'Adult couple can live together without marriage'-Supreme Court


Sudhanshu Prakash

In a recent judgement, i.e., Nandkumar & Anr. Vs. the State of Kerala & Ors., dated 20/04/2018, the Supreme Court has held that two individuals, even if not competent to enter into wedlock, have the right to live together.

Highlights of the Case

         A Habeas Corpus Writ was filed by the girl's father who eloped with a boy who was not of the age of majority.

         At the time of marriage the girl had attained the age of majority, however, the boy was under aged. The Kerala High Court took note of the same and concluded that the girl was not the lawfully wedded wife.

         High Court also observed that there was lack of evidence and no proof of a valid marriage between the parties.

         With these conclusions the High Court entrusted the girl's custody to her father.

         In appeal, the Appellant (the boy) contended that the girl was a major and has the right to live as per her choice and the High Court's decision to entrust her custody to her father was not right.

         The Hon'ble Supreme Court observed that the findings of the High Court that the marriage was void is wrong.

         Since, both the parties were Hindu the Court held that under the Hindu Marriage Act, 1955 such marriages are not void but are voidable.

         The Supreme Court referred to Sections 5 and 12 of the Act.

         The Supreme Court held that it is sufficient to note that both the Appellant no.1 and the girl are major. Even if they were not competent to enter into wedlock, they have the right to live together even outside the wedlock.

         Since, live-in relationship is now recognized by the legislation itself, i.e., the Protection of Women from Domestic Violence Act, 2005.

         The Court emphasized due importance to the right of choice of an adult person as it is accorded by the Constitution.

         The Court quoted from the case namely Shafin Jahan vs. Ashokan K.M. & Ors., 2018 SCC Online SC 343, where it was held-

"Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law."

         D. Y. Chandrachud in his Judgement discussed that "The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father."

         The appeal was allowed stating clearly that the freedom of choice would be of the girl as to with whom she wants to live.

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