Comparing Judicial precedents on Live-in relationships: Is the social fabric really pervaded?

  • Anadi Tewari & Yameena Ahmad
  • 10:06 PM, 06 Jun 2021

 “If the moral values of our Constitution were not upheld at every stage, the text of the Constitution may not be enough to protect its democratic values.”

        - Justice D.Y. Chandrachud in GNCTD v. Union of India [(2018) 8 SCC 501

Recently, the Punjab and Haryana High Court in a series of cases has refused to grant protection to Live-In couples. The two cases had quite a similar set of facts where the relationship between the petitioners (both major) was under the realm of opposition by their family members. The orders of the Court in these cases are brief and are unreasoned on the line of law.

In the first of these questionable orders, the High Court's single-judge bench of Justice Anil Kshetraphal in Ujjawal and Another v. State of Haryana and Others [CRWP-4268-2021(O&M)] while refusing to grant protection to the Live-In couple, went on to note that "If such protection as claimed is granted, the entire social fabric of the society would get disturbed. Hence, no ground to grant the protection is made out."

In the second of the case, the High Court's single-judge bench of Justice HS Madan in Gulzar Kumari and Another v. State of Punjab and Others [CRWP-4199-2021(O&M)] while denying protection goes on to note that "the petitioner 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 can be passed."

These two orders passed by the Punjab and Haryana High Court tend to depict a harsh reality of "social morality succumbing to constitutional morality". We shall now discuss how these two recent orders of the High Court tend to run contradictory to the already laid down precedents by the Supreme Court (and several other High Courts) and further weighs on social morality over constitutional morality.

Judgments of the Supreme Court

The Supreme Court in a catena of judgments has laid great emphasis on the right to choose a partner as a part of personal liberty under Article 21 of the Constitution of India. The author shall discuss few significant decisions of the Supreme Court that shall depict the contradiction in comparison to two of the judgments delivered by the Punjab and Haryana High Court.

Right to Choice of an Adult:

In Shafin Jahan v. Asokan K.M. [(2018) 16 SCC 368], the Supreme Court has reiterated the right of choice of an adult (major) and held that:

"The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness.

It is obligatory to state here that expression of choice in accord with the law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right."

In Shakti Vahini v. Union of India [(2018) 7 SCC 192], the Supreme Court has held that "Assertion of choice is an integral facet of liberty and dignity."

"Any kind of torture or torment or ill-treatment in the name of honour that tantamounts to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence. When the ability to choose is crushed in the name of class honour and the person’s physical frame is treated with absolute indignity, a chilling effect dominates over the brains and bones of the society at large, the 3-judges bench of the Supreme Court has observed.

The Supreme Court in Shakti Vahini case has reminded the Constitutional Courts that it is their obligation as the "sentinel on qui vive to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty. Without sustenance of liberty, subject to constitutionally valid provisions of law, the life of a person is comparable to the living dead having to endure cruelty and torture without protest and tolerate the imposition of thoughts and ideas without a voice to dissent or record a disagreement."

The Supreme Court in this case has made it imperative for the authorities to follow certain immediate and punitive measures to provide security to the couples while keeping in mind their safety and threat to perception. The Court in the instant case has ordered the concerned District Magistrates to ascertain whether the bachelor-bachelorette are capable adults in order to provide the necessary protection and support.

In light of the above, it is clear enough that the 3-judge bench of the Supreme Court in the Shakti Vahini case extended to protect not just married couples, but also the live-in ones from any threat of violence.

Recognition of Live-In Relationship:

In Nandakumar and Another v. State of Kerala and Others [(2018) 16 SCC 602], the Supreme Court has emphasised that 'Live-in relationships' are even now recognized by the Legislature itself which has found its place under the provisions of Protection of Women under the Domestic Violence Act, 2005.

