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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

“LEGALITY AND RIGHT TO LIFE AND LIBERTY OF A COUPLE IN LIVE-IN RELATIONSHIP WHERE EITHER OF THEM HAS AN EXISTING MARRIAGE

INTRODUCTION

Live-in relationships, meaning, living together as a couple without getting married, is a growing trend in the Indian Society. In cases where the individuals are previously unmarried and enter into a live-in relationship, the judiciary has laid down several guidelines to give protection and recognition to them. However, the issue arises when the individuals who have a subsisting marriage, without dissolving it, enter into live-in relationships, and seek protection of right to life and liberty under Article 21, In recent times different courts have given different opinions on the said issue, and the same shall be discussed and analysed below.

Legality of Live-In Relationships the Supreme Court of India in Lata Singh v. State of U.P had held that where two consenting adults are in a live-in relationship, though it may be perceived as immoral, but it does not amount to any offence under the law. Likewise, In Khushboo vs Kanaimmal and Anrthe SC observed that living together is a part of right to life, hence cannot be considered unlawful.

In another important case of D Veluswamy vs D Patchaimmal while interpreting whether the women in live-in relationships will be given protection under the Protection of Women from Domestic Violence Act,2005 the SC had specified that to consider any live-in relationship as a “relationship in the nature of marriage”;

a) The couple must present themselves to the society as being each other’s spouse

b) Both of them must be within the legal age to get married and should be unmarried when in live-in relationship and

c) The couple must cohabitate together for a significant amount of time.

If the above-mentioned criteria is fulfilled, the live-in relationship will be considered as a relationship akin to a marriage, and the woman will be entitled to all rights under the DV Act, including the Right of Maintenance and Alimony. Further, any children born out of such relationships will deemed to be legitimate.

LIVE-IN COUPLE WHERE INDIVIDUALS HAVE AN EXISTING MARRIAGE

 In IndraSarma vs V.K.V. Sarma, The SC had held that all live-in relationships cannot be considered synonymous to the relationships in the “nature of marriage”. A live-in relationship between a married man and a woman or of a married woman with a man, is not akin to marriage, as it amounts to adultery and bigamy, which is unlawful, Therefore the women are not entitled to any protection under DV Act. Although such live-in relations cannot be equated to a marriage, but when previously married individuals enter in a live-in relation and seek protection of right to life under Article 21 should that be granted?

Recently in RashikaKhandal v. State of Rajasthan a writ petition was filed in the Rajasthan High court by a live-in couple wherein the Man was previously married, seeking protection of their life and liberty under Article 21, the court dismissed the said petition and held that A live-in- relationship between a married and unmarried person cannot be permitted. Similarly in Smt. Geeta&Anr. v. State Of U.P.&Ors. a couple was in a live-in relationship, wherein the woman was previously married, filed a writ petition in the Allahabad High Court seeking protection of right to life and personal liberty under Article 21, the court dismissed the petition and held, that protection cannot be granted to such people as they are acting against Hindu Marriage Act, and right to life and personal liberty under Article 21 can be granted only if they act within the ambit of law which applies to them.

However, in Gurjeet Kaur &Anr vs State of Punjab &Ors., where the woman was already in an existing marriage and was living with another man and had sought protection of their life under Article 21, the Punjab and Haryana High court in this case, although refused to recognise it as a legal relationship, but had ordered the concerned authorities, to take appropriate measures to ensure that there is no threat to the life and liberty of the couple. Likewise, in Nirbhey Singh &Anr. v. State of Punjab &Ors. with a similar fact situation, wherein the husband had an existing marriage, The Punjab and Haryana High, although questioned the man, why he has not dissolved his previous marriage, but ordered the authorities to ensure that there is no threat to the lives of the individuals.

