Chandigarh: Six rulings in three courts between April to September 2021 have revealed the conflicting views among the judiciary over protecting the life and liberty of couples in non-marital cohabitation, popularly known as live-in relationships.
Here are some examples of these varying conclusions:
* “...no offence would seem to have been committed by the petitioners, they being adults in a live-in relationship with each other, whether or not any divorce petition is pending before this court.”
* “But none law-abiding (sic) citizen who is already married under the Hindu Marriage Act can seek protection of this Court for illicit relationship, which is not within the purview of the social fabric of this country.
* “... the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable and no protection order in the petition can be passed.”
* “Directing the police to grant protection to them may indirectly give our assent to such illicit relations.”
In the cases we analysed, the petitioners who approached the court apprehended physical harm from their family members (or even honour killing). The judiciary was divided between granting them legal protection, a fundamental right under Article 14 of the Indian Constitution, upon married and unmarried couples and giving in to moral impulses.
Morality In Courtrooms
In the first week of September 2021, the Punjab & Haryana High Court held (Paramjit Kaur and Another vs State of Punjab) that no offence would be made out if two adults were in a live-in relationship, even though they were already married to someone else. The Court also expressed its disagreement with Allahabad High Court’s ruling in the preceding month.
The Allahabad High Court, while dismissing a similar writ petition (Smt Aneeta And Another vs State Of U.P. And 3 Others) seeking protection, by a married woman living with her partner, imposed a fine of Rs 5,000 and held that such a relationship was “illicit”.
The petitioner had sought protection for herself and her live-in partner from her husband whose behaviour towards her during their marriage was “apathetic.”
While dismissing the petition the Court used the argument we referred to previously: “But none law-abiding citizen (sic) who is already married under the Hindu Marriage Act can seek the protection of this Court for an illicit relationship, which is not within the purview of the social fabric of this country. The sanctity of marriage pre-supposes divorce.”
“If she has any difference with her husband, she has first to move for getting (sic) separated from her spouse,” the Court said.
Similarly, in May 2021, the High Court of Punjab and Haryana, while dismissing a petition (Gulza Kumari and Another vs State of Punjab and others) filed by a runaway couple who were in a live-in relationship stated that such relationships are neither “morally nor socially accepted”, and no protection could be granted to the petitioners. The couple, both of whom were of legal age, feared violence from their families.
The Court added that such a petition was a way of seeking the Court’s sanction for an “unacceptable” relationship. The dismissal of such a plea leaves the petitioners with only two options: accept the decision of the High Court and keep running for their lives or approach the Supreme Court while being on the run.
However, in another petition (Pradeep Singh vs State of Haryana 2021) filed by a live-in couple, the Punjab and Haryana High Court directed the Haryana police to provide protection and ensure that no harm came either to the lives or liberty of the petitioners.
The same High Court, after accepting the prevalence of such non-formal relationships in our society, observed that they were not prohibited by law.
“In law, such a relationship is not prohibited nor does it amount to commission of any offense and thus, such persons are entitled to equal protection of laws as any other citizen of the country,” the Court observed. “The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views…”
Such conflicting views of the judiciary not only cause indifferent treatment to similarly-situated people, but also give an indication to the general public that much depends upon luck. These contradictory judgements are also responsible for a chilling effect on similar couples who may become wary of even approaching the higher judiciary as a last resort.
The decision of a High Court in refusing to grant protection solely because it disapproved of the nature of the relationship between the petitioners can be contrasted with various orders granting police protection to married couples and can be seen as creating a hierarchy of life and relationships worthy of protection.
The Supreme Court has often granted protection to married couples.
In Lata Singh vs State of UP 2006, while criticising honour killings, the Supreme Court said: “We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honorable in such killings, and in fact, they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.”
Live-in Relationships And The Agency Of An Adult Woman
While the Supreme Court has not passed similar orders for unmarried couples, in Shafin Jahan vs Asokan K.M. & Ors 2018, it took the discourse further and held that an adult woman could decide who she wanted to cohabit with and that her family members had no say in the matter.
The reasoning implicit in both the cases recognises and cherishes the right of free will to live and marry with any person of choice.
The law is nothing but the collective logic or common sense of the society that it governs. The duty to codify such laws may be that of the legislature, but it is the judiciary through its constructive interpretations that keep such laws in tune with the changing dynamics of the collective conscience of the society.
Live-In Relationships And The Domestic Violence Act
The issue of live-in relationships and the rights of the parties living in them were dealt with not long ago, by a three-judge bench of the Supreme Court in the matter of Lalita Toppo vs The state of Jharkhand and another 2019.
