Allahabad High Court: In a writ petition relating to a live-in relationship, the division bench of Sangeeta Chandra and Narendra Kumar Johari, JJ. has said that writ jurisdiction being extraordinary jurisdiction is not made to resolve such type of dispute between two private parties. This is a social problem which can be uprooted socially and not by the intervention of the Court in the garb of violation of Article 21 of the Constitution of India, unless harassment is established beyond doubt.
In the case at hand, a Hindu woman aged about 29 years and a Muslim man aged about 30 years (petitioners) were living with each other due to their prolonged love and affection. They have claimed that the local Police is harassing the man and his family members as he is in a live-in-relation.
The Court noted that the petitioners wish to marry in the near future is not stated in the writ petition. It has also not been stated for how long the petitioners have been in this live-in-relationship. Neither have they stated their current marital status. They have also not stated anywhere in the writ petition any specific instance of the police coming and knocking on their doors or taking them to the police station.
After taking note of S. Khushboo v. Kanniammal, (2010) 5 SCC 600, wherein the Supreme Court observed that a man and a woman living together without marriage cannot be construed as an offence. It said that there was no law which prohibits live in relationships or premarital sex. Living together was interpreted as a facet of the right to life. The Court said that these observations were made in the context of facts of this case.
The Court said that Live-in relationship is nowhere defined in the Domestic Violence Act and took note of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469; wherein the Court defined “domestic relationship”, as a relationship in the nature of marriage. It laid down certain conditions which if fulfilled would amount to a “domestic relationship”, such conditions include long duration of live-in relationship, a shared household, pooling of resources and financial arrangements, sexual relationship, holding out to the society as husband and wife.
The Court said that the observations of the Supreme Court as aforesaid cannot be considered to promote such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. The Supreme Court is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life. Awareness has to be created in young minds not just from the point of view of emotional and societal pressures that such relationships may create, but also from the perspective that it could give rise to various legal hassles on issues like division of property, violence and cheating within live-in relationships, rehabilitation in case of desertion by or death of a partner and handling of custody and other issues when it comes to children born from such relationships. Partners in a live-in relationship do not enjoy an automatic right of inheritance to the property of their partner.
The Court said that the Supreme Court on several occasions has observed that Section 125 of the Code of Criminal Procedure, 1973 (‘CrPC’) is not meant for granting of maintenance to the “other woman”, thus, it does not include live-in partners for maintenance claims.
The Bench further said that persons entering into marriage are governed either by their personal laws or laws such as the Special Marriage Act, 1954. While marriage between Hindus is considered being a Samskara (a sacrament), but under Muslim law marriage is a contract.
The Court also said that, in Muslim law no recognition can be given to sex outside marriage. “Zina” which has been defined as any sexual intercourse except that between husband and wife includes both extramarital sex and premarital sex which is not permissible in Islam. In fact, any sexual, lustful, affectionate acts are “Haram” in Islam before marriage because these are considered parts of “Zina”. The punishment for such offence according to Quran is hundred lashes for the unmarried male and female along with the punishment prescribed by the “Sunnah” is stoning to death.
The Court said that writ jurisdiction being extraordinary jurisdiction is not made to resolve such type of dispute between two private parties. This is a social problem which can be uprooted socially and not by the intervention of the Court in the garb of violation of Article 21 of the Constitution of India, unless harassment is established beyond doubt. If there is any real grievance of a live-in couple against their parents or relatives who are allegedly interfering with their live-in status which goes to such an extent that there is a threat of life, they are at liberty to lodge an FIR under Section 154(1) or Section 154(3) CrPC, with the Police. Further, it can move an application under section 156(3) before the competent Court or file a complaint case under Section 200 CrPC.
The Bench further said that in case the parents find that illegally their son or daughter has eloped for the purpose of marriage, they are equally at liberty to take steps in a similar manner. But, when only a fictitious application with certain allegations, particularly by such persons enjoying a live-in relationship, is moved under writ jurisdiction of the High Court, it appears to be a circuitous way to get the seal and signature of the High Court upon their conduct without any verification of their age and other necessary aspects required to be done by the appropriate authority. Thus, the Court dismissed the present writ petition.
[Kiran Rawat v. State of U.P., 2023 SCC OnLine All 323, Order dated 28-04-2023]
Advocates who appeared in this case :
Counsel for Petitioner: Advocate Jalaj Kumar Gupta;
Counsel for Respondent: Government Advocate.