Aug 07, 2024 09:15 PM IST
In several cases, the Supreme Court (SC) has recognised the mutual rights of partners in live-in relationships. At the same time, it has also spelt out the limits of such relationships that are generally frowned upon by Indian society
“Marriage is a holy relationship with legal consequences and great social esteem. Our country, with its deep cultural origins, places a significant emphasis on morals and ethical reasoning. However, as time has passed, we have begun to adopt western culture, which is vastly different from Indian culture. A portion of India appears to have adopted a modern lifestyle, namely, the live-in relationship.” Thus spoke a learned judge of the Punjab and Haryana high court (HC), Sandeep Moudgil, while deciding on a bunch of clubbed petitions on the issue of live-in relationships. Deep anguish on the diminishing regard for the institution of marriage and deteriorating standard of sexual ethics in society is writ large on every page of his judgment pronounced on July 24.
In the main case, two previously married persons in the age group of 40-44 had deserted their spouses and begun cohabiting in a third place. Outraged relatives on both sides exerted pressure on them to terminate their new-found romance and return home. To escape their wrath, the couple approached the HC, claiming they were in a live-in relationship which, as per their knowledge, was recognised by law. Complaining of harassment, they sought police protection. The learned judge, however, junked their plea and dismissed all similar petitions with one stroke of judicial wisdom (with a grain of salt).
A ‘live-in relationship’ is a bilateral arrangement under which two persons cohabit like a married couple without getting formally married under the law applicable. Extralegal relations of this nature have been prevalent in some parts of India. The concept of maitri karaar (friendship agreement) is mentioned in the literature on social practices. The English expression ‘live-in relationship’ came into frequent use after the enactment of the Protection of Women from Domestic Violence Act, 2005 (DV Act). Its provisions against family violence in marriage were extended also to “relationship in the nature of marriage.” This was, in all probability, meant to cover the cases of cohabiting partners who may have no legally admissible proof of marriage, not to provide a licence to people to avoid a legally recognised formal marriage and cohabit like husband and wife. Since then the meaning and implications of the ambiguous expression “relationship in the nature of marriage” have been discussed and adjudicated upon in a large number of judicial decisions.
In several cases, the Supreme Court (SC) has recognised the mutual rights of partners in live-in relationships. At the same time, it has also spelt out the limits of such relationships that are generally frowned upon by Indian society. In one such case, the apex court ruled that a live-in relationship can be recognised only if its partners are otherwise eligible to marry each other (Velusamy, 2010). In another, the court cautioned that every case of two persons cohabiting without a formal marriage could not be covered by the DV Act expression “in the nature of marriage” (Indra Sarma, 2013). Well aware of the established legal position in this regard, the learned judge of the Punjab and Haryana HC decided the case under comment on the same lines.
A live-in relationship between unmarried persons may have been accommodated by the law, but can a married man or woman whose marriage is subsisting in the eyes of the law also enter into such a relationship? In certain parts of India, there has been a custom known as nata pratha, according to which a deserted wife or widow may cohabit with another married man. As regards the law, until recently, such a man would have been guilty of the offence of adultery. The apex court’s Joseph Shine ruling of 2019 was believed to have changed the legal position in this regard. In a case decided two years later, however, the court refused to accord protection to a couple in a live-in relationship as one of them was married to someone else (Simranjeet Kaur, 2021).
The HC case under comment was not the first of its kind. In a similar case three years earlier, the same HC had rebuffed a couple in a live-in relationship seeking police protection since both of them were in marital bonds with others not terminated by due process of law (Kavita, 2021).
It has, over the years, been fully established by the SC that Article 21, protecting people’s fundamental right to life and personal liberty, also safeguards their right to live with dignity. The HC judge gave a new dimension to this settled interpretation by holding that if married persons enter into a live-in relationship with a third person, they violate their parents’ fundamental right to live with dignity and honour. His operative verdict was that the petitioners “being fully aware of the fact that, being married earlier, they could not have entered into a live-in relationship” were not entitled to any judicial relief.
Neither had Joseph Shine given unbridled freedom of promiscuity to anyone nor can the judge-made law on legally recognisable live-in relationships be extended to married men and women so as to let them forsake their spouses and cohabit with third persons. As regards the practice of live-in relationships in general, whatever the advocates of modernism may say, innumerable citizens of India cannot appreciate this variety of socio-legal modernisation.
Tahir Mahmood is former chairman, National Minorities Commission, former member, Law Commission of India, and professor of eminence and chairman, Institute of Advanced Legal Studies, Amity University.The views expressed are personal
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