“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:

By quashing the FIR against an interfaith couple accused of “conversion”, the Allahabad High Court restores jurisprudence on a constitutional path, upholds freedom of choice

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic

CJP, other rights groups challenge Maharashtra Govt GR setting up a Committee to “monitor inter-faith marriages” 

SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws

The post Allahabad HC denies protection to inter-faith couple observing that “Muslims cannot claim right to live-in relationship as it is against their customary law” appeared first on SabrangIndia.

“A direction is also being given to the State to 2 issue general instruction, whereby, the parties in such situation can directly approach the Senior Superintendent of Police and get protection.” (Para 5)

The said direction was issued by a division bench comprising Chief Justice Ritu Bahri and Justice Pankaj Purohit. In the current case, the bench was dealing a couple who had approached the court with a protection plea. The couple/petitioners had urged judicial intervention and grant of protection to ensure that they are not be harmed by the families, who were in opposition to their relationship.

“The only grievance of the petitioners is that they should not be harmed by the families, who are opposing their relationship.” (Para 3)

The court granted protection to the couple keeping in view that both the boy and girl were major. The court also directed that the Senior Superintendent of Police, Haridwar to examine the content of the Writ Petition.

“Keeping in view that both boy and girl are major, the contents of this writ petition be examined by respondent no.2-Senior Superintendent of Police, Haridwar and if need be, protection can be given to the parties.” (Para 4)

Going a step further, the division bench then also ordered for the state government to bring in instructions enabling such couples to approach the police. With the aforesaid observation, the writ petition was disposed of.

The complete judgement can be read here:

Related:

Uttarakhand: Registration of 91 Muslim shopkeepers cancelled; protest memorandum submitted by delegation of Jan Manch & CPI (ML) to DM, Pithoragarh, highlights selective targeting

Uttarakhand Uniform Civil Code: A Majoritarian Code – Neither Uniform nor Civil

Uttarakhand is being promoted as a hub for investors, as critics report its anti-encroachment policy is targeting Muslim properties

Destroying the basic standards of legislation- the Uttarakhand Model of UCC

Uttarakhand: Six Muslims killed after demolition of Madarsa, Haldwani MLA says officials rushed the process

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The Punjab and Haryana High Court has granted protection to a couple in a live-in relationship against the adult woman’s parents wishes who have been allegedly threatening to physically harm them.

Justice Sudhir Mittal held that Right to Life and Liberty includes the right to choose a partner of his/her choice and that the “individual also has the right to formalise the relationship with the partner through marriage or to adopt the non-formal approach of a live-in relationship.”

While noting that “social acceptance for live-in-relationships is on the increase”, Justice Mittal said that the concept of live-in-relationships has crept into our society from western nations and initially, found acceptance in the metropolitan cities, probably because, individuals felt that formalisation of a relationship through marriage was not necessary for complete fulfilment.

Contrary to what the state counsel argued, Justice Mittal ruled that live-in relationships are not prohibited in law nor does it amount to the commission of any offence. “The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views”, read the order.

In order to further examine the issue, the court drew parallels between married couples and couples in a live-in relationship who choose their respective partners against the wishes of their parents. He observed that if married couples are entitled to protection, live-in couples are entitled to the same relief.  

Justice Sudhir Mittal asked,  “The Constitutional Courts grant protection to couples, who have married against the wishes of their respective parents. They seek protection of life and liberty from their parents and family members, who disapprove of the alliance. An identical situation exists where the couple has entered into a live-in-relationship. The only difference is that the relationship is not universally accepted. Would that make any difference?”

He continued, “In my considered opinion, it would not. The couple fears for their safety from relatives in both situations and not from the society. They are thus entitled to the same relief. No citizen can be permitted to take law in his own hands in a country governed by Rule of Law.”

Accordingly, the court directed the police to grant protection to the couple and “ensure that no harm comes either to the lives or liberty of the petitioners”.

This significant order comes days after the same High Court’s Single-judge Bench of Justice HS Madaan refused to grant protection to a couple living together, calling their relationship morally and socially unacceptable. Another Bench of Justice Anil Kshetarpal had denied protection to a couple where the couple was 18 to 21 years old stating that if such protection is granted the entire social fabric of the society would get disturbed.

Similarly in March, Justice Arvind Singh Sangwan dismissed the plea of two live-in partners seeking protection after holding that their live-in relationship contract clearly mentioned that it was not a marital relationship which was a “misuse of process of law as it cannot be morally accepted in society”.

The order authored by Justice Sudhir Mittal may be read here: 

Related:

Live-in relationship is morally and socially unacceptable: Punjab & Haryana HC
Punjab and Haryana HC suggest safe houses for inter-caste couples
Punjab & Haryana HC says interfaith marriage invalid as Muslim woman did not convert
Punjab and Haryana HC refuses to grant protection to live-in couple

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Punjab and Haryana High Court, while dealing with a plea of two live-in partners, refused to grant them protection of the law because their live-in relationship contract clearly mentioned that it was not a marital relationship. The bench of Justice Arvind Singh Sangwan deemed the clause a “misuse of process of law as it cannot be morally accepted in society”.

