Rajasthan High Court – Jaipur
Nidhi D/O Ved Prakash vs State Of Rajasthan on 29 January, 2025
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2025:RJ-JP:1930]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 2183/2024
1. Reena Wife of Balwan D/o Shri Narendra, aged about 22
Years, Resident of 567, Banawali, Fatehbad, Hariyana, at
present living in relationship with Shri Hariram Simar Son
of Shri Bhanwar Lal, aged 22 Years, Resident of Village
Sitarampura, Tehsil Dantaramgarh, District Sikar
(Rajasthan).
2. Hariram Simar Son of Shri Bhanwar Lal, aged about 22
Years, Resident of Village Sitarampura, Tehsil
Dantaramgarh, District Sikar (Rajasthan).
----Petitioners
Versus
1. State of Rajasthan, Through P.P.
2. Director General of Police, Rajasthan, Jaipur.
3. Superintendent of Police, Sikar, District Sikar (Raj).
4. S.H.O. Police Station Khatu Shyamji, District Sikar (Raj).
5. Balwan Son of Shri Ramjilal, Resident of Banawali, District
Fatehbad (Hariyana).
6. Manoj Son of Shri Manilal, Resident of Banawali, District
Fatehbad (Hariyana).
7. Naresh Son of Shri Ransingh, Resident of Banawali,
District Fatehbad (Hariyana).
8. Sher Singh Son of Shri Ramjilal, Resident of Banawali,
District Fatehbad (Hariyana).
9. Dharampal Son of Not Known, Resident of Banawali,
District Fatehbad (Hariyana).
10. Mahendra Son of Not Known, Resident of Banawali,
District Fatehbad (Hariyana).
11. Kuldeep Payal Son of Krishan Payal, Resident of Banawali,
District Fatehbad (Hariyana).
12. Narendra Beniwal Son of Shri Mehar Singh, Resident of
Tarkawali, Nathusari Kalan (21) Sirsa (Hariyana).
13. Vikash Son of Shri Narendra Beniwal, Resident of
Tarkawali, Nathusari Kalan (21) Sirsa (Hariyana).
14. Anil Son of Shri Jai Prakash, Resident of Tarkawali,
Nathusari Kalan (21) Sirsa (Hariyana).
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15. Sandeep Son of Shri Jai Prakash, Resident of Tarkawali,
Nathusari Kalan (21) Sirsa (Hariyana).
16. Anita D/o Shri Narendra Beniwal, Resident of Tarkawali,
Nathusari Kalan (21) Sirsa (Hariyana).
----Respondents
Connected with
S.B. Criminal Writ Petition No. 2057/2024
1. Rupakshi D/o Vikash, aged about 23 Years, R/o Ashok
Vihar, Loni Dehat, Ghaziabad, Uttar Pradesh, Presently
Resident of Kaila Devi, District Karauli.
2. Ankit Sharma S/o Hukam Chand Sharma, aged about 28
Years, R/o Gangaji Ki Kothi, Gangapur City, Presently
Resident of Kaila Devi, District Karauli.
----Petitioners
Versus
1. State of Rajasthan, through Secretary, Department of
Home Secretary, Jaipur.
2. The Superintendent of Police, Karauli.
3. Station House Officer, Police Station Kaila Devi, District
Karauli.
4. Anuj Sharma S/o Resh Pal, R/o A-78, Jagdamba Colony,
Joharipur, Dayalpur, North East, Delhi - 110024.
----Respondents
S.B. Criminal Writ Petition No. 1951/2024
1. Nidhi D/o Ved Prakash, aged about 24 Years, R/o
Ghasera District Jhunjhunu (Raj.) At tresent R/o Village
Brijpura, Tehsil Buhana District Jhunjhunu (Raj.)
2. Alkesh S/o Sh. Rajesh Kumar, aged about 23 Years, R/o
Village Brijpura, Tehsil Buhana District Jhunjhunu (Raj.)
----Petitioners
Versus
1. State of Rajasthan, through Secretary, Department of
Home Affairs Govt. Secretariat Jaipur.
2. Director General of Police, Police Head Quarter, Lal
Kothi, Jaipur.
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3. Superintendent of Police, Jhunjhunu District Jhunjhunu
(Raj.)
4. The Station House Officer, Police Station, Buhana,
District Jhunjhunu (Raj.)
5. Ved Prakash S/o Sh. Sumer Singh, R/o Ghasera District
Jhunjhunu (Raj.)
6. Vijay Pal S/o Sh. Jhaburam, R/o Ghasera District
Jhunjhunu (Raj.)
----Respondents
S.B. Criminal Writ Petition No. 2277/2024
1. Seema W/o Sonu, aged about 28 Years, Resident of
Mohalla Jai Jai Ram City Road, Kasganj, Uttar Pradesh,
Presently Resident of C-4, 11, Nityanand Nagar, Upon
the Gym, Vaishali Nagar, Jaipur (Raj.)
2. Dashrath Rao Son of Gopal Rao, aged about 24 Years,
Resident of C-4, 11, Nityanand Nagar, Upon the Gym,
Vaishali Nagar, Jaipur (Raj.)
----Petitioners
Versus
1. State of Rajasthan, Through Principal Secretary,
Department of Home Affairs, Government of Rajasthan,
Secretariat, Jaipur.
2. The Commissioner of Police, Police Commissionerate,
Jaipur.
3. The Deputy Commissioner of Police, Jaipur City West
Jaipur.
