While denying granting protection to a couple claimed to be residing together in a live-in relationship, the Punjab and Haryana High Court recently observed that a live-in relationship is socially and morally unacceptable. The boy and the girl had been in cohabitation, to which the girl’s parents found offence.
The couple sought protection from the court for their life and liberty after being threatened. Unfortunately, they were denied protection under Article 21 of the constitution of India.
This article attempts to examine aforesaid denial of the fundamental right of the couple. Moreover, this article seeks to establish how the constitutional mandates have been ignored while deciding the case.
The following proposition is to discuss if one wishes to establish that the denial of their right under Article 21 is inappropriate, requiring immediate reconsideration. Whether cohabitation between a boy and a girl before marriage deprives their identity of “person” enumerated in Article 21? If so, can they be denied their right to “life or liberty” enumerated in Article 21 based on social moral?
Article 21 declares that no person shall be deprived of their life or personal liberty except according to procedure established by law. After sensing a threat to their life, the couple moved before the Punjab and Haryana High Court for the protection under Article 21, which is bestowed upon every person.
The significance of this right can be ascertained by the fact that the framers of the constitution did not segregate between the citizen and the non-citizen while drafting this article. The protection of life and liberty is a universally recognised right. Consequently, the right under Article 21 has been bestowed upon every person residing within the territory of India.
It seems that while rejecting the aforesaid petition, the high court interpreted that the term “person” excludes from its embrace the term “couple” despite any express indication as to the same in Article 21. In a legal sense, the term person means those who are recognised by law as being capable of having legal rights and being bound by legal duties.
After entering into a marriage, a man and woman are considered capable of having legal rights and duties. This is known as rights in the institution of marriage and it includes protection of wife from domestic violence, shares in the husband’s property and maintenance, etc. These rights and duties can be only enforced by the aggrieved when the marriage has been entered into by the party as per their respective marriage laws in force in India.
Since the right to life and liberty is a natural right, it is not dependent upon the laws, customs or belief or any segregation between the married couple and unmarried couple in a live-in relationship. It is inalienable and universal in nature. Even Article 21 doesn’t discriminate between a married and an unmarried couple while bestowing the precious right of life and liberty.
Article 21 begins with the phrase “no person” and ends with the phrase “except procedure established by the law”. It makes it clear that a person’s right to life and liberty could be curtailed only by the legislature. In the absence of any legislative direction regarding the curtailment, the denial would be void ab initio.
It appears that the couple’s right to life and liberty is curtailed due to their pre-marriage cohabitation, of which there is no legislative patronage to the denial. It is not debatable anymore that the “procedure” should be “just, fair and reasonable” in order to curtail the right to life and liberty under Article 21. Neither is the denial of the right to life and liberty just and fair nor is it reasonable.
The framers of the constitution in the constituent assembly did not provide any express limitation to Article 21. So there is no proviso attached to Article 21 as is in Article 19. Morality is not a restriction stipulated in Article 21 as is in Article 19. There is no scope for appreciation of social morals of what is good and bad to Indian culture by the conservative majoritarian.
The denial of the right to life and liberty is completely unsustainable in the eye of the law.
Since there is no law in India that criminalises pre-marriage cohabitation, it would be more like legislation by the judiciary to hold pre-marriage cohabitation illegal based on social morals. There is no force of law in an opinion that has been embraced by the conservative majoritarian masses of India who find it illegitimate.
The decision rendered by the Punjab and Haryana High court erred in ascertaining the aforesaid point.
The denial to grant protection to the couple by the Punjab and Haryana High Court seems to have ignored the constitutional mandate under Article 21 and Article 14 of the constitution of India. Despite getting relief, they were subjected to prejudice held by the conservative majoritarian masses.