In what has shocked lawyers and activists, different benches of the Punjab & Haryana High Court have declined to provide police protection to several petitioners in live-in relationships as the judges brought in their own prejudices and morality into these matters. But what matters is Article 21 which must be upheld every time a citizen pleads for protection, writes VIVEK GUPTA reporting from Chandigarh.
—–
IF THERE is one question that has divided judges of Punjab and Haryana High Court in recent months it is whether constitutional values are superior to social norms and morality.
This dichotomy, although unnecessary, emerged from several court cases filed by live-in couples from different parts of Punjab and Haryana in the High Court to seek protection of their life and liberty from their parents and relatives who were opposed to their relationship.
These couples were not just two unmarried adults wanting to live together peacefully, but also live-in partners where one of them was already married and left his or her spouse due to marital discord.
Then there were cases where one partner is yet to attain marriageable age and they intend to stay together until they attain the legal age for marriage (18 years for females and 21 years for males).
What surprised lawyers and activists was how different benches of the High Court declined to provide police protection to several petitioners while linking their live-in relationship with immorality and social unacceptability.
Sample this: High Court judge Anil Kshetarpal in his one-page May 12 order declined protection to a couple in a live-in relationship from their relatives as it stated that if such protection is granted, the entire social fabric of the society would get disturbed. Hence, no ground to grant protection is made out.
In another order from the court of Justice HS Madaan on May 11, petitioners moved the plea that they were residing together and intended to get married shortly, but apprehended danger to their lives at the hands of their parents.
The Court dismissed the petition citing that as a matter of fact, the petitioners in the garb of filing the present petition were seeking a seal of approval on their live-in-relationship, which is morally and socially not acceptable, and no protection order in the petition can be passed.
In March this year, the court of Judge Arvind Singh Sangwan adjudicated a case in which an unmarried live-in couple from Punjab, who were seeking court protection from their parents, executed a "Live-In-Relationship" deed whereby they mutually agreed to solemnise marriage upon reaching the legal marriageable age. They also decided that they could terminate this deed any time after giving one month's notice to the other party.
But the Court found no merit in their petition as it stated that the terms and conditions of a live-in-relationship, relied upon by the petitioners through the deed, was nothing but a misuse of the process of law as it cannot be morally accepted in society.
Meanwhile, between 2019 and 2020, different benches of the High Court declined protection to persons living together, where one of them was already married and was in process of filing a divorce. In one such order in October last year, the court of Judge Manoj Bajaj refused protection to a adult couple from a spouse of one of the petitioners saying that their live-in relationship cannot be treated as legitimate as it amounted to "adulterous cohabitation".
Chandigarh-based lawyer Arjun Sheoran, who is also the national organising secretary of the People's Union for Civil Liberties (PUCL), said: "All the judges who have said that they are not willing to protect the life and liberty of a couple just because they're in a live-in relationship are not reading Article 21 correctly and all related judgements of the Supreme Court and High Courts."
He explained that Article 21 protects any person who has a danger to his life and liberty. It doesn't matter whether he is a child or an adult or in a live-in relationship. It's a fundamental question of Article 21.
"I am a counsellor in several LGBT couples and gay couple cases. Many of them have serious threats to their life. They have left cities, lost jobs and been tortured by the police. And if they are not protected under Article 21, then who else can be?" asked Sheoran. "Those judges who have failed to protect such citizens will have to do serious introspection of what the law is."
Sheoran said it was unfortunate that judges were bringing their own prejudices into these matters. The Supreme Court has said time and again that societal values don't matter. What matters are constitutional values, which must be upheld every time citizens plead before them to protect their lives.
"The value here is that of human life. Whether or not that relationship is against what society likes or doesn't like is irrelevant. In any case, the court is not deciding on the legality of these relationships," he said.
Technically speaking, in other countries, one won't even be required to knock on the court's door as their criminal justice system is proactive. But in India one has to hire a lawyer and file a petition in court just because we have a broken-down system, he added.