4. SHO, Police Station Vaishali Nagar, Jaipur City, Jaipur.
5. Sonu Son of Nek Ram, Resident of Mohalla Jai Jai Ram
City Road, Kasganj, Uttar Pradesh.
6. Smt. Kamlesh W/o Manpal, Resident of Nagla Mamon,
Gorha, Kasganj, Uttar Pradesh.
7. Brijesh Kumar Son of Unknown, Resident of Nagla
Mamon, Gorha, Kasganj, Uttar Pradesh.
8. Manpal Singh Son of Unknown, Resident of Nagla
Mamon, Gorha, Kasganj, Uttar Pradesh.
9. Mintu Son of Suraj Pal, Resident of Nagla Mamon,
Gorha, Kasganj, Uttar Pradesh.
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10. Smt. Satyawati W/o Mintu, Resident of Nagla Mamon,
Gorha, Kasganj, Uttar Pradesh.
11. Suraj Pal Son of Unknown, Resident of Nagla Mamon,
Gorha, Kasganj, Uttar Pradesh.
For Petitioner(s) : Mr. Mahesh Jatwa
Mr. Parmeshwar Pilania
Mr. Ajit Singh
Mr. Anoop Kumar
Mr. Mukesh Kumar Goyal
Mr. Satish Kumar Balwada
Mr. Ankit Khandelwal
Ms. Sonal Gupta
Mr. Vichitar Choudhary
For Respondent(s) : Mr. Rajesh Choudhary-GA Cum AAG
assisted by Mr. Aman Kumar
Mr. Jitendra Singh-Addl.G.A
Mr. Vivek Choudhary- Dy.G.A
Mr. Manvendra Singh-Dy.G.A
Ms. Neha Goyal
Mr. Vinod Sharma
JUSTICE ANOOP KUMAR DHAND
Order
Reserved on 06/01/2025
Pronounced on 29/01/2025
Reportable
1. India is a country, which is slowly opening its door for
western ideas and lifestyles and the most crucial aspect amongst
it, is the concept of 'Live-in-relationship'.
2. The live-in-relationship is an agreement in which two persons
live together in a short or long term relationship. The Hindu
Marriage Act, 1955 (for short, 'the Act of 1955') does not
recognize the concept of live-in-relationship. Even in Muslim Law,
no recognition has been given to such relationship as such type of
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relationship, without or outside the marriage, is treated as 'Zina'
and 'Haram'. Such relationship is not permissible in Islam.
3. The idea of live-in-relationship may seem to be unique and
appealing but in reality the problems likely to arise are many, as
well as challenging. The status of a woman in such relationship is
not that of a wife and lacks social approval or sanctity.
4. The right to live with a partner of one's choice is a necessary
component of the right to life and personal liberty, guaranteed
under Article 21 of the Constitution of India. The Hon'ble Apex
Court on several occasions has held that live-in-relationships are
not illegal. In S. Khushboo vs. Kanniammal and Anr. reported
in 2010 (5) SCC 600, it has been held that living together is an
aspect of the right to life and personal liberty. In Indra Sarma
vs. V.K.V. Sarma reported in 2013 (15) SCC 755, the Hon'ble
Apex Court has observed that 'Live-in or marriage like
relationship' is neither a crime nor a sin, though socially
unacceptable in our country. The decision to marry or not to marry
or to have a heterosexual relationship is immensely personal.
Similarly, in the case of Lata Singh vs. State of UP and Anr.
reported in 2006 (5) SCC 475, it has been held by the Hon'ble
Apex Court that a live-in-relationship between two consenting
adults of heterosexual sex does not amount to any offence, even
though it may be perceived as immoral.
5. The Constitution has given certain fundamental rights and
freedom to the people. Under Article 19, citizens have a
fundamental right to freedom of speech and expression and to
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reside and settle in any part within the territory of India. Similarly
Article 21 of the Constitution of India confers right to life on every
person. A person's wish to reside with a partner of his or her
choice and establish a relationship is governed by the above
mentioned rights and freedom.
6. The concept of such relationship was considered by the
Hon'ble Apex Court in the case of D. Velusamy vs. D.
Patchaiammal reported in 2010 (10) SCC 469, and it has been
held in para 33 which reads as under:
"33. In our opinion a `relationship in the nature of
marriage' is akin to a common law marriage. Common
law marriages require that although not being formally
married:-
(a) The couple must hold themselves out to society as
being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a
legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held
themselves out to the world as being akin to spouses
for a significant period of time. "
7. Thereafter, the distinction between 'relationship in the nature
of marriage' and 'marital relations' was discussed and considered
by the Hon'ble Apex Court in the case of Indra Sarma (Supra)
and it has been held in paras 37 and 38 as under:
"37. The distinction between the relationship in the
nature of marriage and marital relationship has to be
noted first. Relationship of marriage continues,
notwithstanding the fact that there are differences of
opinions, marital unrest etc., even if they are not
sharing a shared household, being based on law. But
live-in-relationship is purely an arrangement between
the parties unlike, a legal marriage. Once a party to a
live-in- relationship determines that he/she does not
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wish to live in such a relationship, that relationship
comes to an end. Further, in a relationship in the
nature of marriage, the party asserting the existence
of the relationship, at any stage or at any point of
time, must positively prove the existence of the
identifying characteristics of that relationship, since
the legislature has used the expression "in the nature
of".
