Contents
Introduction
Recent divergent rulings by the Allahabad High Court one prioritizing the sanctity of marriage and the other emphasizing individual autonomy, highlight a significant grey area in Indian personal law. As of 2026, the judiciary is increasingly tasked with reconciling social morality with the constitutional Right to Choice under Article 21.
Evolution From Concubinage to Relationship in the Nature of Marriage
- Judicial Legitimisation: Live-in relationships gained legal recognition through Badri Prasad (1978), which presumed long cohabitation as marriage.
- Protection against Exploitation (The 2005 Pivot): The landmark Indra Sarma v. V.K.V. Sarma (2013) brought such relationships under the Protection of Women from Domestic Violence Act, 2005, as relationship in the nature of marriage.
- Consenting Adults Are Not Illegal: S. Khushboo (2010) and Joseph Shine (2018) decriminalised adultery, expanding personal liberty. In the same case Supreme Court have held that long-term cohabitation can lead to a presumption of marriage, ensuring the legitimacy of children and inheritance rights.
- Right to Choice (Modern Phase): In S. Khushboo v. Kanniammal (2010), the Supreme Court explicitly stated that living together is not an offence. By 2026, the Puttaswamy (Privacy) judgment has further solidified the idea that whom one lives with is a core part of the Right to Privacy.
- However, recent Allahabad High Court rulings (March 2026) reveal inconsistency one bench denied protection to married persons in live-in ties, while a division bench upheld consensual adult relationships.
The Conflict of Traditional Morality vs. Individual Autonomy
The core of the current judicial grey area lies in the clash between two competing philosophies:
- The Paternalistic View (Traditional Morality): A single-bench order from the Allahabad High Court in early 2026, have refused to grant protection to live-in couples where one partner is already married. Such relationships are seen as a social menace that weakens the sacred bond of marriage. The court argued that the law cannot be used to sanctify what society deems immoral or what constitutes lustful behavior outside a valid marriage.
- The Libertarian View (Constitutional Morality): A division bench of the same court and several Supreme Court observations emphasize Constitutional Morality over Social Morality. After the decriminalization of adultery (Joseph Shine v. Union of India), the state has no business policing the private consensual acts of adults. Morality and Law are distinct, if two adults choose to live together, the state’s role is limited to ensuring no crime is committed, not enforcing Victorian-era moral standards.
Critical Examination within the Constitutional Framework
The conflict is tested against three primary constitutional pillars:
- Article 21 (Right to Life and Liberty): The Right to Choose a Partner is now recognized as a fundamental right. Any state or judicial interference that forces an individual to abandon a partner based on morality is a violation of this liberty.
- The Test of Proportionality: In 2026, the mandatory registration of live-in relationships (as seen in the Uttarakhand UCC) is being challenged. Critics argue that while the objective (protecting women) is legitimate, the means (mandatory disclosure to the state) is disproportionate and infringes on privacy.
- Protection vs. Promotion: The judiciary remains wary of promoting live-in relationships as an equivalent to marriage. While it grants functional rights (maintenance, legitimacy of children, inheritance), it maintains a status distinction, marriage remains a sacramental/legal status, whereas a live-in relationship remains a contractual/voluntary arrangement.
Conclusion
As Dr. B. R. Ambedkar emphasised, constitutional morality must guide governance; reconciling personal autonomy with social stability will shape India’s evolving legal approach to intimate relationships.
