Allahabad High Court’s comments on interfaith live-in relationships a step in the wrong direction

Recently, the Allahabad High Court courted controversy when it made comments questioning the acceptance of interfaith live-in relationships by the Supreme Court. This article critically analyses the court's judgment and examines the complexities of interfaith live-in relationships in the context of evolving legal understanding.

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While denying police protection to an interfaith couple in a live-in relationship, the Allahabad High Court in Kiran Rawat versus State of UP made a controversial comment by stating that observations made by the Supreme Court in cases related to such relationships is not to promote them, rather they have been accepted as part of a social reality.

The court even inquired whether Islam accepts live-in relationships and also emphasised on the apparent need to build awareness in young minds concerning emotional, societal and legal hassles that they may face if they pursue live-in relations.

It further observed, "The Supreme Court is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life."

Live-in relationships have been a point of continuous debate in our country. The Supreme Court, in numerous judgments, has upheld the rights of live-in couples. However, despite this positive evolution in Indian legal understanding, it seems that Indian society has regressed further in its acceptance of such relationships. 

Also read: Supreme Court seeks to know the status of cases challenging 'love jihad' laws in various high courts

Public's resentment against interfaith relationships has increased in recent times due to the spread of narratives of 'love jihad' in the aftermath of the Shraddha Walkar murder case. In this context, the Allahabad High Court's observation seems like an endorsement of the public's unreasonable and conservative views, thus flying in the face of modern Indian jurisprudence on the matter established by the Supreme Court itself.

The judgment also raises questions about whether the right of cohabitation between two consenting adults extends to persons of all faiths. The Supreme Court judgments have primarily focussed on Hindu personal laws while remaining silent on how this affects other personal laws, especially when some religions, like Islam, prohibit premarital relationships.

Understanding Indian jurisprudence on the issue

Legal recognition of live-in relationships in India goes back to the late 1920s in the form of presumption of marriage, when, in A. Dinohamy versus W.L. Blahamy, the Privy Council held that: "Where a man and a woman are proved to have lived together as a man and wife, the law will presume, unless the contrary be proved, that they were living together in consequence of a valid marriage."

This was reiterated by the Supreme Court in Thakur Gokalchand versus Parvin Kumari, where the court held that though a presumption of marriage may be drawn in live-in relationships, yet it is rebuttable.

In Badri Prasad versus Director of Consolidation, the Supreme Court held that in a case of long cohabitation, a strong presumption of marriage is formed and the burden of proof to rebut it falls on the person who seeks to prove it otherwise.

Also read: 'Love jihad' laws and the path Supreme Court can take

Ironically, the legality of live-in relationships was recognised the first time by the Allahabad High Court itself in 2001; when, in the case of Payal Sharma versus Nari Niketan, it was held by the court that an unmarried man and a woman living together is not a crime even if it is a subject of taboo within the Indian society.

In Lata Singh versus State of UP, a case involving an inter-caste couple seeking protection from harassment at the hands of the police and relatives, the Supreme Court held that "once a person becomes a major he or she can marry whosoever he/she likes".

In S. Khushboo versus Kanniammal, the Supreme Court while referring to Lata Singh, held that "live-in relationship between two consenting adults of heterogenic sex does not amount to any offence".

In D. Velusamy versus D. Patchaiammal, the Supreme Court considered lack of statutory recognition and regulation on this matter and laid steps for codification of laws with regards to live-in relationships.

Four common law criteria as prerequisites for 'relationship in the nature of marriage' were laid down:

(a) The couple must hold themselves out to society as being akin to spouses

(b) They must be of legal age to marry

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Live-in relationships outside the Hindu mainstream

Despite societal pressure, Indian jurisprudence has taken steps forward to recognise live-in relationships, however, the Supreme Court has limited the applicability to Hindu heterosexual relationships mainly by remaining silent on the applicability of this on other communities outside the Hindu mainstream.

Waheed Alam, a professor at the faculty of law, Shia P.G. college, Lucknow noted in an interview with the Outlook magazine: "Live-in relationships are nowhere mentioned in Muslim laws and they are not mentioned even in Hindu laws, but the courts through their judgements have legalised it for Hindus, even giving property rights to children born in such relationships."

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In the present case, the Bench is seeming to be questioning whether Muslim personal laws even accept live-in relationships in the light of Islamic views on zina (sexual intercourse out of wedlock), by stating: "In fact, any sexual, lustful, affectionate acts such as kissing, touching, staring etc., are 'haram' in Islam before marriage because these are considered parts of 'zina' which may lead to actual 'zina'."

It has already been established by the Supreme Court that every person, regardless of their faith, has a right to cohabitate and live in a relationship akin to marriage as long as they are consenting, are major and are qualified to enter into a legal marriage. But this veil of confusion can only be lifted when there is more judicial or statutory clarity.

Views of the Indian judiciary on interfaith and inter-caste relationships have been made abundantly clear a number of times,e.g., in In Re: Indian Woman Says gang-raped on orders of Village Court published in Business and Financial News the court clarified this right of choice by stating that "an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage."

In Shafin Jahan versus Ashokan K.M (the Hadiya marriage case) the Supreme Court recognised a girl's right to choose as part of her personal liberty and individual authority by declaring that, "The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual."

Are the legal principles set out by the courts being sabotaged?

Despite the acceptance of live-in relationships by the Indian judiciary, the Indian society has been hostile to such forms of relationship especially in cases which involve interfaith couples. Resentment has especially increased since the rise of Hindu nationalism which can be seen through the spread of notions like 'love jihad'.

This fury is often manifested in the form of communal and parental objections to all forms of interfaith relations, including live-in ties and marriages.

In recent years, many states have taken invasive action through the provisions of anti-conversion statutes like the one passed in Uttar Pradesh in 2020. The Maharashtra government set up a panel to "monitor" interfaith marriages in the aftermath of the Walkar murder case.

In this context, the judgment of the Allahabad high court represents the continued downward regression of social views towards live-in marriages. The judge rejected the petitioners' plea on the basis that they had not stated "that they are a validly married couple" nor had they claimed "for protection of the marital relationship which is allegedly being interfered with by their parents or relatives". 

The petition was held to be a "fictitious application with certain allegations", without providing any details to support this conclusion even though the petitioners' submission of harassment at the hands of the local police was acknowledged.

Even if the petitioners failed in proving that their case comes under the extraordinary jurisdiction provided to the court under Article 226, the high court's attempt to discourage and question live-in relationships has created a dangerous precedent.

The comments made by the Allahabad High Court are in the teeth of the precedent established by the Supreme Court related to fundamental rights of consenting adults to cohabitate with each other. Moreover, they are also against the delicate judicial understanding concerning the right to life and privacy. 

It must be reiterated that a person's reasoned choices cannot be restricted due to societal pressure and the judiciary must uphold the rights guaranteed by the Constitution, even if it goes against the conservative social status quo.

By emphasising the 'apparent' need to not unravel the fabric of Indian society and stressing on the negatives of live-in relationships, the Allahabad High Court has essentially done the opposite.