38. Reference to certain situations, in which the
relationship between an aggrieved person referred to
in Section 2(a) and the respondent referred to in
Section 2(q) of the DV Act, would or would not amount
to a relationship in the nature of marriage, would be
apposite. Following are some of the categories of cases
which are only illustrative:
a) Domestic relationship between an unmarried
adult woman and an unmarried adult male:
Relationship between an unmarried adult woman and
an unmarried adult male who lived or, at any point of
time lived together in a shared household, will fall
under the definition of Section 2(f) of the DV Act and
in case, there is any domestic violence, the same will
fall under Section 3 of the DV Act and the aggrieved
person can always seek reliefs provided under Chapter
IV of the DV Act.
b) Domestic relationship between an unmarried
woman and a married adult male: Situations may
arise when an unmarried adult women knowingly
enters into a relationship with a married adult male.
The question is whether such a relationship is a
relationship "in the nature of marriage" so as to fall
within the definition of Section 2(f) of the DV Act.
c) Domestic relationship between a married adult
woman and an unmarried adult male: Situations
may also arise where an adult married woman,
knowingly enters into a relationship with an unmarried
adult male, the question is whether such a relationship
would fall within the expression relationship "in the
nature of marriage".
d) Domestic relationship between an unmarried
woman unknowingly enters into a relationship
with a married adult male: An unmarried woman
unknowingly enters into a relationship with a married
adult male, may, in a given situation, fall within the
definition of Section 2(f) of the DV Act and such a
relationship may be a relationship in the "nature of
marriage", so far as the aggrieved person is
concerned.
e) Domestic relationship between same sex
partners (Gay and Lesbians): The DV Act does not
recognize such a relationship and that relationship
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cannot be termed as a relationship in the nature of
marriage under the Act. Legislatures in some
countries, like the Interpretation Act, 1984 (Western
Australia), the Interpretation Act, 1999 (New Zealand),
the Domestic Violence Act, 1998 (South Africa), the
Domestic Violence, Crime and Victims Act, 2004
(U.K.), have recognized the relationship between the
same sex couples and have brought these
relationships into the definition of Domestic
relationship. "
8. Thus, the legal status of live-in-relationship in India has been
evolved and determined by the Hon'ble Apex Court in catena of
judgments. However, there is no separate legislation which lays
down the provision of live-in-relationship and provides legality to
this concept. Though the concept of live-in-relationship is
considered immoral by the society and the same is not accepted
by public at large, it is not treated as illegal in the eyes of law. It
has been held by the Hon'ble Apex Court that living together is a
part of right to life and personal liberty, therefore, it cannot be
held to be illegal and against any law.
9. The children born out of such relationships would be the
sufferer and hence, their well being is required to be addressed.
Minor children born out of such relations are expected to be
maintained by their parents and specially by the father, because
women from such relations may often be found to be sufferers as
well. Though, directions in this regard can be issued by the Courts
having jurisdiction, however a moral obligation is required to be
fastened upon the male partner of such 'live-in-relationship', who
is required to discharge his moral duty to maintain the children
born out of such relationship.
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10. Several couples are residing in 'live-in-relationship' and are
facing threat and danger from their families and the society for
not accepting their relationship. Hence, they are approaching the
Constitutional Courts by way of filing writ petitions under Article
226 of the Constitution of India, seeking protection of their life
and liberty under Article 21 of the Constitution of India. As a
result, Courts are inundated with such petitions. Every day dozens
of petitions are being submitted under the similar prayer of
protection of life and liberty from the danger and threats faced by
such couples.
11. This Court in the case of Suman Meena and Anr. Vs. State
of Rajasthan while deciding S.B. Criminal Writ Petition No.
792/2024 vide order dated 02.08.2024 has directed the State to
designate the Police Officer as 'Nodal Officer' to look into the
grievances of such couples seeking protection by allowing them to
file representation before such Officers and a time limit has also
been fixed to decide such representations. Several persons
including the petitioners are still approaching this Court for
redressal of their grievance after filing of representation before the
designated Nodal Officer because their grievances still remain
unaddressed for the reasons best known to the State authorities.
Hence, once again dozens of petitions are being filed before this
Court everyday seeking protection orders.
12. It appears that the Police agencies are overburdened with
investigation and the responsibility of maintaining law and order,
hence, they hardly get any time to redress the grievance of the
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aggrieved, but certainly this cannot be a ground for denial, on
their part, to look into the matter and decide the representation of
such persons by passing appropriate orders.
13. There is no separate legislation which lays downs the
provisions for live-in-relationship or which provides legality to this
concept or protection to the female partners and the children born
out of such relationships. Hence, appropriate legislation is
required to be enacted and implemented by the Central as well as
the State Government.
14. Recently, Uttrakhand State has enacted the Uniform Civil
Code of Uttrakhand, 2024 which lays down certain procedure for
such live-in-relationships. Part III and Clauses 378 to 388 of the
said Code deals with the entire process and procedure with regard
to such relationships and it also deals with the liabilities of the
couples residing in such relationships.
15. Thus, the Parliament and the State Legislature have to
ponder and bring a proper legislation or make proper amendments
in the law over this issue, so that the couples residing in such
relationship may not face any harm and threat at the hands of
their family, relatives and members of the society at large.
Sometimes the female partners in such relationships suffer alot
whenever such relationships are broken. The female partner in
such relationships should not be allowed to become sufferer and
the children born out of such kind of relationship are required to
be protected, even if such relationship might not be a relationship
in the nature of marriage. The children born out from such
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relationship should not be allowed to suffer only because the two
persons have entered into such relationship.
