Delhi High Court recently noted that a live-in relationship between two consenting married individuals has not been made criminal or legislated against. The Court added that courts cannot impose their perception of morality on individuals if such choices are not illegal or an offence.
“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 its business to say so, unless it has caused harm or has element of criminality,” Justice Swarana Kanta Sharma said.
Furthermore, the court pointed out that deeming acts as criminal in the absence of legislative measures against them, solely based on subjective moral considerations, would be a perilous course of action. The court underlined that judges, like any other individuals, may possess diverse moral perspectives that should not be forcibly imposed on any party.
These remarks were made by the court when it dismissed a rape case involving two individuals who were engaged in a live-in relationship while still being legally married to other partners.
In response to the defendant’s arguments about the woman’s conduct being considered immoral and conflicting with societal standards, the court asserted that adults have the autonomy to make choices, even if these choices deviate from conventional norms or societal expectations. However, the court also cautioned that in such instances, individuals must be prepared to accept the potential consequences of their actions in these relationships.
“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 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,” the Court said.
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, the bench added.
“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,” Justice Sharma said.
The bench went on to add that courts cannot inject morality into existing laws and must apply them as they are and that 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,” the bench said.
The bench added, “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.”
Case Title: S Rajadurai v. State & Anr.