‘Pre-Marriage sex is an offence, cannot be promoted’: Allahabad HC while referring to Hindu Marriage Act & Muslim laws

An interfaith couple, a Hindu woman and a Muslim man presented an application demanding protection in front of the Allahabad High Court. The couple was in a live-in relationship and wanted protection against alleged harassment by the police.

While listing to the plea the Allahabad High Court draw references from Quran, Muslim law and then the Hindu marriage and property rights act to dismiss the application. The court said, any sexual, lustful or affectionate act including kissing, touching and sex before marriage is prohibited in Islam. The court also said, be it a Hindu, Christian, Jewish and Parsi marriage there will be problems if ‘live-in’ relationships are promoted. For instance, in case of property, maintenance, divorce and so on.

The applicants, 29-year-old Kiran Rawat and 30-year-old Mohammed Rizwan have been living in a live-in relationship and wish to marry each other in the near future. However, the mother of the Hindu woman filed an FIR against the accused and wants her to return home.

In their support, the couple mentioned some cases and judgements of the Supreme Court relating to interfaith marriages. Some of them are Lata Singh versus the state of UP, 2006 and S. Khushboo Vs. Kanniammal, 2010, where breaking the shackles of the caste system the court supported intercaste marriages.

Notably, listening to the plea the court believed live-in relationships and the problems associated with it are common to all be it an interfaith one or an inter-caste. The court refers to some of the Supreme Court judgements that said, the views expressed by the supreme court on live-in relationships cannot be considered ‘promoting’ in nature.

The court mentioned the case of Madan Mohan Singh versus Rajnikant 2010 where, the Supreme Court observed that a “live-in relationship if it continued to be in existence for a long time and not termed as a walk in and walk out, then it will lead to a presumption of marriage between the parties”.

Similar views were expressed in Indra Sarma versus V.K.V. Sarma 2013 (15) 755; where it was held that live-in relationships may last for a considerable time and can lead to standards of dependency and vulnerability and with the increase in the number of live-in relationships there must be sufficient protection, especially for women and those children who are born out of such relationships. The law cannot promote premarital sex, and live-in relationships are personal and people can give their opinion in favour or against it.

The court also mentioned,  Dhanu Lal versus Ganesh Ram 2015 case, Nandakumar and Another versus State of Kerala 2018 SCC online Supreme Court 492, D Velusamy versus D Patchaiammal 2010 (10) SCC 469 and made the following remarks:

The Observations of the Supreme Court as aforesaid however cannot be considered to promote live-in relationships. Law traditionally has been biased in favour of marriage. It reserves many rights and privileges to married persons to preserve and encourage the institution of marriage. the Supreme Court is simply accepting a social reality and it has no intention to unravel the fabric of Indian family life.

Awareness has to be created in young minds not just from the point of view of emotional and societal pressures that such relationships may create, but also from the perspective that it could give rise to various legal hassles on issues like division of property, violence and cheating within live-in relationships, rehabilitation in case of desertion by or death of a partner and handling of custody and other issues when it comes to children born from such relationships.

The Supreme Court has observed on several occasions that section 125 Cr.P.C. is not meant for granting maintenance to the “other woman”, where a man has a living lawfully wedded wife either married a second time or started living with a concubine has refused to extend the meaning of the word wife as denoted in section 125 of the Cr.P.C. to include such live-in partners for maintenance claims. Persons entering into marriage are governed either by their personal laws or laws such as the Special Marriage Act, of 1954.

While marriage between Hindus is considered a Samskara (a sacrament), and under Muslim, Christian, Jewish and Parsi law marriage is a contract. Marriages are solemnized and/or registered under the provisions of the Special Marriage Act, of 1954 and then alone they become a civil contract. A marriage is deemed to have ended only after a formal divorce is declared by a Court of law.

“Maintenance” as defined under the Hindu Adoption and Maintenance Act 1956 includes in all cases provisions for food, clothing, residence, education and medical attendance and treatment and Section 18 of the Act confers the right on the Hindu wife to be maintained by husband. However, the Act of 1956 does not include concubines or mistresses in the list of persons to be maintained.

Talking about the Muslim law the court observed, ‘Muslim women also derive the right to maintenance from the Shariat and the Muslim Women (Protection of Rights on Divorce) Act 1986. The Hindu law gives the widow of a male Hindu the status of a class one heir giving her the right to one share with absolute ownership over her deceased husband’s property if he dies intestate. In Muslim law, a widow having children is entitled to 1/8 of her deceased husband’s property and one-fourth of it if they are childless.’

However, in Muslim law, no recognition can be given to sex outside marriage. “Zina” which has been defined as any sexual intercourse except that between husband and wife includes both extramarital sex and premarital sex and is often translated as fornication in English. Such premarital sex is not permissible in Islam. In fact, any sexual, lustful, affectionate acts such as kissing, touching, staring etc. are “Haram” in Islam before marriage because these are considered parts of “Zina” which may lead to actual “Zina” itself. The punishment for such an offence according to Quran (chapter 24) is a hundred lashes for the unmarried male and female who commit fornication together with the punishment prescribed by the “Sunnah” for the married male and female that is stoned to death.

The court said we believe that it is a social problem that can be uprooted socially and not by the intervention of the Writ Court in the garb of violation of Article 21 of the Constitution of India unless harassment is established beyond doubt. If there is any real grievance of a live-in couple against their parents or relatives who are allegedly interfering with their live-in status which goes to such an extent that there is a threat of life, they are at liberty to lodge an F.I.R under Section 154 (1) or Section 154 (3) CrPC, with the Police, move an application under section 156 (3) before the competent Court or file a complaint case under Section 200 CrPC.

Similarly, in case the parents or relatives, find that illegally their son or daughter has eloped for the purpose of marriage, although he or she is underage or not inclined or the respondents are behaving violently, they are equally at liberty to take steps in a similar manner.

Dismissing the plea the court said, when neither of the actions are taken against each other, and only a fictitious application with certain allegations, particularly by such persons as the petitioners herein enjoying a live-in relationship, is moved under Writ jurisdiction of the High Court, it appears to be a circuitous way to get the seal and signature of the High Court upon their conduct without any verification of their age and other necessary aspects required to be done by the appropriate authority.

We cannot allow the petitioners to raise disputed questions of fact under Writ jurisdiction as it would be a wrong assumption of such extraordinary jurisdiction.

The decision was made by Justice Sangeeta Chandra and Justice Narendra Kumar Johari.