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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 06.09.2023

Pronounced on: 13.09.2023

+ W.P.(CRL) 208/2023 & CRL.M.A. 5217/2023

S. RAJADURAI ..... Petitioner

Through: Ms. S. Selva Kumari,
Advocate
versus

STATE (NCT) OF DELHI & ANR. ..... Respondents

Through: Ms. Rupali Bandhopadhya,
ASC for the State with SI
Durgesh and Mr. Akshay
Kumar, Mr. Abhijeet Kumar,
Advocates
Mr. Varun Kumar, Mr. M.D.
Jangra and Mr. Shitanshu,
Advocates for R-2

CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA

JUDGMENT
Index to the Judgment

FACTUAL BACKGROUND .................................................................... 2

ARGUMENTS ADDRESSED BY THE PARTIES ................................ 4

ANALYSIS AND FINDINGS ................................................................... 5

i. The ‘Live-In-Relationship Agreement’ ................................................... 6

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 ii. Intricacies of Legal Framework and Boundaries of Personal Lives .... 9

The Essence of Live-in-Relationship ........................................................ 10

Dimensions of Live-in-Relationship ......................................................... 10
Distinction between ‘Live-in-Relationship’ and ‘Relationship in Nature
of Marriage’ ............................................................................................. 11

iii. Rape on False Pretext of Marriage vs. Live-in-Relationship

Agreement ................................................................................................ 12

LEGALITY, MORALITY, JUSTICE & COURTS: ARGUMENT OF

ISSUE OF MORALITY RAISED BY PETITONER’S COUNSEL ... 20
i. Legality vs. Morality: A Legal Conundrum ......................................... 20

ii. Legal Boundaries and Live-In Relationships: Navigating the

Interplay of Law and Society ................................................................. 23

CONCLUSION ........................................................................................ 25

SWARANA KANTA SHARMA, J.

1. The instant writ petition under Article 226/227 of the

Constitution of India read with Section 482 of the Code of Criminal
Procedure, 1973 (‘Cr.P.C.’) has been filed by the petitioner seeking
quashing of FIR bearing no. 725/2022, registered at Police Station
Bindapur, Delhi for the offences punishable under Sections
376/323/506/509/427 of the Indian Penal Code, 1860 (‘IPC’) and all
consequential proceedings emanating therefrom.

FACTUAL BACKGROUND

2. Brief facts of the case are that the present FIR was registered
on 13.10.2022, on the basis of complaint lodged by respondent no.
2/complainant who had stated that the petitioner had met her for the

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 first time in September, 2021 in Uttam Nagar, Delhi and he had
promised to marry her, and on false promise of marriage, he had
developed physical relations with her forcibly. It was stated that one
month thereafter, the parties got prepared an affidavit (agreement for
live-in-relationship) in which the accused/petitioner mentioned
himself as bachelor. It was stated that thereafter, she had made him
meet her parents in Bihar, however, whenever she had requested to
meet his parents, the accused had always made one excuse or the
other. It was further stated that in May, 2022, when she had come to
know that he was already married and he had concealed this fact
from her, thereafter, the accused had again promised her by way of
an affidavit that he will divorce his wife within six months and that
he had already applied for divorce from his wife. Thereafter, both of
them had continued their relationship. It was alleged that on
24.09.2022, the accused had visited her home to meet her but he had
intentionally fought with her and had broken her phone and had made
physical relationship with her forcibly on the pretext that he would
marry her soon. Thereafter, she had become pregnant, but the
accused had stopped attending her phone calls, which had resulted
into filing of present complaint and registration of FIR.
3. The petitioner by way of this petition states that the respondent
no. 2 who has a child and is already married, on the pretext of being
estranged from her husband, had “chased the petitioner and had
encashed the fact that the young petitioner is staying away from his
wife and she had succeeded in getting the petitioner succumbing to
her desire”. It is stated that respondent no. 2 had herself drafted the