Section 2(f) of the Domestic Violence Act defines “domestic relationship”, extending its ambit to “relationship in the nature of marriage” and thus extending its protection to women whose marriage are invalid or void under law, or who haven’t gone through a formal marriage with their partners (live-in relationships) but are otherwise as good as a married couple.

Section 2(q) of the Domestic Violence Act provides that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

Noting that both the petitioners are major, the Supreme Court, in this case, has paved the way to the acceptance of the 'Live-In' relationships by observing that "Even if they are not competent to enter into a wedlock, they have the right to live together even outside the wedlock." The Court, in this case, has relied majorly on the judgment of the Supreme Court in the Shafin Jahan case.

Furthermore, in cases where the legitimacy of a child born out of live-in relationships was in question, the Supreme court has taken a liberal stance. In multiple instances, it has been pointed out that courts cannot arbitrarily deny a child born out of a live-in relationship the right to property.

In one of the similar cases of Uday Gupta v. Aysha and Another [(2014) 16 SCC 300], the Court has gone on to hold that:

"If a man and a woman are living together for a long time as husband and wife, though never married, there would be a presumption of marriage and their children could not be called to be illegitimate."

In another set of case of Tulsa and Others v. Durghatiya and Others [(2008) 4 SCC 520], the Supreme Court has provided legal status to children born out of live-in relationships.

Live-In partner entitled to Right to Maintenance under Section 125 of Criminal Procedure Code, 1973:

The Supreme Court in Chanmuniya v. Virendra Kumar Kushwaha and Another [(2011) 1 SCC 141], for the first time, held that the right to maintenance can be claimed by live-in couples maintaining:

“...in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent."

The Supreme Court in D. Velusamy v. D. Patchaimmal [(2010) 10 SCC 469] while extending the provisions of the domestic violence act to live-in couples pointed that not all live-in relationships were in the ‘in the nature of marriage’ and further laid down that:

“…a common law marriage is one which requires that although a couple may not be formally married: (a) the couple hold themselves out to society as being akin to spouses; (b) the parties must be of legal age to marry; (c) the parties must be otherwise qualified to enter into a legal marriage, including being unmarried; and (d) the parties must have voluntarily cohabited, and held themselves out to the world as being akin to spouses for a significant period of time. However, not all live-in relationships would amount to a relationship in the nature of marriage to avail the benefit of D.V. Act. Merely spending week-ends together, or a one-night stand, would not make it a 'domestic relationship'."

Furthermore, the Court had gone on to hold that in respect of dependent children born out of live-in relationships that they are also entitled to maintenance by their parents till are under Hindu law as well as under Section 125 of the Criminal Procedure Code, 1973.

Live-In Relationship is not an offence

In Indra Sarma v. V.K.V. Sarma [(2013) 15 SCC 755], the Supreme Court has held that:

"Live-In or Marriage like the relationship is neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal."

In another case of Dhannulal and Others v. Ganeshram and Another [(2015) 12 SCC 301] in the year 2015, the Supreme Court bench has gone on to observe that: "Being in live-in relationship is not a crime and with changing time it has become a norm accepted by society.” The division bench of the Supreme Court decided that couples living in live-in relationship will be presumed legally married.

Recent Contrasting Punjab and Haryana High Court Judgments

In contrast to the two Judgments in the question of the Punjab and Haryana High Court in regard to the Live-In relationship, there are several instances when this very Court has gone on to positively observe in regard to the granting of protection of the couples in a Live-In relationship.

In one of the very recent judgment (dated: 18.05.21) in the case of Pardeep Singh and Another v. State of Haryana and Others [CRWP-4521-2021(O&M)], the single-judge bench of the High Court went on to hold that "an individual also has the right to formalize the relationship with the partner through marriage or to adopt the non-formal approach of a live-in relationship."

"The Constitutional Courts grant protection to couples, who have married against the wishes of their respective parents. They seek protection of life and liberty from their parents and family members, who disapprove of the alliance. An identical situation exists where the couple has entered into a live-in-relationship. The only difference is that the relationship is not universally accepted. Would that make any difference?, the Court has observed.

