Punjab-Haryana High Court
Yash Pal And Another vs State Of Haryana And Others on 9 September, 2024
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:118245-DB
CRWP-4660-2021 -1-
CRWP-149-2024 &
LPA-968-2021 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. CRWP No. 4660 of 2021
Reserved on: 27.8.2024
Date of Decision: 09.9.2024
Yash Pal and another ......Petitioners
Versus
State of Haryana and others ......Respondents
2. CRWP No. 149 of 2024
Komal and another ......Petitioners
Versus
State of Haryana and others ......Respondents
3. LPA No. 968 of 2021
Gagandeep Singh and another ......Appellants
Versus
State of Punjab others ......Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Argued by: Mr. P.S.Ahluwalia, Advocate (Amicus Curiae).
Mr. Pawan Girdhar, Addl. Advocate General, Haryana.
Mr. Satya Pal Jain, Additional Solicitor General of India
assisted by Ms. Neha Sharma, CGC for UOI.
Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab.
Mr. B.R.Rana, Advocate for
Mr. J.S.Toor, APP for U.T., Chandigarh.
****
SURESHWAR THAKUR, J.
1. Since a common question of law involves in both the petitions
(supra) as well as in the LPA (supra), hence both the petitions (supra) as well
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as the LPA (supra) are amenable for a common verdict being made thereons.
2. In CRWP-4660-2021, the petitioners have sought a direction
being passed upon the respondents concerned to protect their life and liberty,
from the respondents concerned. In the petition (supra), though petitioner
No. 1 is already married, however he has been living with petitioner No. 2 in
a live-in relationship and they want to perform marriage, but after obtaining
a decree of divorce by petitioner No. 1, from his wife.
3. CRWP-149-2024, has been filed by the petitioners seeking a
direction being passed upon the respondents concerned to protect their life
and liberty from the respondents concerned. In the petition (supra), though
petitioner No. 1 is already married, however she has been living with
petitioner No. 2 in a live-in relationship.
4. LPA No. 968 of 2021 has been filed by the appellants seeking
for the quashing the impugned order dated 31.8.2021 passed by this Court in
CRWP No. 8208 of 2021, wherebys the petition (supra) filed by the
appellants seeking protection to their life and liberty, has been dismissed
with costs of Rs. 25,000/- to be paid by appellant No. 1.
5. When CRWP-4660-2021, came up for hearing before this Court
on 21.5.2021, the following order was passed:-
“The hearing of the case was held through video conferencing on
account of restricted functioning of the Courts.
In the present petition, the Petitioners seek appropriate
directions from this Court providing them protection from the
private respondents. Petitioner No. 1 is stated to be married. It is
further stated that relations between Petitioner No. 1 and his wife
are strained, but a divorce has not been obtained by them. It is
further stated that Petitioner No. 1 has now run away with
Petitioner No. 2 and they wish to reside together, but their
relationship is not acceptable to the private respondents.
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CRWP-149-2024 &
LPA-968-2021 (O&M)It appears that various benches of this Court, of co-ordinate
strength, have formed different opinions on the matter concerned,
which cannot be easily reconciled. Hence, it is considered
appropriate to request the Hon’ble Chief Justice to constitute a
Larger Bench to decide the following questions:-
1. Where two persons living together seek protection of their
life and liberty by filing an appropriate petition, whether the
Court is required to grant them protection, per se, without
examining their marital status and the other circumstances of
that case?
2. If the answer to the above is in the negative, what are the
circumstances in which the Court can deny them protection?
Illustratively, this Court has refused to grant protection to
persons living together, where one of them is already married in:
1. CWP-26067 of 2019 (Seema and another Vs. State of Punjab
and others) decided on 16.09.2019.
2. CRWP-1621-2020 (Sundri Yadav and another Vs. State of
Haryana and others) decided on 13.02.2020.
3. CRWP-8081-2020 (Rajbala and another Vs. State of
Haryana and others) decided on 07.10.2020.
On the other hand, in similar circumstances, protection was
granted to the Petitioners in CRWP-5229-2020 (Geeta Kaur and
another Vs. State of Punjab and others), decided on 30.7.2020.
Even in relation to live-in relationships between two adults,
this Court has, considering the facts of some cases, declined
protection to the Petitioners, illustratively, in:
1. CRWP-488-2020 (Sunita and another Vs. State of Haryana
and others) decided on 16.01.2020.
2. CRWP-2421-2021 (Moyna Khatun and another Vs. State of
Punjab and others) decided on 10.3.2021.
3. CRWP-4199-2021 (Gulza Kumari and another Vs. State of
Punjab and others) decided on 11.05.2021.
4. CRWP-4268-2021 (Ujjawal and another Vs State of
Haryana and others) decided on 12.05.2021.
A view contrary to the above seems have been taken by this
Court, illustratively, in:
1. CRWP-7659-2020 (Banshi Lal and another Vs. State of
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LPA-968-2021 (O&M)Haryana and others) decided on 25.09.2020.
2. CRWP-10828-2020 (Priyapreet Kaur and another Vs. State
of Punjab and others) decided on 23.12.2020.
3. CRWP-4521-2021 (Pardeep Singh and another Vs. State of
Haryana and others) decided on 18.05.2021.
4. CRWP-4533-2021 (Soniya and another v. State of Haryana
and others), decided on 18.05.2021.
I have used the expression “person” in the first question
framed above, instead of using the expression “adult”, in view of
the fact that this Court also seems to have granted protection in
certain cases where both the Petitioners were not adults (for
instance, see CRWP-7659-2020).
Keeping in view the fact that a large number of writ petitions
are being filed before this Court involving the questions framed, the
counsels would be at liberty to request the Larger Bench for interim
relief and expeditious disposal.
6. On 15.9.2021, when the case (supra) came up for hearing before
the larger Bench, the following order was passed thereon.
“The aforesaid reference has been listed before us to decide the
following questions:-
“1. Where two persons living together seek protection of their
life and liberty by filling an appropriate petition, whether the
Court is required to grant them protection, per se, without
examining their marital status and the other circumstances of
that case?
2. If the answer to the above is in the negative, what are the
circumstances in which the Court can deny them protection?”
Keeping in view the importance of the issue, we deem it
appropriate to appoint Mr. Preetinder Singh Ahluwalia,
Advocate as Amicus Curiae to assist the Court.
Registry is directed to supply the copy of entire paper book to
Mr. Preetinder Singh Ahluwalia, Advocate.
List for arguments on 29.09.2021.”
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Cases where protection to the persons living together, where one of them
is already married, has been declined.
7. This Court in CWP-26067-2019 titled as Seema and another
versus State of Punjab and others, has declined protection to the petitioners
living together, where one of them is already married. The relevant
paragraphs of the judgment (supra) are extracted hereinafter.
“x x x x
During the course of arguments, it has gone uncontroverted
that petitioner No.1, Seema was earlier married to one Vikram and
out of wedlock, 2 children were born. They are stated to be minors.
Petitioner No.2 has now left her matrimonial home and without
even her marriage having been dissolved by a competent Court and
is now staying with petitioner No.2. Custody of both the minor
children is stated to be with the husband. Mother i.e. Petitioner
No.1 is stated to be in a live-in-relationship with petitioner No.2.
This Court under no circumstances would approve of such
relationship/liaison between the petitioners.
Even otherwise, pleadings are wholly insufficient for this
Court to infer any imminent danger to the life and liberty of the
petitioners.
No intervention in the matter is called for.
Petition is dismissed.”
8. Similar view has been taken by this Court in CRWP-1621-2020
titled as Sundri Yadav and another versus State of Haryana and others,
and in CRWP-8081-2020 titled as Rajbala and another versus State of
Haryana and others.
Case where protection to the persons living together, where one of them is
already married, has been granted
9. To the contrary, this Court in CRWP No. 5229 of 2020, titled as
Geeta Kaur versus State of Punjab, has granted protection to the persons
living together where one of them is already married. The relevant para of
the said judgment is extracted hereinafter.
"x x x x
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4. Considering the nature of the order being passed there is no
necessity to serve the private respondents or to seek a reply from
any one of the respondents.
5. The petition is disposed of with a direction to respondent
No.2 to take into consideration the request of the petitioners made
vide representation dated 16.07.2020 (Annexure P-3) and to provide
necessary protection in case the facts of the case so dictate.
6. It is made clear that this order is not a bar on initiation of any
proceedings in accordance with law.”
Cases related to the issue of Right to Choice forming part of Right to Life
Under Article 21
10. The judgments with respect to Right to Choice forming part of
Right to Life under Article 21 of the Constitution of India, must be protected
in face of any threat or apprehension. The relevant paragraphs of the
judgments (supra) rendered by the Apex Court and by this Court become
reproduced as under.
(1) Devu G Nair versus The State of Kerala and others, SLP
(Criminal) No. 1891 of 2023
"x x x x
10. The High Court must duly bear this facet in mind.
Ascertaining the wishes of a person isone thing but it would be
completely inappropriate to attempt to overcome the identity and
sexual orientation of an individual by a process of purported
counselling. Judges must eschew the tendency to substitute their
own subjective values for the values which are protected by the
Constitution.
x x x x
16. Guidelines for the courts in dealing with habeas corpus
petitions for petitions for police protection are formulated below:
(a) Hebeas corpus petitions and petitions for protection filed by a
partner, friend or a natal family member must be given a priority
in listing and hearing before the court. A court must avoid
adjourning the matter, or delays in the disposal of the case;
(b) In evaluating the locus standi of a partner or friend, the court
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relationship between the appellant and the person;
(c) The effort must be to create an environment conducive for a
free and uncoerced dialogue to ascertain the wishes of the
corpus;
(d) The court must ensure that the corpus is produced before the
court and given the opportunity to interact with the judges in-
person in chambers to ensure the privacy and safety of the
detained or missing person. The court must conduct in-camera
proceedings. The recording of the statement must be transcribed
and the recording must be secured to ensure that it is not
accessible to any other party;
(e) The court must ensure that the wishes of the detained person
is not unduly influenced by the Court, or the police, or the natal
family during the course of the proceedings. In particular, the
court must ensure that the individuals(s) alleged to be detaining
the individual against their volition are not present in the same
environment as the detained or missing person. Similarly, in
petitions seeking police protection from the natal family of the
parties, the family must not be placed in the same environment as
the petitioners;
(f) Upon securing the environment and inviting the detained or
missing person in chambers, the court must make active efforts to
put the detained or missing person at ease. The preferred name
and pronouns of the detained or missing person may be asked.
