INTRODUCTION
India has experienced a paradigm shift towards live-in relationships, challenging traditional marriages restricted by rigid caste and religious rules. This newfound freedom, however, frequently clashes with entrenched family expectations, resulting in threats of physical violence, emotional blackmail, and honour-based crimes. Consequently, runaway couples are forced to seek legal sanctuary. But what happens when the very system designed to protect them is weaponised against them?
THE CONSTITUTIONAL RIGHT TO CHOOSE AND SEEK PROTECTION
The Supreme Court has repeatedly affirmed the right to choose a life partner as an intrinsic part of Article 21[1]. While sometimes characterised as socially frowned upon, the Supreme Court has unequivocally upheld the legality of live-in relationships[2]. When a couple faces imminent threats, they can seek protection under Article 226[3]. Under this writ, the High Courts, in their constitutional capacity, can evaluate the threat perception based on pleadings and issue a direction for protection.
INVOKING WRIT JURISDICTION FOR PROTECTION
In response to a fatal threat, the couple seeks protection from the High Court by invoking its extraordinary writ jurisdiction under Article 226[4], read with Article 21. The High Court typically issues a writ of mandamus (a public law remedy, designed to compel a statutory authority to perform its public duty) ordering the local police authorities to comprehensively assess the threat perception and provide necessary physical security to the couple.
THE REAL PARADOX
For a brief moment, the couple experiences the full, protective embrace of the state’s constitutional machinery. However, the High Court order itself mostly contains a specific clause: “The protection order will not stop the police from taking action if a criminal case is filed against the couple.”
What appears on its face to be a perfectly sound legal doctrine becomes a weapon that can be used by the hostile families. By leveraging the provisions of the BNS and BNSS, the families hunt down the couples they can no longer physically threaten by registering an FIR. Consequently, the same police officers mandated to protect the couple become legally obligated to investigate, interrogate, and potentially arrest them.
THE JUDICIAL SAFEGUARD: WHY THE CAVEAT EXISTS?
The High Court, while exercising its writ jurisdiction, must operate within the strict boundaries of the Constitution. Based solely on the apprehension of physical harm, it cannot pass a blanket order restraining the police from taking any action against the petitioners, as such an order would effectively suspend the criminal justice system[5]. Because the protection order is inherently a summary proceeding where no record of witness testimonies or evidentiary statements is made, the High Court adds this provision to ensure the protective order is not misused by fugitives, kidnappers or individuals escaping criminal liability. Unfortunately, this necessary judicial safeguard is frequently manipulated by hostile families.
WEAPONISING THE BNS: THE RETALIATORY FIR
After the protection order is issued, the family is restricted from committing physical violence, so they adopt a highly effective, legally sanctioned form of harassment: the retaliatory FIR.
They rely entirely on offences which are classified as cognisable and non-bailable under the criminal code. It is the statutory duty of a police officer to register an FIR for a cognisable offence, and they also possess the power to arrest without a warrant from a magistrate.
Families often rely on three specific provisions under BNS to dismantle the couple’s sanctuary.
Theft of Property (Section 303):[6] The family of the woman will typically approach the police, claiming that before absconding, the male partner (aided by the female partner) stole valuable property from the house.
The FIR is meticulously drafted to reframe the consensual removal of personal items or Stridhan as a ‘dishonest taking’ from the family’s possession. Because theft is a cognisable offence, the police are bound by law to register an FIR under the law.
Kidnapping and Abduction (Sections 137 and 138):[7] If the theft allegation is deemed insufficient, then the family escalate to Section 137 of the BNS.
While Section 137 applies to minors or people of unsound mind, parents utilise the abduction[8] provision if the woman is a major. They allege that the woman was coerced, manipulated, induced by deceitful means, or violently taken by force.
Because the offences of kidnapping and abduction are grave and non-bailable, the pressure on the police to initiate immediate coercive action is immense.
False Promise of Marriage (Section 69):[9] Section 69 represents a highly complex, internal threat to the live-in relationship itself. This section explicitly criminalises sexual intercourse obtained under a deceitful or false promise of marriage.
A disgruntled partner or, far more aptly in the context of runaway couples, a female partner who has been subsequently “recovered” by the police and heavily pressured, emotionally blackmailed, or brainwashed by her hostile family can be coerced into filing a devastating FIR under Section 69.
The FIR will allege that the entire live-in relationship was a manipulative smokescreen and that her consent for sexual relations was wholly vitiated because the male partner never truly intended to marry her from the very beginning.
NAVIGATING THE TRAP: PROCEDURAL DEFENCES UNDER THE BNSS
The BNSS provides various procedural defences that the couple can adopt to escape criminal liability under the BNSS and prove that they are not guilty of any alleged offence.
