ISSUE 3

WHETHER A MARRIED PERSON CAN STAY IN A LIVE IN RELATIONSHIP WITH

OTHER PARTNER DURING SUBSISTANCE OF MARRIAGE WHEN MARRIAGE IS
NOT BROKEN DOWN?

IT IS SUBMITTED THAT A MARRIED MAN CAN NOT STAY IN A LIVE IN

RELATIONSHIP WITH OTHER PARTNER DURING SUBSISTENCE OF
MARRIAGE WHEN THE MARRIAGE IS NOT BROKEN DOWN.

1. It is hereby submitted that a married man cannot stay in a live in relationship with
other partner during subsistence of marriage when the marriage is not broken down. It
has been held by the Allahabad High Court in the case of Anita v. State of Uttar
Pradesh1, which dealt with the issue of live-in relationship and protection under
Article 21 and Article 22 of the Constitution that the Petitioners cannot claim
protection under Article 21 and 22 as they are not legally married to each other and
their living relationship is not recognized by law or society. The High Court relied on
the presence of the Hindu Marriage Act, 1955 which defines marriage as a
solemnization between two Hindus who are not within the degrees of prohibited
relationship sapinda’s or unsoundness of mind. The court observed that if a person is
already married according to Hindu law, he could not seek protection from another
person who is in an illicit relationship with him. The court also noted that granting
protection to such persons may indirectly give essence to their illicit relationship and
undermine the sanctity of marriage. The High Court concluded that the petitioners
cannot be granted any relief under Article 21 and 22 as they are not entitled to
protection qua their live-in relationship with each other.
2. The Rajasthan High Court observed in Vakeela and anr. V. State of Rajasthan and anr. 2
that married persons living with somebody else’s spouse would amount to committing
an immoral act and a seal of approval cannot be given by the Court by directing the
police to give them protection.3

1
WRIT - C No. - 14443 of 2021
2
2020 SCC OnLine Raj 2620
3
https://www.scconline.com/blog/post/2021/12/30/live-in-relationships-social-myths-legal-realities-and-the-
way-forward/
 3. In B. Parvathi vs The State Of Andhra Pradesh, 4 which was decided by the Andhra
Pradesh High Court on 7 May, 2020. The court dismissed a writ petition filed by a
man who wanted his live-in partner to be released from her parents’ custody.5 The
court held that choice to live outside wedlock does not mean married people are
free to be in a live-in relationship while their marriage subsists. The court also
observed that such a relationship does not fall within the phrase of ‘live-in
relationship’ or ‘relationship’ in the nature of marriage.6
4. In the case of Sunita Devendra Deshprabhu vs. Narayan Ganesh Deshprabhu and ors. 7
the Bombay High Court ruled that a married woman who has been in a non-marital
cohabitation relationship with a man for over 15 years is not eligible to receive
financial support from him under the provisions of the Domestic Violence Act of
2005.8 The court held that the woman was not a “legally wedded wife” or an
“aggrieved person” within the meaning of the Act, and that the man was not obliged
to maintain her after their relationship ended. The court also observed that the woman
had concealed the fact that she was already married to another person when she
entered into the relationship with the man. Also in the case of Gulza Kumari and anr.
v. State of Punjab and ors.9 the petitioners, Gulza Kumari and Gurwinder Singh, were
a live-in couple who sought protection from the High Court of Punjab and Haryana
against their parents, who they feared would harm them. The petitioners stated that
they were residing together and intended to get married shortly, but one of them was
not of marriageable age. The High Court dismissed their petition, stating that their
live-in relationship was “morally and socially not acceptable” and that they could not
seek a protection order for such a relationship.
5. It is significant to understand that in the case of Rajesh Kumar v. State of U.P. 10, the
Allahabad High Court denied protection to a married man who was living with
another woman without divorcing his wife. 11 The court said that such a relationship
would not qualify as a live-in relationship or a form of marriage, but as an offence of
bigamy under sectios 494/495 of the Indian Penal Code. 12 The court also cited a
4
Criminal Revision Case No. 1116 of 2019
5
Live-in relationships vs morality: A case for strengthening Domestic Violence Act - The Week
6
Live-In Relationships In India: Legal But Do They Have Enough Safeguards? (outlookindia.com)
7
W.P. No. 1005 of 2018
8
Protection of Women from Domestic Violence Act, 2005 will not disentitle wife from seeking maintenance
under Section 125, CrPC. (advocatetanmoy.com)
9
C.R.W.P. No. 4199 of 2021
10
APPLICATION U/S 482 No. - 14909 of 2021
11
Difficult for women to find husbands after live-in: Allahabad High Court - India Today
12
Allahabad High Court remarks Live-in relationships are timepass, temporary and fragile (scconline.com)
 similar ruling by the Punjab and Haryana High Court in the case of Rajesh Kumar v.
State of Haryana, where it held that a married person living with another person of the
opposite sex would be guilty of adultery under section 497 of the Indian Penal Code.
6. Also, in the case of Rashika Khandal v State of Rajasthan which is about a woman
and a man who sought protection of life and liberty under Article 21 of the
Constitution of India, as they were in a live-in relationship. However, the man was
already married to another woman, and the Rajasthan High Court dismissed their
petition, holding that a live-in relationship between a married and an unmarried
person is not permissible. The court relied on the Supreme Court’s decision in D.
Velusamy v. D. Patchaiammal13, which laid down the conditions for a valid live-in
relationship, such as being of legal age, unmarried, and holding themselves out to
society as spouses. The court observed that the petitioners did not fulfill these criteria,
and therefore, they could not claim the protection of Article 21, which guarantees the
right to life and personal liberty.
7. The Supreme Court has also passed several judgments concerning the legal standing
of live-in relationships in India. Some of the landmark judgments are:
Sarla Mudgal vs Union Of India & Ors14, which was decided by the Supreme Court
on 24 November, 19956. The court laid down certain guidelines for determining
whether a couple living together without marriage is in a ‘relationship’ in nature or
not. Some of these guidelines are: there must be mutual consent; there must be an
intention to continue such relationship indefinitely; there must be an expectation of
mutual support and care; there must be an intention to share assets and liabilities;
there must be an intention to have children; there must be an intention to present
themselves as husband and wife before society; etc.
8. In “S. Khushboo v. Kanniammal15," Apex Court gave legal recognition to live-in
relationships by categorizing them as “domestic relationships” protected under the
Protection of Women from Domestic Violence Act, 2005. The Court held that live-in
relationships come under the ambit of right to life under the Article 21 of the
Constitution of India. It further stated that live-in relationships are permissible and are
not illegal or unlawful. In this case, the Apex Court placed reliance on its earlier
decision in Lata Singh v. State of Uttar Pradesh 16 and held that live-in relationship is

