[Live-in relation with married woman] Public Morality cannot overshadow Constitutional Morality: Rajasthan High Court

The Rajasthan High Court recently emphasised that the perceptions of societal or public morality cannot stand in the way of protecting couples in live-in relationships, even if one of the partners is married to another..When the right to life and liberty under Article 21 of the Constitution has been guaranteed in India even to convicted criminals of serious offences, there can be no reason for refusing the same protection to those in “legal/illegal relationships," the Court said."Public morality cannot be allowed to overshadow the constitutional morality, particularly when the legal tenability of the right to protection is paramount", the judgment stated..The Court noted how the State went above and beyond to protect the terrorist Kasab because India is a country where rule of law is supreme and no liberty can be taken away without due process of law. "Moral policing cannot be allowed to dictate the actions of the state nor can moral policing by the public at large be allowed or forgiven", the Court observed further..It is well-settled that it is not within the Court's domain to intrude upon an individual's privacy, Justice Dr. Pushpendra Singh Bhati said. .The judge further explained that any scrutiny or remark upon the "so-called morality" of an individual's relationship or blanket statements of condemnation would simply bolster an intrusion into one's right to choice and condone "acts of unwarranted moral policing by the society at large.".The judge went on to highlight that the Court is firmly tied down to the principle of individual autonomy, which cannot be hampered by societal expectations in a vibrant democracy. .The State’s respect for the individual, independent choices has to be held high, he said.."This Court fully values the principle that at all junctures constitutional morality has to have an overriding impact upon societal morality. This Court cannot sit back and watch the transgression or dereliction in the sphere of fundamental rights, which are basic human rights," the judgement further said. .The judge added that if the morality or legality of live-in relations were in dispute before the Court, the answer may have required more deliberation. .However, the question before the Court was confined to whether a live-in couple is entitled to protection under Article 21, it was pointed out. With respect to this issue, the Court said it is clear that there is a Constitutional mandate to give protection.."There arises no question of this right to be waived off even if the person seeking protection is guilty of an immoral, unlawful or illegal act, as per the precedent law cited of the Hon’ble Apex Court. However, in this case, this Court does not wish to delve into the sanctity of relationships," the Court said..The judge, ultimately, directed the couple seeking protection to appear before the police authorities who were asked to examine their representation and grant the petitioners adequate security and protection if the same was necessary. ."It is sufficiently clear to this Court that the Hon’ble Apex Court’s standpoint is that there exists a duty of the State to protect and safeguard all fundamental rights, unless taken away by due process of law. Even if any illegality or wrongfulness has been committed, the duty to punish vests solely with the State, that too in attune with due process of law. In no circumstance can the State bypass due process, permit or condone any acts of moral policing or mob mentality," the Court emphasised. .The judge, however, clarified that its order would not affect any criminal and civil proceedings initiated against the petitioners..The question of whether persons in live-in relationships involving partners married to others are entitled to legal protection has been under significant debate in the recent times. .The instant Rajasthan High Court order also makes a reference to several of them, including the June 15 Allahabad High Court ruling which concluded that live-in relationship with an already married person is illegal and a May 7 Rajasthan High Court ruling in which the Jaipur Bench observed that a live-in relationship involving married and unmarried persons is impermissible..In diverting from these views, Justice Pushpendra Singh Bhati also relied on several Supreme Court's rulings which dealt with the right to privacy and individual autonomy including Navtej Singh Johar v. Union of India (which decriminalised consensual sexual relations between homosexual persons), Shafin Jahan v. Asokan KM (Hadiya marriage case) and the KS Puttaswamy v. Union of India (wherein right to privacy was declared a fundamental right under Article 21 of the Constitution)..Referring to these Supreme Court rulings, the Rajasthan High Court has observed:."(The Supreme Court has observed that it is) the duty of the Courts to be guided by constitutional morality by upholding the values enshrined within the constitution and not succumbing to societal morality ... The Apex Court has laid down in no uncertain terms that the emphasis to be given to public morality is minuscule, when they are in conflict with constitutional morality, and that the Courts must uphold constitutional morality and rely on the same rather than obscure notions of societal morality, which have no legal tenability ... In addition to the Courts’ responsibility to uphold the principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free- willed adults.".Advocate Gajendra Panwa appeared for the petitioners. Public Prosecutor Arun Kumar appeared for the State. .[Read Judgment]