Akash Gulati, Dr. Ram Manohar Lohiya National Law University, Lucknow.
Introduction
In a recent petition, an unmarried couple in a live-in relationship had approached the Punjab & Haryana High Court seeking protection of their life under Article 21 but the petition was dismissed, and the bench of Justice HS Madaan remarked that
“the petitioners 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.”
The couple through their counsel had submitted that because of the unacceptability from the family of the woman, as they were an inter-caste couple, they had to run away from their houses. They were under the fear that the woman’s family might threaten their life. The petitioners told the court that after being threatened by the woman’s family members, they had given a representation in April to the concerned SSP of Punjab Police through email. Since they continued to receive threats, they decided to approach the High Court for protection and security.
It is known that inter-caste relationships in India are still not accepted by many orthodox families, and the couples even before the marriage are separated by coercion, either physical or mental. That mental coercion is many a time overcome by these couples and they decide to cohabitate separately, and this is when the families in name of honor, use physical force to separate these couples, who might even be married. At this crucial point, these couples look up to the judiciary for relief in form of protection, and rightly so. The protection is granted routinely to married couples and even unmarried couples.
Progressive Norms & Precedents
In another recent case Harmandeep v. the State of Punjab [1] In the Punjab & Haryana High Court, the bench of Justice Alka Sarin accepted a similar petition stating that “without expressing any opinion on the validity of the relationship of the petitioners, it is required to consider whether the apprehension of the petitioners needs to be addressed”. The court further accepted that the couple consisted of adults who were free to cohabitate together and even though the male was 18 years old i.e., below the legally prescribed age to marry, was free to decide whom he wanted to cohabitate with. So, without determining the validity of the relationship, the court gave precedence to the “right to life and the choice of a partner” of the couple and hence directed the police to take necessary action in accordance with the law.
Though there is no law governing live-in relationships specifically, it is an accepted view that the choice of a partner is indeed a facet of the right to life, and hence protected by law.
In the case, Shafin Jahan v. Asokan K.M the Supreme Court reiterated that the right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness. Matters of dress and food, of ideas and ideologies, of love and partnership, are within the central aspects of identity. Society has no role to play in determining our choice of partners.
Problematic Reasoning of The Court in the current case
The problem with the petition dismissal in question is that it focuses more on the morality of the relationship and assumes an ulterior motive that the protection is being asked to legitimize the relationship. While even morality is subjective, the court holding the fact that the couple is unmarried and residing together as a ground to dismiss the petition is problematic, and also contrary to the spirit of Article 14, as it creates discrimination based on marital status and denies protection on the same ground.
Even if the bench deemed live-in relationships to be morally and socially unacceptable, keeping in mind that both are subjective, and the social acceptability is deemed irrelevant by way of precedent, the court had the responsibility to consider that both the petitioners being adults had a justified right to be granted protection. The bench of Justice HS Madaan could have easily accepted the petition and granted protection without commenting on the social acceptability of the consensual cohabitation of the adults, the subjective view of the bench shouldn’t have taken precedence over a well-established view of the law.
The harsh reality of society remains even in recent years honour killing is still existing in India, and when people themselves are under the fear of being threatened by family members and fail to avail police protection, the only hope is the judiciary, in the cases of married couples it is well-established that protection is their right, but sadly when cases such as the one in discussion deny such protection just because of their marital status, it leaves them in a vulnerable position. It contravenes the spirit of Articles 21 & 14.
Conclusion
Gladly it is a routine task that married and unmarried couples are granted protection by the courts, but it is the incidents like these that get highlighted in the media, rightly even so, but the collateral damage is that some people who are not privy to other judgments regard instances like these as the position of the judiciary on the matter as a whole, so it must be highlighted that is not the dominant position of the judiciary, it is pertinent to note that the couple was granted the protection by the Supreme Court after the High Court denied them the same.
There is a greater responsibility on the judiciary to not get restricted by societal norms or even personal bias but to rather spearhead a more progressive approach that aligns with the fundamental rights’ spirit while deciding such cases, and therefore, push society towards progressive ideals. So that one day the “social and moral unacceptability” of such consensual cohabitation of adults becomes acceptable. Judiciary should be assisting the fight for progressive ideals and should not find itself on the side of orthodoxy.
[1] Harmandeep v the State of Punjab [2021] SCC OnLine P&H 837
0 Comments