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 live-in-relationship agreement and had forged the signatures of the
petitioner on the said agreement. However, it is stated that even as
per the contents of aforesaid live-in-relationship agreement, the
petitioner had agreed to enter into an agreement of live-in-
relationship with respondent no. 2 till her earlier marriage is
dissolved. It is stated in the petition that as per agreement, the
petitioner and respondent no. 2 had also agreed that during the course
of their live-in-relationship, if they found each other suitable and
compatible, they will explore the possibility of marrying each other
by divorcing their respective spouses. It is further stated that
respondent no. 2 had gone to petitioner‟s home at Tamil Nadu, and
thereafter, had fabricated an affidavit dated 09.06.2022 forging his
signatures on the same. It is stated that she had again forged his
signatures on the affidavit dated 09.09.2022 that he will divorce his
wife within six months time. It is the case of the petitioner that when
he had refused to live with respondent no. 2, she had got furious and
had lodged a complaint with his superiors. It is also stated that when
she had failed to live with him and her attempt to threaten the wife of
the petitioner did not succeed, she had filed the present complaint.

ARGUMENTS ADDRESSED BY THE PARTIES

4. Learned counsel for the petitioner states that the FIR is liable
to be quashed since respondent no. 2 herself is married and has a
minor daughter. It is argued that her marriage is still subsisting and in
spite of that, she had entered into a live-in-relationship with the
petitioner which as per petitioner, “disentitles her to the moral right

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 to deserve bachelor for her extra marital pleasures”, assuming
without accepting that petitioner had concealed his marital status
from the respondent no. 2. It is further stated that the conduct of
respondent no. 2 is against public policy and against the norms of
society and thus by any stretch of imagination, no offence as alleged
could be said to have been committed. It is further stated that the
intentions of respondent no. 2 are malicious whereas the petitioner
has a sterling character with no criminal case pending against him. It
is also argued that it is clear that even by assuming the prosecution
story in its entirety to be true, the offence of rape cannot be
established since at the most, consensual sex is what can be
concluded. Therefore, it is prayed that present petition be allowed.
5. Learned counsel for the complainant/respondent no. 2, on the
other hand, states that the incident dated 24.09.2022 mentioned in the
FIR is sufficient to attract ingredients of Section 376 of IPC and
therefore, there is no question of quashing of present FIR.
6. This Court has heard arguments advanced on behalf of both the
parties and has perused the material placed on record and has also
gone through the statements as well as other documents which are
filed on record.

ANALYSIS AND FINDINGS

7. In a nutshell, the case of the complainant is that the petitioner
herein had established physical relations with her on false pretext of
marriage, and he had projected himself as an unmarried man, and
when at a later occasion the complainant had got to know that the

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 petitioner was already married, the petitioner had again given her
assurance that he would obtain divorce from his wife and get married
to her.

i. The ‘Live-In-Relationship Agreement’

8. The attention of this Court has been drawn towards an alleged
„live-in-relationship agreement‟ which is notarized and the relevant
portion of the same reads as under:

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 9. At the outset, this Court takes note of the fact that the
complainant in the FIR has referred to and relied upon the aforesaid
agreement to contend that petitioner had started living with her and
had established physical relations on false pretext of marriage. The
petitioner, on the other hand, states that his signatures on the
agreement have been forged by the complainant, however, he states
that since complainant has relied upon the said agreement in the FIR,
even a perusal of the same would reveal active consent on part of
petitioner and non-existence of any promise to marry on part of
petitioner.
10. A perusal of the contents of this agreement dated 01.02.2022
reveals as under:
i. The introduction to the agreement records that the parties
claimed that they are major and are competent to agree to

