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  • Writer's pictureRohin Bhatt

Personal Liberty, Khap Jurisprudence and The Myth of the Social Fabric




Introduction

A bench of the Punjab and Haryana High Court refused to grant protection to a couple in a live-in relationship merely because the petitioners were ‘barely 18’ and 21(“first order”). The court noted that if such protection were to be granted, ‘the entire social fabric of the society would get disturbed. Another bench, in a separate matter (CRWP 4199 of 2021) noted that through another order that petitioners, under the garb of filing the petition merely wanted to seek approval of their live-in relationship which was ‘morally and socially not acceptable’ (“second order”). Both of these orders fall in the face of the most basic tenets of personal liberty and several Supreme Court decisions, and have the tyranny of judicial discretion, and conservativism writ large in them.


An Analysis of the orders:

The orders are ex facie wrong in law. The court, in both cases, only had to determine whether there was a threat to the life and person of the petitioners before it, and not go into the propriety of the relationship, merely because the fact that the petitioners were in a live-in relationship, and not a legally valid marriage, after having attained the age of majority. In Gian Devi v Superintendent, Nari Niketan, Delhi the SC held:

“...Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age… no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.”


In Hadiya’s case, the Supreme court had ruled that the High Court had no power to decide what the ‘just’ or ‘correct’ course of living was. It recognized that an adult had complete autonomy over their personhood, and it is the duty of the court to protect their freedom. The majority opinion, written by Justice Deepak Mishra for himself and Justice Khanwilkar also noted that:

“Non­ acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept.”


Secondly, the Court conveniently forgets that live-in relationships have been held to be legal in India. While no statute explicitly recognizes live-in relationship, the Protection of Women from Domestic Violence Act, 2005 provides the rights of persons living in a ‘relationship in the nature of marriage’. In D.Velusamy vs D.Patchaiammal, the Supreme Court noted that,

“In our opinion, a `relationship in the nature of marriage is akin to a common law marriage. Common law marriages require that although not being formally married :-

(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.”

This has, amongst a string of other decisions dating back to the Privy Council in A. Dinohamy vs. W.L. Blahamy (1927), have noted that when a man and a woman have lived together for a long time, the law presumes that they have been in a common-law marriage.


Conclusion

In the first case, order gives no reasons for why the life and liberty of the young couple would seemingly disturb the social fabric of the society, and thus refuses protection on account that no ground is made out. In the second case, after naming the petitioners, and exposing them to harm, the court notes that the relationship is unacceptable, morally and socially. This provides the families with the requisite judicial backing to separate two adults, in a consenting relationship, and makes them susceptible to criminal proceedings and harm.


The Supreme Court has also noted that it would be a hardly desirable social exercise, should parents choose to shun their children merely because they choose to marry outside their religion or caste. It also noted that such a deviation might be viewed by society and the parents as unwanted, but the police authorities (and presumably judges) were duty-bound to protect the couples if there was no violation of the law.


Interference by the courts in such matters will have a chilling effect on the exercise of freedom of choice. Such omission of the exercise of judicial power will dissuade couples from approaching the courts, or exercising their freedoms. A constitutional court saying that a person has no right to life or personal liberty because they chose to love someone from perhaps a different gender, caste, or religion when they were ‘barely 18’ or because a judge deems it to be ‘morally and socially acceptable when all he was required to do was to ascertain if there was a reasonable threat of harm and provide protection, is nothing but a violation of rights that are enshrined in Article 21.

This sort of jurisprudence, and these illegal orders are best left to Khap Panchayats. Constitutional Courts have no jurisdiction, nor is it their place to comment on what is socially and morally permissible, when all they need to do is check if there is reasonable harm to the couple.

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