New Delhi: In a recent order, the Allahabad High Court refused police protection to a couple who had sought its assistance by seeking directions to the Uttar Pradesh government and their family members, to not interfere with their peaceful marital life. Saying it did not find any “serious threat perception” to the couple’s lives, a single-judge bench of Justice Saurabh Srivastava said there was no requirement for passing any order for the couple’s police protection. Among the reasons given for the plea’s rejection was the lack of evidence to believe that the couple’s relatives or anyone else, was likely to cause physical or mental assault to the couple.
“In a deserving case, the court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society,” the court said in a two-page 4 April order rejecting the couple’s plea.
Allahabad HC’s order in Shreya Kesarwani’s case is not the first instance of the court denying protection to runaway, interfaith, or even non-heterosexual couples.
An analysis of a slew of protection pleas before the Allahabad High Court in the last two years by ThePrint reveals a continuing trend of denying protection to couples, several of whom were seeking protection while being in live-in relationships, while others feared interference from their relatives and the state, while being part of interfaith relationships and marriages.
On the face of it, this reflects a stark contrast from the high court’s earlier position of primarily providing such relief to couples who were encountering threats to their lives and liberty. For instance, in November, 2020, legal news portal LiveLaw had surveyed 117 orders of the Allahabad HC, where it granted protection to more than hundred inter-caste and interfaith couples.
“In orders passed in 117 cases last month, the High Court asked the Senior Superintendent of Police of the concerned district to act upon the complaints of the couples, who were facing threat to life and liberty from relatives on account of their marriage outside caste/religion,” it was reported.
“Law is settled that it is the right of married couple to live peacefully without any interference in case they are major,” the Allahabad High Court had said in the case of Shabana vs State of UP, while citing the SC’s 2006 ruling in Lata Singh vs State of UP, as it granted relief to the couple, nearly 5 years ago.
Coincidentally, it was the same 2006 ruling that the Allahabad HC cited this year to deny protection to the runaway couple in Shreya Kesarwani’s case, stating that such protection could not be claimed as a “matter of right”.
With regards to the ruling by the Allahabad HC in Kesarwani’s case, Ayushi Sharma, Senior Resident Fellow, Vidhi Centre for Legal Policy, said, “It seems the high court has dismissed the protection plea on rather shaky grounds. In a 2024 judgment, the Supreme Court issued guidelines for protecting intimate partners, directing that courts must immediately grant police protection before getting into the question of grave risk of violence or abuse.”
“While the guidelines were issued in a specific context, the broader principle is to protect the right to choose one’s partner and live peacefully. There is also a recognised problem of violence and interference in the personal lives of couples who have married for love or across faiths, and remarks such as courts not being meant to protect youths who have married of their own choice are deeply problematic. The right to choose is a fundamental right, and this order defeats the spirit of the Supreme Court’s judgment and undermines the couple’s rights to life, liberty, privacy and dignity,” she said.
Another trend witnessed in the Allahabad HC is that two judges—Justices Saral Srivastava and Renu Aggarwal—have routinely denied protection to both interfaith and live-in couples in Uttar Pradesh for a host of reasons, including non-compliance with the provisions of The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, deviance from social norms, not meeting the minimum marriageable age and the non-permanent nature of their relationship, in cases of live-in relationships. Both these judges hold the writ petition rosters in the court.
Significantly, these rulings denying protection continued even in the wake of the Supreme Court’s 2024 guidelines delivered by a three-judge bench led by the then CJI D.Y. Chandrachud in “Devu G Nair vs. State of Kerala”, where it said, “The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant.”
“Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse,” the Supreme Court had ruled.
The law laid down by SC
Relying on the guidelines laid down by the Supreme Court in its 2006 ruling in “Lata Singh vs. State of U.P.”, the Allahabad HC, in Kesarwani’s case, underlined that courts are not meant to provide protection to youths, who have “simply fled to marry according to their own wishes”.
