The observation by Justice Kuldeep Tiwari that the live-in couple had filed a petition seeking protection in order to avoid any criminal prosecution in case of adultery (sic) is a dead giveaway of the erroneous interpretation of law in this case.
EARLIER this month, the Punjab and Haryana High Court refused to grant protection to a couple who has been in a live-in relationship since September 2023 observing that the man already has a subsisting marriage yet he is living a “lustful” and “adulterous life” with another woman.
Justice Kuldeep Tiwari opined that such conduct may constitute an offence of bigamy under Section494 of the Indian Penal Code(IPC). The judge went on to add that the couple had filed a petition seeking protection in order to avoid any criminal prosecution in case of adultery (sic).
“To the judicial mind of this court, under the guise of invocation of the writ jurisdiction of this court, the hidden intent of the petitioners is just to obliquely obtain the seal of this court on their conduct,” Justice Tiwari echoed.
Justice Tiwari also observed that only bald and vague allegations regarding the threats being extended by the family members of the woman have been made without any supportive material.
The couple had approached the high court seeking direction from the police to protect their lives and liberty at the hands of family members and friends of the woman.
In addition, they sought direction not to implicate them in any false case. The family of the man had accepted the relationship but the family of the woman was aggrieved by it.
The man is already married and has a one-year-old daughter. The facts of the case also revealed that divorce proceedings between the man and his wife are pending and thus the marriage is still subsisting.
It appears from the reading of the three-page Order that Justice Tiwari has conflated the offence of bigamy and adultery. While the former still exists on a statute book, the latter was struck down by the Supreme Court in 2018 in the landmark case ofJoseph Shine versus Union of India.
Thus, Justice Tiwari’s observation that the couple approached the court in order to avoid any criminal prosecution in case of adultery (sic) seems a bit odd if not ignorant of the decision of the Supreme Court in Joseph Shine. As of now, adultery is only a ground for divorce under theHindu Marriage Act, 1955.
Also, for the offence of bigamy to be attracted, there has to be a valid second marriage during the subsistence of the first marriage. Live-in relationships are not covered by the literal meaning of Section 494 of the IPC.