Amid several rejections, High Court judge Jaishree Thakur on May 18, 2021, set an example when she granted protection to a live-in couple against a threat to their life and liberty in her orders. She held that the petitioners of this case had taken a decision to reside together without the sanctity of marriage and it is not for the courts to judge them on their decision. She stated that the concept of a live-in relationship may not be acceptable to all, but it cannot be said that it is an illegal one or that living together without the sanctity of marriage constitutes an offence.
She also relied on Article 21 as enshrined in the Constitution of India, which, she stated, provides for its citizens a right to life and personal liberty, with a stipulation that they shall not be deprived of it except according to a procedure established by law.
Welcoming the order, senior lawyer RS Bains told The Leaflet that courts work under the Constitution and have to protect the rights of the people. But often, the prejudices or private views of judges come in the way of their judgement. "If you focus on the constitutional values, you don't need to comment about anything extraneous," he added.
He rightly asked: "Where does the Constitution say that if you are a person of loose character, you have no right to live? Unless you can have a law like that, the court has to protect citizens if they have the legal right to seek protection against threats to their lives. All personal opinions have no role at all."
Panjab University's professor of sociology Rajesh Gill said the issues surrounding live-in relationships reflect the fault line of this region where adolescent love, pre-marital love or love after marriage is still viewed as anti-social. "We claim that we are modern, but there is no denying the fact that we are still living in a feudal society where such modern relationships are not acceptable. Our society is deeply divided into caste, religion and community, which makes such modern relationships unacceptable," she said.
While those living in metros are relatively untouched by such prejudices, in the hinterlands of Punjab or Haryana, where communities are still very conservative, entering into relationships against the social order, is very challenging, she explained.
The threat perception by such couples is not imaginary as there are cases of honour killings there. "In cases where parents don't intend to harm their kids, society puts pressure on them and even socially boycotts them, forcing them to take extreme steps," added Gill.
But what is more frightening is that people who are supposed to protect them, whether lawyers, police or even judges, all think in a similar fashion on such issues. The matter before courts should not be about the morality of the issue, but the safety of innocent lives, she said. "If courts refuse them protection, why are so many shelter homes made for them here?"
The immediate remedy, said Bains, is to appeal against those judges who have denied them protection. Their judgements are appealable till the Supreme Court. "Such judges who fail to uphold Article 21 must face public criticism. The press and media must be vocal against them. The judges must realise that they have gone against the fundamental law," he said.
The chief justice of the High Court must also reprimand these judges and formally advise them to abide by the law. "Everyone, whether they be judges of High Courts or the Supreme Court, are under the law. No precedent or law or provision of the Constitution says that people lose protection of their lives the moment they do things considered immoral in society," Bains added.
Since our social theory believes that the union of two people is for life, these issues assume far greater significance. But it is not for the court of law to behave in this fashion. Its duty is clearly laid out in the Constitution–to deliver a judgement within the legal framework, he said.
Meanwhile, Justice Anil Kshetarpal, who in his earlier order rejected protection to couples, has in his latest order on May 21 requested the chief justice of the High Court to constitute a larger bench to deal with issues emerging out of live-in relationship petitions. He framed two questions for the larger bench–First, when two persons living together seek the protection of their life and liberty by filing a petition, is the Court required to grant them protection, per se, without examining their marital status and other circumstances? Second, if the answer to the above is in the negative, what are the circumstances in which the court can deny them protection?
The judge went on record saying that various benches of this Court, of coordinate strength, had formed different opinions on the matter concerned, which cannot be easily reconciled, and hence a larger bench was required. The judge also added that he had used the expression "person" in the first question, instead of "adult" in view of the fact that the High Court also seemed to have granted protection in certain cases where both the petitioners were not adults.
Considering that a large number of writ petitions were being filed before the Court involving the questions framed, the counsels would be at liberty to request the larger bench for interim relief and expeditious disposal.
(Vivek Gupta is a Chandigarh based freelance journalist. The views expressed are personal.)