In regard to the Live-In relationship, the High court further noted that:

"In law, such a relationship is not prohibited nor does it amount to commission of any offence and thus, in my considered view such persons are entitled to equal protection of laws as any other citizen of the country. The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views."

In another judgment on 18.05.2021, the Punjab and Haryana High Court in  Soniya and Another v. State of Haryana and Others [CRWP-4533-2021(O&M)] went on to observe that a live-in relationship may not be acceptable to all, but it cannot be said that such a relationship is an illegal one or that living together without the sanctity of marriage constitutes an offence.

The single-judge bench of the High Court while taking note that Article 21 of the Constitution of India provides for a citizen's life and personal liberty, went on to observe that:

"Once an individual, who is a major, has chosen his/her partner, it is not for any other person, be it a family member, to object and cause a hindrance to their peaceful existence. It is for the State at this juncture, to ensure their protection and their personal liberty."

In another case of Nasima and Another v. State of Haryana and Others [CRWP-2148-2021] where the High Court though adjudged the marriage between a Muslim Women and a Hindu Man as invalid but has ruled that the couple would be entitled to live in a live-in-relationship in nature of marriage and also to the protection of their life and liberty.

In another contrasting judgment delivered last year in Priyapreet Kaur and Another v. State Of Punjab and Others [CRWP-10828-2020(O&M)], the single-judge bench of Punjab and Haryana High Court has upheld a couple's right to be in a live-in relationship. The Court has significantly observed that:

"The petitioners are both major and have every right to live their lives as they desire within the four corners of the law. The society cannot determine how an individual should live her or his life. The Constitution of India guarantees every individual the right to life and the choice of a partner is an important facet of the right to life."

In a significant judgment, the single-judge bench of Punjab and Haryana High Court in the case of Paramjit Kaur and Another v. State of Punjab and Others [CRWP-5024-2020(O&M)] have granted police protection to a Same-Sex Live-In couple.

The Court went on to observe that "the petitioners are entitled to protection of their lives and liberty as envisaged under Article 21 of the Constitution of India, regardless of the nature of relationship between them. Assuming, they were living simply as friends together, even then they are constitutionally entitled to live in peace. Legitimacy of their relationship with each other, therefore, is of no consequence viz-a-viz their right to life and liberty.

Judgments of Other High Courts Recognizing Live-In Relationship:

There are several instances where other than the Supreme Court, several High Courts of the country have recognized the concept of Live-In relationship and have extended a garb of protection upon them. The author will discuss few significant ones.

Allahabad High Court

In Kamini Devi and Another v. State of U.P. and Others [WRIT-C No. 11108 of 2020], the division bench of Allahabad High Court has observed that the Live-In relationship between consenting adults is not a crime.

The High Court while relying on Lata Singh v. State of U.P. [(2006) 5 SCC 475] further went on to observe that the petitioners are at liberty to live together.

"Live­-in relationship is a relationship which has not been socially accepted in India, unlike many other countries. In the case of Lata Singh vs. State of U.P. reported in (2006) 2 SCC(Cri) 478, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral," the division bench stated while allowing protection to the couple.

Kerala High Court

In one of the significant verdict in April 2020, the Kerala High Court has bestowed recognition of the Live-In relationship. The High Court went on to recognize that a child born in a live-in relationship would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption.

The High Court observed that:

"Marriage as a social institution depends upon personal law or secular law like Special Marriage Act. It has no bearing on the concept of Juvenile Justice. Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage. In a live-in relationship, a couple acknowledges the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both. Thus, in the light of scheme of law as above there is no difficulty in holding that a child born in a live-in relationship also has to be construed as a child born to a married couple."

Orissa High Court

In one of the significant verdict, the Orissa High Court in the case of Chinmayee Jena @ Sonu Krishna Jena v. the State of Odisha and Others [(2020) 214 AIC 751] has allowed the same-sex couple to Live-In together.

