Law is the guiding principle for courts, not the Quran or Hadees: Critique of a recent Allahabad High Court order

The Constitution of India guarantees individuals protection against violations of fundamental rights and confers this obligation upon the Supreme Court and all the High Courts.

Surprisingly, one of these High Courts seems to have taken a moral stance rather than enforcing the rule of law.

While deciding a writ petition by an inter-faith couple seeking protection, a Division Bench of the Allahabad High Court made references to the "fabric of Indian family life". The Court not only declined to grant relief, but also suggested that premarital sex is a social problem and haram in Islam.

The inter-faith couple who were in a live-in relationship sought protection from the High Court against the alleged harassment by the local police and the family of man, who is a Muslim by faith.

Reasons given for declining relief

The Court dismissed the writ petition while referring to Supreme Court judgments, on live-in relationships, inferring that

“The observations of the Supreme Court as aforesaid however 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. Supreme Court is simply accepting the social reality and it has no intention to unravel the fabric of Indian family life.”

The order doesn’t clarify where this concept of the “fabric of Indian family life” stems from. In India, which houses many religions having contradicting rules and rituals, where can a common fabric of Indian family life be found other than the law of the land? The Court should not weigh its order on whether it is promoting or discouraging any relationship. Like in the case of a murder trial, by acquitting the accused, the Court can’t be said to have promoted murders. 

It is disappointing that in further justification of this dismissal, the High Court had to cite Muslim law from the Quran and rely on Sunnah while stating that sex outside marriage is not permissible. It specifically referred to chapter 24 of the Quran, which deals with premarital sex. In an explicit attempt to intimidate the couple, the Court mentioned,

“The punishment for such offences according to Quran (chapter 24) is 100 lashes for unmarried male and female who commit fornication together with the punishment prescribed by “Sunnah” for the married male and female is stoning to death.”

While declining the relief of protection from police harassment, the Court also took support from the Protection of Women from Domestic Violence Act, which recognizes and protects “relationships in the nature of marriage”. In the writ petition, no domestic violence was claimed. However, to justify the negation of “relationship in the nature of marriage” and recognition of such live-in-relationships under the Act, the Court said that the petitioners have not mentioned how long they have been in a domestic relationship and whether they will marry each other.

The Court also expected the petitioners to have brought along neighbours as witnesses to testify in support of their relationship. It seems impractical to expect neighbours to certify the nature of the relationship between two individuals, more so when the woman has not claimed any relief under the Act.

The Court went on to state that awareness should be created amongst “young minds” about the societal and emotional pressures such relationships may create (as if an arranged marriage per-say absolves the couples of any societal and emotional pressure). It also cautioned “young minds” about the legal hassles of such a relationship by giving examples.

Why the order is wrong

In the present case, the grievance was an alleged violation of the fundamental right of life and liberty by the police and the mother of the man. Rather than addressing that, the Court mentions that the couple has not expressed their willingness to marry in the near future. The questions about how far they are in a live-in relationship and whether they are looking to get married seem irrelevant here, because they had not approached the Court seeking a declaration on their relationship.

The Supreme Court of India in Lata Singh v. State of UP, had directed the administration and police authorities to ensure that inter-caste or inter-religious couples are not harassed by anyone. Ignoring these directions to protect the couple from harassment,  the High Court used the occasion to spread awareness about legal hassles which might arise in terms of division of property, violence and cheating within such live-in relationships. The Court essentially suggested that rather than expecting any protection from police harassment, the couple should consider bringing this relationship to an end as it will be good for the entire ecosystem, including the belief system and the Indian family system.

Based on the judgments of the Supreme Court and the fundamental rights enshrined in the Constitution, the Court ought to have protected the lives of the couple. The writ petition prayed for protection from disturbance of the peaceful life of the couple, and not registration of FIR against her mother. Still, the Court, in order to justify the dismissal of the writ petition,  suggested a rigorous course to the couple invoking criminal jurisdiction and getting an FIR registered against the relatives. 

The couple, in seeking legal help for protection, decided to overcome the emotional and societal pressures and opted to take a recourse different from what is generally practised in society. A country which not only respects, but also celebrates plurality, can’t be expected to be guided by such orders which intend to nip the concept of plurality in its bud. Unfortunately, some systems and beliefs still exist that don’t care for the rule of law. Honour killings and institutionalized ways to get inter-caste or inter-faith couples killed through systems like Khap Panchayats continue to exist. Considering these factors and regular reports of cases of honour killing, the fear and apprehensions of the couple are genuine and serious.

Such rulings strike at the foundation of a new and modern India where inclusiveness is the basis of the social fabric and where diversity is not only acknowledged, but also celebrated. In the 21st century, when courts have decriminalised adultery, the right to privacy has been recognised as a fundamental right, same-sex relationships have been decriminalised and questions related to same-sex marriage are sub-judice, the Allahabad High Court travels backwards by intimidating and cautioning such youth. The Court finds logic in the old adalat system of the 19th Century where Hindu law was applicable to the Hindus while the law of the Quran was applied to the Mohammedans.

While saying in so many words that sex before marriage unravels the fabric of Indian family life and that in Muslim law premarital sex is “haram”, punishable by stoning to death, the Court dismissed the petition. The facade used was that if the couple had a grievance against their family, they should lodge a complaint with the police station or escalate the issue to the concerned magistrate.

India has seen many progressive laws which have overturned regressive societal practices and paved the way for modern living in changed situations. Society must move towards following the rule of law and not the other way around.

Jyotika Kalra is an Advocate-on-Record at the Supreme Court of India and a former member of the National Human Rights Commission.