Align with the change

Marriage is a social institution and live-in relationships appear to challenge the basic tenets of this institution. But it has also to be understood that it is the dynamism within the fabric of the same society that has facilitated the concept of cohabitation between a pair of 'unrelated' woman and man. In fact, it would be more appropriate to say that the concept of cohabitation is gradually resurfacing within the framework of Indian society — as history too had instances that appreciably resembled the so-called modern concept of live-in relationships. Still, for obvious reasons, the acceptance of live-in relationships in society remains loaded with friction. While the concept of live-in relationships remains socially unaccepted, the Indian judiciary has time and again highlighted that such relationships are not illegal — though courts have also abstained from authenticating such forms of cohabitation. Rajasthan High Court recently passed a judgement wherein it stated with clarity that couples living in 'legal or illegal relationships' cannot be refused protection granted under Article 21 of the Indian Constitution that deals with the fundamental right of life and liberty. The court further clarified that the State cannot deny protection if one of the individuals in the couple is married to another person. Judgements regarding protecting the couples have come in the past also but the important aspect covered by the Rajasthan High Court judgement is that it rightly disassociated judiciary from operating based on 'societal expectation' while considering the provision of protection to the couples under threat. The court observed that "public morality cannot be allowed to overshadow constitutional morality, particularly when the legal tenability of the right to protection is paramount". This could be seen as a step forward from what the Punjab and Haryana High Court observed in May this year. While granting protection to a live-in couple, the court noted that the "concept of live-in-relationships has crept into our society from western nations and initially, found acceptance in the metropolitan cities". While the court had been right in pointing towards the growing social acceptability of live-in relationships, it apparently lacked to appreciate the fact that the judiciary ought to emphasize more on preventing miscarriage of justice than banking upon social acceptability. The Rajasthan High Court verdict explored this aspect by coming out clearly that the judiciary should act upon Constitutional mandate and not on what the societal expectations are. The court could not have been clearer in emphasizing the need to uphold the Right to Life and Liberty as it said that "moral policing cannot be allowed to dictate the actions of the state nor can moral policing by the public at large be allowed or forgiven". It is somewhat disturbing that the debate around the social acceptability of live-in relationships and, more importantly, around granting of protection to the couples, has not settled despite the judiciary coming out clearly for well over a decade. Even the Supreme Court in several cases — from the Lata Singh case, 2006 to the Shakti Vahini case, 2018 — has dealt with several legal aspects of live-in relationships. In the Shakti Vahini case, the apex court went on to limit the role of family members and community in the wedlock of couples. The debate around live-in relationships in India has to be centred around the understanding of the society more progressively and comprehensively. There could be no denying the fact that we are heading towards a society that values individual freedom over societal constraints — a trend that is also backed by the rulebook of the nation. It won't be an exaggeration to say that the dynamics of the changing society is only acutely reflected in the judicial and legal framework of the country, creating dichotomies that border the chance of being mocked. The threat to the safety and life of individuals choosing their partners and staying away from the institution of marriage as their personal choice is in itself a contestable situation. The debate around the provision of protection should have come later. Nevertheless, realities remain realities, but change is also a truth that can never be denied. It is also worth noting that countries around the world that are known to uphold the primacy of individual rights and dignity, and even safety, have progressed a great deal in this direction. Even India traditionally had the concept of Gandharva vivah and later the concubine system. The present governing framework — including the judiciary, legislature and executive — should take a holistic approach by incorporating global and our own traditional practices, albeit with suitable modification. Change is the only constant. Let us align with it.