The person must be given a comfortable seating, access to
drinking water and washroom. They must be allowed to take
periodic breaks to collect themselves. The judge must adopt a
friendly and compassionate demeanor and make all efforts to
defuse any tension or discomfort. Courts must ensure that the
detained or missing person faces no obstacles in being able to
express their wishes to the court;
(g) A court while dealing with the detained or missing person
may ascertain the age of the detained or missing person.
However, the minority of the detained or missing person must not
be used, at the threshold, to dismiss a habeas corpus petition
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against illegal detention by a natal family;
(h) The judges must showcase sincere empathy and compassion
for the case of the detained or missing person. Social morality
laden with homophobic or transphobic views or any personal
predilection of the judge or sympathy for the natal family must be
eschewed. The court must ensure that the law is followed in
ascertaining the free will of the detained or missing person;
(i) If a detained or missing person expresses their wish to not go
back to the alleged detainer or the natal family, then the person
must be released immediately without any further delay;
(j) The court must acknowledge that some intimate partners may
face social stigma and a neutral stand of the law would be
detrimental to the fundamental freedoms of the appellant.
Therefore, a court while dealing with a petition for police
protection by intimate partners on the grounds that they are a
same sex, transgender, inter-faith or inter-caste couple must
grant an ad-interim measure, such as immediately granting
police protection to the petitioners, before establishing the
threshold requirement of being at grave risk of violence and
abuse. The protection granted to intimate partners must be with a
view to maintain their privacy and dignity;
(k) The Court shall not pass any directions for counselling or
parental care when the corpus is produced before the Court. The
role of the Court is limited to ascertaining the will of the person.
The Court must not adopt counselling as a means of changing the
mind of the appellant, or the detained/missing person;
(l) The Judge during the interaction with the corpus to ascertain
their views must not attempt to change or influence the admission
of the sexual orientation or gender identity of the appellant or the
corpus. The court must act swiftly against any queerphobic,
transphobic, or otherwise derogatory conduct or remark by the
alleged detainers, court staff, or lawyers; and
(m) Sexual orientation and gender identity fall in a core zone of
privacy of an individual. These identities are a matter of self-
identification and no stigma or moral judgment must be imposed
when dealing with cases involving parties from the LGBTQ+
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community. Courts must exercise caution in passing any
direction or making any comment which may be perceived as
pejorative.”
(2) Shafin Jahan versus Ashokan K.M. and others (2018) 16
Supreme Court Cases 368
x x x x
27. Thus, the pivotal purpose of the said writ is to see that no one
is deprived of his/her liberty without sanction of law. It is the
primary duty of the State to see that the said right is not sullied in
any manner whatsoever and its sanctity is not affected by any kind
of subterfuge. The role of the Court is to see that the detenue is
produced before it, find out about his/her independent choice and
see to it that the person is released from illegal restraint. The issue
will be a different one when the detention is not illegal. What is
seminal is to remember that the song of liberty is sung with sincerity
and the choice of an individual is appositely respected and
conferred its esteemed status as the Constitution guarantees. It is so
as the expression of choice is a fundamental right under Articles 19
and 21 of the Constitution, if the said choice does not transgress any
valid legal framework. Once that aspect is clear, the enquiry and
determination have to come to an end.
28. In the instant case, the High Court, as is noticeable from the
impugned verdict, has been erroneously guided by some kind of
social phenomenon that was frescoed before it. The writ court has
taken exception to the marriage of Respondent 9 herein with the
appellant. It felt perturbed. As we see, there was nothing to be taken
exception to. Initially, Hadiya had declined to go with her father
and expressed her desire to stay with Respondent 7 before the High
Court and in the first writ it had so directed. The adamantine
attitude of the father, possibly impelled by obsessive parental love,
compelled him to knock at the doors of the High Court in another
habeas corpus petition whereupon the High Court directed the
production of Hadiya who appeared on the given date along with
the appellant herein whom the High Court calls a stranger. But
Hadiya would insist that she had entered into marriage with him.
True it is, she had gone with Respondent 7 before the High Court
but that does not mean and can never mean that she, as a major,
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could not enter into a marital relationship. But, the High Court
unwarrantably took exception to the same forgetting that parental
love or concern cannot be allowed to fluster the right of choice of
an adult in choosing a man to whom she gets married. And, that is
where the error has crept in. The High Court should have, after an
interaction as regards her choice, directed that she was free to go
where she wished to.
29. The High Court further erred by reflecting upon the social
radicalisation and certain other aspects. In a writ of habeas corpus,
especially in the instant case, it was absolutely unnecessary. If there
was any criminality in any sphere, it is for the law-enforcing agency
to do the needful but as long as the detenue has not been booked
under law to justify the detention which is under challenge, the
obligation of the Court is to exercise the celebrated writ that
breathes life into our constitutional guarantee of freedom. The
approach of the High Court on the said score is wholly fallacious.
30. The High Court has been swayed away by the strategy, as it
thought, adopted by Respondent 7 before it in connivance with the
present appellant and others to move Hadiya out of the country.
That is not within the ambit of the writ of habeas corpus. The future
activity, if any, is required to be governed and controlled by the
State in accordance with law. The apprehension was not within the
arena of jurisdiction regard being had to the lis before it.
x x x x
52. It is obligatory to state here that expression of choice in
accord with law is acceptance of individual identity. Curtailment of
that expression and the ultimate action emanating therefrom on the
conceptual structuralism of obeisance to the societal will destroy
the individualistic entity of a person. The social values and morals
have their space but they are not above the constitutionally
guaranteed freedom. The said freedom is both a constitutional and a
human right. Deprivation of that freedom which is ingrained in
choice on the plea of faith is impermissible. Faith of a person is
intrinsic to his/her meaningful existence. To have the freedom of
faith is essential to his/her autonomy; and it strengthens the core
norms of the Constitution. Choosing a faith is the substratum of
individuality and sans it, the right of choice becomes a shadow. It
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has to be remembered that the realisation of a right is more
important than the conferment of the right. Such actualisation
indeed ostracises any kind of societal notoriety and keeps at bay the
patriarchal supremacy. It is so because the individualistic faith and
expression of choice are fundamental for the fructification of the
right. Thus, we would like to call it indispensable preliminary
condition.
53. 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.”
11. Similar view was taken by the Apex Court in a judgment
rendered in case titled as Nandakumar and another versus State of Karala
and others (2018) 16 Supreme Court Cases 602.
12. This Court while dealing the issue (supra) in LPA No. 769 of
2021 titled as Ishrat Bano and another versus State of Punjab and others
has observed as under:-
“x x x x
The aspect which we are considering and dealing with is with
regard to the threat to the life and liberty to the appellants as has
been asserted by them. No doubt, in case a criminal case is
registered against any of the parties, the law should take its own
course, however, the life and liberty of any person who has
approached the Court with such a grievance need to be taken care
of and the protection be provided as permissible in law. No person
can be permitted or allowed to take law in his hands and therefore,
keeping in view the said aspect, we dispose of the present appeal by
observing that the Senior Superintendent of Police, Maler Kotla,
shall take into consideration the representation dated 17.08.2021
(Annexure P-5) submitted by the appellants and if some substance is
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found therein, take appropriate steps in accordance with law to
ensure that the life and liberty is not jeopardized of the appellants at
the hands of the private respondents. This direction shall not be
construed in any manner to restrain the official respondents to
proceed against the appellants in case there is some criminal case
registered against them. The law shall take its own course and it
shall be open to the authorities/investigating agency to proceed
against the appellants, if required in law and in accordance
thereto.”
13. The contra postures taken in judgments (supra) vis-a-vis the
claim for protection being granted to the persons living together, where one
of them is already married, does require the makings of reconciliation of the
said contra postures.
14. It is but the avalanche of social morality which befalls the
above genre of relationship, that makes the task of reconciling the above
contra postures to be an extremely hazardous task.
15. The avalanche of social morality sliding onto the above genre of
live-in relationship does naturally also affect the socio moral fabric of the
society. Resultantly therebys to ensure the intactness of the social moral
fabric of the society, that judicial postures have been taken in some of the
decisions (supra), that live-in relationships where one of the live-in partners
is married, does not well muster, rather in the said live-in couple, even upon
evident threats emanating from the members of their respective families or
from some moral vigilants, thus the leverage to claim protection against the
apposite resistances vis-a-vis the continuance of their live-in relationships.
16. However, the beacon of light rather for providing protection to
the genre of live-in relationship (supra) is purveyed by a judgment rendered
by the Apex Court in Joseph Shine versus Union of India reported in
(2019) 3 Supreme Court Cases 39. The relevant paragraphs, as borne in the
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said judgments become extracted hereinafter.
“x x x x
44. Having stated about the dignity of a woman, in the context of
autonomy, desire, choice and identity, it is obligatory to refer to the
recent larger Bench decision in K.S. Puttaswamy and another v. Union
of India and others32 which, while laying down that privacy is a facet
of Article 21 of the Constitution, lays immense stress on the dignity of
an individual. In the said judgment, it has been held:-
108. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection of
life and liberty with dignity. Dignity as a constitutional value finds
expression in the Preamble. The constitutional vision seeks the
realisation of justice (social, economic and political); liberty (of
thought, expression, belief, faith and worship); equality (as a
guarantee (2017) 10 SCC 1 against arbitrary treatment of
individuals) and fraternity (which assures a life of dignity to every
individual). These constitutional precepts exist in unity to facilitate
a humane and compassionate society. The individual is the focal
point of the Constitution because it is in the realisation of
individual rights that the collective well-being of the community is
determined. Human dignity is an integral part of the Constitution.
Reflections of dignity are found in the guarantee against
arbitrariness (Article 14), the lamps of freedom (Article 19) and in
the right to life and personal liberty (Article 21).
xxx xxxx xxx
119. To live is to live with dignity. The draftsmen of the
Constitution defined their vision of the society in which
constitutional values would be attained by emphasising, among
other freedoms, liberty and dignity. So fundamental is dignity that
it permeates the core of the rights guaranteed to the individual by
Part III. Dignity is the core which unites the fundamental rights
because the fundamental rights seek to achieve for each individual
the dignity of existence…
xxx xxx xxx
298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an
intrinsic value, human dignity is an entitlement or a
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constitutionally protected interest in itself. In its instrumental facet,
dignity and freedom are inseparably inter-twined, each being a
facilitative tool to achieve the other. The ability of the individual to
protect a zone of privacy enables the realization of the full value of
life and liberty.