The Court observed that a woman live-in partner would be entitled to relief(s) under the Domestic Violence Act, 2005. This decision was welcomed (here and here), and the judiciary was applauded for stepping in to protect the rights of women in live-in relationships.
Affording the status of marriage upon a couple living voluntarily as man and wife finds its roots in Roman law, recognised even in India’s colonial era (Andrahennedige Dinohamy vs Wijetunge Liyanapatabendige Blahamy 1927), from where most of our laws are borrowed.
The Supreme Court in Indra Sarma vs V.K.V Sarma 2013 laid down guidelines for recognising live-in relationships, categorising them as being of two kinds: one, between two unmarried individuals; two, between a married and unmarried individual or two married individuals.
While the Supreme Court has only recognised the former, the latter often results in a dismissal, as seen in the recent plea in the Allahabad High Court.
Threat To Life And Liberty Vs Morality
Should there be a judicial distinction drawn between married and unmarried couples while hearing a plea protection, when life and liberty are at stake? While distinguishing between married and unmarried people may appeal to logic, to protect a person’s life and liberty is, under the law, the foremost duty of the state.
Another limitation that further restricts courts from delving into the legal status of the relationship between two adults for granting protection is the law in which the petitions are filed.
These petitions are filed invoking the powers of the court under Article 226 of the Indian Constitution, sometimes along with section 482 of the Code of Criminal Procedure, 1973.
While making a decision, questions of fact, such as the existence of marriage, may not be entertained due to the extraordinary nature of these powers of the court. The only thing for the Courts to consider is if such an extraordinary power should be exercised, especially life and liberty are in danger.
The answer to this can be found in the basic tenets of law and not in the ambit of selective and archaic notions of morality.
Adultery Is Not A Crime
Section 497 of the Indian Penal Code 1860 criminalised sexual intercourse with a married woman by any person other than her husband.
The Supreme Court (Joseph Shine vs UOI 2019), while striking down the section for being discriminatory to women and against the principles of equality enshrined in Article 14, also discussed the issue of criminalization of acts contrary to popular morality.
“In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit,” said the Supreme Court. “This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.”
It is apparent that acts that may be perceived as immoral are not automatically criminal. A logical corollary that can be drawn is that just because someone is in a relationship that society perceives to be immoral, they cannot be denied the protection of basic fundamental rights, which includes equal protection of the law.
Protection Of Non-Heteronormative Relationships
Another important aspect is the rights of adults who cannot marry, more specifically non-hetronormative couples not covered by current laws covering marriage.
Following the landmark judgment in Navtej Singh Johar vs UOI 2018, where the provision of section 377 IPC criminalising sexual relations was made ineffective, various high courts have taken cognizance of the predicaments of such couples and granted protection, even though their relationships do not conform to previous hetronormative understanding (Sreeja vs Commissioner of Police and ors. 2018).
Such judgments will ensure that the law can run alongside the changing dynamics of modern society. Various petitions seeking legalisation of non-heteronormative marriages are pending before various High Courts, with the union government opposing these petitions.
Freedom From Popular Morality
With the paradigm shift in the notions of morality in the modern world and courts becoming amenable to accepting such changes, orders of refusing protection to live-in couples appear to be regressive.
The observations of the Supreme Court in CBI vs Ashok Kumar Aggarwal and another 2013 were: “Public policy, though based on morality and its notions are inherently subjective, has apparently been referred to as synonymous with the policy of law or the policy of the statute. However, in modern times, it has become quite distinct from that of the policy of law as it has rightly been said that a just thing may not be legally right as morality and law are not co-extensive.”
It is thus imperative that while deciding pleas for protection, the courts free themselves from ideas of popular morality.
The right to protection of life and liberty is a fundamental right and a cornerstone of our Constitution, granted to even those found on the wrong side of the law, much less to those who are only on the wrong side of popular opinion.
The idea that anyone found to be living in a fashion that is not in favor of societal values is to be left to fend for themselves without protection from the state violates India’s laws and the Constitution.
If the apprehension of petitioners seeking protection from an impending threat comes true, who will be held liable, the prevalent justice system for failing to prevent honor killing or us for creating such a moral fabric?
(Vivek Sheoran is a practicing advocate at Punjab and Haryana High Court and alumnus of the National Law University, Lucknow. Sumati Thusoo is the founder of NyayaSarathy Foundation, research author at Monk Prayogshala and an alumnus of the Tata Institute of Social Sciences.)