Live-In Relationship Between Married Individuals Not Criminal, Courts Can’t Impose Their Perception Of Morality On Adults: Delhi High Court

Observing that live-in relationship between two consenting married individuals has not been made criminal or legislated against, the Delhi High Court has said that courts cannot impose their perception of morality on individuals if such choices are not illegal or an offence.

“The criminality in a case cannot depend upon appraisal by a judge of morality according to him. The objectivity of the judges is the key to fairness of justice and the decisions have to be objectively determined according to the law of land and not by moral principles of the judge concerned. Even if it is demonstrated convincingly that an act may be socially undesirable, this Court does not find it its business to say so, unless it has caused harm or has element of criminality,” Justice Swarana Kanta Sharma said.

The court also observed it would be a dangerous proposition to attach criminality to acts that have not been legislated against on the basis of perceived morality, adding that judges, as individuals, may have different notions of morality, which cannot be imposed on any party.

The court made the observations while quashing a rape case wherein two individuals were living with each other in a live-in relationship despite being married to their respective spouses.

On the accused’s contentions regarding the conduct of the woman herself being immoral and against the public policy and norms of the society, the court said that individual adults are free to make decisions even those that might not align with societal norms or expectations, however, in those cases they have to remain ready to face potential consequences of such relationships.

“In many legal theories evolving in the jurisprudence of the issue in question which continues to develop in the hands of the judges and lawyers, the Courts and the judges cannot adhere to the theories of being legal moralists. Morality unless provided by law cannot be implemented through law. Similarly, immorality cannot be punished by law unless so provided by a statute,” the court said.

Justice Sharma also said that although law and morals are subject to constant renewal and change, they cannot be the determining factors in attaching criminality, as the law does not provide for it.

“Therefore, this Court is of the opinion that although the immorality of the act on the part of the female partner was argued at length before this Court, the same standard applies to the male partner, and no distinction should be made based on gender, as doing so would perpetuate misogynistic thinking,” the court said.

Furthermore, Justice Sharma added that the courts cannot inject morality into existing laws and must apply them as they are and that Judges cannot indulge in passing moral judgments against a person based on one‟s gender.

“The Courts will not be transgressing their authority, holding in the process of deciding a case that due weightage is to be given to the fact that women can make choices as equals, and we must respect these choices irrespective of the notion of age old responsibility of carrying the burden of morality only on their shoulders being females. But at the same time, the Courts will also not ignore that women will be responsible for the repercussions of the choices they make,” the court said.

It added, “Though, as per various theories of law and jurisprudence, it is believed that the law by its inherent nature may have an element of internal morality of its own, there is nothing such as legal morality to decide the cases as the present one. Moral wrongdoing from the societal perspective and legal criminal wrongdoings are two separate issues. Though some in the society may heavily be critical of the conduct of live-in relationship of two married individuals, many others may not.”

Also Read: Married Woman Can't Prosecute For Rape On False Pretext Of Marriage: Delhi High Court

Advocate S Selva Kumari appeared for the petitioner.

ASC Rupali Bandhopadhya appeared for the State.

Title: S Rajadurai v. State & Anr.

Citation: 2023 LiveLaw (Del) 871