Married Persons Cannot Enter Into Live-In Relationship Without Obtaining Divorce: Allahabad HC Refuses Protection

A single judge of the Allahabad High Court on March 20 observed that an individual who is already married and has a living spouse cannot legally be permitted to enter into a live-in relationship with a third person without seeking a divorce from the earlier spouse.A bench of Justice Vivek Kumar Singh made this observation while disposing of a writ petition filed by a couple (both married to different partners) seeking mandamus directing the respondents not to interfere with their peaceful life and to provide protection.It was the case of the petitioners that they were living together as husband and wife and had an apprehension of a life threat from the respondents. The State, however, opposed the plea, as it was argued that both petitioners were already married and their act was illegal as they had not obtained a decree of divorce from a competent court.Taking into account the facts of the case, the Court, at the outset, noted that in a marriage or live-in relationship, there must be two consenting adult human beings, and the concepts of gotra, caste, and religion are left behind. The Court observed that no one, not even parents, has the right to interfere in the personal liberty of two adults.Justice Singh, however, explicitly clarified that the Right to Freedom or Right to Personal Liberty is not an absolute or unfettered right and that the freedom of one person ceases where another person's statutory right begins. Importantly, the single judge stressed that a spouse has a statutory right to the company of their counterpart, and that right cannot be deprived for the sake of personal liberty. The HC added that the freedom of one person cannot encroach on or outweigh the legal right of another person."If the petitioners are already married and have their spouse alive, he/she cannot be legally permitted to enter into live-in relationship with a third person without seeking divorce from the earlier spouse. He/she first has to obtain the decree of divorce from the court of competent jurisdiction before solemnizing marriage or entering into living in a relationship out of their legal marriage," the bench further remarked.On the question of relief to the petitioners, the bench observed that a mandamus can be issued only if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought, and such right must be subsisting on the date of the petition. However, the Court opined that the petitioners have no legal right to protection on the facts of the present case inasmuch as the protection sought may amount to protection against the commission of an offence under Section 494/495 IPC. "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...this Court is not inclined to issue any writ, order or direction in the nature of mandamus for protection to the petitioners who are in a live-in relationship without obtaining decree of divorce from competent court as mentioned above" the bench noted.Thus, refusing to issue the writ, the Court disposed of the petition with the observation that if the petitioners are subjected to violence, they may approach the Superintendent of Police with a detailed application.Significantly, a perusal of various orders passed by Justice Singh reveals a consistent approach. Relying on this exact legal reasoning, his bench has repeatedly denied police protection to live-in couples where either one or both partners are already married to someone else.Interestingly, in stark contrast to this Single Judge order, a Division Bench of the High Court, just five days after passing of this particular order, observed that there is no offence if a married man lives with an adult in a live-in relationship with the other person's consent.Stressing that morality and law must remain separate, the Division Bench of Justice JJ Munir and Justice Tarun Saxena stated that social opinions and moral views will not dictate the Court's actions when protecting citizens' rights.This contrasting observation was made while the Division Bench was hearing a separate petition seeking protection for a live-in couple allegedly facing threats from the woman's family.Finding that a prima facie case was made out, the Court admitted the petition and issued notices to the respondents. It granted the state counsel two weeks' time to file a counter-affidavit.The bench also granted immediate relief to the couple (an 18-year-old woman and a married man) and directed that, until further orders, the petitioners shall not be arrested in the criminal case registered under Section 87 of the BNS at Police Station Jaitipur in Shahjahanpur district.To ensure their absolute protection, the Division Bench restrained the informant and all members of the woman's family from causing any harm to the...

Married Persons Cannot Enter Into Live-In Relationship Without Obtaining Divorce: Allahabad HC Refuses Protection

Sparsh Upadhyay

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