In my last blogpost (See here) while discussing about prejudices and perspectives of judges making their ways into the judgments and influencing the jurisprudence developed by the courts, I had little idea that the Judges of the Punjab & Haryana (P&H) High Court will readily justify it by giving successive contrasting orders relating to live-in relationship!
The concept of ‘live-in relationship’ appeared in our popular discourse when the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) afforded protection to women in a “domestic relationship” including “relationship in the nature of marriage” from their male counterparts. Although this was the first piece of legislation to provide such legal recognition outside of marriage, neither the phrase “relationship in the nature of marriage” was defined nor the term “live-in relationship” was used therein. It was in D. Velusamy v. D. Patchaiammal (2011), that the Supreme Court (SC) interpreted the phrase to mean a relationship akin to “common law marriage”. Subsequently, in Indra Sarma v. V.K.V. Sarma (2013), the SC went ahead to hold that a live-in relationship may not be socially acceptable but it is neither a crime nor a sin. It also framed guidelines for qualifying certain live-in relationships for the purpose of protection under the DV Act.
Those efforts were about determining the validity of live-in relationships and according inter se protection under the DV Act, but not about protecting the live-in couples from a third party. However, Single Judge-Benches of the P&H High Court recently gave a slew of orders in response to petitions filed by live-in couples who had approached the court for protection, especially from relatives, for residing with someone of their choice.
In December 2020 and January 2021, Justice Alka Sarin allowed the petitions of two live-in couples seeking protection of their lives and liberty as enshrined under Article 21 of the Constitution of India. She held that the petitioners are major (though not marriageable age) and “have every right to live their lives as they desire within the four corners of the law”. Neither the parents nor the society can compel otherwise.
However, on March 10, 2021, in Moyna Khatun v. State of Punjab, Justice Arvind Singh Sangwan dismissed a similar petition holding that such a relationship, not being a “marital relationship”, “cannot be morally accepted in society”. Again, on May 11, Justice H.S. Madaan, in Gulza Kumari v. State of Punjab, refused protection as such a relationship is “morally and socially not acceptable” and also criticized the petitioners for seeking approval on their relationship “in the garb of filing the present petition”. On the following day, Justice Anil Kshetarpal in Ujjawal v. State of Haryana, took almost identical position that “the entire social fabric of the society would get disturbed”. Both were one-liner orders.
Fortunately, on May 18, Justice Sudhir Mittal in Pardeep Singh v. State of Haryana turned the tide. He observed that Article 21 includes the right to choose a partner of his/her choice and the Constitution guarantees equal protection to all – married or live-in couples. He also noted that there is growing social acceptance for such relationships. On the same day, Justice Jaishree Thakur in Soniya v. State of Haryana while approving a protection plea, cautioned about the prevalence of notorious practice of honour killings in the North Indian states including Punjab and Haryana. Therefore, if protection is denied, the courts would also be failing in their duty to provide protection to its citizens under Article 21 and to uphold the Rule of law. She also referred to Shakti Vahini v. UoI (2018), where the SC had laid down various preventive and remedial measures in combating honour crimes, especially in the context of inter-caste or inter-religious marriages.
The P&H High Court orders were not only conflicting but untenable in law. The Judges imposed social and personal ideas on morality (fairness; notion of good and bad) in refusing protection to couples whose lives were under serious threat. We live in a country governed by a written Constitution and ‘constitutional morality’ must prevail over ‘societal morality’. In Government of NCT of Delhi v. Union of India (2018), Dipak Misra, CJI, had defined “constitutional morality” as “the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse.”
In Shafin Jahan v. Asokan (2018), popularly known as Hadiya’s case, the SC held: “The social values and morals have their space but they are not above the constitutionally guaranteed freedom.” Further in Navtej Singh Johar v. UoI (2018), it was held that the courts are expected “to uphold the cherished principles of the Constitution and not guided by majoritarian view or popular perception”. Significantly, Dr. D.Y. Chandrachud, J. referred to Dr Ambedkar’s words before the Constituent Assembly: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.”
The orders denying protection also ignored an array of precedents, including few mentioned hereinabove, where the courts had held that the right to choose life partner is recognized by the Constitution. It appears that the orders were nothing but travesty of justice.
Moreover, the later orders ignored the previous ones by coordinate benches of the P&H High Court allowing protection to runaway couples. The SC in S. Kasi v. State (2020) had categorically held: “Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a Larger Bench.”
Finally on May 18, 2021, the wisdom prevailed. In view of such conflicting orders of coordinate benches, Justice Kshetarpal in Yash Pal v. State of Haryana, referred the matter to a Larger Bench after framing a couple of questions: a) Whether the Court is required to grant protection to such petitioners without determining their marital status? b) If the answer to the above is in the negative, what are the circumstances in which the Court can deny them protection?
As the Judges play snakes and ladders, the petitioners with their lives in jeopardy remain the worst sufferers. The SC must take note of such fickleness and at least issue an advisory to all the High Courts to avoid such undesirable situations. I am tempted to reiterate a quote popularised by the Spiderman comics: “With great power comes great responsibility”. Hon’ble Judges of the Constitutional Courts ought to remember this.
Views expressed above are the author’s own.
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