In Lata’s case, a two-judge bench dealt with the question concerning the abuse of the legal process in an inter-caste marriage, where the girl’s brother allegedly assaulted, humiliated and harmed the property of the woman’s husband. Eventually, the husband was also detained in jail, after being arrested on a complaint made by the woman’s brothers.
While quashing the criminal proceedings and the FIR against the husband, the top court directed the police to ensure at all the concerned places that neither the woman nor her husband or his relatives are “harassed or threatened”. It also said that the police should ensure that “no acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly as per the law, by the authorities concerned.”
Apart from this, the Supreme Court’s 11 March, 2024, ruling in “Devu G Nair vs. State of Kerala”, by a three-judge bench led by former CJI Chandrachud, issued guidelines to HCs across the country for dealing with habeas corpus petitions or pleas seeking police protection.
“…A court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse. The protection granted to intimate partners must be with a view to maintain their privacy and dignity,” the bench, also comprising Justices J.B. Pardiwala and Manoj Misra, said.
Other guidelines given by the top court in Nair’s case included ensuring that habeas corpus pleas or protection petitions be given priority in listing and hearing before courts. “A court must avoid adjourning the matter, or delays in the disposal of the case,” it said. It also included other guidelines like dissuading the court from making “roving” enquiries into the precise nature of the relationship between the parties which are approaching the court.
The court had also said that an effort must be made “to create an environment conducive for a free and uncoerced dialogue”. It also encouraged courts to conduct in-camera proceedings and interactions, to ensure the privacy and safety of the couples in such cases.
Instances of Allahabad HC denying protection
An analysis of 11 orders passed by Justices Srivastava and Agarwal in Allahabad HC, led to the discovery that protection pleas by interfaith or live-in couples were rejected continuously. Among the orders analysed, five dealt with couples in live-in relationships, while another five dealt with interfaith relationships, one dealt with a runaway couple.
The reasons why court denied protection to these live-in or interfaith couples mainly included deviation from social norms, not meeting the Hindu Marriage Act’s minimum marriageable age requirement (18 years for women, and 21 for men), having a spouse alive, granting protection to “illegal cases”, not seeking divorce in a court of competent jurisdiction, and even creating “chaos in society”. In one of the cases, namely that of a UP woman called Sneha Bisht, the court said the couple had nothing on record “to show that they are living as husband and wife, except their affidavit”. The court also went on to say that a proof of joint account, or financial security could have been produced. In another case, the court rejected an interfaith couples’ plea for police protection while observing that the 2021 Act made it mandatory for interfaith couples to seek conversion, in order for the marriage to be solemnised.
The cases heard by Justice Saral Srivastava
On 10 January last year, in the case of Ayesha Chauhan, a bench of Justice Saral Srivastava denied protection to a Hindu-Muslim couple, saying that the marriage was not solemnised in accordance with the law. It also said there was no compliance with the 2021 UP Prohibition of Unlawful Conversion of Religion Act, and dismissed their plea. However, it also left an option open for the couple—if they could solemnise their marriage in accordance with the law, they could file a fresh plea.
A day later, on 11 January, 2024, in the case of Farah B. Kumar vs State of UP, Justice Srivastava passed an identical order, saying that since the couple had not solemnised its marriage in accordance with the 2021 anti-conversion law, it could not get the protection it sought.
Five days later, 8 interfaith couples were denied protection on 16 January, 2024, in X vs State of Uttar Pradesh, by the same bench. These Hindu-Muslim couples had moved the Allahabad HC seeking protection of their life and liberty, and non-interference in their marital lives.
Rejecting their pleas in one go, the court said that solemnisation of the petitioners’ marriages were not in consonance with the 2021 Act. Notably, the court did not state which provisions of the Act were being violated in this case.
That same day, the bench of Justice Srivastava denied protection to a woman named Nagma Bano, who claimed she was forcefully married to a man against her will after her previous husband passed away. Bano approached the court that she was actually in love with a Hindu man, Ashish Kumar, and the two had started living together.
