RIGHT TO LIFE AND LIBERTY OF MARRIED INDIVIDUALS IN AN INTER-FAITH LIVE-IN RELATIONSHIP
DEFINITION OF LIVE-IN RELATIONSHIP FOR THE PURPOSE OF DOMESTIC VIOLENCE ACT, 2005
As the practice of live-in relationship grows in India, the taboo connected to it also persists. There has been no clear law on live-in relationship till now but there has been judgement which has attempted to define it for the purpose of Domestic Violence Act, 2005. The Supreme Court of India in D Velusamy Vs D Patchaiammal on 21st October, 2010 specified that to consider any live-in relationship as a “relationship in the nature of marriage” –
a) The couple must present themselves to society as being each other’s spouse;
b) Both of them must be within the legal age to get married and should be unmarried when in a live-in relationship; and,
c) The couple must cohabitate together for a significant amount of time.”
Thus, having fulfilled the above criteria a woman shall be entitled to all the rights under the DV Act, i.e. maintenance, protection, alimony, and the child born out of such a relationship which is considered akin to marriage is considered to be legitimate as well.
MORALITY VS LIVE-IN RELATIONSHIP IN INDIA
It has been decided by various judgments that living in a relationship though societally immoral cannot be considered illegal and such couples are entitled to protection if required also because the fundamental rights to life and liberty under Article 21 of an individual is above the societal moral standards and personal laws. In the case of Lata Singh Vs State of U.P. in 2006 the court held that the personal liberty and the act of two consenting majors living together cannot be considered illegal. Thereafter in yet another landmark judgement of S. Khushboo Vs Kanniammal, 2010 the court’s observation was further narrowed down but safeguarded the live-in couples by observing that the living together is a part of the right to life thus a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence.
The challenge becomes grave when the two consenting adults in a live-in relationship are bound by the institution of marriage with other individuals. In Indra Sarma v. V.K.V. Sarma on 26th November 2013 the Supreme Court categorically stated that a married man living with another woman or a married women in a live-in with another man is unlawful and cannot be construed to be a relationship in the nature of marriage and hence the woman will not be entitled to invoke the provisions of DV Act.
RIGHT TO LIFE AND LIBERTY OF COUPLES IN RELATIONSHIPS NOT AKIN TO THE INSTITUTION OF MARRIAGE
Over the years there have been conflicting judgments wherein the court has in some cases denied protection to the married couples in live-in relationship based on their marital status and circumstances of the case. Justice Swarana Kanta Sharma, High Court of Delhi in one of his judgments observed, “Morality unless provided by law cannot be implemented through law. Similarly, immorality cannot be punished by law unless so provided by a statute,” Thus the Court must progressively look into the right to life of couples irrespective of their self proclaimed live-in relationship which on the face of it might appear to be adulterous. As with the judgement in the case, Joseph Shine Vs Union of India, 2019 the Supreme Court decriminalised adultery striking down section 497 of the Indian Penal Code, 1860 thus a married individual living with another person shall no more be an offence though morally incorrect, thus courts ought not to deny protection to couples on a ground which is no more an offence.
In a recent case titled Saleha and Another Vs. State of U.P. and 3 others, 2024 a muslim woman moved to her parental home after 2 years of her husband marrying a second wife against her wish and starts to live with his 2nd wife neglecting his 1st wife, the petitioner in the present case. Due to the persistent torture at her parental home the petitioner aged 44 decides to move in with a 36 year old hindu man and further apprehending danger to hers as well as her live-in partner`s life and liberty approached the Senior Superintendent of Police, Muzaffarnagar on 04.01.2024, seeking protection but in vein thus the present writ petition before Allahabad High Court praying for the court to direct the police authorities to grant them protection against her family members.
The Court has dismissed the petition vide order dated 23rd February, 2024 pointing out two significant reasons for the same:
i. The petitioner no. 1 has not complied with section 8 and 9 of the Conversion Act.
ii. The petitioner no. 1 is in a live-in relationship with petitioner no. 2 without obtaining divorce from her husband constitution and offence under section 494 and section 495 of IPC.
Thus concluding it to be a criminal act which cannot be supported and protected by the Court but rather should be punished.
Section 8 of the Anti Conversion Law deals with the procedure for a person willing to convert from one religion to another to give a declaration of the same at least 60 days in advance to the District Magistrate or the additional district magistrate while section 9 of the act deals with the post-conversion declaration. It was in the case of Nikita Vs. State of UP, 2024 in an order dated 30th January, 2024 observed that compliance of section 8 and 9 is mandatory for inter religious marriages to be able to seek protection. Which through the Saleha`s case the Allahabad High Court is attempting to extend the mandatory compliance of section 8 and 9 of the Anti Conversion law from inter-faith marriages to even on inter-faith live-in relationship which is purely based on legal morality wherein no such thing exist in the jurisprudence of the issue in question.
The second reason for the dismissal of the petition for her and her live-in partner`s protection was that the live-in relationship without a decree of divorce from her husband was a criminal act under section 494 and 495 of IPC.
Section 494 of IPC penalises a person marrying for the second time during the lifetime of the first wife or husband without getting a divorce with up to seven years of imprisonment and fine also declaring the second marriage void.
Section 495 of IPC states that Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 494 of the Indian Penal Code specifies that bigamy constitutes a crime only when a person marries again while their first spouse is still alive. The provision does not apply to situations where a married individual is in a live-in relationship with someone else without undergoing a formal marriage ceremony. Consequently, even though entering into a live-in relationship while being married might be seen as morally wrong or unethical, it doesn’t breach any criminal law. Therefore, individuals in such relationships should still be entitled to the protection of their life and liberty under Article 21, as they are not committing an offence under the law.
Thus, concluding with the observation by Justice Swarana Kanta Sharma in the case S. Rajendra Vs. State and Another, 2023, that live-in relationship between married individuals is not a criminal offence and that courts cannot impose their perception of morality on adults. “Though, as per various theories of law and jurisprudence, it is believed that the law by its inherent nature may have an element of internal morality of its own, there is nothing such as legal morality to decide the cases as the present one. Moral wrongdoing from the societal perspective and legal criminal wrongdoings are two separate issues. Though some in the society may heavily be critical of the conduct of live-in relationships of two married individuals, many others may not.”
Authored by-
Shatakshi Mathur who’s an advocate in the Supreme Court of India & Riya Raj who’s an advocate with background in journalism.