Justice Pankaj Jain of the Punjab & Haryana High Court recently termed a habeas corpus petition related to a same-sex relationship an “immoral thing" and questioned the petitioner’s connection with the alleged detainee.
“Madam, I don’t subscribe to the theory that constitutionality and morality are different,” Justice Jain told counsel representing the petitioner.
This is not the first time Indian courts have passed orders on the basis of the judge's personal morality rather than the oft-repeated 'constitutional morality' espoused by the Supreme Court in the recent past.
The Calcutta High Court recently passed an order which said that “adolescent girls must control their sexual urges instead of giving in to two minutes of pleasure and adolescent boys must respect young girls and women and their dignity and bodily autonomy”. The apex court promptly stepped in to stay this order.
Many of these instances crop up in cases involving sexual relationships, not just of same-sex couples, but also in cases of married and unmarried heterosexual couples.
Such an approach is in contrast to what Chief Justice of India DY Chandrachud said at a conference in April last year.
"Judges don’t look at how society will look at their decisions. They go by constitutional morality and not public morality. Constitutional morality which includes fraternity, human dignity, personal morality and equality," CJI Chandrachud said.
A worrying trend at the Punjab & Haryana High Court
The Punjab & Haryana High Court has jurisdiction over the two states and the Union Territory of Chandigarh. Each week, it receives hundreds of petitions seeking protection for couples who are being harassed by their families for defying caste or religious boundaries.
While the majority of them do receive favourable orders with a direction to the police to ensure their protection, some end up receiving unceremonious dismissals.
In July last year, a married woman and her partner approached the High Court seeking protection over alleged threats from her husband. The Court called the relationship between the petitioners “illicit”.
“No doubt that one has the liberty and freedom to enjoy the life as they want to, but that cannot be at the cost of social fabric, moreso by hampering the pious relationship of husband-wife and the rights of others,” Justice Alok Jain remarked in the order dated August 29.
The Court termed the perceived threats as vague and went on to observe that the petition had been filed only to “cover up the misdeeds of petitioners on account of being caught in some promiscuous relationship”.
On January 10 this year, the petition was dismissed. However, the Court did pass an order - in the petition filed by the woman’s husband - and ordered the police to look into his allegations against his wife and her friend.
In a similar case where a married man was in a live-in relationship with a woman, Justice Kuldeep Tiwari observed that a person living “a lustful and adulterous” life without obtaining a divorce from an earlier spouse may be held liable for the offence of bigamy under Section 494 of the Indian Penal Code (IPC).
The High Court recently even imposed costs in cases of live-in couples where either the man or the woman were in subsisting marriages. “Illicit" and "promiscuous,” are words used by the Court to describe such relationships in many orders.
It is pertinent to mention that other judges of the same High Court have gone to the extent of saying that the right to life and personal liberty under Article 21 of the Constitution must be protected “regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties”.
Instances in other High Courts
The Punjab & Haryana High Court is not alone in questioning relationships which may not be in conformity with the majoritarian view.
There is no morality for the highest class and the lowest class cannot afford to follow the same due to compulsions of poverty, Justice Siddharth of the Allahabad High Court observed in August last year as he frowned upon live-in relationships.
The judge went on to say that there exists a “systematic design” to destroy the institution of marriage in the country and destabilise the society.
The observations were made while granting bail to a man accused of rape on false promise of marriage.
"Live-in-relationship shall only be considered as normal after the institution of marriage becomes obsolete in this country, like in many of the so called developed countries where it has become a big problem for them to protect institution of marriage. We are proceeding to create great problem for us in future. There is systematic design to destroy the institution of marriage in this country and destablize the society and hinder the progress of our country,” the judge said.
A judgment containing remarks on these lines, passed in an inter-faith couple’s plea for police protection, has resulted in denial of relief for several similarly situated couples.
In that verdict, a division bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari downplayed the Supreme Court’s views on live-in relationships, opining that the top court’s observations are not tantamount to approval of such relationships.
Particularly in the context of the Hindu-Muslim couple in this case, the Court went on to rely on Muslim law to state that Islam does not permit pre-marital sex or sex outside marriage.
We came across more than a dozen orders where the High Court denied protection to inter-faith couples on the basis of the division bench ruling.
Just last month, Justice Shamim Ahmed of the Allahabad High Court in a habeas corpus matter said that live-in relationships are not common in India unlike in Western countries, and people should respect the traditions and culture followed in India.
Similarly, the Madhya Pradesh High Court in April 2022 remarked in a rape case that the “bane of live-in-relationship” was a “by-product” of the constitutional guarantee as provided under Article 21.
It promotes promiscuity and lascivious behaviour, giving further rise to sexual offences, Justice Subodh Abhyankar said about live-in relationships.
What the Supreme Court has held
Such High Court orders are a departure from the consistent view taken by the Supreme Court that the right to life and liberty is paramount and that consensual sexual relationships must be respected.