The division bench of the High Court has held that:

"There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner."

The High Court further said that "the lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005."

The Need for Reconsideration

The recent rulings issued by the Punjab and Haryana High Court appear to be more inclined on social considerations and fail to appreciate the law laid down and the constitutional freedoms laid down under Part-III of the Indian Constitution. The Constitutional Courts must never be driven by the popular morality drawn by the society and must act like a warrior safeguarding the individual liberty and choice permitting permissible constitutional morality. No individual however minuscule and odd may be prevented from enjoying the liberty and freedoms endowed upon him by the Constitution of India.

The Court must recognize the rights of two individuals living together with their consent in a humanistic approach without actually being influenced by their gender or orientation. The decision of the Court must never be influenced by the identity of an individual or to the gender or orientation of the person with whom that individual chooses to love, live and reside.

Although in none of the cases the Constitutional Courts had explicitly dealt with the legal status of live-in relationships, however implications follow that not only is it not an offence but that it is a concept gaining acceptance in the society. Even as we write these lines, it is worth mentioning that the Punjab and Haryana High Court after the two questionable judgments, on 18th May 2021 went on to grant protection to two live-in couples in two of its judgments.

The Court in the first case of Pardeep Singh and Another v. State of Haryana and Others [CRWP-4521-2021(O&M)] went on to remark that:

“…Right to life and liberty is enshrined therein and is treated as a basic feature. The said right includes the right of an individual to full development of his/her potential in accordance with his/her choice and wish and for such purpose, he/she is entitled to choose a partner of his/her choice.”

The Court in the second case of Soniya and Another v. State of Haryana and Others [CRWP-4533-2021] went on to observe that a live-in relationship may not be acceptable to all, but it cannot be said that such a relationship is an illegal one.

"It would be a travesty of justice in case protection is denied to persons who have opted to reside together without the sanctity of marriage, and such persons have to face dire consequences at the hands of persons from whom protection is sought. In case such a course is adopted and protection denied, the courts would also be failing in their duty to provide its citizens a right to their life and liberty as enshrined under Article 21 of the Constitution of India and to uphold to the Rule of law," the single-judge bench of the Court remarked.

As per the latest development from the Punjab & Haryana High Court, the single-judge bench of the Punjab and Haryana High Court on May 21 in the case of Yash Pal And Another v. State Of Haryana And Others [CRWP-4660-2021(O&M)] has referred to a larger bench, the question as to:

  1. Whether the Court is required to grant protection of life and liberty to two persons living together, without examining their marital status and the other circumstances of that case?
  2. If the answer to the above is in the negative, what are the circumstances in which the Court can deny them protection?

Analytical reading of these contrasting judgment(s) given by the same court leaves the authors no choice but to question whether judgments are owing their rationale to social morality or constitutional morality. This contrast has raised a concern among law literates whether the interpretation of existing law is being influenced by notions of social morality.

Even as we write these lines, the Supreme Court on June 04 in the case of Gurwinder Singh and Another v. State of Punjab and Others [SLP (Crl.) No. 4028 of 2021], an appeal against one of the questioned orders (discussed above) of the Punjab and Haryana High Court, has allowed the appeal and has granted Police protection to the Live-In Couple who were denied protection from the High Court on social and moral grounds. The top Court in a short order has noted that:

"Needless to state that since it concerns life and liberty, the Superintendent of Police is required to act expeditiously in accordance with law, including the grant of any protection to the petitioners in view of the apprehensions/threats, uninfluenced by the observations of the High Court."

The author(s) are of the opinion that the decisions of Punjab and Haryana High Court in question are immediately required to be reviewed as they prima-facie appears to be erroneous and curtailing individuals rights and liberties.

 

Views are personal.

(Authors are 3rd year law student at Faculty of Law, University of Lucknow)