Are married individuals, in live-in-relationships with others, entitled to police protection? Rajasthan High Court refers matter to larger bench

Rajasthan High Court: While deciding the issue related to whether protection orders should be granted in live-in relationships involving married individuals, a single-judge bench of Anoop Kumar Dhand, J., referred the matter to larger bench due to presence of many conflicting judgments in order to resolve the conflict and provide clarity.

Live-in Relationships in India

The Court noted that India, a country gradually adopting Western ideas and lifestyles, has witnessed the emergence of live-in relationships, a concept where two individuals cohabit without formalizing their relationship through marriage.

The Court noted that despite its growing prevalence, live-in relationships lack legal recognition under the Hindu Marriage Act, 1955 and are deemed “Zina” (adultery) and “Haram” (forbidden), therefore, impermissible in Muslim law. The Court asserted that this lack of legal framework raises significant social, moral, and legal challenges.

The Court further noted that women in live-in relationships do not enjoy the status or rights of a wife. Moreover, the concept lacks societal approval and sanctity, exposing participants to societal disapproval and moral policing.

The Court stated that Article 21 of the Constitution of India guarantees the right to life and personal liberty, encompassing the freedom to choose a partner. It was stated that a number of judicial pronouncements uphold that live-in relationships are neither illegal nor criminal.

In S. Khushboo v. Kanniammal, (2010) 5 SCC 600, the Supreme Court recognised that living together is an aspect of the right to life and personal liberty under Article 21; in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, the Supreme Court distinguished between “relationship in the nature of marriage” and “marital relations” and held that live-in relationships are neither a crime nor a sin, though socially unacceptable in our country; in Lata Singh v. State of UP, (2006) 5 SCC 475, the Supreme Court established that consensual live-in relationships between adults do not constitute an offense, though they may be seen as immoral and in D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, the Supreme Court defined “relationship in the nature of marriage,” laying out criteria such as cohabitation, legal age, and holding themselves out as akin to spouses.

Legal and Social Concerns

The Court laid down some legal and social concerns with regards to live-in relationship, such as—

• Absence of a legal framework often leaves children born out of such relationships vulnerable.

• Courts have often directed that children should be maintained by their parents, particularly the father.

• Couples face societal and familial threats, leading them to seek protection under Article 21.

• Courts have been inundated with writ petitions seeking protection of life and liberty.

• Police agencies are overburdened with investigation and the responsibility of maintaining law and order, hence, they hardly get any time to redress the grievance of the aggrieved.

The Court stated that though judiciary, through judicial directives and recommendations had tried to come up with solution, such as direction to appoint Nodal Officers to address grievances of couples in live-in relationships (Suman Meena v. State of Rajasthan, 2024 SCC OnLine Raj 2260), but there is need for separate legislation which lays down the provision of live-in-relationship and provides legality to this concept.

“Though the concept of live-in-relationship is considered immoral by the society and the same is not accepted by public at large, it is not treated as illegal in the eyes of law. It has been held by the Hon’ble Apex Court that living together is a part of right to life and personal liberty, therefore, it cannot be held to be illegal and against any law.”

Interim Judicial Directives and Recommendations

The Court noted that recently Uttarakhand Government enacted Uniform Civil Code of Uttarakhand, 2024 which in Part III of the Code addresses live-in relationships, prescribing procedural safeguards and liabilities for partners. Thus, the Parliament and the State Legislature must ponder and bring a proper legislation or make proper amendments in the law over this issue, so that the couples residing in such relationship may not face any harm and threat at the hands of their family, relatives and members of the society at large.

“The need of the hour is to take a step to bring out a law or enact a new legislation which would look into the matter of live-in-relationship and would grant rights and impose obligations on the part of the couples in such relationship. A separate legislation should be competent enough to grant assistance to the children and female partners who become sufferer in such relationship.”

Until legislation is framed by the Centre or State Government, a scheme of statutory nature is required to be formulated in legal format. The Court proposed a framework to be prepared by the appropriate authority, till enactment of the appropriate legislation by the Government, regarding —

1. Registration of their relationships with competent authorities by couples/partners who desire to enter in such live-in-relationship

2. Male partners should bear responsibility for the maintenance of non-earning female partners and children born from the relationship.