The petitioner had approached the court seeking protection against private respondents, as she was in a contractual live-in relationship with a male. The petitioner cited previous judgments of the high court in Sukhbir Singh v. State of Punjab and ors (CRM-M-13953-2015) as well as Simran Kaur v. State of Punjab and ors (CRM-M-28467-2017) whereby the court had directed the concerned Senior Superintendent of Police to look into the request of couples in live-in relationship seeking protection.

The petitioner, Moyana Khatun, 18, submitted that she had executed a deed of live-in-relationship with Labh Singh, 19 (both majors in eyes of the law) whereby certain terms were settled by mutual consent. In the deed it stated that both the parties have agreed that their live-in-relationship is not ‘Marital Relationship’ and in para 5 it is stated that the parties will fully cooperate with each other without any dispute and issue and will not claim anything against each other.

The deed further states that if any of the parties backs out from the aforesaid deed, the other party will have a right to approach a competent Court of law for implementation of the same. It is also stated that on attaining marriageable age the parties agree to solemnise marriage.

The DAG Punjab opposed the plea on the ground that such deed of live-in-relationship is impermissible in law, when the parties have not attained the age of performing marriage under the Prohibition of Child Marriage Act. He further submitted that under section 26 of Indian Contract Act an agreement in restraint of marriage is a void agreement and hence, not enforceable. He stated that the contractual deed of the petitioner was void agreement and cannot be accepted. It was also contended that petitioner no. 2 is not of marriageable age and thus not competent to have a live-in-relationship with petitioner No.1.

The bench of Justice Arvind Singh Sangwan observed that it did not find any merit in the terms and conditions of live-in relationship of the petitioners, which stated that it was not a marital relationship and called it a “misuse of process of law as it cannot be morally accepted in society”.

The petition was thus, dismissed.

Ironically, another bench of the same high court, in an order dated March 10, has suggested that the government should consider setting up safe houses for facilitating protection of such couples seeking protection of their life and liberty as also help desks so that they do not have to come to the court each time.

In December 2020, a bench of Justice Alka Sarin had remarked that merely because the boy is not of marriageable age (though major) the right of petitioners to live together cannot be denied.

The complete order may be read here:

Related:

Major couple even if not of marriageable age can live together: Punjab and Haryana HC

Punjab and Haryana HC suggest safe houses for inter-caste couples

Himachal Pradesh HC allows inter caste union, upholds women’s right to choose

Intimacies of marriage private, can’t be affected by matters of faith: SC

The post Punjab and Haryana HC refuses to grant protection to live-in couple appeared first on SabrangIndia.

On August 5, 2019, as national attention was focussed on the revocation of special status for Jammu and Kashmir, parliament’s lower house, the Lok Sabha also passed, with almost no debate, The Surrogacy (Regulation) Bill, 2019.

The surrogacy bill prevents single parents, same-sex couples, divorced or widowed persons, transgender persons, live-in partners and foreign nationals from using a surrogate mother. While single parents and foreign nationals can adopt a child, this option for the others is ambiguous, as we discuss later.

One of 35 new bills passed in 37 days over June and August by the Lok Sabha, the bill prohibits commercial surrogacy and allows “altruistic surrogacy”, the process of getting another woman to bear your child if no charges or monetary incentives are involved, except for medical expenses and insurance coverage. The bill now awaits assent by the Rajya Sabha, the upper house.

Experts and activists said banning commercial surrogacy will also take away the livelihoods of women who rented out their wombs and would deny women rights over their own bodies. The new bill also provides for a new layer of government certification and regulation. Some said they intended to suggest modifications and called for further public debate.

While there are no precise data, India has now emerged as a global hub for commercial surrogacy 17 years after the start of what is now an unregulated industry estimated to be worth about $2.3 billion (Rs 16,465 crore) per year, employing thousands in more than 3,000 clinics nationwide.

When there was no regulation, single people, those in live-in relationships, same-sex couples–from India and abroad–could rent a womb to conceive a child in India. This is now restricted to married, Indian hetrosexual couples.

Experts said they had indeed suggested reforms but not “a complete umbrella ban”, as Manasi Mishra, head, research and knowledge management, Centre for Social Research (CSR), a women and girls rights advocacy, put it. She said a regulatory framework with “civil society involvement in monitoring could have been a better alternative”.

“By banning it, (the) industry will go underground,” said Manasi Mishra.

“Considering the Supreme Court jurisprudence [here and here] on live-in relationships, children of live-in couples are considered legitimate,” said Gargi Mishra, a gender rights lawyer at Sama, a Delhi-based resource group working on issues related to women and health. “Now, by denying surrogacy to these groups–single parents, homosexuals, transgenders–you are denying them their rights, making it a regressive or limited view of what a family is.”

