v. Parvin Kumari18
, the Supreme Court established that,
“long-term cohabitation of a man and a woman as husband and wife, along with their societal
recognition as such, can create a presumption of marriage unless rebutted by evidences which
the court cannot ignore.”
Judicial pronouncements:
However, the legal recognition to live-in relationships was first provided in the case of Badri
Prasad v. Director of Consolidation19
, wherein a couple who cohabited together as a couple
for nearly half a century received legal status. Thus, the Court clearly advocated the long-term
live-in relationships “not in the nature of walk-in and walk-out relationships.”
20
Further in Lata Singh v. State of U.P.21
, the Supreme Court held that, “a live-in relationship
between two consenting adults of the opposite sex, while potentially seen as immoral, does not
amount to an offence under the law.” Furthermore, to receive recognition as a “domestic
relationship” under the definition provided in Domestic Violence Act, 2005, the Supreme Court
outlined four essential criteria mentioned hereunder- - “the couple should publicly present themselves as spouses to society;
- both individuals must be of legal marriageable age;
- they must meet all other legal requirements for marriage, including being unmarried.
- they must willingly cohabit and publicly portray themselves as spouses for a substantial
duration.”
22
As far as the legitimacy of issue born out of such relationships is concerned, the Supreme court
has made its stand clear in the case of Tulsa & Ors v. Durghatiya23
, wherein it has granted
property rights to a child born out of a live-in relationship and stated that such a child should
“not be considered illegitimate if the parents have lived together for a significant period of
time.”
18 AIR 1952 SC 231.
19 AIR 1978 SC 1557.
20 Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209.
21 AIR 2006 SC 2522.
22 D. Velusamy v. D. Patchaiammal, AIR 2010 SCC 469.
23 (4) SCC 520. - 8 –
Further, in respect of the right to get maintenance, the Supreme Court in Lalita Toppo v. State
of Jharkhand24 has held that while a live-in partner cannot claim maintenance under Section
125 of the Criminal Procedure Code, 1973, they are entitled to compensation under the
Prevention of Domestic Violence Act 2005, extending this right only to female victims.
Moreover, in cases of domestic violence within a live-in relationship, relief can be sought by
the complainant under Chapter IV of the Act.25
Therefore, in spite of the societal resistance associated with the live-in relationships due to the
pre-conceived idea of immorality attached to them, the Apex Court has taken a stand in its
favour attributing the right of a couple to live together to their Right to life, which cannot be
abridged or restricted on the subjective concept of morality. However, with a significant
expansion in the live-in relationships, a legislation to govern the same has become the need of
the hour to afford more uniformity and consistency.
SAME-SEX MARRIAGES:
India is a conventional country, of which secularism from a core enabling its citizens to
practice, profess and propagate the religion they desire. From this inclination towards one’s
religion, arouses the traditional concept of marriage which recognizes it as an alliance uniting
a biological male and a biological female, thereby negating the idea of same-sex marriages.
Same-sex marriage finds its genesis in the sexual orientation of an individual and refers to the
marriage between individuals of the same gender.26 In India, homosexuality i.e., sexual
attraction for the same sex, has been considered as a taboo, and against the morality and values
of the major religions prevalent in India.27
The group of individuals who do not conform to the traditional norms regarding gender and
sexuality are widely referred to as ‘LGBTQ+’. It is an umbrella term encompassing a wide
range of individuals on the basis of their sexual orientation, thereby signifying lesbian, gay,
bisexual, transgender and queer.
24 AIR 2015 SC 1656.
25 Indra Sarma v. VKV Sarma, AIR 2013 15 SCC 755.
26 MELBOURNE UNIVERSITY LAW REVIEW,
https://law.unimelb.edu.au/__data/assets/pdf_file/0010/3967444/khan_saif-rasul.pdf (last visited Mar. 15, 2025).