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 stay with each in live-in-relationship with their own sweet
will and consent, choice and without any undue pressure,
coercion, duress or force from any side whatsoever.
ii. The first paragraph makes it clear that both the petitioner
and complainant understood as to what they were entering
into. They were also aware that they were entering into
live-in-relationship being competent and major to do so. It
also mentions that the complainant will not lodge any FIR
or file any claim in any police station against the petitioner
herein and that the petitioner has started living with her in
live-in-relationship but he has not forced her in any
manner.
iii. The second paragraph clearly mentions that the
complainant is already married to one „A‟ and has a
daughter aged about three years and that her divorce
proceedings are pending adjudication and that the
petitioner is unmarried.
iv. The third paragraph mentions that both the parties have
every knowledge about their previous background.
v. The fifth paragraph records that the complainant was living
with the petitioner out of her own free will and the
petitioner had influenced her in any manner whatsoever
and thus, respondent no. 2 would not file any complaint
against him.
11. This document, execution of which is not disputed by the
complainant/respondent no. 2, points out that she herself has signed

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 the document stating therein that she had entered into the relationship
without being influenced in any manner whatsoever by the petitioner
herein. However, at this stage, it is clarified that this Court is not
examining the legal validity of agreement in question, but only
analyzing the case of complainant herself who had relied upon the
said agreement vide which the parties had allegedly agreed to enter
into a live-in relationship.
12. Even if it is the contention of the petitioner that the
complainant has forged his signatures on the live-in-relationship
agreement, the same does not inspire truth on the face of it since in
case she would have forged the signatures on live-in-relationship
agreement, there was no need for her to write that he is unmarried.
Further, if she would have forged the signature of the petitioner on
the agreement, then she could have also mentioned that the petitioner
had promised to get married to the complainant.

ii. Intricacies of Legal Framework and Boundaries of

Personal Lives

13. This Court also notes that in the present case, a unique set of
circumstances has come to the light, necessitating an examination of
the boundaries between personal lives of the individuals and the
intricacies of legal framework. Though the complainant herein had
lodged a complaint alleging commission of acts of rape, contending
that the accused had engaged in sexual relations with her under the
false pretext of marriage, it is noteworthy that both the complainant

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 and the accused were, at the time of the alleged offence, already
married to their respective spouses. As per the case of complainant,
she and the petitioner herein had entered into a „live-in-relationship‟
agreement, the details of which have already been discussed in the
preceding paragraphs.

The Essence of Live-in-Relationship

14. A live-in relationship, in essence, denotes a cohabitation
arrangement where two individuals choose to live together in a
domestic setting, but in the absence of a formal marriage. In the
Indian statutory laws, the concept of „live-in relationships‟ remains
undefined and lacks specific legal recognition. However, the Courts
have time and again discussed the nature of such relationships
keeping in the mind the constitutional guarantees of equality and
personal liberty.

Dimensions of Live-in-Relationship
15. The Hon‟ble Apex Court in case of Lata Singh v. State of U.P.
(2006) 5 SCC 475 had held that a girl who is a major is free to marry
anyone she likes or „live with anyone she likes‟. Moreover, in S.
Khushboo v. Kanniammal (2010) 5 SCC 600, the Hon‟ble Apex
Court had observed that no offence is committed if two adults
willingly engage in sexual relations without there being a martial
setting, though with obvious exception of „adultery‟ as defined under
Section 494 of IPC. In reference to observation of Hon‟ble Apex
Court in case of S. Khushboo (supra), it is crucial to note that

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 Section 494 of IPC has now been struck down and declared
unconstitutional in case of Joseph Shine v. Union of India (2019) 3
SCC 39 by the Constitution Bench of Hon‟ble Apex Court, being
arbitrary, gender discriminatory, encroachment into women‟s
identity, dignity, liberty, privacy, sexual autonomy and freedom to
make independent choice in matters of sexuality. Thus, no offence
can be said to be committed it sexual relations are established
between two adults willingly, irrespective of their marital status.
16. In D. Velusamy v. D. Patchaiammal (2010) 10 SCC 469, it
was expressed by the Hon‟ble Apex Court that a new social
phenomenon had emerged in our country commonly known as live-
in-relationship and considering the same, the Legislature had taken a
step forward by incorporating the term „relationship in nature of
marriage‟ in definition of domestic relationship under Protection of
Women from Domestic Violence Act, 2005. For the purpose of
interpretation of „relationship in nature of marriage‟, the Court had
further laid down certain requirements, akin to a common law
marriage, which must be fulfilled to fall under the meaning of
„relationship in nature of marriage‟.

