By Dr Swati Jindal Garg
During its deliberations on the subject in the stance of Muslim law, the Allahabad High Court said: “Zina (fornication) which has been defined as any sexual intercourse except that between husband and wife includes both extramarital sex and premarital sex and is often translated as fornication in English. Such premarital sex is not permissible in Islam. In fact, any sexual, lustful, affectionate acts such as kissing, touching, staring, etc., are ‘haram’ in Islam before marriage because these are considered parts of ‘Zina’ which may lead to actual ‘Zina’ itself.” The Court further observed that the punishment for such offence according to Quran (Chapter 24) is a hundred lashes for the unmarried male and female who commit fornication “together with the punishment prescribed by the ‘Sunnah’ (Prophetic traditions) for the married male and female that is stoning to death.”
The High Court made these observations while dealing with a protection plea (against police harassment) filed by a 29-year-old Hindu woman and a 30-year-old Muslim man, alleging that the mother of the woman is unhappy with their live-in relationship and an FIR had been lodged against them. The bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari further observed that traditionally law has been biased in favour of marriage and stressed upon the need to create awareness in young minds regarding the emotional and societal pressures and legal hassles which may be created by such relations. The Court also pointed out that the observations expressed by the apex court on live-in relationships cannot be considered to promote such relationship.
Negating the support taken by the petitioners from the famous judgment passed by the apex court in Lata Singh vs State of UP validating inter-caste marriages, the Court said that the observations made by the Supreme Court therein pertaining to live-in relationships should be read in the context of the facts of each case. Pointing out the difference between the two cases, the Court noted that the petitioners had not expressed their willingness to marry in the near future, nor did they state for how long they have been in the live-in relationship and whether they are married. “They have also not stated anywhere in the writ petition any specific instance of the police coming and knocking their doors or taking them to the police station. There is no averment in the writ petition regarding their neighbours and the society, in general, recognizing them as enjoying a relationship in the nature of marriage,” the Court said as it noted that the interfaith couple had approached the Court with mere allegations, which have not been substantiated by any specific pleading.
The High Court also referred to the observations of the Supreme Court in other cases wherein the apex court has touched upon the nature of live-in relationships in light of law of the land and observed: “The observations of the Supreme Court as aforesaid however cannot be considered to promote such relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. The Supreme Court is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life.”
While the Supreme Court has time and again held that live-in or marriage-like relationship is neither a crime nor a sin yet it is socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is intensely personal and cannot be fully governed by law. The status that has been accorded to a lawfully wedded wife however continues to be at the top and this is the reason that the apex court on several occasions observed that Section 125 CrPC is not meant for granting of maintenance to the “other woman”, where a man, having a living lawfully wedded wife, either marries for a second time or starts living with a concubine. The top court has also on several occasions refused to extend the meaning of the word “wife” as denoted in Section 125 of the CrPC to include such live-in partners for maintenance claims. However, in order to protect the women who have been living in a relationship in the nature of marriage or the so-called live-in relationship, the Court went on to establish certain guidelines. The guidelines laid down by the Supreme Court in order to protect certain live-in relationships that can be covered under the Domestic Violence Act are as follows:
- Duration of the relationship’s initial phase—according to Section 2(f) of the DV Act, the phrase “at any point of time” refers to a fair amount of time to sustain and continue a connection, which may differ from case to case.
- The phrase shared household is defined under the Section 2(s) of the DV Act.
- Resource pooling and financial arrangements—in order to maintain a long-term relationship, they need to assist each other financially.
- Domestic arrangements—putting the burden of running the household on the woman.
- Sexual Relationship—sexual interactions that are not simply for fun, but also for emotional support and childbearing.
- Children—this is a significant sign of a committed partnership, such as a marriage.
- Public Socialisation—misleading the public into believing that they are a married pair.
- Parties’ Intention and Behaviour—common understanding between the parties regarding the nature of their relationship and the duties each bear.
The Supreme Court has ruled that live-in relationships, which can last for a long time and result in standards of interdependence and uncertainty, must be adequately protected due to the rise in live-in relationships, especially for women and those children who are born out of such relationships. There have been cases where individuals have abused their companions by engaging into such relationships and abandoned them. Therefore, there is a need for a set law to protect the partners who rely on another individual for sustenance. The vacuum in the current Indian legal system due to the absence of a law that specifies the obligations and rights of the parties in a live-in relationship or the legal status of any children they may have needs to be filled as soon as possible. Till the time the legislature comes out with an enactment in this area, judicial activism will be needed to fill the gap.
In the case at hand, the Allahabad High Court clarified the extent to which it can interfere under the powers granted to it by saying: “Writ jurisdiction being extraordinary jurisdiction is not made to resolve such type of dispute between two private parties. We believe that it is a social problem which can be uprooted socially and not by the intervention of the Writ Court in the garb of violation of Article 21 of the Constitution of India unless harassment is established beyond doubt.”
The Court while clarifying that such a state of affairs was not without legal recourse, opined that if there is any real grievance of a live-in couple against their parents or relatives, who are allegedly interfering with their live-in status which goes to such an extent that there is a threat of life, they are at liberty to lodge an FIR and seek help from the police and in case the police does not file the FIR, the aggrieved is free to move an application under Section 156 (3) CrPC before the competent court or file a complaint case under Section 200 CrPC.
The Court refused to grant any protection to the couple and rejected their plea by observing: “Similarly, in case the parents or relatives, find that illegally their son or daughter has eloped for the purpose of marriage, although he or she is underage or not inclined or the respondents are behaving violently, they are equally at liberty to take steps in a similar manner. But, when neither of the actions are taken against each other, and only a fictitious application with certain allegations, particularly by such persons as the petitioners herein enjoying a live-in relationship, is moved under Writ jurisdiction of the High Court, it appears to be a circuitous way to get the seal and signature of the High Court upon their conduct without any verification of their age and other necessary aspects required to be done by the appropriate authority.”
Cautioning today’s youth on the pitfalls of live-in relationships, the Court stated that awareness needs to be created in young minds not just from the point of view of emotional and societal pressures that such relationships may create, but also from the perspective that it could give rise to various legal hassles on issues like division of property, violence and cheating within live-in relationships, rehabilitation in case of desertion by or death of a partner and handling of custody and other issues when it comes to children born from such relationships as partners in a live-in relationship do not enjoy an automatic right of inheritance to the property of their partner.
The recent judgement is a mix of both modern and traditional and goes on to not only elaborate the law that has been formulated for the protection of live-in relationships, but also cautions against the trigger-happy approach that has of late been taken by the youth today as far as their personal relationships are concerned.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi