In these troubled times, when even acts of rape are being openly justified by politicians, and in the times when established social and moral cannons are being questioned by the so-called leaders, it is very difficult to differentiate between popular notions and beliefs and justifiable and legal individual freedoms. It is disappointing that despite the advances made by human society on the individual freedom front, it is still customary to attack and curtail personal freedom at every expedient moment. It seems, for politicians, curtailment of individual freedom is the first and best option for solving any political, social or moral question.
While, it would be a sheer waste of time to analyse why and how people like Mulayam Singh Yadav or Abu Azmi get inspired to make inane comments on issues relating to individual rights, individual freedom and choices, it is important to underline the fact that there will always be a set of people who would oppose the right to individual freedom. This tussle has been going on from time immemorial.
It is also important to underline the distinction between what is ‘socially just’ and what is ‘legally’ and ‘morally’ just.
There have been heated debates on the issue of live-in relationships. There are many who get aghast at the gaining popularity of live-in relationship and increasing interaction between males and females, without realizing the fact that these are social inventions in the new and changing times and you can only ignore this at your own peril.
The fact remains that the notion of ‘Constitutional Morality’ has long informed and shaped the contours of various fundamental rights. The Apex Court in several cases has highlighted the central role that ‘Constitutional Morality’ has played in defining the content of fundamental rights. Now before we can assess “Whether recognizing and allowing live-in relationship in the light of Right to Life and Personal Liberty transgresses Constitutional Morality”, we need to go into the question of what ‘live-in relationship’ is.
The term ‘Live-in relation’ most frequently applied to couples who are not married. Live-in relationships are living arrangement in which a man and a woman who are age of majority and unmarried live together like a husband and wife without the legal sanction called marriage.
After having an understanding of live in relationship we are now considering the main core issue i.e. whether recognizing and allowing live-in relationship in the light of Right to Life and Personal Liberty transgresses Constitutional Morality. A rich confluence of various values, not all of them equally harmonious, may be seen in the field of rights of sexual minorities. These lie at the intersection of complex issues of law, morality and health and throw up various questions.
In the Payal Sharma Vs Superintendent, Nari Niketan & Anr, a bench of Justice Markandeya Katju and Justice R B Mishra in Allahabad High Court in 2001 said, ‘’In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”
It is noticeable point that in the case of S. Kushbhoo v. Kanniammal and Anr where Apex Court held that a man and woman living together without marriage cannot be construed as an offence because there is no law that prohibits live-in relationship or pre-marital sex. Further, it is also observed that Parliament under the Domestic Violence Act, 2005 has taken notice of a new social phenomenon, which has emerged in our country known as live-in relationship.
In Madan Mohan Singh & Ors v. Rajni Kant & AnrApex Court held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as ‘walking-in and walking-out’ relationship.
In the case of Bharata Matha & Ors v. R. Vijaya Renganathan & Ors., dealing with the legitimacy of child born out of a live-in relationship and his succession of property rights, the Supreme Court held that child born out of a live-in relationship may be allowed to succeed inheritance in the property of the parents, if any, but doesn’t have any claim as against Hindu ancestral coparcenaries property.
Apex Court also recently in 2011 D. Velusamy v. D. Patchaiammal, give green signal to the emerging trend of live in relationship.
Thus in the light of above cited judgements we can safely conclude that the Constitution of India guarantees and promotes diversity and wants an egalitarian society where freedom is not merely a privilege. The Fundamental right under Article 21 of the Constitution of India grants to all its citizens “right to life and personal liberty” which means that one is free to live the way one wants. Live in relationship may be immoral in the eyes of the conservative Indian society, however it is not, “illegal” in the eyes of law.
The most important observation in S. Khushboo vs. Kanniammal & Anr and D. Velusamy v. D. Patchaiammal in the context of live in relationship is when it declares that the Constitution of India recognizes, protects and celebrates diversity. This takes the debate on live in relationship beyond the tolerance paradigm, and brings it into the acceptance realm, laying the ground-work for further grant of equal rights to the live in partner, all on the foundation stone of Constitutional Morality.
Friends, irrespective of how agitated one gets on the issue of live-in relationships, the fact is that this is a new-age phenomenon that is gaining in acceptance fast. You have every right to detest it. However, others too have every right to accept it as a personal choice in their lives.
The problem is that we humans love to control others’ lives in the name of morality and society. And this transgresses on personal freedom. Actually, the societies which have less tendency to encroach upon personal freedom, make the happiest society. The earlier we accept this fact, the better it would be for us as a society.
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