Distinction between ‘Live-in-Relationship’ and ‘Relationship in

Nature of Marriage‟
17. However, it is important to recognize the distinction between
a ‘live-in-relationship’ and ‘relationship in nature of marriage’.
While „relationship in nature of marriage‟ is one where the parties
hold themselves out to society as being akin to spouses for a

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 significant period of time and are otherwise qualified to enter into a
legal marriage [Ref: D. Velusamy (supra)], Whereas „live-in-
relationship‟ may involve situations where two adults willingly live
together without any formal commitment for getting married or
where the commitment may be for a short-term arrangement only to
assess compatibility with a partner and understand each other or any
other reason, without having any intention to create a lifelong
relationship or entering into a formal marriage. In many cases of live-
in relationships both the parties may be unmarried or either of them
may be married or both may be married to their respective spouses.

iii. Rape on False Pretext of Marriage vs. Live-in-Relationship

Agreement
18. In light of aforesaid discussion, when the present case is
examined from the judicial lens, the case of complainant now that she
was forced to enter into this relationship on false pretext of marriage
loses its merit in face of the agreement signed by her. It shows that
the petitioner herein had not influenced her in any manner to enter
into a live-in-relationship with him and understanding the same, the
complainant had mentioned that there was no pressure or influence
by the petitioner for her to enter into the relationship and that she will
not lodge any complaint with police on this pretext.
19. It is also important to note that though the complainant states
in the FIR that petitioner had entered into a relationship with her and
had established physical relations on false promise of marriage and
they had executed the agreement to live-in, the agreement, on the

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 other hand, does not refer to any such promise related to
‘marriage’, nor does it mention that it was agreed between the
parties that in case it is found that petitioner is already married, the
respondent no. 2 will be able to take any action against him, or that in
case the accused will refuse to marry her, he will face action by way
of a complaint filed by her. Rather, the agreement which is not
disputed by the complainant, points out to one inference alone that
the parties were willing to live with each other being major who had
understood each other‟s background.
20. In such circumstances, this Court deems it most appropriate to
refer to the decision of Hon‟ble Apex Court in case of Shambhu
Kharwar v. State of U.P. 2022 SCC OnLine SC 1032, wherein while
quashing an FIR under Section 376 of IPC where the accused was
alleged to have raped the complainant on false pretext of marriage,
the Hon‟ble Apex Court had made the following important
observations:

“...8. In Bhajan Lal (supra) this Court formulated the

parameters in terms of which the powers in Section 482 of
CrPC may be exercised. While it is not necessary to revisit all
these parameters again, a few that are relevant to the present
case may be set out. The Court held that quashing may be
appropriate:
“102.(1) Where the allegations made in the first
information report or the complaint, even if they are taken
at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code

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 except under an order of a Magistrate within the purview
of Section 155(2).
[…]
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra6 a
two Judge Bench of this Court while dealing with similar facts
as the present case reiterated the parameters laid down
in Bhajan Lal (supra) held that:
“13. It is clear that for quashing the proceedings,
meticulous analysis of factum of taking cognizance of an
offence by the Magistrate is not called for. Appreciation
of evidence is also not permissible in exercise of inherent
powers. If the allegations set out in the complaint do not
constitute the offence of which cognizance has been
taken, it is open to the High Court to quash the same in
exercise of its inherent powers.”
(emphasis supplied)