13
AIR 2011 SC 479
14
1995 SCC (3) 635
15
(2010) 5 SCC 600
16
W.P. (crl.) No. 208 of 2004
 permissible only in unmarried major persons and is not a criminal offense under
any law.17
9. It is significant to understand that the Supreme Court has recognized the right of
consenting adults to cohabit without marriage under Article 21 of the Constitution,
which guarantees the right to life and personal liberty but this does not mean that a
married person can stay in a live-in relationship with another partner during the
subsistence of marriage. Such a relationship would amount to adultery, which is a
ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955.
Moreover, the Supreme Court has held that a live-in relationship can only be
considered as a relationship in the nature of marriage if certain conditions are met,
such as the duration of the relationship, the shared household, the financial support,
the social recognition, etc.18 A married person who is living with another partner
without the consent of the spouse cannot claim to have a relationship in the nature of
marriage with the other partner.
10. It is, therefore, on the moral grounds that such relationships violate the sanctity of
marriage and promote bigamy it is hereby pleaded that a married man should not be
allowed to stay in a live in relationship with other partner during subsistence of
marriage when the marriage is not broken down.
11. It is also significant to understand that the very purpose of the institution of marriage
is establishing and regulating sexual relations between a man and a woman, and
ensuring paternity certainty and biparental investment in offspring

17
https://www.lawyersclubindia.com/articles/landmark-judgments-live-in-relationship-sc-s-judgments-
concerning-the-legal-standing-of-live-in-relationships-14068.asp
18
Live-In Relationships in India: Legal Status Explained (indialawoffices.com)
 ISSUE 4

WHETHER SECTION 198(2) OF CR.P.C. IS VIOLATIVE OF ARTICLE(S) 14 AND 15 OF THE

CONSTITUTION OF INDISTAN?

IT IS SUBMITTED THAT SECTION 198(2) OF CR.P.C. IS NOT VIOLATIVE OF

ARTICLE(S) 14 AND 15 OF THE CONSTITUTION OF INDISTAN.

