On April 30, 2024, while dealing with a petition seeking quashing of kidnapping case against the Muslim man and protection of liberty of a Hindu-Muslim couple, the Allahabad High Court observed that Muslims cannot claim right to live-in relationship as it is against their customary law. the said observation was made by a division bench of Justices Attau Rahman Masoodi and Ajai Kumar Srivastava by reasoning that when marital behaviour of citizens is regulated under both statutory and personal laws, the customs are bound to be given equal significance.
“The customs and usages are an equal source of law recognized by the Constitution as the law made by the competent Legislature. Once there is a recognition of the customs and usages as a valid law within the framework of our Constitution, even such laws become enforceable in an appropriate case.”
Facts of the case:
As per a report of Bar and Bench, the bench of the High Court was dealing with a petition that sought for the quashing of a kidnapping case against a petitioner along with directions from the court regarding protection against interfere in the relationship of a Hindu-Muslim couple. It is essential to note that the Court noted that the couple had filed a petition earlier too for the protection of their liberty.
On April 29, the Court had directed the Police to produce the Muslim man’s wife and also asked him and his live-in partner to remain present. A day later, the Court was apprised about some “alarming” facts.
As per Bar & Bench, the Court found from the records that the Muslim man was already married to a Muslim woman with a five-year-old daughter. It was told that the man’s wife was not residing in Uttar Pradesh as claimed by him but in Mumbai with her in-laws.
The Court had also been appraised that the wife of the Muslim man wife had no objection to his live-in relationship as she was suffering from certain ailments. In the latest petition, the Court was told the man has given triple talaq to the wife.
Observations of the Court:
In view of the “alarming findings”, the Court said the current petition seeking quashing of the kidnapping case was one which actually sought legitimization of the live-in relationship between the Hindu woman and the Muslim man. While the facts of the case may have been such that the Allahabad High Court could not have granted the plea for protection of liberty of the couple, as the man had a living spouse, the Court ended up focussing more on the religion of the man in question. As per the report of the Bar & Bench, the bench stated that a person professing Islam cannot claim the right to live-in relationship, particularly when he has a living spouse.
“A person reposing faith in Islam cannot claim any rights in the nature of a live-in-relationship, particularly when he has a living spouse.”
The court further added that the constitutional protection under Article 21 would not lend an “un-canalized support” to the right to live-in relationship when the usages and customs prohibit such relations between the two individuals.
“This relief is sought in a situation where petitioner No.2 belonging to a different religion is already married and has a minor child of five years of age. The religious tenets to which the petitioner No.2 belongs to, does not permit live-in-relationship during the subsisting marriage.”
The Court said any further continuation of the live-in relationship cannot be granted while looking at the rights of the wife as well as the interest of the minor child. The court observed that the constitutional morality and social morality in the “matter of marriage institution” are required to be balanced. Otherwise, social coherence for achieving the object of peace and tranquillity in the society would fade and disappear, the Court said. With this, the Court stated that their decision may have been different if the two persons involved in the partnership were unmarried and being major, choose to lead their lives in a way of their own.
“The constitutional morality in that situation may come to the rescue of such a couple and the social morality settled through the customs and usages over ages may give way to the constitutional morality and protection under Article 21 of the Constitution of India may step in to protect the cause”.
“Thus, the direction for continuation of a live-in-relationship as has been prayed for in the present writ petition, the Court would strongly deprecate and deny notwithstanding the fact that the constitutional protection remains available to a citizen of India.”
The Court, therefore, directed the police to escort the man’s live-in partner to her parents’ home and submit a report regarding it. While keeping the matter pending and listing the same for further hearing on May 8, the bench highlighted that by concealing material facts, the counsel for the petitioners have abused the process of law.
“The Court shall next go into the question of concealment of material facts and we find that the counsel appearing in the two cases has risked at his own cost to abuse the process of law.”
The saga of contentious remarks while dealing with protection petitions of inter-faith couples continue:
The Allahabad High Court has garnered headlines a few times since the past few months, and not for particularly good reasons. In the month of January, news had broken out that the Allahabad High Court had rejected petitions moved by eight Hindu-Muslim couples, seeking protection of life, on the grounds that their marriages were not in compliance with the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, or commonly known as the anti-conversion law. All these eight petitions had been dismissed by the bench of Justice Saral Srivastava. In the identically-worded orders, the bench of Allahabad HC had written the following while dealing with couples who had sought directions to authorities concerned to ensure they get protection for their lives and be guaranteed non-interference in their marital lives by others:
“In such view of the fact, the relief prayed for by the petitioners cannot be granted. Consequently, the writ petition is dismissed. However, it is open to the petitioners to prefer fresh writ petition in case they solemnise marriage after following the due procedure of law.”
A close analysis of these orders by Sabrang India can be read here.
Another bench of the Allahabad High Court, namely Justice Renu Agarwal’s, track record of rejection petitions filed by unmarried couples regarding threat of violence from the community also came under scrutiny. As per a report in Scroll, an analysis of almost 400 petitions by couples seeking the High Court’s protection showed that she granted such orders only to married couples who had registered their marriages and had no first information reports pending against them. On the other hand, unmarried couples were never granted protection from violence or interference. In addition, Agarwal has, through her judgments, created the legal requirement that unmarried inter-faith couples may live together only if one of them converts to the religion of the other.
Notably, in the month of February 2024, the bench of Justice Renu Agarwal had observed that a legally wedded Muslim wife cannot go outside marriage and her live-in relationship with another man would be ‘Zina’ (fornication) and ‘Haram’ (act forbidden by Allah) as per the Shariat Law. The aforementioned observation had been made by the Bench while rejecting a protection plea filed by a married Muslim woman and her Hindu live-in partner fearing for her life against her father and other relatives. Notably, as per a report in the LiveLaw, the Court had added that the ‘criminal act’ of the woman “cannot be supported and protected” by the Court.
Related:
SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws