Does popular morality trump Constitutionally-guaranteed fundamental rights? Justice Renu Agarwal’s track record at the Allahabad High Court would seem to indicate so.

Scroll’s analysis of Agarwal’s rulings in almost 400 petitions by couples seeking the High Court’s protection from the threat of violence from the community shows that she granted such orders only to married couples who had registered their marriages and had no first information reports pending against them.

On the other hand, unmarried couples were never granted protection from violence or interference.

In addition, Agarwal has, through her judgments, created the legal requirement that unmarried inter-faith couples may live together only if one of them converts to the religion of the other.

On March 11, the Supreme Court had in a judgment issued guidelines stating that courts “must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse”.

However, Agarwal delivered at least three orders denying protection to live-in couples after that.

Who is Justice Renu Agarwal?

Agarwal was appointed as Additional Judge of the Allahabad High Court on August 15, 2022. She was promoted from the subordinate judiciary, where she had been serving as a district judge.

She was appointed as a permanent judge of the High Court on September 25 last year. She is set to retire on June 21.

Agarwal first gained prominence in April last year when she dismissed the protection petition of a couple living together on the sole grounds that the woman was still legally married to another man. Agarwal remarked in the judgment that “[l]ive-in-relationship cannot be at the cost of social fabric of this country”.

Over the last two months, she has also garnered media attention for dismissing several similar pleas for protection in cases where one or both the persons in live-in relationships are married to other people.

Agarwal’s caseload of protection petitions by couples has increased rapidly, an analysis of all the judgments delivered by her available on the Allahabad High Court’s website shows.

She delivered only one judgment in such a case in 2022. In 2023, she decided seven pleas for protection by couples fearing violence from their families or other members of the community. However, in the first three months of 2024 (up to March 27) – which is 87 days – she heard at least 391 protection petitions.

Justice Renu Agarwal. Credit: Allahabad High Court

Unmarried couples denied protection

Scroll could not locate a single order by Agarwal in which she ordered protection for an unmarried couple living together. This, even though a three-judge bench of the Supreme Court had, in a landmark 2018 judgment prescribed preventive, remedial and punitive measures for the state to protect inter-caste and inter-faith married couples as well as unmarried couples.

In an assortment of orders denying protection to persons living together who are married to others, Agarwal has said that “such illegal relations need not be protected” and “such relations will create chaos in society”. She often concludes these dismissal orders by saying that such relationships are “in contravention of law of land”.

However, there is nothing unlawful about a married person living with someone other than their spouse. Adultery was decriminalised by the Supreme Court in 2018.

Moreover, these protection petitions were moved by couples only to seek protection against the use of criminal force or any unlawful act. Under Indian law, all individuals, irrespective of the nature of their relationships, are entitled to such protection.

In many of these cases, the female partner put on record the fact that she fled her husband due to mental or physical abuse. But Agarwal’s decisions never seemed to have accounted for that while emphasising the existence of the marriage as grounds for criticising such live-in relationships.

Agarwal has also reasoned in several such orders that a live-in relationship where the partner has not obtained divorce from their spouse is an offence under Sections 494 and 495 of the Indian Penal Code.

In fact, both these sections deal with the offence of bigamy – where a person who is already married marries for the second time. They do not apply to live-in relationships.

Even when the persons living together have no spouses, Agarwal has still denied them protection.

In several cases, she has denied protection to couples on the grounds that they did not produce any evidence to show that “their relationship is of a permanent nature”. How does one determine such a permanent nature? According to Agarwal, it is to be done by furnishing a “desire to get married in future”, evidenced by “joint account, financial security, joint property or joint expenditure” to show “that their relationship is in the nature of marriage”.

Conversion requirement for interfaith couples

Agarwal has denied protection to inter-faith live-in couples on an even more novel basis: that one of the parties did not convert as per the provisions of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021.

The rationale for this was not even spelled out by her in some of her initial dismissal orders in such cases in February. Eventually, she explained that as per section 3(1) of the act, conversion is required for relationships “in the nature of marriage”, which means live-in relationships.

On this basis, at least 26 protection petitions by inter-faith couples were dismissed by Agarwal between February 15 and March 20.

This contrary to a September 2023 order of Justice Surendra Singh-I of the Allahabad High Court that had granted police protection to an inter-faith couple living together. Singh-I had held that any two adults are at liberty to enter a live-in relationship without interference.

Now that the Allahabad High Court has made it mandatory for couples seeking protection to declare their marital status from April 1, unmarried couples may face rejection of their pleas at the outset by the court.

On April 4, a two-judge bench of the High Court upheld Agarwal’s position that the act prohibits inter-faith live-in relationships, making this the established position of law for all single judges of the court.

Scroll had last month reported on the High Court denying protection even to married inter-faith couples due to procedural delays under the act.

Stringent conditions for married couples

Even married couples approaching Agarwal’s court for protection have not been guaranteed favourable orders.

Agarwal granted married couples protection orders on the condition that their marriage be registered under the Uttar Pradesh Marriage Registration Rules, 2017. She made the protection of substantive fundamental rights conditional upon the fulfillment of procedural legal requirements: if the registration does not take place within two months of the order, the protection is to stand vacated.

She also dismissed at least five protections petitions by married couples, all in 2023, on the basis that first information reports had been registered against the couple – usually against the husband by the wife’s family. None of her orders specify the reason for denying protection only due to the existence of these first information reports.