INTRODUCTION
“With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.”
Change is a rule of life. According to Marxian philosophy, the interaction between an existing practise and a new change results into a new mechanism called as synthesis. When an economic change takes place, it always brings a social and moral change. We see a similar kind of change in India owing to globalization, resulting into an evolution of a social transition chain reaction especially with regard to the Indian family and marriage structure. Marriage is considered as the basis of social relations from which we derive important legal rights and obligations. Since ancient times, it is considered as a sacred social institution in our nation. As Indian society is moving forward, the younger generation found an alternative to the concept of marriage, ergo, live-in relationship.
The term ‘live-in relationship’ primarily suggests that two unmarried individual living together without any right and responsibilities which the traditional marriage creates. In daily jargon it is called as cohabitation. Currently, the term ‘Live-in Relationship’ is not defined under any Indian statute. However, it must be observed that the Protection of Women from Domestic Violence Act 2005 clearly provides for live-in relationships as emphasized in the case of Nandakumar & Another v The State of Kerala. This can be observed by referring to the definition of domestic relationship as “two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.” Even though India has not legalised live-in relationships by passing a formal legislature, the Indian judiciary has come-to-the-fore to protect the rights of women engages in live-in relationships and has given various interpretations on the matter of live-in relationships.
INDIAN JUDICIARY’S STANCE ON LIVE-IN RELATIONSHIPS
The oldest and perhaps the first case, wherein the matter of live-in relationships was adjudged upon in India, dates back to the time of Privy Council in the case of Andrahennedige Dinohamy vs. Wijetunge Liyanapatabendige Blahamy. In this case, the court decided that when it is proved that a man and woman are living as spouses, it will be presumed that they were living as so in result of a legitimate marriage. The court will always presume the relation of marriage between such a couple and it is upon the other party to prove otherwise. However, as seen in the case of Gokal Chand vs. Parvin Kumari, due to the existence of certain situations, the Court may, on its own, be forced to rebut this presumption. Even though such a presumption is rebuttable, there lays a heavy onus on the person claiming to deprive the relationship of a legal status.
A similar view was taken by the Supreme Court in the case of Badri Prasad vs. Dy. Director of Consolidation wherein the Court upheld a 50-year live-in relationship and granted legal validity to the same. The real breakthrough came in the year 2001 when the Allahabad High Court in the case of Payal Sharma vs. Nari Niketan observed that “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but it is not illegal. There is a difference between law and morality.” The same was iterated in the cases of Ramdev Food Products Ltd. vs. Arvindbhai Rambhai Patel and Madan Mohan Singh vs. Rajni Kant.
Furthermore, the Supreme Court went as far as holding that a choice to be in a live-in relationship comes under the ambit of right to life, ergo, Article 21 of the Indian Constitution in the case of S.Khushboo vs. Kannaimmal. The Apex Court has also held that not only married women, but also those women who have been in a live-in relationship are entitled to all such reliefs and claims that are vested in a legally wedded wife, and it has also provided guidelines/conditions which are to be followed to consider a live-in relationship as a marriage. Most recently, in 2020, Orissa High Court entertained a writ petition from a trans-man. He and a cis-woman were living together in a live-in relationship and this petition was to prevent the woman’s family members from marrying the woman away against her wishes. The court upheld the right of the trans-man and the cis-woman to cohabit in a live-in relationship. From the above deliberation, it becomes clear that Indian Judiciary has taken a leap in promoting and recognizing live-in relationships in India. However, most recently the Punjab and Haryana High court ( hereinafter “P&H High Court” ) seemed to have a deviating view which threatens the Right to Life and personal liberty of two consenting adults.
MATTER OF UJJAWAL AND ANOTHER VS STATE OF HARYANA AND OTHERS
In this case, Mr. Ujjawal and another filed a petition for a protection order in the Punjab and Haryana High Court who were residing together. They filed the petition in the High Court because they had an apprehension that there was a danger to their lives. In the present case, Petitioner no.1 was 18 years old and Petitioner no.2 was a 21 year old. Justice Anil Kshetarpal of the Punjab & Haryana High Court via the order remarked that the couple were seeking approval of their live-in relationship through the petition which was morally and socially not acceptable and would further damage the entire social fabric. Thus, he did not grant any protection to the couple and dismissed the petition accordingly.
ANALYSIS
In light of the aforementioned facts and jurisprudence laid by the court in past, it becomes evident that the above order is contrary to the progressive approach adopted by the Indian Judiciary in this regard. The above order has many flaws, not the least of which is an ambiguous and highly subjective definition of “social fabric.” The court also seemed to be bothered by the petitioners’ age. The Punjab and Haryana High Court contradicts to its own jurisprudence laid down in the case of Priyapreet Kaur and another vs. State of Punjab and Others. The Hon’ble court, in this case, iterated that the right of the Petitioner to live together cannot be refused solely because the boy is not of marriageable age.
Furthermore, in the case of Sumanpreet Kaur and anr. vs. State of Punjab, the court hearing a protection petition filed by a runaway couple noted that the courts should not consider its personal views in respect of morality, and must ensure that the couple’s rights under Article 21 of the Indian Constitution are secured. In the same way, the P&H High Court approved a live-in relationship in the case of Mafi and anr vs. State of Haryana and ors. The Allahabad High Court in the case of Smt. Shikha & Anr vs. State of Uttar Pradesh & Ors observed similarly and granted police protection and security to a live-in couple. In the same manner protection was provided to a live-in couple by issuing direction to the Superintendent of Police in the case of Simran Kaur vs. State of Punjab.
The apex court has observed in the case of S. Khushboo that live-in relationships are permissible, and the act of two adults living together is not illegal or unlawful. Further, it states that “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”. Thus, in light of the observations made by the judiciary in the aforementioned cases, it must be noted that morality is separate from criminality thereby paving the way for live-in relationships in India. Therefore, given the long line of legal precedents, statutes, and observations in support of live-in relationships, the Punjab and Haryana high court’s decision appears to be a travesty.
THE WAY FORWARD
The concept of live-in relationship is relatively new in the Indian social setting. The presence of live-in relationship has undoubtedly made an impact on modern Indian society, and the changes are evident. It is slowly gaining significance in rural areas and villages. Henceforth, it is high time that the Indian Judiciary does away with such flawed judgement. Further, it is recommended that a separate legislation shall be formulated in order to deal with the current issue so that rights of adults in a live-in relationship (especially women), children born out of it and people getting affected by such relationship is protected. Consequently, this would also look into the fact that diverse judicial opinions are eliminated as this legislation would control and streamline the issue by not giving any room to conflicts in the future.