Liberty has a broader meaning of which privacy is a subset. All
liberties may not be exercised in privacy. Yet others can be fulfilled
only within a private space. Privacy enables the individual to retain
the autonomy of the body and mind. The autonomy of the individual
is the ability to make decisions on vital matters of concern to life.
Privacy has not been couched as an independent fundamental
right. But that does not detract from the constitutional protection
afforded to it, once the true nature of privacy and its relationship
with those fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee against
arbitrary state action. It prevents the state from discriminating
between individuals. The destruction by the state of a sanctified
personal space whether of the body or of the mind is violative of the
guarantee against arbitrary state action. Privacy of the body
entitles an individual to the integrity of the physical aspects of
personhood. The intersection between one’s mental integrity and
privacy entitles the individual to freedom of thought, the freedom to
believe in what is right, and the freedom of self-determination
xxx xxx xxx
525. But most important of all is the cardinal value of fraternity
which assures the dignity of the individual. The dignity of the
individual encompasses the right of the individual to develop to the
full extent of his potential. And this development can only be if an
individual has autonomy over fundamental personal choices and
control over dissemination of personal information which may be
infringed through an unauthorized use of such information. It is
clear that Article 21, more than any of the other Articles in the
fundamental rights chapter, reflects each of these constitutional
values in full, and is to be read in consonance with these values
and with the international covenants that we have referred to. In
the ultimate analysis, the fundamental right of privacy, which has
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so many developing facets, can only be developed on a case to case
basis. Depending upon the particular facet that is relied upon,
either Article 21by itself or in conjunction with other fundamental
rights would get attracted.
x x x x
48. From the aforesaid analysis, it is discernible that the Court, with
the passage of time, has recognized the conceptual equality of woman
and the essential dignity which a woman is entitled to have. There can
be no curtailment of the same. But, Section 497 IPC effectively does
the same by creating invidious distinctions based on gender
stereotypes which creates a dent in the individual dignity of women.
Besides, the emphasis on the element of connivance or consent of the
husband tantamounts to subordination of women. Therefore, we have
no hesitation in holding that the same offends Article 21 of the
Constitution.
49. Another aspect needs to be addressed. The question we intend to
pose is whether adultery should be treated as a criminal offence. Even
assuming that the new definition of adultery encapsules within its
scope sexual intercourse with an unmarried woman or a widow,
adultery is basically associated with the institution of marriage. There
is no denial of the fact that marriage is treated as a social institution
and regard being had to various aspects that social history has
witnessed in this country, the Parliament has always made efforts to
maintain the rights of women. For instance, Section 498-A IPC deals
with husband or relative of husband of a woman subjecting her to
cruelty. The Parliament has also brought in the Protection of Women
from Domestic Violence Act, 2005. This enactment protects women. It
also enters into the matrimonial sphere. The offences under the
provisions of the said enactment are different from the provision that
has been conceived of under Section 497 IPC or, for that matter,
concerning bringing of adultery within the net of a criminal offence.
50. There can be no shadow of doubt that adultery can be a ground
for any kind of civil wrong including dissolution of marriage. But the
pivotal question is whether it should be treated as a criminal offence.
When we say so, it is not to be understood that there can be any kind of
social licence that destroys the matrimonial home. It is an ideal
condition when the wife and husband maintain their loyalty. We are
not commenting on any kind of ideal situation but, in fact, focusing on
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whether the act of adultery should be treated as a criminal offence. In
this context, we are reminded of what Edmund Burke, a famous
thinker, had said, ―a good legislation should be fit and equitable so
that it can have a right to command obedience. Burke would like to put
it in two compartments, namely, “equity” and “utility”. If the principle
of Burke is properly understood, it conveys that laws and legislations
are necessary to serve and promote a good life.”
x x x x
57. We have referred to the aforesaid theories and authorities to
understand whether adultery that enters into the matrimonial realm
should be treated as a criminal offence. There can be many a situation
and we do not intend to get into the same. Suffice it to say, it is
different from an offence committed under Section 498-A or any
violation of the Protection of Women from Domestic Violence Act,
2005 or, for that matter, the protection conceived of under Section
125 of the Code of Criminal Procedure or Sections 306 or 304B or
494 IPC. These offences are meant to sub-serve various other purposes
relating to a matrimonial relationship and extinction of life of a
married woman during subsistence of marriage.
58. Treating adultery an offence, we are disposed to think, would
tantamount to the State entering into a real private realm. Under the
existing provision, the husband is treated as an aggrieved person and
the wife is ignored as a victim. Presently, the provision is reflective of
a tripartite labyrinth. A situation may be conceived of where equality
of status and the right to file a case may be conferred on the wife. In
either situation, the whole scenario is extremely private. It stands in
contradistinction to the demand for dowry, domestic violence, sending
someone to jail for non-grant of maintenance or filing a complaint for
second marriage. Adultery stands on a different footing from the
aforesaid offences. We are absolutely conscious that the Parliament
has the law making power. We make it very clear that we are not
making law or legislating but only stating that a particular act, i.e.,
adultery does not fit into the concept of a crime. We may repeat at the
cost of repetition that if it is treated as a crime, there would be
immense intrusion into the extreme privacy of the matrimonial sphere.
It is better to be left as a ground for divorce. For any other purpose as
the Parliament has perceived or may, at any time, perceive, to treat it
as a criminal offence will offend the two facets of Article 21 of the
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Constitution, namely, dignity of husband and wife, as the case may be,
and the privacy attached to a relationship between the two.
59. Let it be clearly stated, by no stretch of imagination, one can
say, that Section 498-A or any other provision, as mentioned
hereinbefore, also enters into the private realm of matrimonial
relationship. In case of the said offences, there is no third party
involved. It is the husband and his relatives. There has been correct
imposition by law not to demand dowry or to treat women with cruelty
so as to compel her to commit suicide. The said activities deserve to be
punished and the law has rightly provided so.
x x x x
63. In case of adultery, the law expects the parties to remain loyal
and maintain fidelity throughout and also makes the adulterer the
culprit. This expectation by law is a command which gets into the core
of privacy. That apart, it is a discriminatory command and also a
socio-moral one. Two individuals may part on the said ground but to
attach criminality to the same is inapposite.
64. We may also usefully note here that adultery as a crime is no more
prevalent in People’s Republic of China, Japan, Australia, Brazil and
many western European countries. The diversity of culture in those
countries can be judicially taken note of. Non-criminalisation of
adultery, apart from what we have stated hereinabove, can be proved
from certain other facets. When the parties to a marriage lose their
moral commitment of the relationship, it creates a dent in the marriage
and it will depend upon the parties how they deal with the situation.
Some may exonerate and live together and some may seek divorce. It is
absolutely a matter of privacy at its pinnacle. The theories of
punishment, whether deterrent or reformative, would not save the
situation. A punishment is unlikely to establish commitment, if
punishment is meted out to either of them or a third party.
65. Adultery, in certain situations, may not be the cause of an
unhappy marriage. It can be the result. It is difficult to conceive of
such situations in absolute terms. The issue that requires to be
determined is whether the said “act” should be made a criminal
offence especially when on certain occasions, it can be the cause and
in certain situations, it can be the result. If the act is treated as an
offence and punishment is provided, it would tantamount to punishing
people who are unhappy in marital relationships and any law that
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would make adultery a crime would have to punish indiscriminately
both the persons whose marriages have been broken down as well as
those persons whose marriages are not. A law punishing adultery as a
crime cannot make distinction between these two types of marriages. It
is bound to become a law which would fall within the sphere of
manifest arbitrariness.”
“x x x x
98. International trends worldwide also indicate that very few
nations continue to treat adultery as a crime, though most nations
retain adultery for the purposes of divorce laws. Thus, adultery
continues to be a criminal offence in Afghanistan, Bangladesh,
Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab
Emirates, some states of the United States of America, Algeria,
Democratic Republic of Congo, Egypt, Morocco, and some parts of
Nigeria. On the other hand, a number of jurisdictions have done away
with adultery as a crime. The People’s Republic of China, Japan,
Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark,
France, Germany, Austria, the Republic of Ireland, Barbados,
Bermuda, Jamaica, Trinidad and Tobago, Seychelles etc. are some of
the jurisdictions in which it has been done away with. In South Korea
and Guatemala, provisions similar to Section 497 have been struck
down by the constitutional courts of those nations.
x x x x
106. We have, in our recent judgment in Justice K.S. Puttaswamy
(Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1,
(“Puttaswamy”), held:
“108. Over the last four decades, our constitutional jurisprudence
has recognised the inseparable relationship between protection of
life and liberty with dignity. Dignity as a constitutional value finds
expression in the Preamble. The constitutional vision seeks the
realisation of justice (social, economic and political); liberty (of
thought, expression, belief, faith and worship); equality (as a
guarantee against arbitrary treatment of individuals) and fraternity
(which assures a life of dignity to every individual). These
constitutional precepts exist in unity to facilitate a humane and
compassionate society. The individual is the focal point of the
Constitution because it is in the realisation of individual rights that
the collective well-being of the community is determined. Human
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are found in the guarantee against arbitrariness (Article 14), the
lamps of freedom (Article 19) and in the right to life and personal
liberty (Article 21).”
xxx xxx xxx
“298. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an intrinsic
value, human dignity is an entitlement or a constitutionally
protected interest in itself. In its instrumental facet, dignity and
freedom are inseparably intertwined, each being a facilitative tool to
achieve the other. The ability of the individual to protect a zone of
privacy enables the realisation of the full value of life and liberty.
Liberty has a broader meaning of which privacy is a subset. All
liberties may not be exercised in privacy. Yet others can be fulfilled
only within a private space. Privacy enables the individual to retain
the autonomy of the body and mind. The autonomy of the individual
is the ability to make decisions on vital matters of concern to life.
Privacy has not been couched as an independent fundamental right.