1. It is submitted before this Hon’ble Court that Section 198(2) Of Cr.P.C. is not
violative of Article(S) 14 And 15 of the Constitution of Indistan.
2. It is hereby submitted that Section 198 (2) of CrPC deals with the prosecution for
offences against marriage, such as adultery. It states that only the husband of the
woman who commits adultery can be deemed as an aggrieved person and file a
complaint against the adulterer. The wife of the adulterer is not considered as an
aggrieved person.
3. It is significant to note that Article 14 of the Constitution guarantees equality
before the law and equal protection of the laws to all persons. It prohibits any
discrimination on the grounds of religion, race, caste, sex, or place of birth. It is on
this behalf submitted that Section 198 (2) of CrPC is not violative of Article 14
because it is based on a reasonable classification of the aggrieved persons. It is
also important to note that the husband of the adulterous wife suffers more injury
and humiliation than the wife of the adulterous husband, and therefore, he
deserves a special right to prosecute the offender.
4. It is hereby submitted that the law permits neither the husband of the offending
wife to prosecute his wife nor does the law permit the wife to prosecute the
offending husband for being disloyal to her. Thus, both the husband and the wife
are disabled from striking each other with the weapon of criminal law.
5. It is hereby stated that the community punishes the ‘outsider’ who breaks into the
matrimonial home and occasions the violation of sanctity of the matrimonial tie by
developing an illicit relationship with one of the spouses subject to the rider that
the erring ‘man’ alone can be punished and not the erring woman. It further went
on to say that it does not arm the two spouses to hit each other with the weapon of
criminal law. That is why, neither the husband can prosecute the wife and send her
to jail nor can the wife prosecute the husband and send him to jail. There is no
discrimination based on sex. While the outsider who violates the sanctity of the
 matrimonial home is punished, a rider has been added that if the outsider is a
woman, she is not punished as woman is considered to be a responsibility of the
husband and it is the husband who is responsible for the protection of its spouse so
the woman is not considered to be a guilty person in this scenario.
6. It is significant to understand that Section 198 (2) CrPC is a special provision for
the benefit of women, which is an enabling provision providing for protective
discrimination. It falls within the scope of Article 15 (3) of the Constitution of
India, which allows the State to make special provisions for women and children.
Section 198 (2) CrPC is based on the premise that the husband is the aggrieved
party when his wife commits adultery, and he has the exclusive right to initiate
legal action against the adulterer. This is in consonance with the social and
cultural norms of the Indian society, where marriage is considered as a sacred
institution and the wife is expected to be faithful to her husband.
7. Section 198 (2) CrPC is justified on the ground that consensual sexual relationship
outside marriage would break down the institution of marriage and it does not
warrant protection under Article 21 of the Constitution of India, which guarantees
the right to life and personal liberty. The right to privacy and personal liberty is
not an absolute one and is subject to reasonable restrictions when legitimate public
interest is involved. Therefore, a woman cannot be allowed to have any
consensual relationship outside the institution of marriage with any other person.
8. Ultimately, Section 198 (2) of C.r.P.C. protects the sanctity of marriage and the
rights of the husband as the aggrieved party in cases of adultery or marital
infidelity. It also prevents frivolous or malicious complaints by outsiders or
strangers who may not have any interest in the welfare of the woman or the
matrimonial relationship. It, therefore, safeguards the dignity and privacy of the
woman by not exposing her to public trial or humiliation for her alleged
involvement in an extramarital affair.
9. It grants relief to the woman by treating her as a victim rather than an offender or
an abettor of the offence of adultery. It, therefore, reflects the socio-cultural values
and norms of the Indian society, which regard marriage as a sacred institution and
expect loyalty and fidelity from both the spouses.
10. It preserves the stability and harmony of the family and the society by
discouraging adultery and its consequences, such as divorce, illegitimacy,
domestic violence, etc. It upholds the moral and legal authority of the husband as
 the head of the household and the protector of the woman. It respects the customs
and traditions of the various communities and religions in India, which may have
different views and practices regarding marriage and adultery. It avoids
unnecessary interference or intrusion by the state or the judiciary in the personal
and private affairs of the married couple.
11. There is, thus, reverse discrimination in ―favour of the woman rather than
―against her. The law does not envisage the punishment of any of the spouses at
the instance of each other. Thus, there is no discrimination against the woman
insofar as she is not permitted to prosecute her husband. A husband is not
permitted because the wife is not treated as an offender in the eye of law. The wife
is not permitted as Section 198(1) read with Section 198(2) does not permit her to
do so. In the ultimate analysis, the law has meted out even-handed justice to both
of them in the matter of prosecuting each other or securing the incarceration of
each other. Thus, no discrimination has been practised in circumscribing the scope
of Section 198(2) CrPC and fashioning it in such a manner that the right to
prosecute the adulterer is restricted to the husband of the adulteress but has not
been extended to the wife of the adulterer.

1. Article 14 forbids class legislation; however, it does not forbid reasonable

classification. A reasonable classification is permissible if two conditions are satisfied:
i. The classification is made on the basis of an intelligible differentia which
distinguishes persons or things that are grouped together, and separates them from the
rest of the group; and
ii. The said intelligible differentia must have a rational nexus with the object sought to
be achieved by the legal provision.19

19
E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable to a challenge on the
ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or
when the differentiation is not unreasonable or arbitrary)