This Article is authored by Advocate Anil Malhotra.
Punjab and Haryana High Court dismissing two separate petitions claiming protection of life and liberty declined protection two runaway couples, held that “approval of live-in relationship is morally and socially not acceptable,” and “the entire fabric of the society would get disturbed,” if such protection is granted. The moot question. Can the benefit of protection of life and personal liberty available to persons be declined on morality. With respect, no. Article 21 of Constitution recognizes procedure established by law to deprive protection of life. Social and moral grounds are not exceptions. The preamble ordains justice, liberty, equality and fraternity. It cannot be taken away. In D.K. Basu(1996) Supreme Court held, “the citizen complaining of the 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”.
Supreme Court in Lata Singh (2006), noticing society emerging through a crucial transformational period, had observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence and a major girl 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), 9 Judges of Supreme Court held that the autonomy of an individual in relation to family and marriage were integral to the dignity of the individual. In Shafin Jahan (2017) Supreme 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 adults individuals agree to enter into wedlock and their consent has to piously given primacy. Therefore, right to choose a life partner is right to life. Social approval of personal intimate decisions should not be basis of recognizing them.
In Navtej Johar (2018) Supreme Court decriminalized consensual homosexual relationships, held sexual orientation is immutable and an expression of their autonomy and self-determination. In Murlidhar Aggarwal (1974) Supreme Court held “public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.” Hence, the Government must enact laws compliant with fundamental rights of citizens reflecting changing social mores to ingrain new generation norms of morality. The Protection of Women from Domestic Violence Act, 2005, allows Magistrates to grant statutory reliefs to aggrieved persons in “relationships in the nature of marriage”. Law has kept pace, and in reciprocity, Courts follow suit.
Maitri karar i.e. 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 to financially support his partner. No protection is needed and they remain off the radar The Hindu Marriage Act, 1955 confers legitimacy to children irrespective of being born outside marriages. Supreme Court in Bharatha Matha (2010) granted limited rights to children born out of live-in relationships to succeed inheritance in property of parents. Society abroad is in space orbit. De-facto unions or common law marriages are recognized in 29 countries in the EU. The Civil Partnership Act 2004, passed by Westminster Parliament in 2004, allows same-sex couples to register civil partnerships, with legal effects, rights and obligations as marriage does for mixed-sex couples. 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 rights of parties 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 conferred by granting protection. Life and liberty cannot be compromised on the anvil of decency. Law and society move in tandem. The synchrony has to move in parallel. It must be apposite. Not opposite.