10. An offence is punishable under Section 376 of the IPC if

the offence of rape is established in terms of Section 375
which sets out the ingredients of the offence. In the present
case, the second description of Section 375 along with Section
90 of the IPC is relevant which is set out below.
“375. Rape - A man is said to commit “rape” if he -
[…]
under the circumstances falling under any of the
following seven descriptions
Firstly …
Secondly. - Without her consent.
[…]
Explanation 2. - Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:

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 Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
xxx
90. Consent known to be given under fear or
misconception - A consent is not such a consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception;
or…”
11. In Pramod Suryabhan Pawar v. State of Maharashtra7 a
two Judge Bench of this Court of which one of us was a part
(D.Y. Chandrachud J.), held in Sonu @ Subhash
Kumar v. State of Uttar Pradesh8 observed that:
“12. This Court has repeatedly held that consent with
respect to Section 375 of the IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various
possible consequences flowing from such action or
inaction, consents to such action…
[…]
14. […] Specifically in the context of a promise to marry,
this Court has observed that there is a distinction between
a false promise given on the understanding by the maker
that it will be broken, and the breach of a promise which
is made in good faith but subsequently not fulfilled…
[…]
16. Where the promise to marry is false and the intention
of the maker at the time of making the promise itself was
not to abide by it but to deceive the woman to convince
her to engage in sexual relations, there is a
“misconception of fact” that vitiates the woman's
“consent”. On the other hand, a breach of a promise
cannot be said to be a false promise. To establish a false
promise, the maker of the promise should have had no
intention of upholding his word at the time of giving

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 it. The “consent” of a woman under Section 375 is
vitiated on the ground of a “misconception of fact” where
such misconception was the basis for her choosing to
engage in the said act…
[…]
18. To summarise the legal position that emerges from the
above cases, the “consent” of a woman with respect to
Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish
whether the “consent” was vitiated by a “misconception
of fact” arising out of a promise to marry, two
propositions must be established. The promise of
marriage must have been a false promise, given in bad
faith and with no intention of being adhered to at the time
it was given. The false promise itself must be of
immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act.
(emphasis supplied)

12. In the present case, the issue which had to be addressed by

the High Court was whether, assuming all the allegations in
the charge-sheet are correct as they stand, an offence
punishable under Section 376 IPC was made out. Admittedly,
the appellant and the second respondent were in a consensual
relationship from 2013 until December 2017. They are both
educated adults. The second respondent, during the course of
this period, got married on 12 June 2014 to someone else. The
marriage ended in a decree of divorce by mutual consent on
17 September 2017. The allegations of the second respondent
indicate that her relationship with the appellant continued
prior to her marriage, during the subsistence of the marriage
and after the grant of divorce by mutual consent.
13. In this backdrop and taking the allegations in the
complaint as they stand, it is impossible to find in the FIR or
in the charge-sheet, the essential ingredients of an offence
under Section 376 IPC. The crucial issue which is to be
considered is whether the allegations indicate that the
appellant had given a promise to the second respondent to
marry which at the inception was false and on the basis of
which the second respondent was induced into a sexual
relationship. Taking the allegations in the FIR and the charge-
sheet as they stand, the crucial ingredients of the offence

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 under Section 375 IPC are absent. The relationship between
the parties was purely of a consensual nature. The
relationship, as noted above, was in existence prior to the
marriage of the second respondent and continued to subsist
during the term of the marriage and after the second
respondent was granted a divorce by mutual consent…”

21. Thus, the agreement in question which has been placed on

record, relied upon by the complainant herself, rather points out that
the complainant herein being aware of her own marital status was
aware that she was entering into a relationship, known in common
parlance as live-in relationship, where two consenting adult partners
decide to live together, with or without sexual relationship. It also
indicates that she as an adult did not have any inhibition to live with
the petitioner and to maintain relationship with him since there is no
whisper of the accused having promised marriage to her.
22. Having examined the records of the case, this Court is of the
opinion that in this case, the complainant was a major who was
already married and blessed with a daughter, whose marriage was
going through a tough time and the litigations and proceedings were
pending in a court of law. She being a major had entered into a
relationship with the present petitioner out of her own free will which
she does not dispute. However, it is her case that the petitioner had
initially informed her that he was unmarried and had mentioned the
said fact in the live-in-relationship agreement, and they had started
living together since the petitioner had promised to marry her. The
agreement on the other hand, does not refer to any such promise