3. Establish tribunals at the district level to address grievances.

4. Launch a dedicated web portal for grievance redressal.

5. A copy of the order, be sent to the Chief Secretary, State of Rajasthan, Principal Secretary, Department of Law and Justice as well as to the Secretary, Department of Justice and Social Welfare, New Delhi for needful exercise for compliance of the order.

The Court directed the authorities to comply and submit a report by 01-03-2025.

Moot Point

The central issue in these petitions is whether, (i) a married person living with an unmarried person without dissolving their marriage, or (ii) two married persons with different spouses living in a live-in relationship without dissolving their respective marriages, are entitled to protection orders under Article 21 of the Constitution of India.

Conflicting Judicial Opinions

The Court stated that previously, sexual intercourse with the wife of another man (with her consent) was considered a criminal offense under Section 497 IPC, however, the wife, could not be punished as an abettor. Then in Joseph Shine v. Union of India, (2019) 3 SCC 39, the Supreme Court declared Section 497 as unconstitutional and decriminalizing adultery. However, adultery remains a civil wrong and a ground for divorce under Section 13 of the Hindu Marriage Act, 1955.

• In Favor of Protection Orders

The Court noted that a single-judge bench of this Court in Leela Bishnoi v. State of Rajasthan, 2021 SCC OnLine Raj 4014, held that even if a relationship is “illegal” in societal terms, individuals cannot be denied constitutional protection as the right to life and liberty is sacrosanct under Article 21. The Court emphasised on constitutional morality over societal morality and held that individual autonomy and liberty must prevail.

In Manisha Devi v. State of Rajasthan,¹ the Court reiterated that privacy and liberty cannot be infringed, even if a person is alleged to have acted immorally. The Court emphasised on the respect for individual choices in a democratic society. In Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the Supreme Court highlighted that the right to privacy and individual autonomy must be upheld, even against societal expectations.

• Against Protection Orders

In Rashika Khandal v. State of Rajasthan, 2021 SCC OnLine Raj 4296, this Court dismissed the protection petition and held that live-in relationships involving a married individual violate the prerequisites of a valid live-in relationship as outlined in D. Velusamy (Supra). It was emphasised that the couple must be unmarried and otherwise eligible to marry.

In Suman Kumari v. State of Rajasthan,² this court refused protection, citing the risk of undermining societal norms and the sanctity of marriage. Similarly in Aneeta v. State of U.P., 2021 SCC OnLine All 2230, a division bench of Allahabad High Court held that granting protection to individuals in such relationships would harm the social fabric and the judiciary cannot legitimise illicit relationships at the cost of societal values.

The Court acknowledged conflicting decisions by co-ordinate benches on this issue and emphasised the need for referring such matters to a larger bench to maintain judicial consistency. The Court noted that in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, the Supreme Court held that a larger bench decision is binding on benches of lesser or co-equal strength and any conflicting decision must be resolved by referring the matter to a larger bench.

“The judicial decorum and legal propriety demands that where a Single Bench or Division Bench does not agree with the decision of the Bench of co-ordinate jurisdiction, the matter should be referred to a Larger Bench.”

Court’s Decision

This Court referred this case to the Special/Larger Bench to answer the following question —

“Whether a married person living with an unmarried person, without dissolution of his/her marriage or/and whether two married persons with two different marriages living in live-in-relationship, without dissolution of their marriages, are entitled to get protection order from the Court ?”

The Court requested the matter be placed before the Chief Justice on the administrative side for constitution of Special/Larger Bench to answer the aforesaid question.

[Reena v. State of Rajasthan, S.B. Criminal Writ Petition No. 2183/2024, Decided on 29-01-2025]

Advocates who appeared in this case :

Mr. Mahesh Jatwa, Mr. Parmeshwar Pilania, Mr. Ajit Singh, Mr. Anoop Kumar, Mr. Mukesh Kumar Goyal, Mr. Satish Kumar Balwada, Mr. Ankit Khandelwal, Ms. Sonal Gupta and Mr. Vichitar Choudhary, Counsel for the Petitioners

Mr. Rajesh Choudhary-GA Cum AAG assisted by Mr. Aman Kumar, Mr. Jitendra Singh-Addl.G.A, Mr. Vivek Choudhary- Dy.G.A, Mr. Manvendra Singh-Dy.G.A, Ms. Neha Goyal and Mr. Vinod Sharma, Counsel for the Respondent

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