16. In absence of any legislative frame-work in relation to the
relevant subject matter, many people get confused due to the
different approaches of the Courts. Although the Courts attempt to
fill the vacuum in law, still there remains the uncertainty and
fragmented application of law.
17. The need of the hour is to take a step to bring out a law or
enact a new legislation which would look into the matter of live-in-
relationship and would grant rights and impose obligations on the
part of the couples in such relationship. A separate legislation
should be competent enough to grant assistance to the children
and female partners who become sufferer in such relationship.
18. Until a legislation is framed by the Centre as well as the
State Government, a scheme of statutory nature is required to be
formulated in legal format. Let a format be prepared by the
appropriate authority making it necessary for the couples/partners
desiring to enter into such live-in-relationship, to fill the format,
with the following terms and conditions, before entering into such
live-in-relationship:
(i) Fixing liability of the male and female partners in the form of
child plan to bear the education, health and upbringing
responsibility of the children born out of such relationship.
(ii) Fixing liability of the male partner for maintenance of the
non-earning female partner residing in such relation and
children born out of such relationship.
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19. The live-in-relationship agreement is liable to be registered by
the Competent authority/ Tribunal, which is required to be
established by the Government.
20. Till enactment of the appropriate legislation by the
Government, let competent Authority be established in each
district of the State to look into the matter of registration of such
live-in-relationships, who will address and redress the grievances
of such partners/couples who have entered in such relationship
and the children being born out therefrom. Let a Website or Web-
portal be launched in this regard for redressal of the issue arising
out of such relationship.
21. Let a copy of this order, be sent to the Chief Secretary, State
of Rajasthan, Principal Secretary, Department of Law and Justice
as well as to the Secretary, Department of Justice and Social
Welfare, New Delhi to look into the matter for doing the needful
exercise for compliance of the order/ direction issued by this
Court. They are further directed to send a compliance report to
this Court on or before 01.03.2025 and apprise this Court about
the steps being taken by them.
22. Now, this Court proceeds further to deal with the other issue
involved in these petitions, "whether a married person living
with an unmarried person, without dissolution of his/her
marriage and/or whether two married persons with two
different marriages living in live-in-relationship, without
dissolution of their marriages, are entitled to get protection
order from the Court ?"
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23. The ideal condition of every happy married life is that both
husband and wife should maintain their loyalty towards each
other. Sexual intercourse by a person with the wife of another
person with her consent is an offence of 'adultery' and the same is
punishable under Section 497 IPC with imprisonment which might
extend to five years or with fine or both, but in such cases the
wife could not be punished as an abettor.
24. The constitutional validity of Section 497 IPC was challenged
before the five Judge Constitutional Bench of the Hon'ble Apex
Court in the case of Joseph Shine Vs. Union of India reported
in 2019 (3) SCC 39, and the said provision was struck down.
Now, adultery is no more a criminal offence but is considered to
be a civil wrong and it can be a ground for divorce under Section
13 of the Act of 1955.
25. Large number of petitions have been filed by several couples
who have entered into "live-in-relationship" wherein one of the
partners is married and the other one is unmarried or both are
married with different partners, and such couples/partners are
seeking protection order from this Court, but there is no clarity on
this issue inasmuch as several conflicting orders have been passed
by different co-ordinate Benches of this Court in such like matters.
26. In the case of Leela Bishnoi and Anr. Vs. State of
Rajasthan, (S.B. Criminal Misc. Petition No. 5045/2021) decided
on 15.09.2021, the protection was sought by one married and
another unmarried partner residing in 'live -in- relationship' and
the same was granted by the Co-ordinate Bench of this Court at
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the Principal Seat at Jodhpur with the following observations and
directions in paras 30, 31, 32, 33, 34 and 37 and the same are
reproduced as under:-
"30. It is sufficiently clear to this Court that the
Hon'ble Apex Court's standpoint is that there exists
a duty of the State to protect and safeguard all
fundamental rights, unless taken away by due
process of law. Even if any illegality or
wrongfulness has been committed, the duty to
punish vests solely with the State, that too in
attune with due process of law. In no circumstance
can the State bypass due process, permit or
condone any acts of moral policing or mob
mentality. When the Right to life and liberty is
even guaranteed to convicted criminals of serious
offences, there can be no reasonable nexus to not
grant the same protection to those in an
"legal/illegal relationships".
31. Had there been a question before this Court
with regards the morality/ legality of live- in
relationships and matters connected thereto, then
perhaps the answer would have required more
deliberation along those lines. However, in the
context of the limited question this Court is posed
with pertaining to the application of Article 21 of
the Constitution of India and it is clear that the
right to claim protection under this Article is a
constitutional mandate upon the State and can be
availed by all (16 of 17) persons alike. There arises
no question of this right to be waived off even if
the person seeking protection is guilty of an
immoral, unlawful or illegal act, as per the
precedent law cited of the Hon'ble Apex Court.
However, in this case, this Court does not wish to
delve into the sanctity of relationships.
32. This Court finds itself firmly tied down to the
principle of individual autonomy, which cannot be
hampered by societal expectations in a vibrant
democracy. The State's respect for the individual
independent choices has to be held high.
33. This Court fully values the principle that at all
junctures constitutional morality has to have an
overriding impact upon societal morality.
