May 22, 2021 9:12:26 am
Declining protection to two runaway couples seeking protection of life and liberty in separate petitions, the Punjab and Haryana High Court held that “approval of live-in relationship is morally and socially not acceptable,” and “the entire fabric of society would get disturbed,” if such protection is granted. The moot question is, can the benefit of protection of life and personal liberty be declined on morality. With respect, no, not under Article 21 of the Constitution. The preamble ordains justice, liberty, equality and fraternity. It cannot be taken away. In DK Basu (1996) the Supreme Court held, “the citizen complaining of infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life he cannot get any relief under the public law by the courts exercising writ jurisdiction”.
In Lata Singh (2006) case, the Supreme Court had observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence and a girl who has attained majority is free to marry anyone she likes or “live with anyone she likes.” In Indra Sarma (2013), Supreme Court held “live-in or marriage like 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 K.S. Puttaswamy (2017), nine SC judges held that the autonomy of an individual in relation to family and marriage was integral to the dignity of the individual.
In Shafin Jahan (2017), the apex court held “the right to marry a person of one’s choice is integral to Article 21 of the Constitution” and “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 (2018), Supreme Court elucidated that consent of family and community is not necessary once adult individuals agree to enter into wedlock and their consent has to be given primacy. Therefore, right to choose a life partner is right to life. Social approval of intimate decisions should not be the basis of recognizing them.
The Protection of Women from Domestic Violence Act, 2005, allows magistrates to grant statutory relief to aggrieved persons in “relationships in the nature of marriage”. Law has kept pace, and in reciprocity, Courts follow suit. The Hindu Marriage Act, 1955 also confers legitimacy to children born outside marriage.
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Maitri karar or friendship contracts are popular in Gujarat to avoid bigamy. It is a promise of friendship and companionship between couples, at least one of whom is married and includes an undertaking by the man that he will look after or financially support his partner. No protection is needed and they remain off the radar.
De-facto unions or common law marriages are recognised in 29 countries in the European Union. Similarly, same sex marriages are now recognized in 21 countries.
The Supreme Court has attempted to accord legality to the concept of live-in relationships and protect the rights of the couples and children born to them. In a scenario of conferring protection of life and liberty, all persons are entitled to equality of law and equal protection of laws. The safety, security and liberty of persons, who have not solemnised a marriage cannot be put in peril on social and moral considerations. No approval to a live-in relationship is presumed or attributed by granting protection. Life and liberty cannot be compromised on the anvil of decency.
(The author is a lawyer and an IAFL fellow with nine books to his credit)
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