A larger bench of the Punjab and Haryana High Court will decide on whether the court can grant protection to couples in a live-in relationship. And if the answer to the question is in the negative, then what are the circumstances in which the Court can deny them protection?
Justice Anil Kshetrapal on May 21 referred the issue to a larger bench on the heels of a plea filed by a couple in a live-in relationship who sought the court's protection.
"It appears that various benches of this Court, of co-ordinate strength, have formed different opinions on the matter concerned, which cannot be easily reconciled," the judge observed while requesting the Chief Justice to constitute a larger bench to decide on this issue.
Between May 11 and May 18, the high court heard at least five pleas filed by couples living in together seeking protection. Three single judge benches granted protection, whereas two others—including Justice Kshetrapal denied protection
In granting protection, the three benches reinforced settled jurisprudence on the concept of live-in relationships. In denying protection, the two single judge bench orders fly in the face of settled law and several Supreme Court verdicts which rule that living in together without marrying is an individual's right and not an offence.
All orders were passed in cases of heterosexual couples in live-in relationships who sought police protection for fear of reprisals from their respective families.
On May 11, Justice HS Madan in a brief order observed that the petitioners—a heterosexual couple—"in the garb of filing the present petition are seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable and no protection order in the petition can be passed".
On May 12, Justice Kshetrapal observed that if protection was granted to the couple in a live-in relationship "the entire social fabric of the society would get disturbed."
On May 18, two orders passed by Justice Jaishree Thakur and Sudhir Mittal however reinforced settled jurisprudence on live-in relationships and granted protection.
Furthermore, on May 12, Justice Alka Sarin, though refraining from expressing an opinion on the validity of the relationship of a couple living-in together, however, observed that they were adults and thus had a right to "live their life on their own terms."
What does the law say about live-in relationships?
There is no law that implicitly allows or denies live-in relationships. However, the legislature has acknowledged live-in relationships in the Protection of Women from Domestic Violence (DV) Act, 2005.
The DV Act does not use the term "wife", rather it accords protection (and gives maintenance) to women who are in a 'domestic relationship'. The DV act further allows magistrates to grant statutory relief to women in "relationships in the nature of marriage". Even the Hindu Marriage Act, 1955 confers legitimacy to children born outside marriage.
"Thus, the female live-in partners and the children of live-in couples have been accorded adequate protection by Parliament," Justice Thakur noted in her May 18 order.
Live-in couples entitled to same protection as married couple
Live-in couples are entitled to the same protection as that granted to a married couple, Justice Mittal observed. An individual has the right to choose their partner, and whether they want to formalize the relationship through marriage or to adopt the non-formal approach of a live-in relationship, he added.
Justice Mittal added that the concept of live-in-relationships which crept into our society from western nations initially found acceptance in the metropolitan cities and now has slowly percolated into small towns and villages. This shows social acceptance for live-in relationships is on the increase. Education, Justice Mittal observed, has played a great role in the development of this concept.
In his order, Justice Mittal compared the situation where married couples facing persecution from a society that disapproves of their alliance sought protection to an identical situation vis-à-vis an unmarried couple. "The only difference is that the (live-in) relationship is not universally accepted. Would that make any difference? In my considered opinion, it would not. The couple fears for their safety from relatives in both situations and not from society. They are thus, entitled to the same…" Justice Mittal's order read.
Justice Jaishree Thakur in her order granting protection to a couple said living in together without marriage may not be acceptable to all, but it is not an offence. "It would be a travesty of justice in case protection is denied to persons who have opted to reside together without the sanctity of marriage, and such persons have to face dire consequences at the hands of persons from whom protection is sought," Justice Thakur added.
Justice Thakur said, "Once an individual, who is a major, has chosen his/her partner, it is not for any other person, be it a family member, to object and cause a hindrance to their peaceful existence." Thus, the courts would be failing in their constitutional duty if protection was not granted to such individuals.
"If the petitioners herein have not committed any offence, this court sees no reason as to why their prayer for grant of protection cannot be acceded to. Therefore, with due respect to the judgments rendered by the Coordinate Benches, who have denied protection to couples who are in a live-in relationship, this court is unable to adopt the same view," Justice Thakur said making a veiled reference to decisions rendered by Justices Madan and Kshetrapal.
The legislature recognizes live-in relationship: Supreme Court
The Supreme Court in its 2018 Nandakumar verdict, emphasized that the legislature recognizes a live-in relationship that can be found under the provisions of the DV Act. Under the proviso to section 2(q) of the Act, a woman living with a man in the nature of a marriage may file complaints against her partner and his relatives.
In its 2013 Indra Sarma verdict, the top court said that a live-in or marriage-like relationship is neither a crime nor a sin even though it is socially unacceptable in this country. "The decision to marry or not to marry or to have a heterosexual relationship is intensely personal," the verdict read. In its Lata Singh verdict, the apex court observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral.
Multiple courts have granted live-in couples—heterosexual or same-sex couples—protection as their fundamental right to life under Article 21. More recently, the Kerala High Court passed a significant verdict where it held that a child born out a live-in relationship could be construed as having born to a married couple. "Law does not differentiate unwed couple and legally wed couple to recognize biological parents," the division bench of the high court said.
Editor's Note: This story has been edited to reflect the development where the Punjab and Haryana High Court have referred the issue of granting protection to live-in couples to a larger bench.