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 related to „marriage‟ or any other incidental details in relation to any
intention of marriage between them.
23. However, the complainant thereafter alleges that when she had
got to know about the factum of petitioner being already married, she
had confronted him and the petitioner had then sworn on affidavit
that he would obtain divorce from her wife within six months and get
married to the complainant. The petitioner, on the other hand,
contends that the affidavits referred to by the complainant are forged
and fabricated. Thus, it is the own case of the complainant that even
when she had come to know about the marital status of the petitioner,
she had gone to his native village, and as per the petitioner, she had
created a scene there. However, the complainant herself states that
after getting assurance that the petitioner will divorce his wife within
six months, she had again continued with their relationship.
Therefore, by this time, she knew that the petitioner is married. She
herself was going through the adjudication of her own divorce
petition and would have known that the grant of divorce within six
months could not have been in the hands of the parties since the same
is a complex legal process. The contention of the complainant herself
is that the accused had come to her house after she having come to
know about his marital status, and again had established sexual
relationship on the false pretext of marriage. Her decision to continue
with the relationship after coming to know about the same, is nothing
but a pointer towards her consent towards maintaining the
relationship with the accused despite knowing that they both were

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 married to two other partners and they could not have got legally
married to each other without a legal separation.
24. Be that as it may, once the complainant/respondent no. 2
herself was not legally divorced and is not so till date, the petitioner
could not have married her as per law. As observed earlier, it was
also not mentioned in the agreement that they were living in or
maintaining relationship with each other due to a promise of marriage
by the petitioner/accused.
25. This Court is also constrained to express that while perusing
the contents of the present petition and written submissions filed on
behalf of petitioner, the Court encountered that several derogatory
remarks as well as inappropriate language was used in context of the
complainant, some examples of which are extracted hereinunder:

“The very fact that the Complainant herself is married with an

infant daughter and that marriage is still subsisting and in spite
of that she indulged in a live in relationship with the Accused
disentitles her the moral right to deserve a bachelor for her
extramarital pleasures.”

“Rape and other offences are an offence against the public and
hence state is the complainant, however, the conduct of the
Complainant herself is against the public policy and against
the norms of the society, and thus by any stretch of
imagination, a crime cannot be said to have taken place”

“The Complainants hands and intentions are unclean. Whereas

the Accused has a sterling character without any other
complaint or criminal case against him except the false and
fabricated case which has been filed against him”

26. The derogatory language used by the petitioner in this petition

as well as written submissions falls short of decency expected in the

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 legal pleadings. The legal ethics necessitate refraining from the use of
such derogatory or offensive language as has been used by the
petitioner in the petition as well as written submissions and oral
submissions. While exercising judicial restraint, this Court does not
wish to record any further observations in this regard, however, this
Court observes that use of derogatory and offensive language should
be avoided while filing any pleadings in a Court of law, whether
against a man, woman or any gender.

LEGALITY, MORALITY, JUSTICE & COURTS:

ARGUMENT OF ISSUE OF MORALITY RAISED BY
PETITONER’S COUNSEL

27. This Court is posed with an argument raised on behalf of the

petitioner regarding the conduct of complainant herself being
immoral and against the public policy and norms of the society.

i. Legality vs. Morality: A Legal Conundrum

28. This Court has been asked to give a finding on the argument
addressed regarding the issue of morality of such relationships
and specifically some arguments which could have been better
avoided against the complainant/respondent no. 2 regarding her
moral behavior and duty as a woman. However, this Court is
neither authorized as a Court of law nor is commenting, despite
such argument being raised before it, about the issue of morality or
immorality of such relationships, since it means different things to
different people and the Courts of law cannot impose their own

