Beyond marriage: the role of Indian courts in upholding in-egalitarian access to protection for women

In certain recent cases where married as well as unmarried women have approached the courts for protection from potential threat of violence at the marital home or due to the women being in a “live-in” relationship, courts have been selective in granting protection, even when there is a threat of imminent harm. In doing so, the courts act as agents of the State and uphold a restrictive, heteronormative and iniquitous understanding of marriage, while subordinating a class of citizens who do not fit into this understanding, writes ATREYO BANERJEE.


OF late, there has been an increasing trend of heterosexual and unmarried couples approaching Indian courts for protection against perceived and actual violence. Usually, the modus-operandi of the courts, is to issue directions which uphold the personal liberty of these persons. However, this is qualified to the extent that the relationship is within the contours of the court’s concepts of morality. In cases where the relationship transgresses the morality of the court, the persons are often left subordinated and without any meaningful remedy.

Also Read: The lottery of protection orders by High Courts in the case of “forbidden romances”

The tenets of a moral relationship

Courts often act as arbiters upon societal tension. This tension arises when social morality and the state’s role as the regulator of marital institutions collide with purported elements of deviancy in the form of live-in relationships and relationships where a woman has left the marital home, due to incidences of violence or threats thereof.

Such tensions are not foreign to courts, and courts have been selectively sensitive in certain cases. For example, in the landmark case of S. Khusboo versus Kanniammal, (2010) 5 SCC 600, the Supreme Court observed that attacks on the centrality of marriage cannot be enforced through criminal laws. In this case, the Supreme Court, while relying on Lata Singh versus the State of UP, (2006) 5 SCC 475, observed that a live-in relationship between two consenting adults of heterogeneric sex is not an offence (barring the exception of adultery, which has since then been de-criminalised).

Also Read: Centre says decriminalizing of adultery must not apply to the armed forces; SC issued notice on plea seeking court’s clarification

In fact, the Protection of Women from Domestic Violence Act, 2005 (DVA) recognises societal realities and has accorded protection to unmarried women falling under the definition of “aggrieved person”. However, to seek protection, one must be in a “domestic relationship” which includes a “relationship in the nature of marriage”.

The DVA does not define what exactly a relationship in the nature of marriage (RINM) is. In D. Velusamy versus D. Patchaiammal, (2010) 10 SCC 469the Supreme Court has accordingly defined RINMs as those where couples, although not formally married, a) hold themselves out to society as being akin to spouses, b) are of legal age to marry, c) are otherwise qualified to enter into a legal marriage (including being unmarried) and d) have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

In addition to these pre-conditions, the definition of RINM has been further restricted in Indra Sarma versus V K V Sarma, (2013) 15 SCC 755) and does not apply when one person is married and the other unmarried. In fact, in Indra Sarma , the court proceeded to give the unmarried woman the status of the “mistress” of the married man.

Also Read: Judges betray their misogyny by calling women in live-in relationship as concubines

Even when a couple has met the requirements of a RINM, the court has refused to grant protection in the face of imminent danger, in the case of Gulza Kumari versus State of Punjab (2021). In doing so, the High Court of Punjab & Haryana observed that the parties came before it to sanctify a “morally and socially not acceptable” live-in relationship.

Marriage within Indian Courts

Given this context, the recent order of the Allahabad High Court in Smt. Aneeta versus the State of UP (2021) is particularly egregious. Here, a married woman, who was allegedly subjected to torture by her husband, approached the High Court seeking protection from the torture. At the same time, she was also living with another man (also a petitioner in the case) whom she was in a relationship with. The court refused to grant her protection and promptly noted that the woman’s relationship is “illicit” and “not within the purview of the social fabric of this country”.

However, the court was not called upon to adjudicate upon the alleged relationship of the married woman with another man. As such, there were no questions of law regarding the legality of live-in relationships. The limited grounds of intervention sought was to accord protection to the woman from her husband.

