Understanding High Court's judgment on live-in relationship

The Punjab and Haryana High Court passed a judgment (or an order?) last week stating that the petitioner, in this case, a young couple in a live-in relationship, does not deserve protection from threatening parents. The judge passed the ‘judgment’ contending that “such kind of live-in relationship is neither socially nor morally acceptable”.

The honourable court’s stand in this case is questionable because it had accepted this relationship as one that falls within the ambit of personal liberty of two adult persons, which rules out the understanding or the notion of ‘immorality’, as perceived by a section of the society.

The judgment/order, however, needs some clarifications. Firstly, the question is that should the court’s decision be called a judgment at all, because the conclusion of a court is generally called a judgment when given on the basis of law, reason, circumstances, factual situation, contentions and with an ultimate goal of doing justice. The one-page ‘order’ of the Punjab and Haryana High Court appears to be a clear rejection of the request for protection of an adult couple in love without even trying to know the reality of threat perception. In fact, the court should have directed the Director General of Police (DGP) to provide protection to the couple.

The order passed by Justice H S Madaan on May 11, 2021, after hearing the arguments through video conferencing read thus: “Petitioners Gulza Kumari and Gurwinder Singh have filed the present petition stating that presently they are residing together, though, they intend to get married shortly; they are apprehending danger to their lives at hands of parents of petitioner No.1-Gulza Kumari. As a matter of fact, the petitioners in the garb of filing the present petition are seeking a seal of approval on their live-in-relationship, which is morally and socially not acceptable and no protection order in the petition can be passed. The petition stands dismissed accordingly.”

It is surprising to know that this one paragraph is actually the complete order, not just an executive portion. It may be noted that the validity of live-in relationship was not in question here. The Court was not asked to examine the legality of ‘love’ and lovers residing together in a residence other than that of parents of both sides. If the couple were majors, nobody can exercise any legal right to restrain them by force from loving each other or living together. They are not committing any act which is proscribed as criminal or prescribed as an offence. There is no amendment to any law by those political parties who strongly believe, like this judge, that living-in is an illegal act.

The judge, in this case, was requested to protect the couple who are not committing any illegality. When they expressed their intention to marry, as noted by the brief order, it is a clear legal activity and there is no law that can prevent them from marrying. Unfortunately, ego and false pride take precedence over normal human affection. One just hopes the story of this couple doesn’t end in yet another case of honour killing. The court was asked to prevent honour killing, which is a murder by own parents and brothers. Instead, Justice Madaan alleged “the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in-relationship.”

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On the next day of this judgment i.e., on May 12, the Punjab and Haryana High Court Justice Anil Kshetrapal delivered yet another single page order (Ujjawal and another v. State of Haryana and others [CRWP-4268-2021(O&M)]) refusing to grant protection to another live-in couple, who allegedly faced threats from the girl’s family. Justice Kshetrapal noted that “if such protection as claimed is granted, the entire social fabric of the society would get disturbed.”

In both cases, the honourable High Court has denied the right to live and right to love of the young couples and, in a way, legalized attempts to kill them and authorized completion of those attempts. The High Court is a constitutional institution, which is entrusted with the duty to protect fundamental rights of people. The Judge of a high court cannot abdicate this constitutional responsibility.

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The judges in the above two cases should have remembered what Justice Chandrachud, in his Section 377 judgment, said. “Constitutional morality requires that the right of an individual ought not to be prejudiced by popular notions of the society…. constitutional morality reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance.”

In a decent and recent development, Justice Sudhir Mittal of the same Punjab and Haryana High Court granted protection to a live-in couple stating that such a relationship is neither prohibited nor does it amount to commission of any offence and, therefore, the couple is entitled to equal protection of laws.

A strange aspect of Indian judiciary is that the mindset of a judge, and not the rule of law, decides the rights of the petitioners. What is expected of the two couples whose protection pleas were rejected? Should they ask the Chief Justice to post their cases before Justice Sudhir Mittal and never before the other two judges who refused their right to life and love?

It is also a matter of judicial discipline. If a magistrate below the High Court gives such an order, he/she can be dismissed for acting against the norms of general law. The system does not have anything to enforce such accountability in the case of high court judges.

(The writer is Professor of Law at Bennett University and former Central Information Commissioner).

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal).