“Consensual sexual relationships between adults, based on the human propensity to experience desire must be treated with respect.”
These were the words of the Supreme Court of India in their order decriminalising homosexuality in 2018. Cut to 2023, and the Allahabad High Court announces, in their order dismissing a plea filed by an inter-faith couple in a live-in relationship:
“The Court feels that such type of relationship is more of infatuation than to have stability and sincerity."
The Case
The couple had sought protection from police action so that they could live together peacefully as two consenting adults. They had challenged an FIR registered against the Muslim man on a complaint by the Hindu woman’s aunt. The FIR was filed under Section 366 IPC (Kidnapping, abducting, or inducing a woman to compel her marriage, etc).
The woman (whose aunt had filed the complaint) told the court that she was over 20 years old and being a major, she had every right to choose her partner. Thus, she made her consent and desire to be in the relationship clear and unambiguous.
But that somehow was not enough for the court, which said:
“As mentioned above, it is more of infatuation against opposite sex without any sincerity. The life is not a bed of roses. It examines every couple on the ground of hard and rough realities. Our experience shows, that such type of relationship often result into timepass, temporary and fragile and as such, we are avoiding to give any protection to the petitioner during the stage of investigation.”
The court also noted that it is aware of the Supreme Court’s validation of live-in relationships, “but in the span of two months in a tender age of 20-22 years, we cannot expect that the couple would be able to give a serious thought over their such type of temporary relationship.”
How the court arrived at conclusions about the nature of the relationship remains unclear. However, when a constitutional court passes an order, it automatically metamorphoses into a legal precedent — unless explicitly stated otherwise.
And for the apex court, your age — “tender” or not — does not really matter as long as you are a consenting adult.
So What Does the Apex Court Say?
Noting that such relationships may be “perceived as immoral”, the Supreme Court had still held (in Lata Singh vs State of UP, 2006) that a live-in relationship between two consenting adults does not amount to any offence.
In S Khushboo v Kannaimmal, they noted that such relationships fall within the ambit of the right to life.
The Supreme Court has also recognised 'live-in' as a "domestic relationship" under The Protection of Women from Domestic Violence Act, 2005.
And, In 2021, among other similar cases, the apex court reversed a Punjab and Haryana High Court order that had once again refused, on moral grounds, to grant protection to a couple in a live-in relationship.
And Then You Add the 'Inter-faith' Factor...
Sexual autonomy is already regarded with disdain by a very large section of society. "Desire" or choice as signs of turpitude -- irrespective of what the top court says. Add to that the element of "inter-faith" and the rope on those who love, as well as their loved ones, grows tighter still.
In February 2021, a UP woman was reportedly burnt alive by her family members for being in an inter-faith affair.
As per a Times of India report from August this year, a 55-year-old Uttar Pradesh man and his wife were “brutally beaten to death with iron rod and sticks”. This was alleged because a Hindu girl had eloped with their Muslim son.
And such cases are aplenty.
And What About Marriage?
The Allahabad High Court, while denying protection to the petitioner in the first case we discussed, had said: "Unless and until the couple decides to marry and give the name of their relationship or they are sincere towards each other, the court shuns and avoid to express any opinion in such type of relationship. (Sic)”
But it may be worth noting that inter-faith marriages, albeit legal, are also a very difficult choice for many.
In May 2023, The Quint had reported about an inter-faith couple from Madhya Pradesh who had been on the run since their marriage in April 2022. Prior to their “escape”, the Hindu woman was banned from leaving her home, and shortly after the elopement the Muslim man was booked for “abduction”.
Incidentally, on the day of the couple's marriage, the shops his family owned were demolished citing "illegal construction". The next day his family home.
Several states of the country have, in the last few years, implemented their own “anti-conversion” laws which criminalise religious conversion by marriage.
These legislations (presently under challenge at the apex court) have led to many arrests and forced separation of couples in consensual inter-faith relationships. But rarely have these cases resulted in a conviction, leading to serious doubts about the intent of these legislations and the arrests that follow.
23 cases were registered within the first 23 days of the implementation of the anti-conversion law in Madhya Pradesh (January 2021). But, as pointed out in a November 2022 report in The Indian Express, not even one of them led to a conviction.
As per an Article 14 study of 101 FIRs alleging forced conversion to Christianity (registered under the religious conversion law in UP) more than half had no legal standing. Here's what the publication found:
Section 4 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 says that an FIR may be filed only on the complaint of a person who has been allegedly forced to convert or their blood relative.
“Any aggrieved person, his/her parents, brother, sister or any other person who is related to him/her by blood, marriage or adoption may lodge a First Information Report of such conversion.”
However, 62 per cent of the cases studied by them were registered on complaints made by third parties, including by Hindutva-ideology outfits.
Thus, a culture of targeting inter-faith couples -- whether within or outside the realm of marriage -- continues unabated. Consent, seemingly, is no bar.
And While Justice Comes, It May Not Always Be on Time
Back in 2020, the Allahabad High Court had thrown out a case, registered under abduction and kidnapping-related sections of the IPC, as well as the POCSO Act, against a Muslim man who had married an adult Hindu woman after she embraced Islam.
The bench of Justices Pankaj Naqvi and Vivek Agarwal noted that —
“…if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together…”
In July this year, the Supreme Court granted bail to a man in an inter-faith live-in relationship.
This man had been arrested in connection with an FIR alleging rape and kidnapping. But the relief ultimately only came after he had already spent nine months in custody.
Should the price of love have to be so high?
(With inputs from Livelaw, India Today, The Indian Express, and Article 14.)
(Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She was formerly The Quint's Principal Correspondent - Legal. Find her on X @mekhala_saran. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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