Who is entitled to protection? See live-in relationships from lens of personal liberty and not moral compass, say legal experts

Lately, courts across the country have expressed divergent views in cases where couples in live-in relationships seek protection on account of perceptible threats either from their own family members or from society.

While in some cases, such couples were refused any judicial intervention for reasons like "live-in relationship cannot be at the cost of the social fabric," other courts took a view that such couples were entitled to the right of protection and personal liberty.

Legal experts opine that morality cannot be a higher touchstone than personal protection, while also highlighting the need to clarify the position of live-in relationships legally and otherwise in our country.

Though the facts are different in each case, the commonality in such cases bears the presence of consenting adults who move courts fearing harm to their lives.

In one such case recently, the Allahabad High Court said it did not wish to grant protection to the parties as it would amount to the Court “sanctifying their illicit relations.” The order went on to add,

“Live-in-relationship cannot be at the cost of social fabric of this country. Directing the police to grant protection to them may indirectly give our assent to such illicit relations.”

In the present case, one of the petitioners was still married and hadn’t divorced the estranged partner.

While the Court clarified that it wasn’t against granting protection to people who wanted to live together irrespective of which community, caste or sex they belonged to, no law abiding citizen who was married under the relevant laws could seek protection of the Court for an illicit relationship, which is not within the purview of social fabric of this country.

Most recently, a Single Judge Bench of the Rajasthan High Court relied on the above Division Bench decision of the Allahabad High Court to reject a similar prayer for grant of police protection. The Court granted liberty to the petitioners to approach the police in case of need.

In another ruling, the Punjab & Haryana High Court observed that couple before it were adults and, therefore, entitled to live together in a live-in-relationship. As a result, they were entitled to protection of their life and liberty.

Delhi-based criminal lawyer Manoj Taneja fails to find any consistency in the orders from various courts on grant of protection to such couples.

“Looking into the trend seen from the various orders in such cases, there seems to be no consistency in the approach. More than following the law laid down by the Supreme Court, the orders follow the moral aspect,” he underlined.

The lawyer pointed out that moral values take precedence over the legal aspects in such orders.

“Live-in relations have become part and parcel of life and stands approved by the Supreme Court. Here comes the relevance case and importance of Article 21 of the Constitution that says no person shall be denied life or person liberty,” he added.

In 2018, the Supreme Court while dealing with the matter of a runaway couple, noted that “live-in relationship is now recognised by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.”

Recently, two couples sought protection from the Supreme Court on the ground that their representations weren’t considered by the police authorities.

The apex court subsequently directed the petitioners to supplement their representation to the police.

“Needless to state that since it concerns life and liberty, the Superintendent of Police is required to act expeditiously in accordance with law, including the grant of any protection to the petitioners in view of the apprehensions/ threats, uninfluenced by the observations of the High Court,” it said.

Advocate Abhimanyu Tewari, who represented the couples in these cases, elaborates on the aspect of who is entitled to such protection.

“Even if a person comes and says I have not taken divorce, one needs to look at the judgment abolishing adultery, which says this is not our business. Adultery is not an offence,” he declared.

Secondly, the laws of protecting personal liberty have to be viewed from the decided cases of Sunil Batra, DK Basu and other cases pertaining to serious crimes.

“Our law of personal protection has actually come from Charles Sobhraj. These were all convicted criminals of heinous offences. The Courts even then said these persons had to be protected. Law of private protection has always been antithetical to everything including social morality. So where is the question of morality?" he asked.

In the context of the Supreme Court's striking down of Section 497 of Indian Penal Code (IPC), which penalised adultery, Tewari added.

“Morality cannot be at a higher touchstone than personal protection. Physical liberty, Courts have decided to decongest it but people still come. Consistently as a state failed to codify personal protection coherently."

Looking into the issue of personal protection, Tewari referred to the “inability of the system to codify personal protection provisions” either in the form of a “detailed executive action or in the form of tribunalisation or in the form of a commission."

“As a class, where do these people go? Where does a person who feels threatened in society where does that person go? That’s the question,” the lawyer said.

Courts flooded with protection cases

Tewari thinks that the proliferation of such cases in constitutional courts also stems from the absence of a government website or portal where citizens can file applications and can be guided towards an assessment of their safety by the authorities.

Though the courts have recognised the “bottleneck” and tried multiple times to resolve this problem, Tewari said that such cases have devolved into an industry, as evidenced by the inappropriate legal counsel given to such petitioners.

“For example, there is no reason why these people are coming 300 kilometres away to Punjab and Haryana High Court, when the same relief can be given 20 kilometres away. Why is person from Amritsar not going to the district court concerned, but coming all the way to the High Court?” he asked.

The point Tewari attempts to make is the distribution of inherent powers to all courts when it comes safeguarding the Fundamental Rights of citizens.

“There is power in every judge. When someone is anticipating a threat, it could amount to an IPC offence. Under 156(3), one can go to the local magistrate and say that this or that person is threatening me. The magistrate can act under 156(3) and direct the police to investigate,” he emphasized.

In 2012, although dealing with the case of a runaway couple that had married against their families' wishes, the Punjab and Haryana High Court had directed that such couples could approach any of the district judges in the Punjab, Haryana and Chandigarh and also the Deputy Commissioner and Senior Superintendent of Police in all the districts of the States and the Union Territory, irrespective of the place of their residence.

On May 12, 2021, the Punjab and Haryana High Court dealt with the case of a couple, one of whom was “barely 18 years old” and the other was 21years old.

“They claim to be residing together in a live-in relationship and claim protection of their life and liberty from the relatives of petitioner no.1. In the considered view of this Bench, if such protection as claimed is granted, the entire social fabric of the society would get disturbed. Hence, no ground to grant the protection is made out,” it held.

Another bench of the same Court on May 18 dealt with the question of protection to an adult couple in a live-in relationship who had a threat perception from their family members. Here, the order examined the matter from the viewpoint of constitutional courts granting protection to couples who marry against their parents’ wishes and seek protection of life and liberty from their parents and family members.

“An identical situation exits where the couple has entered into a live-in-relationship. The only difference is that the relationship is not universally accepted. Would that make any difference ? In my considered opinion, it would not,” it held.

“No citizen can be permitted to take law in his own hands in a country governed by Rule of Law,” the order added.

Senior Advocate Vikas Pahwa highlights that the divergent views of the courts beg for a clarity on live-in relationships.

“India has witnessed a drastic change in the way the youth of our country perceives their relationships. Living-in is very much prevalent in our society and is something which is recognised even by the Supreme Court on various occasions while dealing with maintenance and protection of couples. Living together is part of the right to life which is covered under Article 21 of the Constitution of India.”

The senior lawyer also underlined the Supreme Court ruling that live-in relationships may be immoral in the eyes of certain people, but it is certainly not illegal and does not give rise to any offence in criminal law.

“However there are divergent views of High Courts. It’s high time the Supreme Court intervenes and clarifies the position of live-in relationships legally and otherwise in our country,” he concluded.

Even as the issue remains open for judicial scrutiny, a larger Bench of the Punjab & Haryana High Court is set to decide whether the Court, without examining the marital status and the other circumstances of the case, can grant protection to two persons living together.