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.
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
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
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
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
"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
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."
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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