But In Yash Pal And Another Vs State Of Haryana And Others , the man having an existing marriage was living with another woman, and sought protection under Article 21, The Punjab and Haryana High refused to grant them any protection, contending that there is no clarity regarding the said issue and has referred the matter to larger bench, thereby raising two questions: whether the court is obliged to grant any protection to two persons living together without taking into consideration their marital status and other circumstances of the case? and if the answer to the said question is in the negative, then in what situations the protection can be denied ? The matter is yet to be decided by a larger bench of the Punjab and Haryana High court. Analysis And the Way Forward the Authors believe that the Rajasthan and Allahabad High court have erred by denying the right to life and liberty to the couple in the cases discussed above. The said High courts while doing so, relied on two contentions, first that a live-in couple wherein either of them has an existing marriage, cannot be protected, since this “live-in relationship” cannot be considered akin to the “institution of marriage” as held by SC in D. Veluswamy v D. Patchaimmal and IndraSarma v. V.K.V. Sarma. And second, the court termed these relationships as “adulterous” and “bigamous” and held them to be unlawful thus refused protection under Article 21. The authors believe that the said arguments are fallacious. It is important for us to understand that the SC in D. Veluswamy v D Patchaimmal and IndraSarma v V.K.V. Sarma had only specified the conditions where a live-in relationship will be considered tantamount to a marriage and the woman will be entitled to all rights as that of a legally wedded wife as specified under the DV Act. Live-in relationships can be of myriad kinds and the said judgement nowhere states that the couple shall be denied right to life and liberty, if their live-in relationship is not akin to marriage. Article 21 of the constitution guarantees right to life and liberty to each individual, according to the procedure established by the law. The aim is to protect any person whose life and liberty is in danger, irrespective of the fact whether it’s a child or an adult or in a live-in relationship. Each and every individual has the right to live life on its own terms, as long it does not violate any law. In Joseph Shine v Union of India the SC has struck down Section 497 of the IPC thereby decriminalizing adultery. Thus, if a married person is cohabiting with a person other than its spouse, it can no longer be a termed as an offence. Since there has been no violation of the procedure established by law, protection to life and liberty under Article 21 cannot be denied. The approach taken by the Punjab and Haryana High court in Gurjeet Kaur and Anr. vs State of Punjab and Nirbhey Singh and Anr. vs State of Punjab is a progressive approach wherein they ensured that there is no threat to life of the couple. But there was a contradiction in Yashpal and Anr. vs State of Haryana where they refused to grant any protection to the couple, and referred the matter to a larger bench where they have to decide whether protection should be granted to the couple irrespective of their marital status. The authors here strongly suggest that in cases where the individuals enter into live-in relationships during the subsistence of their marriage, although the said live-in relationship cannot be granted the same recognition and rights as that of an institution of marriage, as then it would amount to Bigamy, But the courts should look into the facts of the case, and if the life and liberty of the couple is being violated, protection must not be denied and while doing so the courts must order the individuals to dissolve their existing marriage at the earliest, so that the rights of existing spouse does not get prejudiced and this becomes even more important, because only then their live-in relationship will be equated to the status of marriage and they will be entitled to all the rights under the DV Act.

CONCLUSION

Societies evolve with changing times and the judiciary has always played an important role in protecting the liberties of the individuals. In any civilized society the individuals must have the right to live peacefully, without any threat or duress. In recent times, a legal ambiguity has arisen wherein the persons who are already married when they enter into live-in relationships with other partners, and seek enforcement of their right to life and liberty against any threat, it was being outrightly rejected by the courts. It is important to understand that although such acts might be considered as immoral but they are not illegal, Thus the courts should take a progressive approach and must ensure that the right to life and liberty of the couple is not being compromised.

REFRENCES

1.      Gazala Parveen, et al. “Offence of Adultery in India- a Study.” IPleaders, 22 Oct. 2019, https://blog.ipleaders.in/offence-adultery-india-study/.

2.      “Adultery.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., https://www.britannica.com/topic/adultery.

3.      India, legal Service. “Adultery – Section 497 IPC.” Legal Service India, https://www.legalserviceindia.com/article/l291-Adultery.html.

4.      “Adultery.” Times of India Blog, 14 Aug. 2019, https://timesofindia.indiatimes.com/readersblog/know-your-rights/adultery-5102/.

5.      Rajagopal, Krishnadas. “Adultery No Longer a Criminal Offence as SC Scraps Section 497 of IPC.” The Hindu, The Hindu, 27 Sept. 2018, https://www.thehindu.com/news/national/adultery-not-a-criminal-offence-as-sc-strikes-down-section-497-of-ipc/article25055245.ece.

6.      Lata Singh v. State of U.P.

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*This Article is written by Aayushi Singh student of Rajiv Gandhi National Law University.

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