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 perception of morality on individuals who are adults and make
free adult choices if such choices are not illegal or an offence
under the present framework of law.
29. The institution of marriage is founded upon the principles of
fidelity and commitment, and engaging in extra-marital relationship
may be viewed as breach of certain fundamental principles of
marriage. In cases where two individuals, married to their respective
partners, enter into a live-in relationship outside the limits of their
marital bonds, they are expected to, from the point of view of the
reasonable person, be aware of consequences of the same.
30. Individual adults are free to make decisions even those that
might not align with societal norms or expectations, however, in
those cases they have to remain ready to face potential consequences
of such relationships. Needless to say, individual free choices like
these will invite individual responsibilities and consequences.
Though, as per various theories of law and jurisprudence, it is
believed that the law by its inherent nature may have an element
of internal morality of its own, there is nothing such as legal
morality to decide the cases as the present one. Moral
wrongdoing from the societal perspective and legal criminal
wrongdoings are two separate issues. Though some in the society
may heavily be critical of the conduct of live-in relationship of two
married individuals, many others may not.
31. In many legal theories evolving in the jurisprudence of the
issue in question which continues to develop in the hands of the
judges and lawyers, the Courts and the judges cannot adhere to the

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 theories of being legal moralists. Morality unless provided by law
cannot be implemented through law. Similarly, immorality
cannot be punished by law unless so provided by a statute.
32. Every act of perceived immoral conduct by societal standards
may not be criminal within the parameters of the law. The conduct of
the parties in the present case may or may not be considered morally
correct. Two consenting adults, although competent to exercise their
freedom of choice, entered into a sexual union and termed it a live-in
relationship. Both of them knew that they were not eligible to marry
each other, and therefore, their actions, while may be considered
immoral by some, do not, in the eyes of the law, meet the
requirements of Section 376 of IPC as evident from the record, and
hence cannot attract criminality. Courts of law cannot serve as legal
moralists preaching morality. They must critically examine the
criminal aspects derived from the facts of each case.
33. The Courts cannot inject morality into existing laws and
must apply them as they are. The Judges cannot indulge in passing
moral judgments against a person based on one‟s gender. The Courts
will not be transgressing their authority, holding in the process of
deciding a case that due weightage is to be given to the fact that
women can make choices as equals, and we must respect these
choices irrespective of the notion of age old responsibility of carrying
the burden of morality only on their shoulders being females. But
at the same time, the Courts will also not ignore that women will be
responsible for the repercussions of the choices they make.

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 34. The Courts can achieve justice by treating people of all
genders in similar circumstances alike unless otherwise provided for
by law. The criminality in a case cannot depend upon appraisal
by a judge of morality according to him. The objectivity of the
judges is the key to fairness of justice and the decisions have to be
objectively determined according to the law of land and not by
moral principles of the judge concerned. Even if it is
demonstrated convincingly that an act may be socially
undesirable, this Court does not find it its business to say so,
unless it has caused harm or has element of criminality.
35. Statutory interpretations cannot be replaced by moral
judgments. When the law contains a moral element, the Court is
competent to decide it on the moral basis, however, in a purely legal
way. It cannot substitute the statutory law and its ingredients by
incorporating its own moral concerns and substituting
criminality in a case where no statute makes it criminal but
judge’s own sense of morality makes it so.

ii. Legal Boundaries and Live-In Relationships: Navigating

the Interplay of Law and Society

36. Courts can provide protection only for acts for which lawful
protection is available through the legal system. Rule of law which is
the beacon light and the guiding star driving its light from
constitution of India and the statute does not extend its benevolence
and protection to people who voluntarily enter into unions or acts for
which protection of law is not available. In this regard, a sexual