This Court cannot sit back and watch the
transgression or dereliction in the sphere of
fundamental rights, which are basic human rights.
The public morality cannot be allowed to
overshadow the constitutional morality, particularly
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when the legal tenability of the right to protection
is paramount.
34. This Court is duty bound to act as a protector
of the rights of the individuals, which are under
siege with the clear intention of obstructing the
vision of Constitution.
37. Thus, in view of the above, the present petition
is disposed of, with a direction to the petitioners to
appear before the Station House Officer, Police
Station, Feench, Luni, District Jodhpur alongwith
appropriate representation regarding their
grievance. The Station House Officer, Police
Station, Feench, Luni, District Jodhpur shall in turn
hear the grievance of the petitioners, and after
analyzing the threat perceptions, if necessitated,
may pass necessary orders to provide adequate
security and protection to the petitioners."
27. Similarly, in the case of Manisha Devi and Another Vs.
State of Rajasthan and Ors., (S.B. Criminal Writ Petition No.
394/2023) decided on 07.08.2023 the protection was granted to
one of such couples by the Co-ordinate Bench of this Court
observing as follows in paras 5 to 9:-
"5.The law is well settled that privacy and liberty of
individuals cannot be infringed by taking the law in
one's hands. If there is allegation of violation of law by
the aggrieved person then legal recourse should be
adopted and recourse can never be at the whim of
anyone.
6. In Navtej Singh Johar Vs. Union of India (2018) 10
SCC 1,The Supreme Court said as follows:-
"The right to privacy enables an individual to
exercise his or her autonomy, away from the
glare of societal expectations. The realisation
of the human personality is dependent on
the autonomy of an individual. In a liberal
democracy, recognition of the individual as
an autonomous person is an
acknowledgment of the State's respect for
the capacity ofthe individual to make
independent choices. The right to privacy
may be construed to signify that not only are
certain acts no longer immoral, but that
there also exists an affirmative moral right to
do them.
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7. In Shafin Jahan Vs. Asokan K.M. 2018 (16) SCC
368, The Hon'ble Supreme Court said that " the social
values and morals have their space but they are not
above the constitutionally guaranteed freedom. The
said freedom is both a constitutional and a human
right. Deprivation of that freedom which is ingrained
in choice on the plea of faith is impermissible.
8. In Navtej Singh Johar Vs. Union of India (2018) 10
SCC 1,The Supreme Court said as follows:-
"131. The duty of the constitutional courts
isto adjudge the validity of law on well-
established principles, namely, legislative
competence or violations of fundamental
rights or of any other constitutional
provisions. At the same time, it is expected
from the courts as the final arbiter of the
Constitution to uphold the cherished
principles of the Constitution and not to be
remotely guided by majoritarian view or
popular perception. The Court has to be
guided by the conception of constitutional
morality and not by the societal morality.
132. We may hasten to add here that in the
context of the issue at hand, when a penal
provision is challenged as being violative of
the fundamental rights of a section of the
society, notwithstanding the fact whether
the said section of the society is a minority
or a majority, the magna cum laude and
creditable principle of constitutional
morality, in a constitutional democracy like
ours where the rule of law prevails, must
not be allowed tobe trampled by obscure
notions of social morality which have no
legal tenability. The concept of constitutional
morality would serveas an aid for the Court
to arrive at a just decision which would be in
consonance with the constitutional rights of
the citizens, howsoever small that fragment
of the populace may be. The idea of number,
in this context, is meaningless; like zero on
the left side of any number.
133. In this regard, we have to
telescopically analyse social morality vis-a-
vis constitutional morality. It needs no
special emphasis to state that whenever the
constitutional courts come across a situation
of transgression or dereliction in the sphere
of fundamental rights, which are also the
basic human rights of a section, howsoever
small part of the society, then it is for the
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[2025:RJ-JP:1930] (17 of 26) [CRLW-2183/2024]
constitutional courts to ensure, with the aid
of judicial engagement and creativity, that
constitutional morality prevails over social
morality."
9.Considering the constitutional right of the
petitioners, let the State respondents ensure
protection to the personal life and liberty of the
petitioners."
28. Likewise in the case of Manisha Rani and Anr. Vs. State
of Rajasthan and Ors., (S.B. Criminal Misc. Petition No.
6375/2020), decided on 04.01.2021 it has been held by the Co-
ordinate Bench of this Court in paras 7, 8 and 9 as under:-
"7. It is well settled legal position as expounded by
the Hon'ble Supreme Court of India in Lata Singh
Vs. State of UP [AIR2006 SC 2522], S. Khushboo
Vs. Kanniammal [(2010) 5SCC 600], Indra Sarma
Vs. VKV Sarma [(2013) 15 SCC 755]and Shafin
Jahan vs. Asokan KM & Ors. [(2018) 16 SCC368]
that the society cannot determine how individuals
live their lives, especially when they are major,
irrespective of the fact that the relation between
two major individuals may be termed as immoral
and unsocial. Thus, life and personal liberty of the
individuals has to be protected except according to
procedure established by law, as mandated by
Article 21 of the Constitution of India. Further, as
per Section 29 of Rajasthan Police Act, 2007every
police officer is duty bound to protect the life and
liberty of the citizens.