27 Ibid. - 9 –
Judicial Pronouncements relating to LGBTQ rights:
The aforementioned idea of morality was ingrained in the Indian society which is evident in
the retention of Section 37728 even after retention. Section 377 of the Indian Penal Code, 1860,
criminalized “sexual activity against the order of nature.” The section, therefore, even
criminalized consensual intercourse between homosexual couples.
However, in the last few decades, the judiciary has been quite proactive in recognizing the
rights of the LGBTQ community. For the first time in the case of Naz Foundation v
Government of NCT Delhi29
, the Delhi High Court declared the “Sec. 377 of IPC as being
violative of Art. 14, 15 and 16 of the Constitution of India and therefore, unconstitutional.” It
thereby decriminalized homosexual intercourse between consenting adults. However, this
decision was struck down in the case of Suresh Kumar Koushal v. Union of India30, which
reinstated the validity of Sec. 377 and re-criminalized it. Further, the decision in National
Legal Services Authority v. Union of India31 led to the declaration of transgenders as “third
gender”. Moreover, right to privacy and sexual orientation was seen as a “corollary to the right
to life and liberty under Art. 21 of the Indian Constitution.”
32
The landmark judgement in this regard was rendered in Navtej Singh Johar v. Union of
India33
, which struck down Sec. 377 to the extent it criminalized consensual intercourse
between two consenting homosexual adults, thereby decriminalizing homosexuality in India.
This was a cornerstone in the recognition of LGBTQ rights in India thereby acknowledging
their right to dignity and choice of partners.
However, the major concern was with respect to the legalisation of same-sex marriages so as
to impart a legal status to such marriages so as to provide them with a recognition and a bundle
of rights and obligations associated with marriage. A writ petition was consequently, filed by
two same-sex couples on 14th November, 2022, seeking the grant of legal accreditation of samesex marriages in India.
28 THE INDIAN PENAL CODE, 1860, § 377, No. 45, Acts of Parliament, 1860 (India).
29 (2009) 6 SCC 712.
30 AIR 2014 SC 563.
31 (2014) 5 SCC 438.
32 Justice (Retd.) K. S. Puttaswamy v. Union of India, 2019 (1) SCC 1.
33 AIR 2018 SC 4321. - 10 –
Finally, on 17th October, 2023, a five-judge bench of the Supreme Court with a 3:2 majority
held that, “the right to marry is not a fundamental right guaranteed under the Constitution and
therefore, the court refused to grant legal status to same-sex marriages.”
34 The court left it at
the Parliament to legislate upon the matter so as to avoid encroachment upon the law-making
authority of the Parliament and thus, upholding the separation of power.
34 Supriyo @ Supriya Chakraborty & Abhay Dang v. Union of India, 2023 INSC 920. - 11 –
CONCLUSION & SUGGESTIONS
Undoubtedly, the traditional concept of marriage prevalent in Indian society is a contemplation
of the idea associated with marriage being a permanent and sacred union of the sexes, reflective
of the religious beliefs and culture ingrained in us. However, it is high time to embrace and
increase our acceptance regarding the live-in relationships and same-sex marriages. Embracing
diverse forms of partnerships not only promotes personal freedom and autonomy but also
fosters a more inclusive and compassionate society.
The absence of a concrete legislation relating to live-in relationships and same-sex marriages
leads to a lack of uniformity and subsequently, results in the violation of basic rights of such
couples. It is high time to have a legislative enactment addressing the concerns of these couples
revolving around the core idea of equality and freedom to choose partners and live together.
In addition to this, the pre-conceived notion of immorality and the social stigma associated
with live-in relationships and same-sex marriages needs redressal and this could be done by
the society at large by minimizing the social resistance and augmenting our acceptance and
tolerance for an individual’s freedom to live his life according to his own will.
The idea that the legalization of such relationships would lead to an uprooting of the religious
beliefs and traditional values associated with marriage and the emergence of unconventional
forms of marriages is the major reason behind the discrimination and condemnation of such
couples in the society. By acknowledging and respecting the choices and identities of all
individuals, regardless of their relationship structures or sexual orientations, we move towards
a more equitable and accepting future where love and commitment are celebrated in all their
forms.