Source: Bombay High Court 

Why in News? 

A bench of Justice Bharati Dangre and Justice Manjusha Deshpande allowed a couple to stay in a live in relationship.                    

• The Bombay High Court held this in the case of ABC v. State of Maharashtra (2024). 

What was the Background of ABC v. State of Maharashtra Case?  

• The petitioner, a 20-year-old male, seeks a writ of habeas corpus to produce Ms. Payal Harish Pandiya ("the corpus") before the court. 
• He also seeks a declaration that her detention at the Government Women Centre in Chembur, Mumbai, is unlawful. 
• The reliefs sought are as follows: 
  • Release of the corpus to live at a place of her choice. 
  • Police protection for the petitioner and the corpus to ensure their safety from societal and familial interference. 
  • Facilitation of their marriage when legally permissible, free from coercion. 
• The background of the petition is that the petitioner and the corpus are adults and are in a consensual relationship. 
• The corpus left her parental home to live with the petitioner, which her family opposes due to societal and religious differences. 
• The petitioner is not yet of marriageable age, making their immediate marriage legally impossible. 
• The corpus is currently in custody at a Government Women Centre. 
• The petitioner alleges her detention is illegal and violates her fundamental rights under Article 21 of the Constitution. 
• The corpus has declared her desire to live with the petitioner in a live-in relationship. 
• It is to be noted that the petitioner in this case had not reached the legal age to marry. 
• A notarized "Live-in Relationship Deed" was executed on 16th November 2024, affirming their consensual decision to live together. 
• The corpus firmly expressed her desire to stay with the petitioner and rejected returning to her parents or staying in the Women Centre. 
• Thus, the writ of habeas corpus under Article 32 of the Constitution of India, 1950 (COI) was to be decided by the Court. 

What were the Court’s Observations?  

• The Court in this case observed that when interacted with the corpus, it was clearly expressed by her that even though there can be no valid marriage between the corpus and the petitioner, the corpus wishes to continue to live with him in a ‘live in relationship.’ 
• The Court further held that once the corpus has expressed her choice to stay with the petitioner it is not permissible for the Court to restrict her freedom of making the choice which she is entitled to in law. 
• The Court cited the case of Soni Gerry v. Gerry Douglas (2018) wherein the Court held that : 
  • The court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father.” 
• The Court held that live in relationship is an integral part of a person’s right to live with dignity and the same must not be sacrificed at the altar of societal disapproval. 
• Thus, the Court directed the release of the corpus from the custody of Shaskriya Stree Bhishekari Khikar Kendra.

What is a Live in Relationship? 

• There is a difference between “live in relationship” and the “relationship in the nature of marriage”. 
• Necessarily all live in relationships will not amount to ‘relationship in the nature of marriage’ as contemplated under the Protection of Women from Domestic Violence Act, 2005 (DV Act). 
• The DV Act uses the terminology ‘relationship in the nature of marriage’ and not ‘live in relationship’. 
• In the case of D Velusamy v. D. Patchaiammal (2010), the Court observed the following: 
  • In a feudal society a relationship outside marriage was seen as a taboo and regarded with terror and disgust. 
  • However, the Indian society is changing and this change is evident and recognized by the Parliament in the DV Act.  
  • The Court further held that if a relationship in the marriage of marriage is akin to common law marriage it must satisfy the following: 
    • The couple must hold themselves out to society as being akin to spouses 
    • They must be of legal age to marry 
    • They must be otherwise qualified to enter into a legal marriage, including being unmarried and 
    • They must have voluntarily cohabited and held themselves out to the world as akin to spouses for a significant period of time. 

What are the Important Judgments on Live in Relationships in India? 

• Nandkumar and Anr v. State of Kerela (2018) 
  • The Supreme Court held that the law recognizes live-in relationships under the DV Act. 
  • Adults have the right to live together even without formal marriage, as it is a facet of their right to life and personal liberty. 
  • Adults are entitled to choose their partners freely, and their autonomy cannot be curtailed on grounds of societal norms or parental objections. 
  • Courts must respect and uphold the individual's right to make independent decisions under Article 21 of the COI. 
  • The Supreme Court reiterated that constitutional rights, including the right to liberty and choice, take precedence over societal or familial expectations, ensuring the dignity and individuality of each person. 
• Shafin Jahan v. Ashokan KN and Ors (2018) 
  • The Court discussed in this case the doctrine of parens patriae which provides that a State shall act as a legal guardian of a person who is in need of protection. 
  • However, the Court held that this doctrine will be invoked only in those cases where the parties are either mentally in competent  or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian. 
  • The Court in this case held that the viewpoint of a father cannot curtail the fundamental rights of his daughter who out of her own volition married the appellant. 
  • The Court also observed that insistence on societal obeisance will be detrimental to the individualist identity and the freedom of a person. 
  • Thus, the Court set aside the order of the High Court annulling the marriage of the appellant and the respondent.   
• Devu G. Nair v. State of Kerela (2023) 
  • The Supreme Court in this case laid down guidelines in dealing with habeas corpus petitions or petitions for police protection: 
    • Habeas Corpus petitions and petitions for protection filed by a partner must be given priority in listing and hearing in the Court. 
    • In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person 
    • The effort must be to create an environment conducive for a free and uncoerced dialogue to ascertain the wishes of the corpus 
    • Regarding the interaction of the persons with the judges the Court laid down the following: 
      • The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person. 
      • The court must conduct in-camera proceedings 
      • The recording of the statement must be transcribed and the recording must be secured to ensure that it is not accessible to any other party 
    • The Court must ensure that the wishes of the detrained person are not unduly influenced by the Court, or the police or natal family during the course of the proceedings. 
    • The judge when inviting the missing or detained person his or her chamber must take due care of the person in that regard the judge must: 
      • Make active efforts to put the detained or missing person at ease. 
      • Must use the preferred the name or pronoun of the missing person 
      • Must be given a comfortable seating and access to drinking water and washroom. 
      • Must allow them to take periodic breaks 
      • Must adopt a friendly demeanor 
    • The Court may ascertain the age of the missing or detained person but the age should not be used to dismiss the habeas corpus petition against illegal detention. 
    • Social morality and personal predilection of the Court must be eschewed. 
    • The Court while dealing with the petition filed by the same sex, transgender, inter faith or inter caste couple must grant an ad interim measure such as immediately granting police protection to the petitioners. 
    • The Court must not resort to counselling of the corpus. 
    • The Judge must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus.  
    • Sexual orientation and gender identity of a person falls in a core zone of privacy of an individual and the Court must exercise caution in passing any direction or making any comment which may be perceived as pejorative.