Not only did the court deny her protection, but it also imposed Rs 10,000 as costs on her, while saying that she has to live in accordance with societal norms. “To live in a society in a peaceful manner and in accordance with custom and tradition, social values, every individual is under obligation to follow the norms which are ethical, moral and uplifts the morality of the society. These norms cannot be disregarded or ignored on the ground of protection of personal liberty to every individual under Article 21 of the Constitution,” the court said.
In another order passed by Justice Srivastava, on 16 January, last year, one Kajal Rani approached the Allahabad HC for police protection on grounds that she was both a major and married. Dismissing her plea, the court stated that “there is no proof of marriage of petitioners on record, therefore, the relief prayed for by the petitioners cannot be granted. Similarly, in another case, Sariya vs. State of UP, Justice Srivastava rejected the couples’ plea for police protection on 10 January, last year, although they were both married and of age. In doing so, the court noted that an FIR had been lodged in their case, and dismissed their plea.
Simply put, these orders reveal a host of reasons for rejection, ranging from the lodging of FIR, to lack of marriage proof. Others included an obligation to follow societal norms and values, and non-compliance with the state’s anti-conversion law.
Cases heard by Justice Renu Aggarwal
On 5 March, 2024, Justice Renu Aggarwal of the Allahabad HC, dismissed the protection plea of a Hindu-Muslim couple, while observing that although, “No one has the right to interfere in the personal liberty of two adults”, the right to freedom or personal liberty “is not an absolute or unfettered right” and is qualified by some restrictions too.
The 2021 Act makes it mandatory for interfaith couples to seek conversion according to its provisions, the court said while adding: “In the case at hand, admittedly, none of the petitioners has moved an application for conversion of religion in accordance with Section 8 and 9 of the Act.”
Taking note of the fact that the parties had not applied for conversion so far, and that no FIR was lodged by their parents, it said that it appeared there was “no challenge to the relationship of petitioners” and dismissed their plea.
Significantly, the court also noted that the anti-conversion law is not just applicable to marriages, but also to live-in relationships, or relationships in the nature of marriage.
“Courts have power to interpret the provisions of law if there is ambiguity in the provisions of law, but, the above mentioned law is explicit which mandates that conversion is required not only in cases of inter-caste marriages but relationship in the nature of marriage.”
Similarly, in Sneha Bisht vs State of UP, Justice Aggarwal, on 7 March last year, a married adult couple had approached the Allahabad HC, saying that their family members were not happy with their relationship, while seeking security of their life and property. Dismissing their plea, a bench of Justice Agarwal noted that the couple must be of legal age to marry, be qualified to enter into legal marriage including being unmarried.
“There is nothing on record primarily to show that they are living as husband and wife except their affidavit. No proof of joint account or financial security is produced,” Justice Agarwal said.
The court also went on to note that since one of the parties was born in the year 2005, they weren’t of marriageable age. The legal marriageable age in India for females is 18, but for males it’s 21.
“From the High School Marksheet of the petitioner No.2, it is apparent that petitioner No.2 is not of marriageable age, therefore, no such protection can be granted by this Court to live in relationship in contravention of law,” the court had said dismissing their protection plea on grounds of not meeting the minimum age requirements.
Besides this, earlier on 15 February last year, Justice Agarwal, while hearing the petition filed by one Pinki before the Allahabad HC for non-disturbance in her married life, noted that since there was no document to prove that the wife had obtained a divorce decree from a court of competent jurisdiction signaling the end of her previous marriage, she would still be considered “legally wedded” to her previous husband, and would be considered to be living in adultery with her current partner.
“The court could not protect such type of relationship which is not supported by law. If the court indulge in such type of cases and grant protection to illegal relationship, then it will create chaos in the society,” the judge had said by way of a three-page order, dismissing her plea while also imposing Rs 2,000 as costs on her.