But that does not detract from the constitutional protection afforded
to it, once the true nature of privacy and its relationship with those
fundamental rights which are expressly protected is understood.
Privacy lies across the spectrum of protected freedoms. The
guarantee of equality is a guarantee against arbitrary State action.
It prevents the State from discriminating between individuals. The
destruction by the State of a sanctified personal space whether of the
body or of the mind is violative of the guarantee against arbitrary
State action. Privacy of the body entitles an individual to the
integrity of the physical aspects of personhood. The intersection
between one’s mental integrity and privacy entitles the individual to
freedom of thought, the freedom to believe in what is right, and the
freedom of self-determination. When these guarantees intersect with
gender, they create a private space which protects all those elements
which are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the dignity of
the individual. Above all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be exercised. An
individual may perceive that the best form of expression is to remain
silent. Silence postulates a realm of privacy. An artist finds
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reflection of the soul in a creative endeavour. A writer expresses the
outcome of a process of thought. A musician contemplates upon
notes which musically lead to silence. The silence, which lies within,
reflects on the ability to choose how to convey thoughts and ideas or
interact with others. These are crucial aspects of personhood. The
freedoms under Article 19 can be fulfilled where the individual is
entitled to decide upon his or her preferences. Read in conjunction
with Article 21, liberty enables the individual to have a choice of
preferences on various facets of life including what and how one will
eat, the way one will dress, the faith one will espouse and a myriad
other matters on which autonomy and self-determination require a
choice to be made within the privacy of the mind. The constitutional
right to the freedom of religion under Article 25 has implicit within
it the ability to choose a faith and the freedom to express or not
express those choices to the world. These are some illustrations of
the manner in which privacy facilitates freedom and is intrinsic to
the exercise of liberty. The Constitution does not contain a separate
article telling us that privacy has been declared to be a fundamental
right. Nor have we tagged the provisions of Part III with an alpha-
suffixed right to privacy: this is not an act of judicial redrafting.
Dignity cannot exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the Constitution
has recognised. Privacy is the ultimate expression of the sanctity of
the individual. It is a constitutional value which straddles across the
spectrum of fundamental rights and protects for the individual a
zone of choice and self-determination.”
xxx xxx xxx
“482. Shri Sundaram has argued that rights have to be traced
directly to those expressly stated in the fundamental rights chapter
of the Constitution for such rights to receive protection, and privacy
is not one of them. It will be noticed that the dignity of the individual
is a cardinal value, which is expressed in the Preamble to the
Constitution. Such dignity is not expressly stated as a right in the
fundamental rights chapter, but has been read into the right to life
and personal liberty. The right to live with dignity is expressly read
into Article 21 by the judgment in Jolly George Varghese v. Bank of
Cochin [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC
360>], at para 10. Similarly, the right against bar fetters and
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handcuffing being integral to an individual’s dignity was read into
Article 21 by the judgment in Sunil Batra v. Delhi Admn. [Sunil
Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155], at
paras 192, 197-B, 234 and 241 and Prem Shankar Shukla v. Delhi
Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 :
1980 SCC (Cri) 815], at paras 21 and 22. It is too late in the day to
canvas that a fundamental right must be traceable to express
language in Part III of the Constitution. As will be pointed out later
in this judgment, a Constitution has to be read in such a way that
words deliver up principles that are to be followed and if this is kept
in mind, it is clear that the concept of privacy is contained not
merely in personal liberty, but also in the dignity of the individual.”
xxx xxx xxx
“525. But most important of all is the cardinal value of fraternity
which assures the dignity of the individual. [In 1834, Jacques-
Charles DuPont de l’Eure associated the three terms liberty,
equality and fraternity together in the Revue Républicaine, which he
edited, as follows: “Any man aspires to liberty, to equality, but he
cannot achieve it without the assistance of other men, without
fraternity.” Many of our decisions recognise human dignity as being
an essential part of the fundamental rights chapter. For example,
see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at
para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608
at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India,
(1984) 3 SCC 161 at para 10, Maharashtra University of Health
Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at
para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras
12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC
761 at para 37.] The dignity of the individual encompasses the right
of the individual to develop to the full extent of his potential. And
this development can only be if an individual has autonomy over
fundamental personal choices and control over dissemination of
personal information which may be infringed through an
unauthorised use of such information. It is clear that Article 21,
more than any of the other articles in the fundamental rights
chapter, reflects each of these constitutional values in full, and is to
be read in consonance with these values and with the international
covenants that we have referred to. In the ultimate analysis, the
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fundamental right to privacy, which has so many developing facets,
can only be developed on a case-to-case basis. Depending upon the
particular facet that is relied upon, either Article 21 by itself or in
conjunction with other fundamental rights would get attracted.”
107. The dignity of the individual, which is spoken of in the Preamble
to the Constitution of India, is a facet of Article 21 of the Constitution.
A statutory provision belonging to the hoary past which demeans or
degrades the status of a woman obviously falls foul of modern
constitutional doctrine and must be struck down on this ground also.”
x x x x
114. In the preceding years, the Court has evolved a jurisprudence of
rights- granting primacy to the right to autonomy, dignity and
individual choice. The right to sexual autonomy and privacy has been
granted the stature of a Constitutional right. In confronting the sources
of gendered injustice which threaten the rights and freedoms promised
in our Constitution, we set out to examine the validity of Section 497 of
the Indian Penal Code. In doing so, we also test the constitutionality of
moral and societal regulation of women and their intimate lives
through the law.
x x x x
145. In 2015, the South Korean Constitutional Court, by a majority
of 7-2 struck down Article 241 of the Criminal Law; a provision which
criminalized adultery with a term of imprisonment of two years as
unconstitutional. In doing so, South Korea joined a growing list of
countries in Asia and indeed around the world that have taken the
measure of effacing the offence of adultery from the statute books,
considering evolving public values and societal trends. The
Constitutional Court had deliberated upon the legality of the provision
four times previously[, but chose to strike it down when it came before
it in 2015, with the Court’s judgement acknowledging the shifting
public perception of individual rights in their private lives.
146. The majority opinion of the Court was concurred with by five of
the seven judges who struck down the provision. The majority
acknowledged that the criminal provision had a legitimate legislative
purpose in intending “to promote the marriage system based on good
sexual culture and practice and monogamy and to preserve marital
fidelity between spouses.” However, the Court sought to strike a
balance between the legitimate interest of the legislature in promoting
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the institution of marriage and marital fidelity vis-a-vis the
fundamental right of an individual to self-determination, which
included sexual-self-determination, and was guaranteed under Article
10 of their Constitution. The Court held:
“The right to self-determination connotes the right to sexual
self-determination that is the freedom to choose sexual activities and
partners, implying that the provision at issue restricts the right to
sexual self-determination of individuals. In addition, the provision at
Issue also restricts the right to privacy protected under Article 17 of
the Constitution in that it restricts activities arising out of sexual life
belonging to the intimate private domain.”
The Court used the test of least restrictiveness, and began by
acknowledging that there no longer existed public consensus on the
criminalization of adultery, with the societal structure having changed
from holding traditional family values and a typeset role of family
members to sexual views driven by liberal thought and individualism.
While recognizing that marital infidelity is immoral and unethical, the
Court stated that love and sexual life were intimate concerns, and they
should not be made subject to criminal law. Commenting on the
balance between an individual’s sexual autonomy vis-a-vis societal
morality, the Court remarked:
“…the society is changing into one where the private interest of sexual
autonomy is put before the social interest of sexual morality and
families from the perspective of dignity and happiness of individuals.”
Next, the Court analysed the appropriateness and effectiveness
of criminal punishment in curbing the offence of adultery. Addressing
the question of whether adultery should be regulated, the Court stated
that modern criminal law dictated that the State should not seek to
interfere in an act that is not socially harmful or deleterious to legal
interests, simply because it is repugnant to morality. Moreover, it held
that the State had no business in seeking to control an individual’s
actions which were within the sphere of his or her constitutionally
protected rights of privacy and self-determination.
x x x x
148. Addressing the concern that an abolition of a penal
consequence would result in “chaos in sexual morality” or an increase
of divorce due to adultery, the Court concluded that there was no data
at all to support these claims in countries where adultery is repealed,
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stating:
“Rather, the degree of social condemnation for adultery has
been reduced due to the social trend to value the right to sexual self-
determination and the changed recognition on sex, despite of the
punishment of adultery. Accordingly, it is hard to anticipate a
general and special deterrence effect for adultery from the
perspective of criminal policy as it loses the function of regulating
behaviour.”
The Court also analysed the argument that adultery provisions
protected women:
“It is true that the existence of adultery crimes in the past Korean
society served to protect women. Women were socially and
economically underprivileged, and acts of adultery were mainly
committed by men. Therefore, the existence of an adultery crime
acted as psychological deterrence for men, and, furthermore,
enabled female spouses to receive payment of compensation for grief
or divided assets from the male spouse on the condition of
cancelling the adultery accusation.
However, the changes of our society diluted the justification of
criminal punishment of adultery. Above all, as women’s earning
power and economic capabilities have improved with more active
social and economic activities, the premise that women are the
economically disadvantaged does not apply to all married couples.”
Finally, the Court concluded its analysis by holding that the
interests of enforcing monogamy, protecting marriage and promoting
marital fidelity, balanced against the interference of the State in the
rights to privacy and sexual autonomy were clearly excessive and
therefore failed the test of least restrictiveness.
x x x x
168. The hypothesis which forms the basis of the law on adultery is
the subsistence of a patriarchal order. Section 497 is based on a notion
of morality which fails to accord with the values on which the
Constitution is founded. The freedoms which the Constitution
guarantees inhere in men and women alike. In enacting Section 497,
the legislature made an ostensible effort to protect the institution of
marriage. ‘Ostensible’ it is, because the provision postulates a notion
of marriage which subverts the equality of spouses. Marriage in a
constitutional regime is founded on the equality of and between
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spouses. Each of them is entitled to the same liberty which Part III
guarantees. Each of them is entitled to take decisions in accordance
with his and her conscience and each must have the ability to pursue
the human desire for fulfilment. Section 497 is based on the
understanding that marriage submerges the identity of the woman. It is
based on a notion of marital subordination. In recognising, accepting
and enforcing these notions, Section 497 is inconsistent with the ethos
of the Constitution. treats a woman as but a possession of her spouse.
