Why the Punjab and Haryana High Court’s morality test for Live-In Couples is not an outlier

LAST MONTH, the Punjab and Haryana High Court denied a live-in-couple’s plea seeking police protection from an alleged danger and harassment from the woman’s family. While the Court observed that under Article 21 of the Constitution, every individual has a right to live with peace, dignity and honour, it contended that in India, with its deep cultural origins, a significant emphasis lies on morals and ethical reasoning. 

In doing so, Justice Sandeep Moudgil, speaking for the Court, agreed to the shifting social dynamics – that live-in relationships (‘LIRs’) are increasingly being adopted by a section of Indian society as a ‘modern lifestyle’, but argued that it’s influenced by Western culture, which is vastly different from Indian culture, and that the LIR in question does not fulfil its legally recognised conditions. So, providing police protection in such circumstances, the Court added, could indirectly amount to judicial approval of an ‘illicit relationship’, and that such relationship can bring ‘bad name’ to family. This rationale, which involved extra-legal grounds, was given even though petitioners, who were currently living in LIR, claimed that they are major – being more than 18 years of age, unmarried, like and love each other, and wanted to get married. 

On the other hand, earlier this year, the Punjab & Haryana Court itself, although through Justice Mandeep Pannu, in a similar plea filed by a live-in couple alleging threat from their family members, directed the police to examine the threat perception faced by them and take necessary steps to ensure their safety. It held that the right to life and personal liberty cannot be denied to consenting adults merely because they are in a LIR as such rights stand at the highest pedestal. 

The Delhi High Court went further in this regard, and in April this year, through Justice Saurabh Banerjee, explicitly stated that even the marital status of a live-in couple is irrelevant to the protection of their fundamental rights. It ruled that the right to life and protection cannot be denied to consenting adults merely because they are married to other partners, thereby granting police protection to a couple in a LIR facing threats from family members. Thus, the Delhi High Court reinforced that constitutional safeguards cannot be curtailed by social disapproval or familial pressure.  

Such a varying judicial approach brings to light the complexities around the issue of moral and legal policing, as well as unpredictability around judicial and cultural understanding of LIR and raises several questions. Can one choose as an adult to live the way they want, without any State or family intervention, if not harming anyone else? Can one approach the State (specifically, the police) for protection if while being in a LIR they are threatened by family or community members? The socio-legal discourse surrounding LIR and their governance by the State has seen a sudden but conflicting shift in India and the issue of Uniform Civil Code (‘UCC’) is again in the limelight. The National Commission for Women (‘NCW’) recently asked for the enactment of a “comprehensive legislation” to codify Muslim personal law relating to marriage, divorce, maintenance, custody, inheritance, and LIR. It is based on a report, which recommends inter alia prohibition of child marriage and regulation of divorce practices to ensure empowerment of, and fairness, due process, and equal access to remedies for, Muslim women. It was drafted after an extensive national-level consultation aimed at strengthening their legal, social, and constitutional rights in alignment with the principles of gender justice.