The Supreme Court in Navtej Singh Johar v. Union of India stressed that the courts are expected to uphold the principles of the Constitution and not be guided by majoritarian views or popular perception.
“The Court has to be guided by the conception of constitutional morality and not by the societal morality,” the top court said in the landmark ruling that decriminalised homosexual sex.
About the same-sex couples in particular, the Court cautioned that members of the LGBT community must not be given step-motherly treatment under the garb of social morality.
“If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.”
Similarly, the top court in the same-sex marriage case last year declared that the right to a relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them and to live the way they wish to.
“Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection,” Justice S Ravindra Bhat said in the majority opinion.
However, it is not just recently that the Supreme Court has expressed progressive views on non-traditional unions.
In 2006, the top court in Lata Singh v. State of UP directed the civil administration and police authorities across the country to ensure that inter-caste or inter-religious marriages are protected from threats or acts of violence.
In the context of pre-marital sex and public opinion regarding it, the Supreme Court in 2010 in S Khushboo v. Kanniammal & Anr made the following comment,
"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 the judgment of the famous Hadiya case from Kerala, Justice DY Chandrachud (as he then was) in a separate but concurring opinion in 2018 underscored that “choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.”
“Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution,” Justice Chandrachud wrote.
Despite such consistent views of the Supreme Court on relationships that may not be in conformity with the majoritarian view in society, High Courts have chosen to pass remarks based on their personal beliefs.
Former Uttarakhand High Court Chief Justice Vipin Sanghi said that there are sufficient guidelines for such cases, but some judges probably feel so strongly that they end up moral policing the couples.
The former judge also said that he would never deny relief to couples facing threat from their families.
“I firmly believe in protecting rights of individuals. If they sought protection, I would grant them irrespective of they are in a live-in relationship or inter-religious; that doesn’t matter.”
In many of the orders where judges have taken an adverse view of live-in relationships, one of the partners is already married and may have deserted their spouse.
However, Justice Sanghi opined that this should not be a consideration in a petition seeking protection.
“The deserted spouse has a right to approach the court, that is no reason. Everyone is free and has freedom to live as he likes. If he wants to live in adultery, that is his decision but his constitutional right can’t be defeated,” he opined.
Utkarsh Singh, a Delhi-based advocate who has represented runaway couples across High Courts, blamed protracted divorce proceedings for live-in relationships of married persons.
“The judicial pendency of cases is such that divorce cases take 10-12 years to get a decree and thereafter lies an appeal. Live-in relationship is the only option left,” he said.
Singh pointed out that courts grant bail even to those accused of the most heinous crimes, because judges ought to be driven by constitutional precedents.
“Then how these moralistic and preachy observations are seen in cases involving basic right to life and liberty, is a question to introspect,” he said.
In addition to upholding the right to choose a partner of one's choice and to have live-in relationships, the Supreme Court in Shakti Vahini v. Union Of India in 2018 issued directions for setting up of safe houses and special cells in each district to protect such couples facing threats from society.
“Supreme Court’s guidelines in Shakti Vahini are clear. They are required to provide safe shelter and then Special Cell will look into the nature of the [threats],” Asif Iqbal, a co-founder of NGO Dhanak for Humanity said.
Dhanak works for the protection of couples facing threats from families or society. Iqbal referred to a case where an argument was made before the Delhi High Court that Shakti Vahini only applies to inter-caste and inter-faith couples.
“We had moved for a trans couple but Justice [Mukta] Gupta said they are also similarly vulnerable and will be given safe house,” he added.
So what is the way forward?
In an order dated January 23, the Punjab and Haryana High Court took note of the flood of runaway couple cases before it remarked that “customary, moral and ethical values of our heritage are being destroyed”.
Justice Sandeep Moudgil noted that “at an average 80-90 petitions are being listed for seeking protection either by run away couples after solemnizing marriage or otherwise wishing to stay in a live-in-relationship wherein either of two yet not attained marriageable age, as stipulated under Section 5 of the Hindu Marriage Act, 1955.”
As a solution, the Court called for the police to deal with all these petitions. To this end, the single-judge called upon the Advocates General of Punjab and Haryana and the Senior Standing Counsel for the Union Territory of Chandigarh to assist the Court on formulating a Standard Operating Procedure (SOP) for dealing with these cases at police level itself.
While this move may ease the burden of the Court, the question remains as to whether the police can be expected to safeguard constitutional protections afforded to such couples.
Rajeev Godara, who practices at the Punjab & Haryana High Court, agreed that accountability has to be fixed at the level of police where the couples in majority of these cases reach first with representations about their threat perception.
“The Police has a duty to protect. They have to ensure that there is no moral policing and no coercive atmosphere when couples approach them. They have to provide protection to not just life but their views and free will also,” he said.
On moral policing, Godara said when the apprehension of threat of life is proven, the moral perception cannot prevail over the existing law.
“If you look for customs and traditions, there was child marriage also. The law rightly stopped it. One can have and express a question or opinion on ethics and morality, but when there is a law under Constitutional framework, it has to be respected and implemented,” he added.