The essential values on which the Constitution is founded – liberty,
dignity and equality – cannot allow such a view of marriage. Section
497 suffers from manifest arbitrariness.
169. While engrafting the provision into Chapter XX of the Penal
Code – “of offences relating to marriage” – the legislature has based
the offence on an implicit assumption about marriage. The notion
which the law propounds and to which it imposes the sanctions of
penal law is that the marital tie subordinates the role and position of
the woman. In that view of marriage, the woman is bereft of the ability
to decide, to make choices and give free expression to her personality.
Human sexuality is an essential aspect of identity. Choices in matters
of sexuality are reflective of the human desire for expression. Sexuality
cannot be construed purely as a physiological attribute. In its
associational attributes, it links up with the human desire to be
intimate with a person of one’s choice. Sharing of physical intimacies
is a reflection of choice. In allowing individuals to make those choices
in a consensual sphere, the Constitution acknowledges that even in the
most private of zones, the individual must have the ability to make
essential decisions. Sexuality cannot be dis-associated from the human
personality. For, to be human involves the ability to fulfil sexual
desires in the pursuit of happiness. Autonomy in matters of sexuality is
thus intrinsic to a dignified human existence. Human dignity both
recognises and protects the autonomy of the individual in making
sexual choices. The sexual choices of an individual cannot obviously
be imposed on others in society and are premised on a voluntary
acceptance by consenting parties. Section 497 denudes the woman of
the ability to make these fundamental choices, in postulating that it is
only the man in a marital relationship who can consent to his spouse
having sexual intercourse with another. Section 497 disregards the
sexual autonomy which every woman possesses as a necessary
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condition of her existence. Far from being an equal partner in an
equal relationship, she is subjugated entirely to the will of her spouse.
The provision is proffered by the legislature as an effort to protect the
institution of marriage. But it proceeds on a notion of marriage which
is one sided and which denies agency to the woman in a marital tie.
The ability to make choices within marriage and on every aspect
concerning it is a facet of human liberty and dignity which the
Constitution protects. In depriving the woman of that ability and
recognising it in the man alone, Section 497 fails to meet the essence
of substantive equality in its application to marriage. Equality of rights
and entitlements between parties to a marriage is crucial to preserve
the values of the Constitution. Section 497 offends that substantive
sense of equality and is violative of Article 14.
x x x x
181. Underlying Section 497 is a gender stereotype that the infidelity
of men is normal, but that of a woman is impermissible. In condemning
the sexual agency of the woman, only the husband, as the ‘aggrieved’
party is given the right to initiate prosecution. The proceedings once
initiated, would be geared against the person who committed an act of
‘theft’ or ‘trespass’ upon his spouse. Sexual relations by a man with
another man’s wife is therefore considered as theft of the husband’s
property. Ensuring a man’s control over the sexuality of his wife was
the true purpose of Section 497.
182. Implicit in seeking to privilege the fidelity of women in a
marriage, is the assumption that a woman contracts away her sexual
agency when entering a marriage. That a woman, by marriage,
consents in advance to sexual relations with her husband or to refrain
from sexual relations outside marriage without the permission of her
husband is offensive to liberty and dignity. Such a notion has no place
in the constitutional order. Sexual autonomy constitutes an inviolable
core of the dignity of every individual. At the heart of the constitutional
rights guaranteed to every individual is a primacy of choice and the
freedom to determine one’s actions. Curtailing the sexual autonomy of
a woman or presuming the lack of consent once she enters a marriage
is antithetical to constitutional values.
x x x x
186. Section 497 rests on and perpetuates stereotypes about women
and sexual fidelity. In curtailing the sexual agency of women, it exacts
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sexual fidelity from women as the norm. It perpetuates the notion that
a woman is passive and incapable of exercising sexual freedom. In
doing so, it offers her ‘protection’ from prosecution. Section 497
denudes a woman of her sexual autonomy in making its free exercise
conditional on the consent of her spouse. In doing so, it perpetuates
the notion that a woman consents to a limited autonomy on entering
marriage. The provision is grounded in and has a deep social effect on
how society perceives the sexual agency of women. In reinforcing the
patriarchal structure which demands her controlled sexuality, Section
497 purports to serve as a provision envisaged for the protection of the
sanctity of marriage. In the context of a constitutional vision
characterized by the struggle to break through the shackles of gender
stereotypes and guarantee an equal citizenship, Section 497 entrenches
stereotypes and existing structures of discrimination and has no place
in a constitutional order.
x x x x
192. The right to privacy depends on the exercise of autonomy and
agency by individuals. In situations where citizens are disabled from
exercising these essential attributes, Courts must step in to ensure that
dignity is realised in the fullest sense. Familial structures cannot be
regarded as private spaces where constitutional rights are violated. To
grant immunity in situations when rights of individuals are in siege, is
to obstruct the unfolding vision of the Constitution.
x x x x
195. Control over women’s sexuality is the key patriarchal
assumption that underlies family and marriage. When it shifts to the
‘public’ as opposed to the ‘private’, the misogyny becomes even more
pronounced. Section 497 embodies this. By the operation of the
provision, women’s sexuality is sought to be controlled in a number of
ways. First, the husband and he alone is enabled to prosecute the man
with whom his wife has sexual relations. Even in cases where the
relationship is based on the consent of the woman, the law treats it as
an offence, denying a woman who has voluntarily entered into a
consensual relationship of her sexual agency. Second, such a
relationship would be beyond the reach of penal law if her husband
consents to it. The second condition is a telling reflection of the
patriarchal assumption underlying the criminal provision: that the
husband is the owner of the wife’s sexual agency.
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x x x x
202. Section 497 seeks the preservation of a construct of marriage in
which female fidelity is enforced by the letter of the law and by the
coercive authority of the state. Such a conception goes against the
spirit of the rights-based jurisprudence of this Court, which seeks to
protect the dignity of an individual and her “intimate personal
choices”. It cannot be held that these rights cease to exist once the
woman enters into a marriage.
x x x x
207. In Navtej, one of us (Chandrachud J) held that the right to
sexual privacy is a natural right, fundamental to liberty and a
soulmate of dignity. The application of Section 497 is a blatant
violation of these enunciated rights. Will a trial to prove adultery lead
the wife to tender proof of her fidelity” In Navtej, the principle was
elucidated thus:
“613….In protecting consensual intimacies, the Constitution adopts
a simple principle: the state has no business to intrude into these
personal matters.”
In so far as two individuals engage in acts based on consent, the law
cannot intervene. Any intrusion in this private sphere would amount to
deprivation of autonomy and sexual agency, which every individual is
imbued with.
x x x x
210. This judgment has dwelt on the importance of sexual autonomy
as a value which is integral to life and personal liberty under Article
21. Individuals in a relationship, whether within or outside marriage,
have a legitimate expectation that each will provide to the other the
same element of companionship and respect for choices. Respect for
sexual autonomy, it must be emphasized is founded on the equality
between spouses and partners and the recognition by each of them of
the dignity of the other. Control over sexuality attaches to the human
element in each individual. Marriage – whether it be a sacrament or
contract does not result in ceding of the autonomy of one spouse to
another.
211. Recognition of sexual autonomy as inhering in each individual
and of the elements of privacy and dignity have a bearing on the role
of the state in regulating the conditions and consequences of marital
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relationships. There is a fundamental reason which militates against
criminalization of adultery. Its genesis lies in the fact that
criminalizing an act is not a valid constitutional response to a sexual
relationship outside the fold of marriage. Adultery in the course of a
subsisting marital relationship may, and very often does question the
commitment of the spouse to the relationship. In many cases, a sexual
relationship of one of the spouses outside of the marriage may lead to
the end of the marital relationship. But in other cases, such a
relationship may not be the cause but the consequence of a pre-
existing disruption of the marital tie. All too often, spouses who have
drifted apart irrevocably may be compelled for reasons personal to
them to continue with the veneer of a marriage which has ended for all
intents and purposes. The interminably long delay of the law in the
resolution of matrimonial conflicts is an aspect which cannot be
ignored. The realities of human existence are too complex to place
them in closed categories of right and wrong and to subject all that is
considered wrong with the sanctions of penal law. Just as all conduct
which is not criminal may not necessarily be ethically just, all conduct
which is inappropriate does not justify being elevated to a criminal
wrongdoing.
x x x x
218. This Court has recognised sexual privacy as a natural right,
protected under the Constitution. To shackle the sexual freedom of a
woman and allow the criminalization of consensual relationships is a
denial of this right. Section 497 denudes a married woman of her
agency and identity, employing the force of law to preserve a
patriarchal conception of marriage which is at odds with
constitutional morality:
“Infidelity was born on the day that natural flows of sexual desire
were bound into the legal and formal permanence of marriage; in
the process of ensuring male control over progeny and property,
women were chained within the fetters of fidelity.”
Constitutional protections and freedoms permeate every aspect of a
citizen’s life – the delineation of private or public spheres become
irrelevant as far as the enforcement of constitutional rights is
concerned. Therefore, even the intimate personal sphere of marital
relations is not exempt from constitutional scrutiny. The enforcement
of forced female fidelity by curtailing sexual autonomy is an affront to
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the fundamental right to dignity and equality.
219. Criminal law must be in consonance with constitutional
morality. The law on adultery enforces a construct of marriage where
one partner is to cede her sexual autonomy to the other. Being
antithetical to the constitutional guarantees of liberty, dignity and
equality, Section 497 does not pass constitutional muster.
x x x x
278. The Petitioners have contended that the right to privacy under
Article 21 would include the right of two adults to enter into a sexual
relationship outside marriage. The right to privacy and personal
liberty is, however, not an absolute one; it is subject to reasonable
restrictions when legitimate public interest is involved. It is true that
the boundaries of personal liberty are difficult to be identified in black
and white; however, such liberty must accommodate public interest.
The freedom to have a consensual sexual relationship outside
marriage by a married person, does not warrant protection under
Article 21.”
17. The above extracted paragraphs, do earmark, that thereby the
Apex Court has balanced the right to live with dignity as endowed upon a
person through the mandate of Article 21 of the Constitution of India, with
the criminality, if any, as arise from both or one, thus indulging in infidelity
with his or her married partner, thus therebys adultery becoming committed.
18. The inter se balancing ultimately led the Apex Court to with
accentuated emphasis pronounce qua, “that to live is to live with dignity”.
