Married Man In Consensual Live-In Relationship Isn’t A Crime: High Court

New Delhi, March 27: A married man cannot be prosecuted for participating in a consensual, live-in relationship with an adult woman, the Allahabad High Court said in a significant statement recently as it heard a criminal writ petition filed by a live-in couple from Uttar Pradesh’s Shahjahanpur. 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. The court also stressed its actions to protect citizens’ rights could not be dictated by social opinion or morality. 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 order regarding police protection and protection from arrest was passed by the Division Bench of Justice JJ Munir and Justice Tarun Saxena.

‘He enticed my daughter away’: Mother

The petition was filed by Anamika and Netrapal. The details of the case are that on January 8 Anamika’s mother – Kanti – filed a police case at Shahjahanpur’s Jaitipur Police Station. She alleged 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 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.

‘He is a married man’

The argument from the other side was that the second petitioner – Netrapal – is a married man and, therefore, cohabiting with another woman constituted a criminal offense on his part. But, during the hearing the court observed there is no criminal offense under which Netrapal could be charged if he is, indeed, in a consensual live-in relationship with another adult. The court further noted the first petitioner had confirmed to the police that she is an adult and is in a live-in relationship with Netrapal of her own free will.

Couple fear ‘honour killing’

In a disturbing set of arguments, the petitioners raised the possibility of ‘honour killing’; the first petitioner said members of her family, including her parents, had issued death threats. Taking note of this, the court hauled up the Superintendent of Police for failing to act. It is the duty of the police to ensure the safety and security of these two consenting adults living together, the court said, assigning specific responsibilities as mandated by the Supreme Court in its 2018 Shakti Vahini vs. Union of India and Others judgment