No Protection For 'Live-In' If Hindu Marriage Subsists; Personal Liberty Ends Where Spouse's Statutory Right Begins: Allahabad High Court

A bench of Justice Vivek Kumar Singh observed that while no one can interfere in the lives of two adults, the Right to Freedom or Right to Personal Liberty is not an absolute or unfettered right and that the freedom of one person ends where the statutory right of another person starts.

"A spouse has statutory right to enjoy the company of his or her counterpart and he/she cannot be deprived of that right for the sake of personal liberty and no such protection can be granted to infringe statutory right of the other spouse, hence, the freedom of one person cannot encroach or overweigh the legal right of another person", the bench remarked.

The Court added that no law-abiding citizen, who is already married under the Hindu Marriage Act, can seek protection of this Court for illicit relationship, which is not within the purview of social fabric of this country.

In this case, petitioner no. 1 (married woman) and her live in partner (petitioner no. 2) moved the HC seeking a mandamus restraining the authorities woman's husband (respondent no. 4) from interfering in their peaceful life and for a direction to provide protection.

The State, however, informed the Court that this was her second marriage and that she had not obtained any decree of divorce and had been living with petitioner no. 2 for the past years.

Refusing protection to her, the bench said that if she has any differences with her husband, she has to first get separated from her spouse as per the law applicable to the community

The bench added that live-in relationship cannot be granted “at the cost of the social fabric of this country” and that directing the police to grant protection to them may indirectly give our assent to such illicit relations.

The Court also opined that if the protection as prayed is granted, it may amount to granting of protection against commission of offences under section 494/495 of IPC.

"…this Court finds that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus", the bench remarked.

The Court emphasized that if a person is already married and the spouse is alive, he or she cannot be legally permitted to enter into live-in relationship with a third person without seeking divorce.

In its order, the bench also noted that there was nothing to show that the petitioners are living as husband wife or they have solemnized marriage after obtaining divorce from the earlier marriage.

"Neither proof of joint account, financial security, joint property or joint expenditure is produced before this Court nor any document is produced before this Court to substantiate that the petitioners are akin to spouse", the court further noted.

The writ petition was thus dismissed.