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 relationship between two individuals, legally married to other
partners, cannot be considered an act for which legal protection is
available. For example, if an unmarried person is induced into a
sexual relationship on the false pretext of marriage by someone
whom the victim believes to be legally eligible for marriage, it may
constitute an offence under Section 376 of the IPC. This is because
the victim could have been under the impression that the other person
was legally eligible to marry.
37. However, when the victim herself is not legally eligible to
marry someone else due to her existing marriage to another partner,
she cannot claim to have been induced into a sexual relationship
under false pretext of marriage. Thus, the protection and remedies
available under Section 376 of the IPC cannot be extended to a
victim who was not legally entitled to marry the person with whom
she was in sexual relationship with. A case can be made out under
Section 376 of IPC, if the victim can prove that she was induced into
a sexual relationship under false pretext of marriage by the other
party being legally eligible to enter into a marriage with such person.
38. The present case involves two married individuals who entered
into a sexual relationship even though they were both ineligible to
lawfully marry each other. They willingly engaged in a sexual union
under the pretext of a live-in relationship. In light of the judgment in
Joseph Shine (supra), which has struck down Section 494 of IPC,
their actions can no longer be considered as an offence. However,
having made the choice to enter into such a relationship, they cannot
now seek the protection of the law.

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 39. Live-in relationship between two consenting married adults,
who are married to different partners, has not been made criminal or
legislated against. While concluding that legal enforcement of morals
has not been legislated against, and cannot be a subject matter of any
legal morality preached through a judgment. This Court, therefore,
holds that the parties herein have the right to determine their own
choices, life, and actions, but at the same time, should remain
conscious of the repercussion it invites from their partners and its
effect on their marriage. Repercussions, if any, in such cases can
befall such persons from their respective legally married partners, as
provided under law. Although law and morals are subject to constant
renewal and change, they cannot be the determining factors in
attaching criminality, as the law does not provide for it.
40. It would be a dangerous proposition to attach criminality
to acts that have not been legislated against on the basis of
perceived morality. Judges, as individuals, may have different
notions of morality, which cannot be imposed on any party.
Therefore, this Court is of the opinion that although the
immorality of the act on the part of the female partner was
argued at length before this Court, the same standard applies to
the male partner, and no distinction should be made based on
gender, as doing so would perpetuate misogynistic thinking.

CONCLUSION
41. As discussed earlier, in the present case, the complainant
legally married to another person, voluntarily entered into a live-in

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 relationship with the petitioner, initially allegedly believing him to be
unmarried, as stated in their agreement. However, upon discovering
his marital status, she confronted him, and he allegedly promised to
divorce his wife and marry her. The complainant continued the
relationship, aware of both parties' marital status, indicating her
consent to maintain the relationship despite legal obstacles to
marriage without divorce. Further, the „live-in relationship
agreement‟ did not mention a promise of marriage by the petitioner.
This Court observes that a critical aspect of this case is the
complainant's marital status; she was not legally divorced from her
previous partner. Given this, it becomes evident that the petitioner
could not have entered into a legal marriage with her. Consequently,
there was no valid basis for the complainant to entertain the notion of
promise of a marriage from the petitioner, as she, by virtue of her
existing marriage, was ineligible to marry the present petitioner.
42. As regards other offences mentioned in the FIR, there are no
allegations of mischief under Section 427 of IPC, of outraging the
modesty under Section 509 of IPC, or of criminal intimidation under
Section 506 of IPC, and there is nothing on record to suggest the
commission of same. Even otherwise, the learned Trial Court vide
order dated 10.04.2023 had framed charge only under Section 376 of
IPC against the petitioner herein and charges were not framed under
Sections 323/427/506/509 of IPC.
43. Thus, in view of the foregoing discussion, the FIR bearing no.
725/2022, registered at Police Station Bindapur, Delhi for the

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 offences punishable under Sections 376/323/506/509/427 of IPC and
all consequential proceedings emanating therefrom are quashed.
44. Accordingly, the present petition stands disposed of alongwith
pending applications, if any.
45. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J

SEPTEMBER 13, 2023/zp

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