8. Therefore, in light of above legal position and
having regard to the above submissions but without
expressing any opinion on the genuineness or
correctness of the allegations made by the
petitioners, this petition is disposed of with the
direction that learned counsel for the petitioners
shall send a copy of the petition along with its
annexures to the Station House Officer of concerned
Police Station through e-mail, and on receipt of the
same, the Station House Officer concerned shall
treat it as a complaint and after due enquiry, he
shall take necessary preventive measures and other
steps to ensure safety and security of the
petitioners in accordance with law.
9. However, as a precautionary note, it is made
clear that this order shall not come in the way of
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[2025:RJ-JP:1930] (18 of 26) [CRLW-2183/2024]
civil/criminal case, if any, and such case would take
its own course as per law.”
29. But, at the same time, contrary views have been taken by
the Co-ordinate Benches of this Court in catena of cases. In the
case of Rashika Khandal and Anr. Vs. State of Rajasthan and
Ors., reported in 2021 SCC OnLine Raj 4296 and it has been
held that such couples are not entitled to get any protection order
from this Court. It has been held in para 1 to 4 as under:-
“1. Petitioners have preferred this Criminal
Miscellaneous Petition seeking protection of life and
liberty.
2. From perusal of the record, it is revealed that
Petitioner No.2 is already married. A live-in-
relationship between a married and unmarried
person is not permissible.
3. The pre-requities for a live-in-relationship as held
by the Apex Court in “D.Velusamy vs. D.
Patchaiammal (2010) 10 SCC 469″ is that the couple
must hold themselves out to society as being akin to
spouses and must be of legal age to marry or
qualified to enter into a legal marriage, including
being unmarried.
4. Criminal Miscellaneous Petition is accordingly
dismissed.”
30. Similar view has been taken by the other Co-ordinate Bench
of this Court in the case of Suman Kumari and Anr. Vs. State
and Ors., (S.B. Crl. Writ Petition No. 1686/2023) decided on
03.11.2023 and protection order has not been passed in favour of
such couples and it has been held in para 1 to 4, which reads as
under:-
“Petitioners have preferred this petition seeking
protection of life and liberty.
From perusal of the record, it is revealed that
Petitioner No.1 is already married. A live-in-
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[2025:RJ-JP:1930] (19 of 26) [CRLW-2183/2024]
relationship between a married and unmarried person
is not permissible.
The pre-requities for a live-in-relationship as held by
the Apex Court in “D.Velusamy vs. D.Patchaiammal
(2010) 10 SCC 469″ is that the couple must hold
themselves out to society as being akin to spouses
and must be of legal age to marry or qualified to
enter into a legal marriage, including being
unmarried.
Considering all the factual position, this petition is
liable to be dismissed. Hence, the criminal writ
petition is accordingly dismissed.”
31. Relying on the same, several other petitions of similar
nature were rejected by the Co-ordinate Benches of this Court in
the cases of Krishan Prajapat and Anr. Vs. The State of
Rajasthan, (S.B. Criminal Writ Petition No. 2270/2023) decided
on 19.10.2023; Vinita Gujar and Anr. Vs. The State of
Rajasthan and Ors., (S.B. Criminal Writ Petition No. 2148/2023)
decided on 06.10.2023; Guddi Keer and Anr. Vs. State of
Rajasthan and Ors., (S.B. Criminal Writ. Petition No.
2142/2023), decided on 06.10.2023; and Priyanka and Anr. Vs
State of Rajasthan and Ors., (S.B. Criminal Misc. Petition No.
8651/2022) decided on 01.11.2023.
32. Recently, the Punjab and Haryana High Court in the case of
xxxx Vs. State of Punjab and Ors., reported in 2024 PHHC-
168063 was of the similar view that no protection order would be
granted in favour of such couples living in such illicit relationship
and it has been held in paras 8 to 10 and 12 and 13 as under:-
“8. The pre-requisites for a live-in-relationship as
held by the ApexCourt in “D.Velusamy vs. D.
Patchaiammal” (2010) 10 SCC 469 is that the
couple must hold themselves out to society as
being akin to spouses and must be of legal age to(Downloaded on 29/01/2025 at 10:12:53 PM)
[2025:RJ-JP:1930] (20 of 26) [CRLW-2183/2024]marry or qualified to enter into a legal marriage,
including being unmarried.
9. Further the same view of this Court has been
reiterated by various other Benches wherein the
Court has refused to grant the protection to the
couples living in live-in-relationship on the ground
that if such protection as claimed, is granted the
entire social fabric of the society would get
disturbed. Reference regarding this can be placed
upon Simranjeet Kaur and another v State of
Haryana and others(2021), wherein the Court
refused protection to couples in living relationship
as one of the petitioners was married and had not
obtained a legal divorce from the respondent. It
was held that the petitioners entered into an unholy
alliance and there is no valid and convincing
material in the writ petition for exercising the extra-
ordinary writ jurisdiction.
10. Another observation was made by a Single-
Judge Bench of this Court in Kavita and another v
State of Haryana and others (2021) wherein both
the petitioners were married to the respective
respondents and without seeking divorce from their
respective spouses they were living in a lustful and
adulterous life with each other and relied upon a
vague document i.e.,representation wherein it was
nowhere stated that from whom they were
apprehending threat to their life and liberty. While
dismissing the petition, the Court remarked that it
cannot be presumed that both the petitioners have
any apprehension from their spouses and this
petition has been filed just to obtain a seal of this
Court on their so-called live-in relationship. In view
of this, dismissing their plea, the Court noted thus:
“It is worth noticing here that in the absence
of any allegation by not naming anyone in
the representation, it cannot be presumed
that both the petitioners have any
apprehension from their own spouses and
this petition has been filed just to obtain a
seal of this Court on their so-called live-in
relationship.”
