The cusp of law and morality is a difficult area. Two differing judgments from the Allahabad High Court on the same issue in two different cases indicate this. In an earlier judgment, a single-judge bench of the Allahabad High Court ruled that a married person cannot be in a live-in relationship with a third person without obtaining a divorce from his or her spouse. A live-in couple had petitioned for protection from the court to live free from fear and in peace. The high court said that it could give no such direction as a live-in relationship between two people married to others was illegal. The high court’s ruling referred to the full freedom adults had to have consensual relationships, but the right to freedom or to personal liberty was not absolute. It ended where the statutory right of another person began. A spouse had the right to the partner’s company. The high court indicated that a divorce was necessary so as not to encroach upon the spouse’s rights. However, a few days later, a division bench judgment of the Allahabad High Court, while commenting on another live-in relationship between married people, stated that social opinion and morality could not guide law. It ruled that there was no criminal offence when a married man lived with an adult woman consensually. Privacy and personal liberty, it can be deemed from this judgment, are of significance.

This difference between the judgments from the same high court is confusing. But they reveal a deeper dilemma. The second judgment holds, quite rightly, that social morality should not guide law. That leads to the inference that the right to personal liberty should be prioritised. This is a radical — progressive — legal position. Prevailing notions of morality that may be antithetical to liberty need not underpin legal wisdom. Privacy, at a time when it is being breached often by institutional excesses, must be protected by courts. This is not to suggest that such liberal jurisprudence is shorn of attendant challenges. For instance, in this case, it can be argued whether personal liberty should deprive another person — the spouse — of his or her legal right and also cause suffering, humiliation and a possible withdrawal of social and economic support on a personal and practical level. But can the legal and the constitutional rights of all the persons involved be balanced equally? Threats — they are often extrajudicial — to those in an adult, consensual relationship should be penalised. The legal obligation of the live-in partners to obtain divorces from their respective spouses assumes significance in this context.