Further in the above extracted paragraphs, the Apex Court has also
pronounced, that privacy of an individual, is an essential aspect of dignity,
and, that “dignity” has both an intrinsic and instrumental value. As an
intrinsic value, human dignity is an entitlement or a constitutionally
protected interest in itself. Moreover, it is also stated thereins, that in its
instrumental facet, dignity and freedom are inseparably inter-twined, each
being a facilitative tool to achieve the other. Furthermore, it has been
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delineated thereins, that Section 497 IPC effectively does the same by
creating invidious distinctions based on gender stereotypes which creates a
dent in the individual dignity of women, besides the emphasis on the
element of connivance or consent of the husband, thus tantamounts to
subordination of women. As such, the said provision became declared to be
offending Article 21 of the Constitution of India.
19. Moreover, though thereins it has been stated that adultery may
be a ground for any kind of civil wrong including dissolution of marriage,
but yet to treat adultery, as an offence but would tantamount to the State
entering into a real private realm, inasmuch as, therebys the command of
law, to the marital partners to remain loyal and to throughout maintain
fidelity, wherebys the adulterers are made culprits, rather becomes declared
to be making ill-intrusions to the core of privacy, besides becomes declared
to be a discriminatory command, and, also only a socio-moral one.
20. While further dwelling upon Section 497 IPC, the Apex Court
in the verdict (supra) has declared that to make adultery punishable would
tantamount to punishing the people who are unhappy in a marital
relationship, and, therebys would lead to punishments being made both in
respect of those marital couples whose marriages have been broken down as
well as qua those persons whose marriages are not broken down. Therefore,
any law punishing adultery as a crime cannot make distinction between these
two types of marriages, wherebys such a law has been declared to fall within
the sphere of manifest arbitrariness.
21. A more incisive reading of the above extracted paragraphs
unfolds, that family, marriage, procreation and sexual orientation are all
integral to the dignity of an individual, and, that the right to exercise
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freedom is an inviolable right inhering in an individual. The expressions of
freedom are distinct to every individual and such expressions of freedom are
sacrosanctly endeared constitutional values. Therefore, if freedom of a
married man or a married woman is expressed through either one or both
outside the respective valid marriages, rather entering into a live-in
relationship, therebys the said live-in relationship partakes the rubric of well
expressions qua the right to sexual autonomy rather therethrough becoming
echoed, besides therebys the constitutionally granted right to privacy also
becoming enlivened.
22. The Apex Court also while addressing that though on abolition
of any penal consequence may result in “chaos in sexual morality” or an
increase in divorce petitions arising from adultery becoming filed, but the
Court concluded that there was no data at all to support these claims in
countries where adultery is repealed, while stating-
“Rather, the degree of social condemnation for adultery has
been reduced due to the social trend to value the right to sexual
self-determination and the changed recognition on sex, despite
of the punishment of adultery. Accordingly, it is hard to
anticipate a general and special deterrence effect for adultery
from the perspective of criminal policy as it loses the function
of regulating behaviour.
23. Therefore, obviously the said appears to become the
underpinning for decriminalizing adultery, besides for negating the
presumption qua therebys it would lead to chaos in sexual morality.
Therefore, the purported chaos to sexual morality, thus becomes declared to
be an ill generated consequence of decriminalizing adultery.
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24. The expressions in the verdict (supra) made by Justice
D.Y.Chandrachud, are that the right to sexual privacy is a natural right,
fundamental to liberty and a soulmate of dignity. Consequently, the
application of Section 497 IPC is a blatant violation of these enunciated
rights. The essence of the above expostulation of law wherebys balances or
reconciliations are done inter se socio-moral fabric becoming purportedly
eroded, through a live-in relationship becoming entered into by the partners
where one of whom is married, thus with the (supra) constitutionally granted
right of privacy, besides the concomitant thereto freedom to express hence
being an inviolable right of autonomy of body, through the entering into of a
live-in relationship, thus coaxes this Court to make the hereinafter
inferences.
(i) That when one of the live-in partners is married, thus upon
tangible threats becoming purveyed to the live-in couple by any of their
respective family members or by any moral vigilant, thus therebys the said
live-in couple becoming entitled to claim protection, vis-a-vis their
relationship becoming as such obstructed.
(ii) The apposite assault mental or physical, as may stem from
either the family members of the live-in couple or from moral vigilants
concerned, do obviously truncate the above principles of law (supra) borne
in verdict (supra) made by the Apex Court. If so, the autonomy to express
endowed upon any living person, which also includes the autonomy of body
but would be the casuality, if the assaults public, private, mental or physical
becoming evidently openly proclaimed or theirs also becoming permitted to
become potentialized, therefore, protection is to be granted to the above
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genre of relationship.
(iii) Therefore, irrespective of socio-moral effect of such live-in
relationships rather the preemptions of apposite assaults of any nature,
befalling the live-in couple concerned, is the cornerstone of the structure laid
by the Apex Court, wherebys, self autonomy in its various dynamic forms
has been endowed upon the live-in couple, even if one of them is married,
and, even if therebys thus decriminalized adultery does erupt. Therefore,
therebys the protection to the above genre of relationship is to be granted.
(iv) Be that as it may, if any of the partners in a live-in relationship
has minor children, thus none of the partners in the live-in relationship is
required to be abandoning his/her duty to provide optimum care and
protection to the minor children. Though, there are remedies under law
wherebys the maintenance amounts can become adjudged vis-a-vis the
minor children. However, that may not be sufficient to ensure the best
nourishing of the personality of a minor child which would rather occur only
when the father besides providing maintenance also gives fatherly love,
and/or when the mother gives motherly love to the minor child. As such, the
live-in couple, one of whom is a major, though may in the manner directed
hereinafter seek protection but the granting of protection by Courts of law,
thus as parens patriae of minor children, may be conditioned upon the well
being, best care takings, and, nourishing of the personality of the minor child
being undertaken to be purveyed by the parent concerned.
(b) Moreover, children born out of legitimate wedlocks who would
but be the sufferers of the live-in relationship of the above genre, thereupon
their well being naturally requires becoming addressed. In case one of the
partners in the above genre of live-in relationship is married, and, is a male,
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thereupon the minor children whom he fathers are expected to be maintained
by him. Though, directions in the above regard can be passed by the Courts
of competent jurisdiction, but as a moral obligation the male partner in the
live-in relationship, who fathers minor children, but is expected to discharge
his moral duty as a father towards his minor children. Therefore, as a pre-
condition, the well recourse to the hereafter evolved mechanism, thus
requires that the male partner in the live-in relationship who has fathered the
minor children, does become encumbered with the apposite parental
obligations towards his minor children, rather than the de facto custodians of
the minor children, who may be either the mother or the close relatives of
any of the partners in live-in relationship, being led to avail the Civil Court
remedies.
25. Be that as it may, to avoid the emergence of a spate of
litigations relating to purveying of protection to the above genre of live-in
relationship, therebys the mechanisms other than the live-in couple
accessing the writ Courts, but are required to be devised, as therebys there
would be some ebbing of the flood of litigations appertaining to the above
genre of live-in relationships claiming for grantings of apposite protection.
26. The police agencies are already over burdened, and, in case
there is evident tangible threat emanating from any concerned, therebys the
deployment of police escorts with the married couples, would cause an ill-
encumbrance upon the already over burdened police force. Consequently,
some other mechanism is required to be devised for warding off perceived
threats by a live-in couple of the above genre. The mechanisms in the above
regard, to the considered mind of this Court are-
(a) Initially the couples accessing the jurisdictional District Legal
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Services Authority concerned, so that the thereins array of para legal
volunteers or the array of counsellors become deployed to counsel both the
live-in couple as well as the persons or agencies concerned, wherefrom
whom threats emanate.
(b) The State Human Rights Commission also becoming accessed
by the live-in couples of the above genre, so that therebys there can be
easing of the threats, as stem from the moral vigilants or from the relatives
of the live-in couples of the above nature. However, as stated (supra), the
well advised effective warding offs may be made subject to the condition,
that the live-in couples ensuring the optimum care givings to the minor
children concerned, but only after the married persons’ concerned, thus
outside the live-in relationship also being consulted, and, becoming joined in
the counsellings, respectively undertaken by the para legal volunteers or by
the counsellors concerned, besides by the Human Rights Commission.
27. Subsequently, in case the mechanisms as are well considered to
be effectively deployed by the above (supra) thus for warding off the threats,
as become purveyed to the above genre of live-in couples, thereupon, the
live-in couples may not access the writ Courts, unless the mechanisms
(supra), as become employed are evidently rather a complete failure.
28. Consequently, the verdicts (supra) wherebys protection became
granted to the live-in couples where one of them is married, are respectfully
affirmed. On the other hand, the verdicts (supra) taking postures contrary to
the above, wherebys protection to live-in couples where one of them is
married, has been declined, are respectfully disagreed with.
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Cases where protection to the persons living together in a live-in
relationship has been declined
29. This Court in CRWP No. 488 of 2020 titled as Sunita and
another versus State of Haryana and others, has declined protection to the
petitioners, who were living in a live-in relationship. The relevant
paragraphs of the judgment (supra) are extracted hereinafter.
“x x x x
As a matter of fact, by way of filing the present petition, the
petitioners want a seal of approval from this Court on their live-in
relationship, which cannot be allowed.
The petition stands dismissed accordingly.
However, respondent No. 2-Commissioner of Police,
Panchkula may evaluate the threat perception to the petitioners and
if found necessary he may ensure that no physical harm is caused to
the petitioners at the hands of private respondents or persons
claiming under them. Though the petitioners would remain liable
for any civil or criminal action as per law.”
30. Similar view has been taken by this Court in CRWP-2421-2021
titled as Moyna Khatun and another versus State of Punjab and others, in
CRWP-4199-2021 titled as Gulza Kumari and another versus State of
Punjab and others, and in CRWP-4268-2021 titled as Ujjawal and another
versus State of Haryana and others.
“x x x x
Petitioner no.1 is barely 18 years old whereas petitioner no.2 is 21
years old. They claim to be residing together in a live-in
relationship and claim protection of their life and liberty from the
relatives of petitioner no.1.
In the considered view of this Bench, if such protection as
claimed is granted, the entire social fabric of the society would get
disturbed. Hence, no ground to grant the protection is made out.