12. In view of the above discussions and reading of
the above clearly indicates that to attach legitimate
sanctity to such a relation, certain conditions are
required to be fulfilled by such partners. Merely
because the two persons are living together for few
days, their claim of live-in-relationship based upon
bald averment may not be enough to hold that they
are truly in live-in-relationship and directing the
police to grant protection to them may indirectly
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[2025:RJ-JP:1930] (21 of 26) [CRLW-2183/2024]
give our assent to such illicit relationship, and,
therefore, the orders cannot be passed under
Article 21 of the Constitution of India which
guarantees freedom of life to all citizens, but such
freedom has to be within the ambit of law.
13. Resultantly, this Court does not find it to be a fit
case for exercise of extra ordinary writ jurisdiction.
Hence, the same is dismissed.”
33. The Division Bench of the Allahabad High Court has also
penned down its thoughts in Smt. Aneeta and Anr. Vs. State of
U.P. and Ors., (WP(C) No. 14443/2021) decided on 29.07.2021,
stating that the Court is not against granting protection to people
who want to live together irrespective of the fact as to which
community, caste or sex they belong to. But no law abiding
citizen, who is already married under the Act of 1955, can seek
protection of this Court if he/she is in illicit relationship, which is
not within the purview of the social fabric of the society. The Court
held that it cannot permit the parties to such illegality, as
tomorrow such couples may claim to have sanctified their illicit
relationships. A live-in-relationship cannot be protected at the cost
of the social fabric of this country. Directing the police to grant
protection to such couples may amount to the Court indirectly
giving its assent to such illicit relationships.
34. Relying upon the judgment passed by the Division Bench of
the Allahabad High Court in the case of Smt. Aneeta (Supra), the
Co-ordinate Bench of this Court in the case of Smt. Maya Devi
and Anr. Vs. State of Rajasthan and Ors., (S.B. Criminal Misc.
(Petition) No. 3314/2021) decided on 13.08.2021 held that live-in-
relationship cannot be protected at the cost of social fabric of this
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[2025:RJ-JP:1930] (22 of 26) [CRLW-2183/2024]
country and no protection should be granted to such couples living
in such illicit relations.
35. Again the Co-ordinate Bench of this Court in the case of
Vakeela and Anr. Vs. State of Rajasthan and Ors. in S.B.
Criminal Misc. Petition No. 4271/2020 dismissed such petition with
cost of Rs. 10,000/- vide order dated 06.11.2020 and it has been
observed and held as follows :-
“Counsel for the petitioners states that petitioner No.1
is a lady, who shown to be wife of petitioner No.2 –
Umardeen Khan. However, it is informed that
petitioner No.1 – Vakeela was married to respondent
No.5 – Talim and petitioner No.2 – Umardeen Khanis
also a married person. Now, wife of respondent No.5
– Talim, Vakeela wants to live with petitioner No.2 –
Umardeen Khan, who is already married under the
Muslim Law. A married muslim woman cannot get
married again unless she has been divorced.
Petitioner No.2 – Umardeen Khan is also married
and the documents, which have been placed on
record, do not show that a valid Nikah has taken
place between the couple and only a Nikahnama has
been executed on the stamp paper of Rs.500/-without
being before any Mutwali nor there is a Nutfah read
by any Maulvi. There is Maulvi (Priest) to the
Nikahnama, who has signed the said Nikahnama. In
the contents of the Nikahnama, itis mentioned that
the petitioners were living in live in relationship.
In the opinion of this Court, the married persons
living with somebody else spouse would be amount
into committing an immoral act and a seal of approval
cannot be given by this Court by directing the police
to give them protection. Learned counsel for the
petitioners has relied on the two orders passed by this
Court in Munni Vijay Dhurve & Anr. Versus State of
Rajasthan & Ors.: S.B. Criminal Misc. Petition
No.7040/2019 decided on 15.11.2019 and Smt.
Vakila & Anr.Versus State of Rajasthan & Ors.: S.B.
Criminal Writ Petition No.304/2017 decided on
23.2.2018. However, from the perusal of both the
aforesaid judgments, I find that the facts of those
cases were altogether different. In the first case
(supra), the petitioner No.1 had married with the
petitioner No.2 and there was no other existing
spouse living of both couples. Similarly in the second(Downloaded on 29/01/2025 at 10:12:53 PM)
[2025:RJ-JP:1930] (23 of 26) [CRLW-2183/2024]case (supra), there is no such mention of previous
marriage of the petitioners therein.
In view thereof, the contention of the learned
counsel for the petitioners’ counsel is not made
out. The misc. petition is misconceived and the
same is, therefore, dismissed with cost of Rs.10,000/-
to be deposited with the Rajasthan High Court Bar
Association within a period of 30 days, failing
which, the concerned authorities shall take necessary
steps for recovering the said amount from the
petitioner Nos.1 and 2.”
36. On the same issue, conflicting views have been taken by
different Co-ordinate Benches of this Court, hence, it is difficult for
this Court to follow a particular view i.e. either in favour or go
against such partners/couples, residing in such live-in-
relationship.
