LIVE-IN–RELATIONSHIP
Under the right to life guaranteed under the Constitution of India, the individual has the right to decide whether he wants to live in or get married. The Live-in-relationship i.e. an arrangement whereby two people decide to live together on a long-term or permanent basis in an emotionally intimate relationship almost like marriage. The term is most frequently applied to couples who are not married. Recently in May 2021, the Punjab and Haryana High Court refuse to grant protection to a young couple who reaches court in fear of threat from the girl’s family. Under which the court observes and connotes that “if such protection as claimed is granted, the entire social fabric of the society would get disturbed.” Live-in relationship in India continues to be a matter of debate, but through this article, we will find that whether the age bar imposed by the court to exercise the judgment has any variation.
LEGAL RECOGNIZATION OF LIVE-IN-RELATIONSHIP & OBSERVATIONS ON AGE
Coming up to the question that whether any court recognized the live-in-relationship. So the answer to this dicey question is yes, many courts in numerous cases observed and held the legality of live-in-relationship under the fundamental rights. By way of statute, this is seen protection in the Protection of Women from Domestic Violence Act, 2005 which defines a 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.” This opened the doors for courts to consider instances of domestic violence in relationships that need not be marital but in the nature of marriage.
In 2010, the apex court observed, in the matter of S. Khushboo v. Kanniammal (AIR 2010 SC 3196), the Hon’ble court rested the debate by stating that morality and criminality could not be co-extensive. Its judgment sagely observed:
“… [T]he acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. To be sure, there are some indigenous groups within our country wherein sexual relations outside the marital setting are accepted as a normal occurrence. Even in the societal mainstream, there are a significant number of people who see nothing wrong in engaging in premarital sex. 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”.
The Interpretation as to Age of the Individual
Allahabad High Court: In a similar case last year (Kamini Devi v. State of Uttar Pradesh, W.P. (C)11108/2020), the Allahabad High Court had granted protection to a couple in a live-in relationship, noting that such an arrangement between consenting adults was not an offence and that nobody would be permitted to interfere in their peaceful living as the right to life was a fundamental right guaranteed by Article 21 of the Indian Constitution. According to the division bench’s judgment, in this case, it is settled law “…that where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living together.”
Supreme Court of India: The Supreme Court had, as early as in 2006, held, in its judgment in the case of Lata Singh v. State of Uttar Pradesh ((2006) 5 SCC 475), that a woman if she were a major, was “free to marry anyone she likes or live with anyone she likes.”
The petitioners are both major and have every right to live their lives as they desire within the four corners of the law. Society cannot determine how an individual should live her or his life. The Constitution of India guarantees every individual the right to life and the choice of a partner is an important facet of the right to life. In the matter of Shafin Jahan vs. Asokan K.M., (2018) 16 SCC 368, the Supreme Court reiterated the right of choice of an adult. It was inter alia held:-
“The petitioners are seeking protection of their life and liberty as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his or her personal liberty except as per the procedure established by law. No doubt petitioner No.2 is not of marriageable age, however, admittedly, he is a major. Merely because of the fact that petitioner No.2 is not of a marriageable age the petitioners cannot possibly be denied enforcement of their fundamental rights as envisaged under Article 21 of the Constitution of India. The petitioners, both being major, have decided to live together in a live-in relationship and there possibly may not be any legally justifiable reason for the respondents to object to the same.”
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” 21 The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law that is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.
In K S Puttaswamy v Union of India the Apex Court in a decision of nine judges held that the ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality:
“The autonomy of the individual is the ability to make decisions on vital matters of concern to life… The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination… The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.” A Constitution Bench of this Court, in Common Cause (A Regd. Society) v Union of India38, held:
“Our autonomy as persons is founded on the ability to decide:
on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives.” The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.
While it is true that the mainstream view in our society is that sexual contract should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marriage with the exception of ‘adultery’ as defined under Section 497, IPC. The court also said 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. Morality and criminality are not co-extensive.
In another judgment from Kerala High Court, an adult couple can be in a live-in relationship even if the man isn’t 21 years, the legal age for marriage, the Supreme Court has ruled, telling 20-year-old Thushara that she was free to decide who she wanted to live with. In a significant verdict, the Supreme Court ruled that a girl, 20, is free to live with her ‘underaged’ husband. The Apex court said an adult couple can be in a live-in relationship even the man’s age is below 21 years, the legal age for marriage. In its ruling, the Supreme Court said a major girl is free to decide who she wants to live with. The high court of Kerala had last year annulled her marriage and sent her back to her father on grounds that the Nandakumar wasn’t 21 when they married in April last year.
In 2013, the top court in Indra Sarma vs V K V Sarma said, Live-in or marriage-like relationship is neither a crime nor a sin though socially unacceptable in this country. A long-standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserve protection because that woman might not be financially independent, it added
Punjab & Haryana High Court: In another judgment in December last year (in the case of Priyapreet Kaur and another v. State of Punjab and Others, W.P. (Cr.) 10828/2020), the same court had observed that parents could not force children to live life on their terms. In that case, the petitioners were 18 and 19 years old. This meant that the boy was not of legally marriageable age, yet the court held:
“[The female petitioner] is well within her right to decide for herself what is good for her and what is not. She has decided to take a step to be in a live-in-relationship with petitioner No.2 who is also major, though may not be of marriageable age. Be that as it may, the fact remains that both the petitioners in the present case are major and have a right to live their life on their own terms.”
The top court had held that live-in-relationship was now even recognised by the legislature and they had found a place under the provision of Protection of Women from Domestic Violence Act, 2005.
Article 16 of the Universal Declaration of Human Rights underscores the fundamental importance of marriage as an incident of human liberty:
“Article 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
CONTRARY JUDGEMENT
In the recent time after Gulza Kumari & another vs. State of Punjab & others case. Punjab & Haryana Court has come with another judgement served by the bench of Justice Sant Prakash. This bench grant protection to the runaway couple of age 17-year-old (girl) and 20-year-old (boy). In this case, the girl’s parent’s allegedly wanted her to marry a boy without her choice. So she flew along with the boy and then they are living- together and now had attained the age of marriage. They also contested that girl’s parents were against their marriage. The Bench opined that as a matter of fact, the petitioners in the garb of filing the instant petition were seeking seal of approval on their live-in-relationship, which is morally and socially not acceptable. Hence, no protection order could be passed in such cases. Accordingly, the petition was dismissed.
CONCLUSION
A live-in relationship in other words can be seen as a relationship where both the person live together to live a married couple without marriage which now has been accepted by both legislation and judiciary. By the above expression, we can conclude that an adult has been recognised as capable of exercising his right for entering into a live-in relationship unlike marriage and equal protection will be given to them. As the fate of humanity does not recognise the validity of this kind of relationship but after these judgements, it is clear that it does not create any offence other than ‘adultery’ which already has been absolved from criminality. The variation in age of entering live-in relationship and marriage definitely is showing divergence flowing from the interpretation of article 21 of the Constitution.
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