Dismissed.”
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Cases where protection to the persons living together in a live-in
relationship has been granted
31. To the contrary, this Court in CRWP-7659-2020 titled Banshi
Lal and another versus State of Haryana and others, has granted protection
to the petitioners, who were living in a live-in relationship. The relevant
paragraphs are of the said judgment are extracted hereinafter.
“x x x x
8. I am conscious of the fact that the girl is not of marriageable
age. Assuming they get married as per Hindu Rites, the same would
be in violation of Section 5 (iii) of the Hindu Marriage Act. Section
5, ibid envisages statutory pre-requisites for the consenting parties
to solemnize marriage between them. Sub Section (iii) thereof
stipulates the minimum ages of a bridegroom and a bride. However,
at the same time, Section 11 of the Hindu Marriage Act declares
certain marriages, being in contravention of Section 5 (supra), to be
void, but precludes a marriage solemnized in contravention of Sub
Section (iii) of Section 5, ibid from the purview of being regarded as
void or invalid.
9. I find support to my above sentiments from a Division Bench
judgment rendered by Delhi High Court in case titled as Jitender
Kumar Sharma Vs. State and Another reported as 2001 (7) AD
(Delhi) 785.
10. Reverting to the present case, issue in hand is not marriage or
their live in relationship, but the deprivation of fundamental right of
seeking protection of life and liberty. Fundamental Right under
Article 21 of Constitution of India stands on a much higher
pedestal. Being sacrosanct under the Constitutional Scheme it must
be protected, regardless of the solemnization of an invalid or void
marriage or even the absence of any marriage between the parties.
12. It is the bounden duty of the State as per the Constitutional
obligations casted upon it to protect the life and liberty of every
citizen. Right to human life is to be treated on much higher pedestal,
regardless of a citizen being minor or a major. The mere fact that
the petitioners are not of marriageable age in the present case
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would not deprive them of their fundamental right as envisaged in
Constitution of India, being citizens of India.
13. In the premise, without commenting on the legitimacy of the
relationship between the petitioners, the writ petition is disposed of
with a direction to respondent No.2 i.e Superintendent of Police,
Hisar, to verify the contents of the petition, particularly the threat
perception of the petitioners and complaints/representation
(Annexure P-3) and if deemed fit, to take appropriate steps to
provide necessary protection qua their life and liberty in
accordance with law.
14. It is clarified that this order shall neither be treated as a
stamp of this Court qua legitimacy of the relationship between
petitioners nor any reflection on the merits of the contentions raised
by them in the present petition.
15. The criminal writ petition is, accordingly, disposed of .”
32. Similar view has been taken by this Court in CRWP No. 10828
of 2020 titled as Priyapreet Kaur and another versus State of Punjab and
others, in CRWP No. 4521 of 2010 titled as Pardeep Singh and another
versus State of Haryana and others and in CRWP No. 4533 of 2021 titled
as Soniya and another versus State of Haryana and others.
Cases where protection of life and liberty to the adults, living in live-in
relationship has been granted by the Apex Court and by this Court
33. The judgments rendered by the Apex Court wherebys protection
of life and liberty to adults in a live-in relationship, became granted, become
carried in case titled as (i) S.Khushboo versus Kanniammal and another
(2010) 5 Supreme Court Cases 600, (ii) Nandakumar and another versus State
of Karala and others (2018) 16 Supreme Court Cases 602, (iii) Shafin Jahan
versus Ashokan K.M. and others (2018) 16 Supreme Court Cases 368 and (iv)
Soni Gerry versus Gerry Douglas (2018) 2 Supreme Court Cases 197 . The
relevant paragraphs of the judgments (supra) rendered by the Apex Court
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become reproduced as under.
(1) S.Khushboo versus Kanniammal and another (2010) 5
Supreme Court Cases 600
x x x x
31. While it is true that the mainstream view in our society is that
sexual contact should take place only between marital partners,
there is no statutory offence that takes place when adults willingly
engage in sexual relations outside the marital setting, with the
exception of `adultery’ as defined under Section 497 IPC. At this
juncture, we may refer to the decision given by this Court in Lata
Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was
observed that a live-in relationship between two consenting adults
of heterogenic sex does not amount to any offence (with the obvious
exception of `adultery’), even though it may be perceived as
immoral. A major girl is free to marry anyone she likes or “live with
anyone she likes”. In that case, the petitioner was a woman who had
married a man belonging to another caste and had begun
cohabitation with him. The petitioner’s brother had filed a criminal
complaint accusing her husband of offences under Sections 366 and
368 IPC, thereby leading to the commencement of trial proceedings.
This Court had entertained a writ petition and granted relief by
quashing the criminal trial. Furthermore, the Court had noted that
`no offence was committed by any of the accused and the whole
criminal case in question is an abuse of the process of the Court’.
x x x x
45. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to reasonable
restrictions on grounds such as `decency and morality’ among
others, we must lay stress on the need to tolerate unpopular views in
the socio-cultural space. The framers of our Constitution recognised
the importance of safeguarding this right since the free flow of
opinions and ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a pre-condition for
meaningful governance in the political sense, we must also promote
a culture of open dialogue when it comes to societal attitudes.
46. Admittedly, the appellant’s remarks did provoke a controversy
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since the acceptance of premarital sex and live-in relationships is
viewed by some as an attack on the centrality of marriage. While
there can be no doubt that in India, marriage is an important social
institution, we must also keep our minds open to the fact that there
are certain individuals or groups who do not hold the same view. To
be sure, there are some indigenous groups within our country
wherein sexual relations outside the marital setting are accepted as
a normal occurrence. Even in the societal mainstream, there are a
significant number of people who see nothing wrong in engaging in
premarital sex. Notions of social morality are inherently subjective
and the criminal law cannot be used as a means to unduly interfere
with the domain of personal autonomy. Morality and Criminality
are not co-extensive.”
(2) Nandakumar and another versus State of Karala and others
(2018) 16 Supreme Court Cases 602
x x x x
10. We need not go into this aspect in detail. For our purposes, it
is sufficient to note that both appellant No. 1 and Thushara are
major. Even if they were not competent to enter into wedlock (which
position itself is disputed), they have right to live together even
outside wedlock. It would not be out of place to mention that ‘live-in
relationship’ is now recognized by the Legislature itself which has
found its place under the provisions of the Protection of Women
from Domestic Violence Act, 2005.
x x x x
14. It may be significant to note that insofar as Thushara is
concerned, she has expressed her desire to be with appellant
No. 1″.
(3) Shafin Jahan versus Ashokan K.M. and others (2018) 16
Supreme Court Cases 368
x x x x
53. 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
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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 insgnia of the concept.
x x x x
84. A marriage can be dissolved at the behest of parties to it, by a
competent court of law. Marital status is conferred through
legislation or, as the case may be, custom. Deprivation of marital
status is a matter of serious import and must be strictly in
accordance with law. The High Court in the exercise of its
jurisdiction under Article 226 ought not to have embarked on the
course of annulling the marriage. The Constitution recognises the
liberty and autonomy which inheres in each individual. This
includes the ability to take decisions on aspects which define one’s
personhood and identity. The choice of a partner whether within or
outside marriage lies within the exclusive domain of each
individual. Intimacies of marriage lie within a core zone of privacy,
which is inviolable. The absolute right of an individual to choose a
life partner is not in the least affected by matters of faith. The
Constitution guarantees to each individual the right freely to
practise, profess and propagate religion. Choices of faith and belief
as indeed choices in matters of marriage lie within an area where
individual autonomy is supreme. The law prescribes conditions for
a valid marriage. It provides remedies when relationships run
aground. Neither the State nor the law can dictate a choice of
partners or limit the free ability of every person to decide on these
matters. They form the essence of personal liberty under the
Constitution. In deciding whether Shafin Jahan is a fit person for
Hadiya to marry, the High Court has entered into prohibited
terrain. Our choices are respected because they are ours. Social
approval for intimate personal decisions is not the basis for
recognising them. Indeed, the Constitution protects personal liberty
from disapproving audiences.
x x x x
86. The right to marry a person of one’s choice is integral to
Article 21 of the Constitution. The Constitution guarantees the
right to life. This right cannot be taken away except through a
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law which is substantively and procedurally fair, just and
reasonable. Intrinsic to the liberty which the Constitution
guarantees as a fundamental right is the ability of each
individual to take decisions on matters central to the pursuit of
happiness. Matters of belief and faith, including whether to
believe are at the core of constitutional liberty. The
Constitution exists for believers as well as for agnostics. The
Constitution protects the ability of each individual to pursue a
way of life or faith to which she or he seeks to adhere. Matters
of dress and of food, of ideas and ideologies, of love and
partnership are within the central aspects of identity. The law
may regulate (subject to constitutional compliance) the
conditions of a valid marriage, as it may regulate the situations
in which a marital tie can be ended or annulled. These
remedies are available to parties to a marriage for it is they
who decide best on whether they should accept each other into
a marital tie or continue in that relationship. Society has no
role to play in determining our choice of partners.”
(4) Soni Gerry versus Gerry Douglas (2018) 2 Supreme Court
Cases 197
x x x x
10. It needs no special emphasis to state that attaining the age of
majority in an individual’s life has its own significance. She/he is
entitled to make her/his choice. The Courts cannot, as long as the
choice remains, assume the role of parens patriae. The daughter is
entitled to enjoy her freedom as the law permits and the Court
should not assume the role of a super guardian being moved by any
kind of sentiment of the mother or the egotism of the father. We say
so without any reservation.”
34. The judgments rendered by this Court wherebys protection of
life and liberty to adults living in live-in relationships, became granted,
become carried in (i) LPA No. 1678 of 2014 titled as Rajwinder Kaur and
another versus State of Punjab and other and (ii) LPA No. 769 of 2021 titled as
Ishrat Bano and another versus State of Punjab and others. The relevant
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paragraphs of the judgments (supra) rendered by this Court become
reproduced as under.
