Marriage or Live-in - can't be both

The Andhra Pradesh High Court in India has ruled that two people deciding to enter into a live-in relationship without solemnizing marriage must ensure none of them are still married to someone else.

Indian society and its courts have long recognized live-in relationships where people choose not to solemnize their relationships going through marital ceremonies. But according to the Andhra Pradesh High Court this acceptance cannot be stretched to include cases of strained marriages where estranged partner can simply move on in with someone else while the other partner and that marital relationship is in legal limbo.

No rocket science in that. If you are married and have husband or wife as partner, justice demands you end that relationship before commencing a new one with a new partner.

The court was faced with a writ petition on behalf of a married estranged husband, who had – while the marriage had still not legally ended, started a live-in relationship with another woman.

While the jurisprudence is still developing around the efficacy and espousal of live-in relationships in India, most modern thinking elite in essence argue, these relationships equal the commitments and thus consequences of a marital relationship.

But some shrewd lawyers believe they can argue the absence of solemnization of marriage in a live-in relationship to avoid the clearly stipulated wrath and consequences of the offences of bigamy in Indian law.

Also read: Live-in relationship is not a bad thing: Aditya Roy Kapoor

According to Section 17(1) of the Hindu Marriage Act, 1955, which regulates punishment for bigamy to Hindu person, if a Hindu marries someone else without first obtaining the dissolution of an existing marriage or while his first marriage is still in effect, they shall be subject to criminal prosecution under Sections 494 and 495 of the Indian Penal Code, 1860.

In this case, the man had been previously married but now living with another woman in a live-in relationship.

His previous marriage had not been dissolved.

Coming to the High Court, the man claimed that his live-in partner girl had been forcibly taken away and now detained by her father and she had been deprived of her freedom, liberty and equality before law by the father. And thus, the High court must grant him relief by ordering the father to let the girl come back as his live-in [partner with the freedom and liberty guaranteed by the constitution of the country.

The Division Bench of Justice Ravi Nath Tilhari and Justice B.V.L.N Chakravarti dismissed the petition filed by him saying:

One’s choice to live outside wedlock does not mean that the married persons are free to live in live-in relationship with others outside wedlock during subsistence of marriage. That would be transgressing valid legal framework. The right to live out of wedlock is to be understood, living without solemnizing marriage, if they are major. They are not bound to marry each other. But that does not mean living in live-in relationship with others outside wedlock, during continuance of marriage.”

The Court further observed that the man’s petition seemed like a scheme to legitimize his illegal actions by getting a ‘seal of approval’ from the Court.

Filing of the writ petition appears to us to be a device adopted to have a seal and signature of this Court on the illegal act of the petitioner, transgressing the valid legal framework of his marriage. There is no factual foundation supported with material, to inspire confidence that it is a case of violation of one’s fundamental right under Article 21 of the Constitution of India, or of any illegal custody of ‘A’, by her father respondent No.5

The legality of live-in relationships is recognized in law under the Protection of Women from Domestic Violence Act, 2005.

This was a very skewed protection asked of the High Court by the man and was rightly called out by the court. It said the recognition of live-in relationships was primarily for protecting women from domestic violence, not for encouraging or violating the legal framework.

The court refused to order the father to let go of the girl from parental home to be part of a relationship which was illegal and would incur penalties.

Filing a Writ for Habeas Corpus seeking production of alleged detenue in Court and setting him or her free from the parental home in particular, and that too at the instance of a person, as the present petitioner, a married person seeking liberty of a girl, may be major, on the ground of the petitioner allegedly living in relationship with her, in our view, cannot be encouraged.”

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