'Courts Must Rely On Constitutional Morality And Not Obscure Notions Of Social Morality': Rajasthan HC Grants Protection To Live-In Couple Involving Married Woman

The Rajasthan High Court has recently held that neither the State nor the society can intrude into the private lives of two adult individuals who seek to indulge in a live-in relationship even if one of the partners is legally married to someone else. The Court was adjudicating upon a petition moved by a couple in a live-in relationship seeking police protection from harassment by their family members.

Justice Pushpendra Singh Bhati observed,

"It is well- settled that it is not in the Court's domain to intrude upon an individual's privacy. Any scrutiny or remark upon the so-called morality of an individual's relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one's right to choice and condone acts of unwarranted moral policing by the society at large."

Background

In the instant case, the petitioner is in a live-in relationship with her partner Farsa Ram Bishnoi even though she is still legally married to her husband Sunil Bishnoi. Contending that there exists a 'serious threat' to her safety and security, the instant petition had been filed seeking police protection from her family members.

It was submitted by the petitioner that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make the choice of entering into a live-in relationship in order to live a life of dignity.

Furthermore, the couple had entered into an agreement regarding their live-in relationship on September 13, 2021. This agreement had been drawn on a stamp paper and also duly notarised and attested.

Observations 

At the outset, the Court placed reliance on the Supreme Court judgment in Navtej Singh Johar v. Union of India wherein the Apex Court while enunciating upon the principle of autonomy had held that any surrender of one's autonomy to another must be willful, and their intimacy and privacy is a matter of their choice. It was further held that such autonomy inevitably forms part of dignity of an individual. 

Parens patriae jurisdiction must only be exercised when persons involved are incapable of asserting free will

The Court observed that parens patriae jurisdiction must be exercised only in those cases where persons are incapable of asserting a free will such as minors or persons of unsound mind. Thus, the State not the society have the right to intrude into the private lives of individuals and make determinations regarding suitability of partners.

"The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation", the Court opined

Furthermore, it was observed that interference by the State in such matters has a 'chilling effect' on the exercise of freedom of individuals. Such a chilling effect often has a 'pernicious tendency' to prevent individuals from exercising their liberty out of fear, it was further opined.

"Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.", the Court added.

Courts must rely on constitutional morality and not obscure notions of social morality

It was further noted that in addition to the responsibility of Courts to uphold principles of constitutional morality, there exists a parallel duty to not infringe upon the personal relationship between two free- willed adults.

"The Apex Court has laid down in no uncertain terms that the emphasis to be given to public morality is minuscule, when they are in conflict with constitutional morality, and that the Courts must uphold constitutional morality and rely on the same rather than obscure notions of societal morality, which have no legal tenability", the Court remarked.

The public morality cannot be allowed to overshadow the constitutional morality, particularly when the legal tenability of the right to protection is paramount, it was opined further.

The Court further referred to the Supreme Court judgment in K.S Puttaswamy v. Union of India wherein it had been held in no uncertain terms that privacy includes at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.

Reliance was also placed on the Supreme Court judgment in Joseph Shine v. Union of India to observe that the institution of marriage need not be a private space devoid of constitutional rights.

State cannot by-pass due process and condone acts of moral policing

Enumerating upon the need to uphold due process and refrain from facilitating acts of moral policing, the Court observed,

"Even if any illegality or wrongfulness has been committed, the duty to punish vests solely with the State, that too in attune with due process of law. In no circumstance can the State bypass due process, permit or condone any acts of moral policing or mob mentality. When the Right to life and liberty is even guaranteed to convicted criminals of serious offences, there can be no reasonable nexus to not grant the same protection to those in an "legal/illegal relationships".

Justice Bhati further held that the right to claim protection under Article 21 of the Constitution is a constitutional mandate and that such a right cannot be waived off even if the person seeking protection is guilty of an immoral, unlawful or illegal act.

However, the Court refused to delve into the sanctity of relationships and accordingly concluded,

"This Court finds itself firmly tied down to the principle of individual autonomy, which cannot be hampered by societal expectations in a vibrant democracy. The State's respect for the individual independent choices has to be held high."

Accordingly, the petition was disposed of.

Advocate Gajendra Panwa appeared for the petitioners. Public Prosecutor Arun Kumar appeared for the State.

Case Title: Leela v. State of Rajasthan 

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