Imposition of Morality: Status of Live-in in India

By Aditya Pratap, Lawyer in Bombay High Court

Two benches of the Punjab and Haryana High Court frowned upon the Live-in relationship of a couple who knocked on Court’s gates to seek protection. The protection was sought against the girl’s family after receiving multiple threats Finally in Pradeep Singh and Anr. vs. State of Haryana a bench of the same court granted them protection.

The Scenario:

On May 12, 2021 a young couple moved to the court seeking protection after receiving threats from the girl’s family. The division bench observed in the case of Ujjwal and Anr. vs. State of Haryana that “…if such protection as claimed is granted, the entire social fabric of the society would get disturbed.”. Special emphasis was paid on the age of both the petitioners. The girl being 18 and the boy being 21 years of age, this shouldn’t have happened.

This is not the first time that morality has been used as a ground for denying a person’s right to choose. In the Hadiya Jahan case, the wishes of a legal adult was set aside and was asked to return back to her parents leaving her legally wedded husband behind. The Judgement was reversed by the Supreme Court and “Right to Choose a life Partner” was made a Fundamental Right under Article 21 of the Indian constitution.

Legality and Morality: The difference:

In the 2010 Judgement of S.Khushboo v. S Kanniammal the Supreme Court drew the line between morality and criminality and observed:

[T]he acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”

There is no doubt that morals drive legislation to suit the flow of Society but the  imposition of private morality should not be made an imposition on people unwilling to adhere to it.

Above all, in cases of Sukhvir Singh And Another vs State Of Punjab And Others ,Sumanpreet Kaur And Anr vs State Of Punjab And Others and Lovepreet Singh And Another vs State Of Punjab And Others , it was Punjab and Haryana High Court that was of the view thatIt is not for this Court in a protection petition to engage itself in social mores, norms and human behaviour or introduce personal ideas on morality.” All three of these judgement were from a single Judge bench maybe that is why the court did not feel obligated to follow the principle of stare decisis.

Law and Live-in:

Live-in relationships are not legalised, that is, there is no special statute which governs them but there are ample examples in the form of Judicial precedents to give them legal recognition or prevent the outright dismissal of existence of such relationship in the society in addition to the Domestic Violence Act,2005.

Domestic Violence Act,2005:

In section 2(f) of the Domestic Violence Act defines ‘domestic relationship’ as:

a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family; 

Judicial Precedents:

In the 1992 case of S.P.S. Balasubramanyam v. Suruttayan, Supreme Court ruled that “continuously living together under the same roof and cohabiting for a number of years would raise presumption of living as husband and wife”

The Supreme Court in Mohan Singh v. Rajni Kant (in 2010) and ever since has consistently ruled that a man and a woman living together will be presumed to be married unless proven otherwise. The general presumption maintains marriage as against to concubinage.

  In the 2010 case of Ramkanya Bai v. Bharatram( (2010) SCC 185) The apex court held that children born out of live-in relation are legitimate and that the very purpose of section 16 of Hindu Marriage Act,1956 is to provide legitimacy to previously illegitimate children.

The Supreme Court, in Indra Sarma case delivered on 26th November 2013 says: “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country.” The same judgement extended the protection of Domestic Violence Act, 2005 to women who are in a Live-in relationship. 

In the landmark case of S. Khushboo v. Kanniammal( (2010) 5 SCC 600), the Supreme Court held that a living relationship comes within the ambit of right to life under Article 21 of the Constitution of India. The Court further held that live-in relationships are permissible and the act of two major living together cannot be considered illegal or unlawful.

Progressive Jurisprudence of Indian Courts:

Honourable Justice A.K. Ganguly in Revanasiddappa v. Mallikarjun said that “with changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”

In Naz Foundation v. NCT of Delhi, which first declared the infamous ‘sodomony law’ as unconstitutional. While delivering the said judgement Chief Justice of Delhi High Court, A.P. Shah wrote that “If there is one constitutional tenet that can be said to be the underlying theme of Indian Constitution it is that of “inclusiveness”… this was the “spirit behind the Resolution” of which Nehru spoke so passionately. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual”

Morality and LGBT Community:

The Supreme Court’s NALSA Judgement in 2018 paved a new wave of freedom for the LGBTQIA+ community. This community which has been marginalised and disadvantaged from the time immemorial were not legalised but decriminalised. Legalisation means introduction of Statue for recognition.

This means that the only way a LGBTQIA individual can form a household partner is in the form of a Live-in relationship. Inability of state organs in providing protection to Live-in couple jeopardises the newly acquired rights of the community which are already in a nascent 

stage, breeding inequality and injustice in the society. The Punjab and Haryana High Court’s Judgement do not only make a cis gengered heterosexual couple’s relationship immoral for not availing their rights. The judgement also shames the LGBT community which does not have any other choice but to be in a live-in arrangement with their partner.

Conclusion:

With changing sensibilities in the societies on how they see connubial relationships it is high time that the state organs shift their moral standards to suit the ideas of the people they represent. 

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Aditi Dixit.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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