Surrogacy had “great emancipatory potential”, said Gargi Mishra, for people who could not otherwise have children.

New definition for surrogate mothers
Surrogacy is defined in the new bill as “a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth”.

Surrogacy is permitted for “intending couples” with proven infertility; they should be Indian citizens, married for at least five years and without a child, whether biological, adopted or surrogate. The woman should be 23 to 50 years old and the man 26 to 55 years.

Proven infertility through diagnosed medical conditions should indeed be the only criteria to permit surrogacy, said Manasi Mishra from CSR. “We cannot permit the rich, famous and celebrities to have surrogate children because of cosmetic reasons and just because they can afford it,” she said.

The bill says central and state governments will appoint an “appropriate authority” to issue “certificate of essentiality” and “eligibility certificate” to the intending couple. It provides for a National Surrogacy Board and State Surrogacy Boards, which will advise government on policy issues, supervise and lay down codes of conduct for surrogacy clinics.

The bill defines a surrogate mother as “a close relative”, genetically related to the “intending couple”, a married woman with a child of her own, aged between 25 and 35 years and can be a surrogate only once in her lifetime.

Focus on a genetic child, traditional family
If the bill becomes law, same-sex couples, single-parents and live-in couples will not be allowed to opt for surrogacy, as they currently can.

Criticism of the bill has been evident on social media:

“These restrictions are written into the Bill, so yes, they will indeed take effect,” Madhavi Menon, director, centre for studies in gender and sexuality at Ashoka University, told IndiaSpend.

Manasi Mishra from CSR said commercial surrogacy in India had made surrogate children vulnerable to paedophiles, organ-transplant rackets and trafficking.

“On the other hand, we may raise the question: Why there is so much obsession about having (one’s) own genetic child through surrogacy?” asked Manasi Mishra. “Why would these couples, who are so desperate, not prefer adoption over surrogacy? Isn’t this a double-standard?”

‘An exercise in moral policing’
The surrogacy industry was not illegal but un-regulated. But it will, in effect, be illegal if the new bill becomes law because only altruistic surrogacy will be allowed, said Ashoka University’s Menon.

“Like all professions, surrogacy too needs to be regulated,” said Menon. “But the two questions we need to ask are: why ban surrogacy rather than regulating it? Secondly, why regulate only surrogacy when every single profession in India is steeped in exploitation and in need of regulation?”

“The response to both these questions, I think, is the nature of the demographic(s) involved.” said Menon. “Governments in power always like controlling women and their bodies.

“The Bill is largely an exercise in moral policing and social engineering. Banning surrogacy will only take away from women yet another means of their livelihood.”

“Women are once again being asked to use their bodies for the greater good without getting paid for it,” Menon wrote in Scroll.in on August 6, 2019. “Motherhood will be mystified as sacred, and women will be punished for being independent.”

Some said the ban should be followed by modification of adoption processes, so single people and homosexual couples can have children.
“But that is not followed,” said Harish Iyer, a gender and LGBTQ rights. “By banning commercial surrogacy they have made comments on homosexuals saying this is against Indian ethos… it is outright discriminatory to gay people.”

Can same-sex couples, live-in partners, single parents adopt?
A single parent can adopt a child, according to the ministry of women and child development’s Central Adoption Resource Authority (CARA), the nodal agency for child adoption in India. However, a single male cannot adopt a girl child, while a single female can adopt a child of any gender, according to the eligibility criteria, which read: “Any prospective adoptive parents, irrespective of his (sic) marital status and whether or not he has biological son or daughter, can adopt a child subject to” these criteria.

Through a circular on October 11, 2018, addressed to ‘Authorised Foreign Adoption Agencies’, the CARA withdrew a decision made four months earlier disallowing adoption by a single parent with a live-in partner in a long-term relationship.

“The policy on child adoption doesn’t say that a same-sex couple cannot adopt, nor does it say they can,” said Sunil Arora, governing council member, Maharashtra State Adoption Resource Agency and executive director Bal Asha Trust, a child-care and adoption agency.

Arora reasoned that since adoption through CARA is an online process and single women can adopt, their sexual orientation is not known. The system automatically allots a child, irrespective of a couple or a single parent based on their waiting list number, he said.

On August 8, 2019, IndiaSpend sent an email to CARA asking if it allowed adoption by live-in and same-sex couples. We will update this story if and when we receive their response.

“Though it is not mentioned, the unsaid thing is if you are a gay parent you cannot adopt, it is difficult,” said Iyer. “If you are a gay father they assume that you will abuse the child, thus aligning to the common myth that gay persons are child sex offenders. So when they do family screening (which comes after a child is allotted by CARA’s system), it gets stuck there.”

(Mallapur is a senior analyst with IndiaSpend.)

Courtesy: India Spend

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