पुलिस की प्रताड़ना और लाइव इन रिलेशनशिप

 A recent Allahabad High Court judgment negates the very idea of constitutional morality in personal relations, which the Supreme Court of India has affirmed

couple in a live-in relationship for protection from police harassment

A judgment by the Allahabad High Court recently, declining the prayer by an inter-faith couple in a live-in relationship for protection from police harassment has caught national attention.

 High court and Supreme court 

The judgment in Kiran Rawat vs State of UP negates the very idea of constitutional morality in personal relations, which the Supreme Court of India has repeatedly affirmed.

 The High Court in its judgment implied that the live-in relationship is a “social problem”.

The case of the petitioners, a Muslim man and a Hindu woman, was short and simple:

They are around 30 years of age, living together and their relation is based on mutual love and affection.

 They alleged that the local police have been torturing them while living in a rented house, and sought protection from police harassment, allegedly done on the basis of a complaint made by a family member.

The judgment by the High Court is unacceptable in the constitutional sense. 

1 First, the court is based on  conventional social morality rather than the constitutional principles on individual autonomy and personal liberty. 

2 Second, in the process, the court also discarded several Supreme Court judgments, even after citing them, by giving untenable reasons. 

3 Third, the High Court travelled much beyond the brief and relied on personal laws on marriage which were irrelevant.

The Allahabad judgment said 

1 that Supreme Court verdicts on live-in relationships such as D. Velusamy (2010), Indra Sarma (2013) and Dhanu Lal (2015) were not intended “to promote such relationships” and that the law traditionally has been “biased in favour of marriage”. 

2 Thereby, the High Court essentially rejected the precedential value of the top court verdicts. 

3 The High Court also made an unnecessary reference to Section 125 of the Criminal Procedure Code (Cr.PC) which talks about maintenance to wives (and not “other women”).

4 The High Court also said that extramarital and premarital sex are not recognised under the Muslim law. 

Even the “sexual, lustful वासनायुक्त , affectionate acts such as kissing, touching, staring etc.” prior to the marriage, are ‘Haram’ in Islam, says the judgment.

An inclination towards orthodoxy

The verdict shows 

a clear inclination towards social orthodoxy and religious revivalism. In the guise of constitutional adjudication, the court only tried to reiterate the traditional beliefs on marriage and morals.

 The law laid down by the Supreme Court

१ is binding on all the courts in the country, as in Article 141 of the Constitution. 

२ In the process of constitutional adjudication, the top court is not ‘encouraging’ or discouraging any social practice or human conduct.

३ decriminalised adultery 

For example, in Joseph Shine vs Union of India (2018), the Court decriminalised adultery as defined under Section 497 of the Indian Penal Code (IPC). 

This was done since the state’s police power cannot be used for punishing individual moral aberrations त्रुटि. In the words of Deborah L. Rhode, “Fidelity वफादारी  is a value, but not one that the state should police” (Adultery: Infidelity and the Law, Harvard University Press). 

४ striking down Section 377 of the IPC 

In Navtej Singh Johar (2018),while substantially striking down Section 377 of the IPC dealing with same sex relations, the Supreme Court made a constitutional adjudication rather than mere moral judgment. 

Upholding personal liberty

१ inter caste or inter religious marriage is not harassed by anyone 

 In Lata Singh (2006), the Court directed police authorities throughout the country to see to it that any adult undergoing inter caste or inter religious marriage is not harassed by anyone.

२  In S. Khushboo vs Kanniammal & Anr. (2010), the Supreme Court held: 

“While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners,

 there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting”

But the Allahabad High Court said that 

the observations of the Supreme Court in these judgments were made in the context of the facts of the respective cases.

 Facts of every case will vary from one another and there cannot be precedents on facts.

 But that does not mean that the High Court can disregard the proposition of law laid down by the Supreme Court on questions of fundamental rights.

उच्च न्यायालय को क्या करना था ? 

 यदि आवश्यक हो तो अतिरिक्त विवरण मांगना चाहिए था और विवाह पर व्यक्तिगत कानूनों का अवांछित और अप्रासंगिक सर्वेक्षण किए बिना जोड़े के मौलिक अधिकार का समर्थन करना चाहिए था।

 यह निर्णय न्यायिक अनुशासनहीनता का एक उत्कृष्ट मामला है, उम्मीद है कि सुप्रीम कोर्ट इसे यथाशीघ्र ठीक करेगा। यह कहना कि व्यक्तिगत कानूनों का नैतिक पाठ संवैधानिक सिद्धांतों का स्थान ले लेगा, एक गंभीर न्यायिक दुर्घटना है।