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Marriage vs live-in: Rajasthan HC order shows judiciary not on same page over couples’ rights

Rajasthan HC says courts must uphold Constitutional & not public morality. Order contradicts others in similar cases wherein a live-in couple, one of whom is married to someone else, sought protection.

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New Delhi: Amid contradictory orders on the issue from different high courts across the country, the Rajasthan High Court has ordered the police to assess the level of threat and provide protection, if necessary, to a married woman and a man, currently in a live-in relationship.

In a judgment passed on 15 September, Justice Pushpendra Singh Bhati emphasised the duty of courts to uphold ‘Constitutional morality’ as against public morality, and to refrain from infringing upon personal relationships between two “free-willed adults”.

Highlighting the importance of the ‘rule of law’, the court even cited terrorist Ajmal Kasab’s example, to assert that even a terrorist was not deprived of the right to a free and fair trial.

“When the Right to Life and Liberty is even guaranteed to convicted criminals of serious offences, there can be no reasonable nexus to not grant the same protection to those in a ‘legal/illegal relationship’,” it observed.

Of the two petitioners, Leela Bishnoi and Farsa Ram Bishnoi, in the live-in relationship, Leela is a married person. The couple entered into a ‘live-in agreement’ on 13 September this year.

Leela had told the court that she began a live-in relationship after she was harassed by her in-laws for giving birth to a girl child. The duo sought protection, citing Article 21 of the Constitution, which guarantees the right to life and personal liberty.

The court emphasised that the right to claim protection under Article 21 of the Constitution is a “constitutional mandate upon the State and can be availed by all persons alike”.

However, the order comes amid a barrage of contradictory orders this year by at least three high courts — that of Rajasthan, Allahabad, and Punjab and Haryana — on whether live-in couples can be granted protection when one of them is still married to someone else.


Also read: Gauhati HC calls IIT student accused of rape ‘state’s future asset’, grants him bail


Allahabad HC against granting protection

In an order dated 15 June, a division bench of the Allahabad High Court comprising Justices Dr Kaushak Jayendra Thaker and Dinesh Pathak, had refused protection to a married woman and a man in a live-in relationship. The court order said that the duo wanted “to commit what can be said to be an act which is against the mandate of the Hindu Marriage Act.”

“Article 21 of the Constitution of India may permit a person to have own liberty but the liberty has to be within the ambit of law which applies to them,” the order noted.

The court had then dismissed the petition, and also levied a cost of Rs 5,000 on the petitioners, asserting that “we fail to understand how such a petition be allowed permitting illegality in the society”.

A day later, the same bench rejected a similar plea for protection.

However, on 18 June, the court granted protection to a newly married couple. Justifying its stand, the court said, “We are not against the live-in relation”, and that it had only rejected the earlier protection plea because one of the petitioners was still married.

Mixed reactions to Allahabad HC order

On 29 July, a separate division bench of the Allahabad High Court comprising Justices Dr Thaker and Subhash Chand dismissed such a petition, with more detailed observations.

The court had said that it is “not against granting protection to people who want to live together, irrespective of the fact as to which community, caste or sex they belong to”.

It had, however, asserted that “no law-abiding citizen who is already married under the Hindu Marriage Act can seek the protection of this Court for an illicit relationship, which is not within the purview of the social fabric of this country”.

According to this order, while the woman had told the court that she had faced “apathetic and torturing behaviour (sic)” from her husband, the court had asserted that “live-in relationship cannot be at the cost of the social fabric of this country”.

It was this Allahabad High Court order that the Rajasthan High Court relied on to deny protection to a couple in a live-in relationship, where the woman was still married. In the order passed on 13 August, Justice Satish Kumar Sharma had said that “directing the police to grant protection may indirectly give our assent to such illicit relations”.

On 8 September though, the Punjab and Haryana High Court had expressly disagreed with the Allahabad High Court’s 29 July judgment, citing the Supreme Court’s September 2018 judgment in which it had decriminalised adultery.

Justice Anmol Rattan had ordered the police to provide protection to a live-in couple despite the fact that the man was still married and divorce proceedings in his case were pending.

‘Unholy alliance’

However, on 18 August, another judge of the Punjab and Haryana High Court denied protection to a live-in couple. The woman, in this case, was married and had a child as well, but was now in a live-in relationship with someone else. She had told the court that her husband used to mentally and physically harass her and therefore, she was seeking protection from the court.

But Justice Sant Parkash had rejected the petition, asserting that the couple “entered into an unholy alliance”.

In fact, on 7 May, a single-judge bench of the Rajasthan High Court had also denied protection to petitioners who were in a live-in relationship while one of them was married. The order, issued by Justice Pankaj Bhandari, said that such a live-in relationship “is not permissible”.

(Edited by Paramita Ghosh)


Also read: Calcutta HC says voluntary sexual acts with minors won’t be POCSO case, acquits rape accused


 

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