(1) LPA No. 1678 of 2014 titled as Rajwinder Kaur and another
versus State of Punjab and others
"x x x x
We have no reason to doubt that the fundamental right to life and
liberty is so sacrosanct and stands at such a high pedestal that it
must be protected even in the absence of an incident like
solemnization of a valid marriage between the parties. While the
appellants might be required to satisfy an appropriate forum
regarding the validity of their marriage but even in the absence of
such validation, the State is obligated to protect their life and
liberty. We, thus, modify the order passed by the learned Single
Judge and dispose of this appeal with a direction to the respondent-
police-authorities to ensure that no harm is caused by anyone to the
life and liberty of the appellants. The police-authorities shall,
however, verify the age of the appellants and if any further remedial
action is required to be taken on such verification, the same shall be
taken forthwith.”
(2) LPA No. 769 of 2021 titled as Ishrat Bano and another
versus State of Punjab and others
"x x x x
The aspect which we are considering and dealing with is with
regard to the threat to the life and liberty to the appellants as has
been asserted by them. No doubt, in case a criminal case is
registered against any of the parties, the law should take its own
course, however, the life and liberty of any person who has
approached the Court with such a grievance need to be taken care
of and the protection be provided as permissible in law. No person
can be permitted or allowed to take law in his hands and therefore,
keeping in view the said aspect, we dispose of the present appeal by
observing that the Senior Superintendent of Police, Maler Kotla,
shall take into consideration the representation dated 17.08.2021
(Annexure P-5) submitted by the appellants and if some substance is
found therein, take appropriate steps in accordance with law to
ensure that the life and liberty is not jeopardized of the appellants at
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the hands of the private respondents. This direction shall not be
construed in any manner to restrain the official respondents to
proceed against the appellants in case there is some criminal case
registered against them. The law shall take its own course and it
shall be open to the authorities/investigating agency to proceed
against the appellants, if required in law and in accordance
thereto.”
35. Similar view has been taken by this Court in CRWP-10302-
2021 titled as Sarabjit Kaur and another versus State of Punjab and
others, in CRWP-9380-2022 titled as Rajvinder Kaur and another versus
State of Punjab and others, in CRWP-5898-2023 titled as Saranjeet Kaur
and another versus The State of Punjab and others, in CRWP-5872-2024
titled as Sonia Rani and another versus State of Punjab and others and in
CRWP-9020-2023 titled as Jaspreet Kaur and another versus State of
Punjab and others.
36. For the reasons to be assigned hereinafter the judgments (supra)
rendered by the Apex Court, and, the judgments rendered by Full Benches of
this Court in LPA No. 1678 of 2014 and in LPA No. 769 of 2021, besides
the verdicts (supra) rendered by this Court, wherebys qua adults in a live-in
relationship, thus the espoused protection but for warding off threats arising
from moral vigilants or from the close relatives of any of them, has been
granted, thus are required to be affirmed. On the other hand, the verdicts
(supra) wherebys the espoused claim for protection to the adults in a live-in
relationship, has been denied, thus are respectfully disagreed with.
37. The trite reason for concluding so is embedded in the
hereinabove underlined expressions, as become carried in the judgments
rendered by the Apex Court in S.Khushboo’s case (supra) and, in Shafin
Jahan’s case (supra).
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38. A reading of the above underlined expressions (supra), as
become borne in the verdicts (supra) do manifest the trite proposition of law
that the freedom of choice to live with a partner of his or her choice, thus
donning the mantle of a constitutionally endowed right vis-a-vis the adults
(supra) to live in a live-in relationship, irrespective of the fact that they do
not perform any valid marriage. The said endowed right is anviled upon
Article 21 of the Constitution of India.
39. Therefore, the underlined expressions (supra), as become borne
in the verdict (supra), do require deference thereto becoming meted.
Resultantly, the view taken by the Apex Court in the verdict (supra) is
naturally required to be holding overwhelming sway and clout, over those
judgments rendered by this Court, wherebys, to the adults in a live-in
relationship, who do not prefer to enter into a marriage, rather express their
freedom of choice to live together only in a live-in relationship, thus the
espoused protection has been declined. In sequel, the socio-moral fabric of
society becoming the sufferer becomes inconsequential. Contrarily, the right
endowed upon the live in-couple, who prefer to live in a live-in relationship,
is required to be fully protected, wherebys emergence of any tangible threat
or obstruction being made to the continuity of such live-in relationship, does
require theirs being ensured to be warded off, through adoption of the
mechanisms, as become evolved in sub-clause (a) and (b) of paragraph 26,
and, the one evolved in paragraph 27 (supra) of this verdict.
Protection of life and liberty to the persons when one of them is a minor
40. In a judgment rendered by this Court in CRWP No. 2139 of
2022 titled as P….. Minor through Vikram versus State of Haryana and
another and other connected petitions, this Court examined the issue of
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protection being granted to the minor. The relevant paragraphs of the
judgment (supra) are extracted hereinafter.
“x x x x
16. In addition to the from above legislations dealing with minor,
it would also be pertinent to refer to the relevant provision under
the Juvenile Justice (Care and Protection of Children) Act, 2015.
The aforesaid Act had been promulgated to consolidate the law
relating to children alleged and found to be in conflict with law
and/or in need of care and protection by catering to their basic
needs through proper care, protection, development, treatment and
social reintegration in the adjudication and disposal of matters, in
the best interest of children.
x x x x
19. The Court is thus required to ensure protection of a
minor/child as per the different statutes while also ensuring the
safety and security of such person. The aim and object of the
provisions enshrined under the Juvenile Justice (Care and
Protection of Children) Act 2015 and Protection of Children from
Sexual Offences Act 2012 is intended to protect the person of a
minor from being subjected to any such act, which is deemed penal
by law. The Hindu Minority and Guardianship Act,1956 declares
the guardian of a minor Hindu and their duties, obligations viz-a-viz
the minor. The provisions of Guardians and Wards Act stipulates
the procedure for appointment of a guardian in the case of a ward
(minor).
x x x x
24. The enunciation of statutory framework in the nature of
Juvenile Justice (Care and Protection of Children) Act 2015 and
Protection of Children from Sexual Offences Act does not run
contrary to the provisions enshrined under Article 21 of the
Constitution of India. Protection of life and liberty guaranteed to a
citizen necessarily ensures that the Court of law, when approached,
would step into the shoes as a guardian of such minor and take all
such steps as are essential to protect the life and liberty of such a
minor. It would be incomprehensible to contend or to suggest that
the protective scheme and procedure formulated under the Juvenile
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Justice (Care and Protection of Children) Act 2015 is not in
furtherance of protection enshrined under Article 21 of the
Constitution of India. The said Acts are intended to ensure
advancement of Article 21. The Court of law, while issuing any
directions to follow the procedure provided for under the Juvenile
Justice (Care and Protection of Children) Act 2015, does so with an
object to ensure safety and protection of a minor, who the law does
not recognise as having acquired the wisdom and knowledge to take
best decisions for himself/herself. The decision so taken by the
competent authority with respect to the minor as per the procedure
prescribed in law, cannot be deemed as violative of Article 21 of the
Constitution of India with on a ground that such a decision will not
be in conformity with the interest which such a minor conceives to
be in his/her best interest. The Court cannot be oblivious to the duty
cast upon it as a repository of the best interest of the minor and
there can be no presumption that once a minor conveys his/her
desire to stay with any person and that such person claims to be the
next friend/de facto guardian, the same would actually and in
reality be in furtherance of the best interest of the minor.
Determination of what would be in the best interest of the minor has
to be done by the Court as per the procedure known to law. 25. The
Court, thus, has to take upon itself the responsibility to ensure that
the fundamental right of such a minor to claim protection of his/her
life and liberty is made available and also to ensure that in the said
process, the protection of the statute is not violated.”
41. Similar view has been taken by this Court in CRWP-6040-2022
titled as Khushpreet Singh and another versus State of Punjab and others,
in CRWP-8838-2023 titled as Vikram Kumar and another versus State of
U.T., Chandigarh and others, in CRWP-5412-2024 titled as Akbari Khatil
(minor) through Suraj Kumar versus State of Punjab and others, in
CRWP-2539-2024 titled as Vicky Kumar and another versus State of
Punjab and others and in CRWP-7609-2023 titled as Sulakhan Masih and
another versus State of Punjab and others.
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42. A minor in a live-in relationship with an adult or where the live-
in relationship is partnered only by minors, thereby the concerned cannot
seek the protection from Courts of law. The reason for making the said
conclusion becomes firmly embedded in the factum, that a minor belonging
to any religious denomination, thus is incompetent to contract. If so, he/she
has no capacity even to make choices or to express his/her freedom.
Contrarily the freedom to make choices by the minors are ably fettered, by
the statutes respectively nomenclatured as The Hindu Minority and
Guardianship Act, 1956, and, as nomenclatured as Guardians and Wards
Act, 1890.
43. Furthermore, in respect of religious communities other than the
Hindus, the Indian Majority Act, thus prescribing the age of majority,
therebys becomes the regimen wherebys, there is a bar against a minor
entering into a contract. The effect thereof, is that, the said disability
encumbered upon a minor belonging to a religious denomination other than
the Hindus, thus therebys also concomitantly preempting the minor from
making any choices, disability whereof also covers the makings of ill
choices qua the entering into a live-in relationship either with a minor or
with an adult.
44. If protection is provided to minor partners, who are in a live-in
relationship where only one of them is a minor, or where both are minors,
therebys the granting of the espoused protection, rather would run counter,
vis-a-vis, well statutory crampings of discretions of a minor. Moreover
therebys this Court would be avoiding to perform its duty as a parens
patriae towards the minors wherebys rather this Court is required to be
ensuring the welfare of the minor concerned. Therefore, the said solemn
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duty cast upon Courts of law, naturally requires that the minor concerned,
rather than being permitted to be a partner in a live-in relationship either
with a minor or with an adult, thus his/her custody is required to be ensured
to be retrieved to his/her parents, and, natural guardian. However, in the
above endeavour if the Court perceives that there would be an imminent
threat to the life of the minor, therebys, the Courts are required to be
proceeding to recourse the relevant provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2015, inasmuch, as directing the minor to
till his or her attaining majority, thus staying comfortably at Children Home
or at a Nari Niketan, as the case may be.
Final order
45. In view of the directions (supra) and in the light of the
mechanisms (supra), CRWP No. 4660 of 2021 and CRWP No. 149 of 2024
are allowed, whereas in view of the observations (supra), LPA No. 968 of
2021 stands dismissed.
46. Reference is answered accordingly.
47. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
September 09, 2024
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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