A Married Man Staying in Consensual Live-in Relationship with another Adult Woman is No Criminal Offence: Court

Manas Dasgupta

NEW DELHI, Mar 27: In a significant judgement, the Allahabad High Court has ruled that a married man staying with an adult woman in a consensual live-in relationship is no criminal offence and cannot be prosecuted for any illegality since law cannot be dictated by social opinions and moral values.

Issuing its order on a criminal writ petition filed by a live-in couple from Shahjahanpur in Uttar Pradesh, a division bench of Justices JJ Munit and Tarun Saxena said when it comes to protecting a citizen’s rights, the law will not be dictated by social opinions and moral values adding that morality and law must remain separated.

The observation was made while the court was hearing a petition seeking protection of a live-in couple who claimed to be receiving threats from the woman’s family. The couple had sought quashing a police case, filed by the woman’s mother, against them.

The court underlined the separation of ‘morality’ and the law and said that in the latter’s book, no prima facie offence seemed to have been committed by the man, and that the live-in relationship with the adult woman appeared consensual. Accordingly, the court directed the police not to arrest the petitioner couple and also restrained all members of the female petitioner’s family from causing any harm to the couple.

Furthermore, the court said family members could not enter the couple’s matrimonial home nor attempt to contact them – directly, via electronic communication, or through a third party. The court held the local police chief personally responsible for the petitioners’ safety and security. The matter has been scheduled for further hearing on April 8.

The details of the case are that on January 8 Anamika’s mother – Kanti – filed a police case at Shahjahanpur’s Jaitipur Police Station alleging that Netrapal had, that morning, ‘enticed’ her daughter to go away with him and was allegedly assisted in this act by another man, Dharmpal. The case was filed under Section 87 of the new Bharatiya Nyaya Sanhita (BNS). Anamika, 18, and Netrapal (age unclear) challenged that case in the Allahabad High Court, seeking to quash it while also requesting protection from the court. The complainant also contended that his relationship with another woman amounted to a criminal offence because he is married.

The High Court was told the petitioners are both adults and are currently in a consensual live-in relationship, and it was argued the first petitioner – i.e., Anamika – is, in fact, of age since the case filed by her mother says she is 18 years old.

The bench rejected this argument, observing: “There is no offence of the kind where a married man, staying with an adult in a live-in relationship, by consent of the other person, can be prosecuted for any offence, whatsoever. Morality and law have to be kept apart. If there is no offence under the law made out, social opinions and morality will not guide the action of the Court for protecting the rights of citizens.”

The Court also noted that the woman had submitted an application to the Shahjahanpur SP stating that she is an adult and is living with petitioner no. 2 of her own free will. The petitioners further submitted that the woman’s family opposed the relationship and had issued death threats, raising fears of an honour killing. However, no action was taken by the district police chief on the complaint.

Taking serious note of this, the bench emphasised that it is the fundamental duty of the police to protect two consenting adults living together. Finding that a prima facie case existed, the Court admitted the petition and issued notices to the respondents, granting the state counsel two weeks to file a counter affidavit.

As an interim measure, the bench directed that, until further orders, the petitioners shall not be arrested in the criminal case registered under Section 87 BNS at Police Station Jaitipur in Shahjahanpur district.

To ensure their protection, the Court restrained the informant and all members of the woman’s family from causing any harm to the petitioners.