A Gear In The Right Direction: How The Apex Court Came As A Rescue For Vulnerable Couples Seeking For Protection

After being aggrieved of the High Court order, the couple approached the Hon'ble Supreme Court, (Devu G Nair vs. State of Kerala and Ors) where no such relief was given to the Appellant, but a set of guidelines were issued bythe Supreme Court with regard to such cases where vulnerable couples and their protection was involved. The Supreme Court directed the parents of “X” to produce her before the Family Court at Kollam by 05:00 pm on 8 February 2023. Further, the Principal Judge of the Family Court was directed to arrange for an interview of 'X' with Ms Saleena V G Nair, a member of the e-Committee of the Supreme Court.

In a nutshell, when the interview was conducted and report was filed, it was revealed that 'X' was a major and has completed her Master's degree in Arts. She has stated that she intends to become a lecturer and is focused on her career and was in possession of a mobile phone and is free to move wherever she desires. Moreover, she has stated that she is living with her parents out of her own volition. While she has stated that the appellant is an “intimate friend”, she has stated that she does not wish to marry any person or live with any person for the time being. Ultimately, the Supreme Court accepted the report as submitted.

Although, no relief was given to the Appellant in the case but the bench led by Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Mishra made an observation with regard to sensitization in such cases and directed that every court shall have an “empathetic approach” 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. One of the guidelines issued by the Supreme Court reads as follows:

“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.”

Apart from the guidelines the Supreme Court directed the courts across the country that the said guidelines must followed in letter and spirit as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention.

“The court must advert to these guidelines and their precise adherence in the judgment dealing with habeas corpus petitions or petition for police protection by intimate partners,”

A significant decision, in the right direction

The judgment is not significant for one, but numerous reasons, keep in mind the nature of such petitions where the High Courts across the country have been taking different views. In addition to that, there's a sense of bias in some High Courts which go onto to the level to comment on such relationships despite of the fact that they are constitutionally recognized and Part III of the Indian Constitution protects every citizen of the country equally.

In, the court held that in cases pertaining to Habeas corpus where a partner seeks custody of her/his/their partner, the courts (across the country) 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.” Reads one of the guidelines

Let us recall some of the cases where the High Court(s) across the country have taken a contrary view and have denied protection to couples in such cases.

In the case of X vs. State of Uttar Pradesh, the Allahabad High Court while dismissing a plea filed by an interfaith live-in couple seeking protection against alleged harassment at the hands of the police observed that the views expressed by the Supreme Court pertaining to 'live-in' relationships "cannot be considered to promote such relationships". The bench went on to observe that traditionally, Law has been biased in favour of marriage and division bench of Justice Sangeeta Chandra and Justice Narendra Kumar Johari said that there's a need to create awareness in young minds regarding the emotional and societal pressures and legal hassles which may be created by such relations.

Similarly, in the case of Y vs. State of Uttar Pradesh, while dismissing a plea filed by an interfaith live-in couple seeking protection from the police as they continue to be in a live-in relationship, the Allahabad High Court recently observed that such relationships are more about infatuation for the opposite sex without any sincerity and they often result into timepass. While rejecting to grant any relief to the couple, the bench opined: "The Court feels that such type of relationship is more of infatuation than to have stability and sincerity. Unless and until the couple decides to marry and give the name of their relationship or they are sincere towards each other, the Court shuns and avoid to express any opinion in such type of relationship," the Court remarked.

While in another case, the Gujarat High Courttermed live-in relationships as "timepass" and mere "infatuation" and rejected an interfaith couple's plea for protection. The case was about a 20-year-old woman who wanted to be with her 22-year-old partner. The woman's family has, however, opposed this and has alleged that the man "enticed away" the woman. With regard to same-sex-couple, the Allahabad High Court once denied police protection to a gay couple which had requested the court for police cover, the couple had cited a threat to life from their own parents.

In another instance, the Allahabad High Court In3 separate cases, the Allahabad High refused to grant relief to inter-faith couples noting that there was non-compliance of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Uttar Pradesh Vidhi Viruddh Dharm Samparivartan Pratishedh Adhyadesh 2020). In addition to this, while terming women's live-in relationship as “illicit” the Rajasthan High Court denied a live-in couple police protection to the couple which they had requested in their petition.

Although, non-compliance of the law might be one of the reasons but putting procedure over personal liberty and safety of such individuals should be the primary concerns of Constitutional courts. In this regard, I have argued in article for Article 14, where it has been discussed as to how such refusal by courts amounts to deprivation of personal liberty of such couples who approach the courts as their guardian.

A gear in the right direction

Apart from the above-mentioned instances, there have been numerous cases where the High Courts have denied protection to couples, but needless to say that there are Judges and courts who have been granting protection to such individuals. For instance, the Punjab and Haryana High Court in the case of granted relief to a live-in couple, where the girl was a minor and said “mere fact that the petitioners are not of marriageable age ..would not deprive the petitioners of their fundamental rights as envisaged in the Constitution, being citizens of India.” Similarly, there was another case where initial the Punjab and Haryana High Court denied protection to a live-in couple, but later when the couple approached the Supreme Court and the Apexcourt directed top police officials of Punjab and Haryana to urgently consider a plea by two live-in-couples seeking protection for their lives without being influenced by observations made by the Punjab and Haryana High Court that earlier turned down their plea.

Hence, the concern in such cases is not only confined to the grant-of-protection to a particular individual or individuals, but about their personal liberty which cannot be curtailed until and unless there are “restrictions” which are actually reasonable in nature.

The judgment of the Supreme Court in Devu G Nair vs. State of Kerala and Ors will work as a shield for such individuals who are seeking protection from family members or the societal members who are against their choices (which includes sexual orientation, privacy and right to choose their partner). As it has been rightly observed in the judgment that “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+ community. Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative.”

Let us hope that the courts across the country will be complying with the detailed guidelines which have been issued by the Supreme Court and also act a bit “sensitive” in these kinds of matters. Lastly, no matter what the case is, who the petitioner is, the application of any morality should be constitutional, not personal.

Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. Views are personal.