37. The judicial decorum and legal propriety demands that where
a Single Bench or Division Bench does not agree with the decision
of the Bench of co-ordinate jurisdiction, the matter should be
referred to a Larger Bench. This view has been taken by the
Hon’ble Apex Court in the case of Sundaradas Kanyalal
Bhathija & Ors vs. The Collector, Thane, Maharashtra,
reported in AIR 1990 SC 261 and similarly, in the case of
Ayyaswami Gounder V. Munuswamy Gounder, reported in
AIR 1984 SC 1789, the Hon’ble Apex Court has held that the
Single Bench of the High Court or the Division Bench of the High
Court if does not agree with the view taken by some other Single
Bench or the Division Bench of the same High Court respectively,
it should refer the matter to a Larger Bench and the judicial
propriety and decorum do not warrant him/them to take a
different view.
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[2025:RJ-JP:1930] (24 of 26) [CRLW-2183/2024]
38. In the case of S. Kasi Vs. State Through the Inspector of
Police, Samaynallur Police Station Madurai District, reported
in 2021 (12) SCC 1, the Apex Court has held that:
“It is well settled that a coordinate Bench cannot
take a contrary view and in event there was any
doubt, a coordinate Bench only can refer the
matter for consideration by a Larger Bench. The
judicial discipline ordains so. This Court in State of
Punjab and another versus Devans Modern
Breweries ltd. and another, (2004) 11 SCC 26, in
paragraph 339 laid down following:-
“339. Judicial discipline envisages that a
coordinate Bench follow the decision of an
earlier coordinate Bench. If a coordinate
Bench does not agree with the principles of
law enunciated by another Bench, the
matter may be referred only to a Larger
Bench. (See Pradip Chandra Parija Vs.
Pramod Chandra Patnaik, (2002) 1 SCC 1
followed in Union of India Vs. Hansoli Devi,
(2002) 7 SCC 273. But no decision can be
arrived at contrary to or inconsistent with
the law laid down by the coordinate Bench.
Kalyani Stores (supra) and K.K. Narula
(supra) both have been rendered by the
Constitution Benches. The said decisions,
therefore, cannot be thrown out for any
purpose whatsoever; more so when both of
them if applied collectively lead to a
contrary decision proposed by the majority.”
39. Ordinarily, this Court would not go into the merits of the case
once the position of law is settled with regard to the controversy
on a particular issue, but the difficulty before this Court is that
which view has to be followed, more particularly when there are
two different conflicting views on the same issue by the different
Division Benches of this Court of equal strength. The Apex Court
in the case of Central Board Of Dawoodi Bohra Community
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[2025:RJ-JP:1930] (25 of 26) [CRLW-2183/2024]
and Ors. vs State Of Maharashtra & Anr reported in 2005 (2)
SCC 673 has held in para 12, which reads as under:
“12.Having carefully considered the submissions
made by the learned senior counsel for the parties
and having examined the law laid down by the
Constitution Benches in the abovesaid decisions, we
would like to sum up the legal position in the
following terms :-
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or
co-equal strength.
(2) A Bench of lesser quorum cannot doubt the
correctness of the view of the law taken by a
Bench of larger quorum. In case of doubt all that
the Bench of lesser quorum can do is to invite
the attention of the Chief Justice and request for
the matter being placed for hearing before a
Bench of larger quorum than the Bench whose
decision has come up for consideration. It will be
open only for a Bench of coequal strength to
express an opinion doubting the correctness of
the view taken by the earlier Bench of co- equal
strength, whereupon the matter may be placed
for hearing before a Bench consisting of a
quorum larger than the one which pronounced
the decision laying down the law the correctness
of which is doubted.
(3) The above rules are subject to two
exceptions: (i) The abovesaid rules do not bind
the discretion of the Chief Justice in whom vests
the power of framing the roster and who can
direct any particular matter to be placed for
hearing before any particular Bench of any
strength; and
(ii) In spite of the rules laid down hereinabove, if
the matter has already come up for hearing
before a Bench of larger quorum and that Bench
itself feels that the view of the law taken by a
Bench of lesser quorum, which view is in doubt,
needs correction or reconsideration then by way
of exception (and not as a rule) and for reasons
it may proceed to hear the case and examine the
correctness of the previous decision in question
dispensing with the need of a specific reference
or the order of Chief Justice constituting the
Bench and such listing. Such was the situation in(Downloaded on 29/01/2025 at 10:12:53 PM)
[2025:RJ-JP:1930] (26 of 26) [CRLW-2183/2024]Raghubir Singh & Ors. and Hansoli Devi & Ors.
(supra).”
40. There is no exact and settled decision of this Court on the
legal issue involved in this petition, rather there are conflicting
opinions and views of different Co-ordinate Benches of this Court,
hence, the same is required to be decided for all times to come, so
that there should be uniformity in the orders on the said legal
issue involved in these petitions.
41. In a situation like the present one, where two conflicting
views have been taken by the different Co-ordinate Single
Benches of this Court, this Court has no other option but to refer
the matter to the Special/Larger Bench so that the controversy is
put to rest in accordance with law.
42. This Court accordingly refers this case to the Special/Larger
Bench to answer the following question:
“Whether a married person living with an unmarried
person, without dissolution of his/her marriage or/and
whether two married persons with two different
marriages living in live-in-relationship, without dissolution
of their marriages, are entitled to get protection order
from the Court ?”
43. Let the matter be placed before Hon’ble the Chief Justice on
the administrative side for constitution of Special/Larger Bench to
answer the aforesaid question, referred by this Court.
(ANOOP KUMAR DHAND),J
Ashu/451, 471-473
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