New Delhi: On May 12, Justice Anil Kshetarpal of the Punjab and Haryana high court, in a non-reasoned brief order, dismissed the plea of a live-in couple for protection of their life and liberty from the relatives of the woman, who is 18 years old. She and her live-in male companion, who is aged 21, claimed to be residing together in a live-in relationship.
Justice Kshetarpal, in his brief order, said: “In the considered view of this bench, if such protection as claimed is granted, the entire social fabric of the society would get disturbed. Hence, no ground to grant the protection is made out.”
The couple mentioned in their petition that the women’s parents opposed their proposed marriage, and when they forced her to marry a man of their choice, she ran away from the house, and the couple started living together for the past one year. The couple pointed out that the women’s family members have very close links with political leaders, influential persons as well as with local police authorities. Therefore, the couple apprehended that they may be eliminated, or the man may be implicated in false cases.
Worse, the couple apprehended honour killing in the hands of the woman’s parents. They also mentioned that the man’s parents agreed with their decision to opt for a live-in relationship in the circumstances.
The couple claim that live-in relationships will put an end to the demand for dowry, and therefore, the police should protect them, as they have entered into this relationship out of their own free will. Having failed to secure protection from the police, they approached the high court for resolving their grievance, and for taking suitable action against the police who failed to offer them protection.
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SC judgment in Shakti Vahini case
The Supreme Court in Shakti Vahini v Union of India and others held that “assertion of choice is an insegregable facet of liberty and dignity”. “That is why the French philosopher and thinker Simone Weil has said, ‘Liberty, taking the word in its concrete sense consists in the ability to choose’,” the author of that judgment, then CJI Dipak Misra, observed at the outset.
Although the judgment in this case was delivered on March 27, 2018 by a three-judge bench comprising Justices Misra, A.M. Khanwilkar and D.Y. Chandrachud, it appears that its message has not yet been internalised by the state administration, police and the lower judiciary.
The petitioner (the NGO in this case) was authorised for conducting research study on “Honour killings in Haryana and Western Uttar Pradesh” by order dated December 22, 2009 by the National Commission for Women. The NGO, Shakti Vahini, averred that there had been a spate of such honour killings in Haryana, Punjab and Western Uttar Pradesh and such killings had sent a chilling sense of fear amongst young people who intend to get married but do not enter into wedlock out of fear. The social pressure and the consequent inhuman treatment by the core groups who arrogate to themselves the position of lawmakers and impose punishments which are extremely cruel instill immense fear that compels the victims to commit suicide or to suffer irreparably at the hands of these groups, the writ petition in the Supreme Court said.
The Supreme Court of India. Photo: PTI.
The bench recognised in this case that the concept of honour has many facets. “Sometimes, a young man can become the victim of honour killing or receive violent treatment at the hands of the family members of the girl when he has fallen in love or has entered into marriage. The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire or identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour,” the bench explained.
The bench reminded the constitutional courts that it is their obligation, as the sentinel on qui vive, to zealously guard the right to liberty of an individual as the dignified existence of an individual has an inseparable association with liberty.
Having noted the viciousness of honour crimes and considering the catastrophic effect of such kind of crimes on the society, the bench found it desirable to issue directives to be followed by law enforcement agencies and also to various administrative authorities. While recommending to the legislature to bring a law appositely covering the field of honour killing, the bench issued certain guidelines to govern the field in the interim period. In particular, the bench made it imperative for authorities to follow certain preventive, remedial and punitive measures.
More important, the bench made it clear that immediate steps should be taken to provide security to the couple/family and, if necessary, to move them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The state government, the bench suggested, may consider establishing a safe house in each district headquarter for that purpose. Such safe houses, the bench held, can cater to accommodate (i) young bachelor-bachelorette couples whose relationship is being opposed by their families/local community/Khaps and (ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional district magistrate and superintendent of police, the bench observed.
It is clear from the above that the bench in Shakti Vahini wanted to protect not just married couples, but also the live-in ones from any threat of violence. “It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire”, the bench held.
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The bench detailed the steps to be taken following the receipt of complaint from the couple thus:
“The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/khaps shall be entrusted by the district magistrate/superintendent of police to an officer of the rank of additional superintendent of police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the superintendent of police in not later than one week.
“The district superintendent of police, upon receipt of such report, shall direct the deputy superintendent of police in-charge of the concerned sub-division to cause to register an FIR against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. [arrest to prevent the commission of cognizable offences]. Additionally, the deputy superintendent of police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of khap panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be.”
In their petition, the live-in couple have sought action against the police, who failed to provide security as sought by them. It is made clear in the Shakti Vahini case that any failure by either the police or district officer/officials to comply with the court’s directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance, the bench had ruled.
Although the writ petition in Shakti Vahini was disposed of after the issuing of these directions by the bench, the respondent (states) were asked to file reports of compliance within six weeks before the Supreme Court registry. The live-in couple, according to their counsel, Vishal Mittal, will be appealing against the high court’s dismissal of their plea in the Supreme Court. While they have a fair chance of succeeding in their appeal, the authorities in Haryana, who have allegedly failed to offer them protection in line with the directions in Shakti Vahini, must be proceeded against for contempt of Supreme Court.
Other legal precedents
In Nandakumar & Another v The State of Kerala, Justices A.K. Sikri and Ashok Bhushan have emphasised that live-in relationship is recognised by the legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005. Under the proviso to section 2(q) of the Act, a female living in a relationship in the nature of marriage may also file a complaint against male partner and his relatives.
In this case, the marriage of a run-away couple belonging to Hindu religion was challenged on the ground that while the girl was above 18 years of age, the boy was less than 21 years, which is the marriageable age for boys. The bench held that even if they (the couple) were not competent to enter into a wedlock (as such a marriage would be voidable), they have right to live together even outside wedlock, as they were adults.
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The bench relied on the Supreme Court’s previous judgment in Shafin Jahan v Asokan K.M.& Others, to emphasise the right of choice of an adult person. The bench reproduced the discussion from the concurring judgment rendered by Justice D.Y. Chandrachud in that case, thus:
“…Attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation.”
In another case, the Supreme Court held in 2014 that if a man and woman are living together for a long time as husband and wife, though never married, there would be a presumption of marriage and their children could not be called illegitimate. The court clarified the law while disposing of an appeal against the Madras high court’s ruling that a valid marriage does not necessarily mean that all the customary rights pertaining to the married couple are to be followed and subsequently solemnized.
The Supreme Court reiterated the same principle in 2015 in another case, when it held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time – a presumption which can be rebutted by leading unimpeachable evidence.
The Kerala high court held in a case in 2018 that live-in relationship has become rampant in our society and such living partners cannot be separated by the issue of writ of habeas corpus provided they are major. The constitutional court is bound to respect the unfettered right of a major to have live-in relationship even though the same may not be palatable to the orthodox section of the society, the high court held.
Considering the string of legal precedents in favour of live-in relationships, the Punjab and Haryana high court’s order appears to be a travesty.