The 14-Day Buffer (Section 173(3) BNSS): Section 173(3)[10] includes an exception to the mandatory registration of the FIR, granting police the discretion to conduct a preliminary inquiry before registering an FIR, even in a cognisable offence[11].
The 14-day window provides the couple sufficient time to demonstrate to the investigating officer that the alleged stolen property is merely the woman’s Stridhan, and the abducting woman is a fully sound adult who gave her consent willingly without any force or coercion.
Restricting Coercive Action (Section 35 BNSS): Even if an FIR is eventually registered after the 14-day inquiry, or if the family successfully files an FIR for a more severe offence, the BNSS provides secondary lines of defence against immediate arrest. Section 35[12] strictly regulates the power of arrest for offences punishable by up to seven years.
Under Section 35 BNSS, arrest is not automatic simply because an FIR has been lodged. Judicial precedents[13] dictate that police must document the absolute necessity of the arrest, proving it is required to prevent further offences, evidence tampering, witness intimidation, or flight. In the context of a live-in couple already living under court-mandated police protection, arguing the “necessity of arrest” becomes extraordinarily difficult for the prosecution. A robust legal defence will utilise Section 35 to compel the police to issue a formal notice of appearance rather than executing a retaliatory arrest, effectively keeping the couple out of police custody while the substantive legal battles are fought in the higher courts.
Preemptive Anticipatory Bail (Section 482 BNSS): Because the window between FIR registration and an impending arrest is notoriously brief, waiting for an FIR to be registered before drafting bail applications is a severe dereliction of professional duty. Practitioners must prepare anticipatory bail applications under Section 482[14] concurrently with the protection petition. This preemptive strategy allows the advocate to instantaneously move the Sessions Court or High Court for immediate interim protection, arguing that the FIR is a retaliatory construct aimed at circumventing the existing protection order. Furthermore, in complex cases involving Section 69 BNS (false promise of marriage), lawyers must rigorously preserve digital evidence like WhatsApp chats and photographs. This evidence is crucial during bail hearings to establish the long-term, voluntary nature of the relationship before the familial intervention.
The Quashing Petition (Section 528 BNSS): While bail provides temporary relief, the ultimate and permanent remedy to eradicate a retaliatory FIR is filing a quashing petition under Section 528[15]. This section preserves the High Court’s extraordinary inherent powers to prevent the abuse of the court process and secure the ends of justice.
By demonstrating that the FIR was maliciously instituted with an ulterior motive for vengeance – often termed a ‘malicious counterblast’- advocates can seek its immediate dismissal[16]. In a Section 528 BNSS petition, a documented chronology is the practitioner’s most devastating weapon. By presenting an undeniable timeline (starting with a consensual relationship and a preemptive police representation, followed by a High Court protection order, and concluding with the retaliatory FIR), the advocate exposes the complaint as a vindictive retaliation. This meticulous paper trail highlights the logical absurdities of the charges and compels the High Court to quash the FIR.
CONCLUSION: CLOSING THE HIDDEN BACKDOOR
High Court protection orders currently offer an incomplete sanctuary. Hostile families actively weaponise the BNS to force police intervention, turning constitutional shields into investigative swords. While the BNSS provides crucial defensive buffers, the burden cannot rest solely on tactical litigation. True reform requires constitutional courts to issue integrated protection orders that anticipate malicious prosecutions. Procedural law must urgently evolve alongside constitutional guarantees to permanently close this hidden backdoor.
Author(s) Name: Abha (Panjab University)
References:
[1] Constitution of India, art 21; Shafin Jahan v Asokan KM (2018) 16 SCC 368
[2] S Khushboo v Kanniammal (2010) 5 SCC 600
[3] Constitution of India, art 226
[4] Ibid
[5] State of Haryana v Bhajan Lal 1992 Supp (1) SCC 335
[6] Bharatiya Nyaya Sanhita 2023, s 303
[7] Bharatiya Nyaya Sanhita 2023, ss 137, 138
[8] Ibid, s 138
[9] Ibid, s 69
[10] Bharatiya Nagarik Suraksha Sanhita 2023, s 173(3)
[11] Lalita Kumari v Government of Uttar Pradesh (2014) 2 SCC 1
[12] Bharatiya Nagarik Suraksha Sanhita 2023, s 35
[13] Arnesh Kumar v State of Bihar (2014) 8 SCC 273
[14] Bharatiya Nagarik Suraksha Sanhita 2023, s 482
[15] Ibid, s 528
[16] State of Haryana v Bhajan Lal 1992 Supp (1) SCC 335
