The counsel for the State opposed the plea, submitting that both petitioners are already married and their act is illegal as they are not divorced.
Rejecting their petition, Justice Vivek Kumar Singh, in the March 20 order, observed, “The freedom of one person [ceases] where the statutory right of another person starts. A spouse has statutory right to enjoy the company of his or her counterpart, and he/she cannot be deprived of that right for the sake of personal liberty… and no such protection can be granted to infringe statutory right of the other spouse. Hence, the freedom of one person cannot encroach or overweigh the legal right of another person.”
It further said in the order, “… this court is not inclined to issue any writ, order or direction in the nature of mandamus for protection to the petitioners who are in a live-in relationship without obtaining decree of divorce from competent court… In such a situation, protection to the petitioners, who claim to be in a live-in relationship, cannot be granted.”
“… however, if the petitioners are disturbed or subjected to any act of violence, they may approach the Senior Superintendent of Police/Superintendent of Police concerned by submitting a detailed application/representation. It is expected that upon receipt of such application/representation, the authority concerned shall verify its contents and do the needful…,” it also stated in the order.
On March 25, the division bench of Justices J J Munir and Tarun Saxena had observed, “There is no offence of the kind where a married man, staying with an adult in a live-in relationship, by consent of the other person, can be prosecuted for any offence, whatsoever. Morality and law have to be kept apart. If… no offence under the law [is] made out, social opinions and morality will not guide the action of the court…”
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‘Right to freedom not absolute’
The bench of Justice Singh observed that in a marriage or a live-in relationship, there must be two consenting adults. “The concept of gotra, caste and religion is left way back. No one has the right to interfere in the personal liberty of two adults, not even the parents (sic)…,” it observed.
However, it noted that the right to freedom is not absolute.
“… the Right to Freedom or Right to Personal Liberty is not an absolute or unfettered right, it is qualified by some restrictions also. If the petitioners are already married and their spouse [is] alive, he/she cannot be legally permitted to enter into a live-in relationship with a third person without seeking divorce from the earlier spouse. He/she first has to obtain the decree of divorce from the court of competent jurisdiction before solemnising marriage or entering into… a relationship out of their legal marriage,” it observed.
The judge also referred to Supreme Court pronouncements, which states that a couple must be of legal age to marry and qualified to enter into a legal marriage — including being unmarried — and they must be akin to spouses for a significant period of time.
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“But there is nothing on record primarily to show that they [petitioners] are living as husband-wife or they have solemnised marriage after obtaining divorce from the earlier marriage. Neither proof of joint account, financial security, joint property, or joint expenditure is produced before this court nor any document… to substantiate that the petitioners are akin to spouses,” the bench observed.
The bench also spoke of certain relationships, such as polygamy and bigamy, that have not been recognised or approved as live-in relationships or relationships in the nature of marriage. Polygamy is also a criminal offence under Sections 494 and 495 IPC, it noted.
It observed that till a decree of divorce is passed, the marriage subsists. Any other marriage during this time would constitute an offence under Section 494 IPC, read with Section 17 of the Hindu Marriage Act, 1955. The person, despite conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.
The bench stated in the order, “Applying the principles of issuance of writ of mandamus on the facts of the present case, this Court finds that the petitioners have no legal right for protection on the facts of the present case, inasmuch as such the protection as being asked may amount to protection against commission of offence under Section 494/495 IPC.”
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“It is well-settled law that writ of mandamus cannot be issued contrary to law or to defeat a statutory provision, including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus,” the bench added in its order.
