By Chanda Rani and Harsh Kumar
Sexuality is seen as a sin in most societies, especially in the modern era when many of these societies organize themselves in the name of ethnicity, religion, and race. Sex becomes a threat for them as it challenges all kinds of boundaries. And marriage as an institution gives legitimacy to control the desire of people for maintaining social morality, which is exclusively framed by some conservative or authoritarian people.
In India, any kind of pleasurable thing is considered a sin by society. Sex has always been seen as a tool for procreation and never for pleasure. Along with female sexuality, male sexuality is also questioned. Gandhi, who propagated Brahamcharya and celibacy, believed that the retention of semen is a source of splendid energy in a man’s body. The control over sexuality is the core element of Indian society which is also reflected in its policies and law-making.
In an order dated 18 May 2021, from Punjab and Haryana High Court, in the case of Gulzar Kumari and Anr. Vs State of Punjab and Ors, Justice H S Madan denied any protection in the order passed stating that “the present petition seeking seal of approval on the petitioner’s live-in-relationship is not morally and socially acceptable thus no protection order can be passed in the petition.” This judgement resembles the attitude of society which strangles every attempt to challenge the status quo. A live-in relationship is seen as an anomalous kind of relationship against the conventional marriage in which consent and love of partners do not often matter. Inter alia the main contention after this judgement which has also been discussed by courts many a time is whether a court should give decisions on “constitutional morality” or “social morality.”
There has been always a contestation between social morality and constitutional morality in India. In the case of Navtej Singh Johar v Union of India, the Supreme Court ruled that “constitutional morality cannot be martyred at the altar of social morality. It is only the constitutional morality that can be allowed to permeate into the rule of law and social morality cannot be used to violate fundamental rights of even a single individual.” Though morality and law are interconnected, constitutional morality has been considered more supreme than social morality. Constitutional morality puts greater obligation on state authorities to conduct them in accordance with the constitution and not to behave like feudal lords.
From being a very private act, marriage has gradually made a place for itself in the public sphere. As Claude Vatin said, marriage has gone beyond the limit of familial institutions; it is the entire city that sanctions marriage. So, there are many paradoxes in the evolution of marriage. As Foucault stated, marriage becomes more general as a practice, more public as an institution, more private as a mode of existence, a stronger force for binding conjugal partners and hence a more effective way for isolating the couple in a field of other social relations.
The co-existence of traditional with progressive attitudes has created a tension as well as confusion within the constitution. Live-in relationship is one such contested domain. In court judgements, the spirit of Article 21 of the constitution, which ensures that no person shall be deprived of his life or personal liberty except “procedure established by law”, finds no place. In a similar case, Paramjit Kaur and Anr. Vs State of Punjab, a homosexual couple in a live-in relationship approached the court seeking protection for their life and liberty. The court held that “the petitioners are entitled to protection of their lives and liberty as envisaged under Article 21 of Constitution of India, regardless the nature of relationship.” Live-in relationship may be ‘immoral’ in the eyes of Indian society, but it is not illegal in the eyes of law.
In many judgments, different state High Courts, including the Hon’ble Supreme Court of India, has given legal validation to live-in relationships. In D Veluswamy vs D. Patchaiammal, the Hon’ble Supreme Court of India interpreted the word “relationship in nature of marriage.” Perusal of the judgement provides that all live-in-relationship are covered under Section 2(f) of DV Act. The judgment mentions that “in order to constitute such relationship a legal marriage between two must be possible.” A similar judgement was pronounced in the case of Indra Sarma Vs V.K.V Sarma and Nandakumar and Anr. Vs State of Kerala and Ors.
The biggest contradiction is that the same High Court of Punjab and Haryana a year before in the case of Priyapreet Kaur and Anr. Vs State of Punjab and Ors, in which petitioners were majors, pronounced a judgment that “though the boy is not of marriageable age but this does not change the fact that both have attained majority and have a right to live their life on their own terms.”
The idea that marriages are made in heaven and are binding of seven lives knowingly and unknowingly permeates through the mind of generations. It puts so many restrictions that sometimes people work hard to overcome them till their death. Live-in relationships give them the freedom of conjugal life without the restrictions of institutional marriage. Legal provisions of marriage make it difficult to dissolve it as it is a time-consuming process, while one can stay or leave if things do not work out in a live-in relationship. Conjugal relations through institutions or by choice should be free from societal pressure and courts should refrain from alluding to such norms and stop acting as the moral guardians of society.
Chanda Rani is a former postgraduate student at Jamia Millia Islamia. She is currently working as an Independent Researcher in New Delhi. Her areas of interest include Gender Studies, Minority Studies and Cultural studies.
Harsh Kumar is a 3rd Year Law Student at the National University of Study and Research in Law, Ranchi.
Cafe Dissensus Everyday is the blog of Cafe Dissensus magazine, born in New York City and currently based in India. All materials on the site are protected under Creative Commons License.
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