While the court could have simply dismissed the application basis the rationale that the petitioner had the liberty to move the criminal machinery available in the country, as well as legally separate from her husband under the applicable personal law (which was done in this case), the court went one step further to make the aforementioned observations regarding the relationship of the petitioners, and also went on to impose exemplary cost of INR 5000/- on the petitioner.

The court’s remark pertaining to the social fabric of the country is a testament to the fear that such relationships threaten the normative value of marriage.

In doing so, courts act as agents of the state and not as a safety valve for vulnerable persons appearing before it. Courts ensure that even limited orders which are protective and interim in nature must be in tandem with the definition, endorsement and regulation of the marital institution. The court recognises that marriage, which is sanctioned by the state, brings with it a bouquet of concomitant rights mostly in the nature of maintenance and property which must not be extended to relationships which, despite establishing practices of care and vulnerability which are unique to marriage, are not equivalent to state sanctioned marriages.

Given the line of judgements pronounced by Indian Courts, it is categorically clear that a gendered, monogamous and state-sanctioned institution of marriage is the norm. Anything which is deviating from that norm must do so on limited grounds lest it completely deviates into the realm of societal breakdown.

In effect, the courts seem to say that, as long as a relationship is a RINM, rights and entitlements under the law would be allowed. In the event a relationship strays too far from the norm, the same will be admonished and be made to bear the brunt of establishing perceived and actual violence. In doing so, the courts have made marital relationships or RINM a pre-cursor to accessing rights.

Even cases which are seemingly progressive including the decision in S. Khusboo are heavily caveated and place restrictions in accessing the courts for relief. For example, while upholding the rights in S. Khusboo, the court was careful to restrict them to the domain of heterogenic relationships. This questions the accessibility to the institution of marriage itself. Cases involving heterosexual couples may be able to proceed in court.

However, LGBTQ+ relationships are restricted even by the availability of this option to appear before the court, since they are not permitted to marry under extant laws. This results in the accessibility to the institution of marriage as being inegalitarian.

Also Read: Allahabad HC orders police protection for same sex couple facing harassment from family; says HC duty bound to observe constitutional morality in protecting citizens rights 

Courts as agents of the State

Consider, for instance, the language used by the courts in the cases mentioned above. Calling a woman a man’s “mistress” is misogynistic and prejudicial. [SV2] In this case, protection to the persons were not granted since the man was married.

In the case of Smt. Aneeta, it was denied since the woman was married. In both these cases, the court made observations which were uncalled-for and not directly pertaining to the issues up for adjudication.

What is salient, however, is for a woman to then access protection from perceived or actual violence, she must be unmarried, she must not be a married man’s mistress, she and her partner must have successfully played the role of husband and wife to the society at large, and the relationship should have been voluntary.

In addition to these, the unmarried woman would have to lead evidence showing that friends, relatives and others have treated them as if they are a married couple, that they undertook socialization in public together, as well as adduce evidence suggesting a pooling of financial resources, and so on. Even seemingly “progressive” cases such as Parveen Tandon versus Tanika Tandon (2021) have set a high threshold of evidentiary requirement on the woman such as providing bank account details, proof of cohabitation through rental agreements, and so on.

Inversely, if the woman is married, then she is entitled to no immediate relief, and the remedy, if any, lies in following the process set out in the criminal justice system, as observed in the case of Smt. Aneeta.

Neither of the two situations are just or equitable. Although married women find it marginally easier to access certain rights, the same is fraught with lived realities such as domestic violence and marital cruelty. Further, in facing violence, a married woman cannot cohabit with another man as that invites further prejudice.

At this point, it is pertinent to also note that India does not yet recognise marital rape as an offence. Rape has been used as a tool of sexual violence against women, including married women, for eons.

