Breaking the Shackles: Sexuality, Freedom, and Judicial Recognition to Live-In Relationships

Abstract

The freedom to create a family is one of the fundamental freedoms and a vital one, as it is the family, which arguably provides us plethora of public and private benefits. What then acquires importance is the way through which one can create a family. As prerequisites to it, what come to the fore are the issues of sexuality and reproduction. In the Indian socio-legal context, one can create a family only through marriage. Live-in Relationship, under such situation, has come out as an alternative, extra-legal and alleged anti-social sexual discipline to create a family. The advent of its spread in the Indian society, specially in the urban cities, though have various reasons, one of the prominent reason has been the use of marriage as state-imposed sexual discipline. Marriage as an institution, as many scholars have argued, has been used as a tool by the state to regulate and discipline sexuality and reproduction. Thus, outlawed by the law and society, it has been the Judiciary, arguably the most public-trusted state institution, which has come to its rescue. Though, there has been few conflicting judicial decisions, still, through many of its progressive judgments such as Badri Prasad, Payal Sharma, S. Khushboo, Vidyadhari etc., the Indian higher courts by recognising live-in relationships, have attempted to strengthen the status of men, women and children. Also, it has initiated a freedom of sexuality debate and has invited the attention of the Indian legislature.

Keywords: Live-In Relationship, Sexuality, Family Law, Indian Judiciary, Marriage, Freedom, Socio-Legal Studies

JEL Classification: K36