- A single-judge bench ruled a married person cannot live with another without divorce
- The court emphasised a spouse’s legal right to companionship over personal liberty
- A division bench stated consensual live-in relationships with a married person are not criminal
A married man in a live-in relationship -- within days, the Allahabad High Court has taken two different positions on a subject that lies at the intersection of law and morality.
In a ruling earlier this month, a single-judge bench of the court said a married person cannot legally enter a live-in relationship with a third person without getting a divorce from his/her spouse. The court said that the "freedom of one person ceases where the statutory right of another person starts". It said a spouse has the right to enjoy the company of his/her partner, and he/she cannot be deprived of it in the name of the partner's personal liberty. The court noted that it cannot direct authorities to protect a live-in couple in such cases.
Days later, a division bench observed in a separate case that a married man living in a consensual live-in relationship with an adult woman does not amount to a criminal offence under the law. The court noted that "social opinions and morality will not guide" it.
The first order came on March 20 in a petition by a live-in couple. The couple sought protection and a direction to the respondents not to interfere in their "peaceful life".
The Spouse's Right
A single-judge bench of Justice Vivek Kumar Singh said the court cannot issue any writ or direction because the petitioners are in a live-in relationship without having obtained a divorce from their partners. The court said that if the petitioners are disturbed or subjected to violence, they may approach the police, and they will verify their complaint and act according to the law.
The petitioners' counsel said they are living together as husband and wife, and fear for their lives. But the government's counsel argued that the petitioners were married to separate people, and their living together was "illegal" because they did not obtain a divorce.
"In such a situation, protection to the petitioners who claim to be in a live-in relationship cannot be granted in exercise of powers conferred under Article 226 of the Constitution. No one has the right to interfere in the personal liberty of two adults, not even their parents. But the right to freedom or the right to personal liberty is not absolute or unfettered; it is qualified by some restrictions as well," the court said.
"The freedom of one person ceases where the statutory right of another person starts. A spouse has the statutory right to enjoy the company of his or her counterpart, and he/she cannot be deprived of that right for the sake of personal liberty.
"No such protection can be granted to infringe the statutory right of the other spouse; hence, the freedom of one person cannot encroach or outweigh the legal right of another person. It is well-settled law that a writ of mandamus can not be issued contrary to law or to defeat a statutory provision, including a penal provision. The petitioners do not have a legally protected and judicially enforceable subsisting right to ask for mandamus," the court said.
Morality vs Law
On March 25, a bench of Justice JJ Munir and Justice Tarun Saxena was hearing a petition by a live-in couple. The couple said they are being threatened by the woman's family and sought protection.
The counsel representing the woman's family argued that the man is already married and it is an offence for him to stay with another woman.
The court, however, remarked that the law must be kept separate from social morality. "There is no offence of the kind where a married man, staying with an adult in a live-in relationship, by consent of the other person, can be prosecuted for any offence, whatsoever. Morality and law have to be kept apart. If there is no offence under the law made out, social opinions and morality will not guide the action of the Court for protecting the rights of citizens," the bench said.
The court noted that the woman has submitted an application to the police, stating that she is an adult and is living with the man in a live-in relationship of her free will.
She has said her parents and other family members are opposed to their relationship and have threatened her with death, and both fear honour killing. "Apparently, no action has been taken on this complaint by the Superintendent of Police. To protect two adults living together is the duty of the Police. Particular obligations in this regard are cast upon the Superintendent of Police, as held by the Supreme Court in Shakti Vahini v. Union of India and others, (2018) 7 SCC 192," the court said.
The court said it will hear the matter next on April 8. It also granted protection to the man in a kidnapping case registered on a complaint by the woman's family. It also restrained the woman's family members from entering the couple's home or contacting them directly or indirectly. The court said the Superintendent of Police of Shahjahanpur shall be responsible for the couple's safety.