Also Read: Immunity in marital rape brazen violation of Constitution

The court in the case of Smt. Aneeta, noted that if the married woman’s husband is barging into the house where she’s cohabiting with another man, the same is a criminal dispute notwithstanding earlier instances of torture. However, in a country where marital rape is a reality but not an offence, how does one take this to state authorities such as the police, for remedy. The court’s implication, therefore, is that there would be no remedy for women who face such realities.

Also Read: Implications of reading down of the Marital Rape Exemption by the Supreme Court

Tracing how the courts in India have acted when faced with questions ostensibly threatening the institution of marriage, it is clear that the courts prefer a restricted and heteronormative understanding of the institution. Further, courts suffer from a latent fear while adjudicating upon these questions. The fear being seen as a “seal of approval” which might be given by the court on the relation of the persons before it, as seen in Reena Rani versus the State of Haryana (2015), inter alia.

Even in the case of Smt. Aneeta, while dismissing the prayer for protection, the court observed that it did not wish to “sanctify” the “illicit relations” between the petitioners. An argument might be made that the courts are wary of solemnising bigamous relationships which are prohibited under the law. However, the offence of bigamy pre-supposes a second marriage.

Juxtaposing this with the definition of RINM as developed by Indian courts, it cannot be said that this would amount to a state sanctioned and recognised marriage. Rather, this is not a marriage as understood under extant laws, which is why the need to fulfil conditions which would bring it within a RINM.

Moreover, the Supreme Court has decriminalized the offence of adultery. In this light, courts are not justified from harbouring the fear of a tacit approval in cases involving a married person and an unmarried person.

Also Read: The question of female consent in decriminalisation of adultery and possible criminalisation of marital rape

The concern of courts also seems to stem from the effect an order may have on the society at large. Constant adherence to what is morally acceptable and the societal fabric by the courts indicates a fear that granting protection to vulnerable persons will, by itself, corrode the institution of marriage.

Also Read: Why the Punjab & Haryana High Court’s recent order denying protection to live-in couple gets it wrong

Famed anarchist activist and writer Emma Goldman, in the year 1910, while writing on  marriage, noted that marriage is akin to insurance and the premium paid by women is not only more extracting, but also condemns a woman to life-long dependency. In using artificial societal standards, courts miss the point that marriage is personal and not institutional. The “institution” cannot be destroyed unless a bill is passed deeming marital practices as illegal.

Be that as it may, women must be within the boundaries of marriage in order to access courts for securing protection from violence. If the premium (i.e., staying within the marriage) is discontinued, then the threadbare concomitant rights are discontinued as well.

Such rights, however, are not even envisaged for women or persons who are in relationships which do not resemble the monolithic view of marriage propounded by the state and propagated by the courts.

In all the cases highlighted here, the court was to consider if there is imminent harm faced by the persons involved. Not only do courts selectively pass orders in cases where the normative marital institution as such will not be threatened but also wholly dismiss, with prejudicial observations and/or exemplary costs, those cases where protection may be needed, without rendering a finding on imminent harm. Such findings are anachronistic and leave out a large swathe of relationships from within its ambit.

Also Read: Lesbian couple seeks protection from parents; Madras HC judge says “unchartered waters”, needs to break own preconceived notions on issue before writing purposeful order

Additionally, they tend to pigeon-hole marital relationships. Consider the standard of “socialisation” which an unmarried woman has to prove. There are no guidelines and discussions as to what this amorphous standard of socialisation is.

Further, these are cases where petitioners have approached the courts under Article 226 of the Indian Constitution. A court acting under Article 226 is not expected to conduct a fact-finding exercise. If a person is praying for protection, the court may as well pass interim protection till undisputed facts are established.

This form of justice is short-sighted and does little to further the cause of vulnerable persons. It also subordinates a class of persons who do not adhere to societal notions of marriage, and excludes such persons from due protection under the law.

(Atreyo Banerjee is a B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences, and currently an advocate at Argus Partners, Solicitors and Advocates. The views expressed are personal.)