The same day, Justice Agarwal turned down the protection plea of a Hindu live-in couple in “Raksha vs State of UP”, while noting that the wife was already legally wedded to her husband, and hadn’t sought divorce from a court of “competent jurisdiction”.
“According to Hindu Law, a person having a spouse alive cannot live in illicit and live-in-relationship in contravention of the provisions of law. Hence, this type of relationship cannot be supported by the orders of the Court,” the court said while dismissing the plea.
Living in a live-in-relationship cannot be at the cost of social fabric of this country, the court said, while adding that granting protection in such cases may indirectly give “assent to such illicit relations.”
Days later, on 22 February, 2024, Justice Agarwal, heard another similar plea, Prateeksha vs State of UP, where the couple sought protection and security from the state, along with non-interference in their “peaceful married life”. Pointing out that one of the parties was a major, that is 18, but not of marriageable age which is at present 21 for boys, the court noted, “Section 5 of the Hindu Marriage Act provides that girl should be of 18 years of age and the boy should be of 21 years of age at the time of marriage to solemnise marriage under the Hindu Marriage Act.”
Similar to the reasons given by Justice Srivastava, an analysis of the grounds invoked by Justice Agarwal to reject the protection pleas revealed non-adherence to the minimum age requirement under the HMA, destroying the social fabric of the country, having a living spouse, lack of proper marriage proof, and non-compliance with the anti-conversion law.
Reactions evoked in the legal and academic circles
Alok Prasanna Kumar, Co-Founder and Lead, Vidhi Karnataka, told ThePrint that the reasons for this rejection of protection pleas by the Allahabad HC could stem from a number of reasons. “Such cases are huge in numbers, and the Allahabad High Court is already one of the most overburdened courts in the country. This could be one of the reasons that the court is rejecting protection pleas. For instance, the Punjab and Haryana High Court has a set of guidelines for such cases. Something like that could be done with Uttar Pradesh as well.”
Underlining that there have been several instances of couples being kidnapped, or harassed, Alok said, “The more problematic part, however, is the observation that some of the judges make in these orders. This could also be done with a view to deter such couples from coming to the court altogether. Judges, too, should avoid making generalised observations since many of these people are coming to the courts because the police are not coming to their aid.”
Speaking to ThePrint, Allahabad-based advocate Abhinav Gaur, who has been practising at the Allahabad HC for a period of 10 years now, said that couples marrying outside their caste or religion, often seek protection for a host of different reasons, even if they have entered into wedlock lawfully. These could range from facing threats of persecution from their family members, to false criminal cases and FIRs lodged against them, he adds.
“In such a situation, the courts must first ascertain if the couple has married lawfully, and if there is a threat perception to their life and liberty. It then directs the jurisdictional police officers to ensure that no false first information report (FIR) or complaint is lodged against the couple due to their act of marrying,” Gaur said.
Saying that this is also done to ensure that such couples are not faced with situations where the society harasses them by filing complaints, Gaur added, “Police officers can act on these complaints and cause hindrance to their peaceful wedded life. However, we must understand that courts are not to provide ‘personal’ police protection to each couple against the threat of life. Rather, it protects them from lodging FIRs or complaints by the family members or society.”
Adding a note of caution, Gaur also said that such remedies, however, will not be available to persons who haven’t married in accordance with the law, and to such couples who have no such threat.
He also cited the Supreme Court’s 2006 ruling in Lata Singh vs. State of UP, where it said that the caste system is a curse on the nation, and the sooner it is destroyed the better. In that case, the court had taken note of disturbing news coming from different parts of the country that inter-caste couples were being threatened with violence. Terming such threats, harassment or acts of violence as “wholly illegal”, the court had said that those perpetrating them must be severely punished. “This is a free and democratic country and once a person becomes a major, he or she can marry whosoever he/she likes,” the court had said.
(Edited by Zinnia Ray Chaudhuri)
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