Le­gal Ea­gle

The ma­jor rul­ings by the Supreme Court and High Courts of In­dia in the re­cent past and the de­vel­op­ments and changes in the le­gal arena im­pact­ing the In­dian cit­i­zens.

Alive - - Contents - by San­jeev Sirohi

Right of Adult Cou­ple to Live To­gether with­out Mar­riage: SC

In a land­mark judg­ment with far reach­ing con­se­quences, the Supreme Court on May 6, 2018 in Nand­ku­mar & Anr v The State of Ker­ala & Ors in Crim­i­nal Ap­peal No. 597 of 2018 aris­ing out of SLP (Crl.) No. 4488 of 2017 held that an adult cou­ple has a right to live to­gether with­out mar­riage. They can­not be stopped from ex­er­cis­ing their right by any­one. The de­ci­sion came while as­sert­ing that a 20year-old Ker­ala woman, whose mar­riage had been an­nulled, could choose whom she wanted to live with.

The Apex Court held that, "It would not be out of place to men­tion that 'livein re­la­tion­ship' is now recog­nised by the Leg­is­la­ture it­self and they had found its place un­der the pro­vi­sions of the Pro­tec­tion of Women from Do­mes­tic Vi­o­lence Act, 2005." The Supreme Court re­cently set aside a Ker­ala High Court or­der that en­trusted cus­tody of a ma­jor girl to her fa­ther, ob­serv­ing that she has free­dom of choice as to with whom she wants to live. This land­mark judg­ment was very rightly wel­comed widely in the le­gal cir­cles and le­gal fra­ter­nity!

The ob­ser­va­tions came while the Apex Court was hear­ing a plea filed by one Nanda Ku­mar against a Ker­ala High Court or­der an­nulling his mar­riage with Thushara on the ground that he had not at­tained the le­gal age of mar­riage. It must be noted here that Pro­hi­bi­tion of Child Mar­riage Act states the age of 18 for girls and 21 for boys for mar­riage. Nanda Ku­mar who had ap­proached the court turned 21 on May 30 in 2018.

We thus see here that the girl Thushara had eloped with a boy Nanda Ku­mar who was not of mar­riage­able age (21), though was of ma­jor age. The fa­ther of the girl filed a habeas cor­pus plea, upon which the Ker­ala High Court took note of the age of the boy. It also ob­served that there was no ev­i­dence to show that a valid mar­riage was sol­em­nized be­tween the par­ties and that Mar­riage cer­tifi­cate is­sued by the lo­cal au­thor­ity was also not pro­duced. The Ker­ala High Court then en­trusted cus­tody of Thushara to her fa­ther af­ter not­ing that she was not Nanda Ku­mar's "law­fully wed­ded" wife.

Be it noted, the boy Nanda Ku­mar promptly ap­proached the Supreme Court con­tend­ing that since the girl is ad­mit­tedly a mi­nor, she has the right to live wher­ever she wants to or move as per her choice and the High Court could not have en­trusted the girl to her fa­ther. The Bench of Jus­tice AK Sikri and Jus­tice Ashok Bhushan of the Supreme Court agreed with these con­tentions made. The Bench then ob­served that the mar­riage is not a void mar­riage un­der the Hindu Mar­riage Act, and, at the most, the mar­riage would be a void­able mar­riage.

The court said that adults were en­ti­tled to make their choices.

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