The father of a 19 year old girl Rifana Riyad filed a writ petition in the Hon’ble High Court of Kerala to produce the body of her daughter by issuing a writ of Habeas Corpus because she is under the illegal custody of 18 year old Hanize. Both the boy and the girl, when produced before the Court, submitted that they have been intensely in love with each other since the school days. It was the second time that the girl had left her home to live with Hanize( the first time petitioner had managed to get to get her home through an interim order by the Court).
The present case “Muhammed Riyad v. State Police Chief, Trivandrum” was adjudicated by a Division Bench of the Hon’ble High Court of Kerala comprising of Justice V. Chitambaresh & K.P.Jyothindranath.
The petitioner does not accept live-in relationship but will allow her daughter to live with Hanize only after their lawful marriage. The Petitioner further argues that Hanize has not completed 21 years of age and is hence a ‘child’ as defined under Section 2(a) of the Prohibition of Child Marriage Act, 2006. Any offspring born to Hanize and Rifana will be an illegitimate child in the eye of law.
The Court observed( referring Rifana as ‘detenue’ or ‘someone who has been detained’):
“It transpires that the detenue is living…out of her own volition and she being a major has a right to live wherever she wants to as is permissible or to move as per her choice. The detenue has every right to live…even outside her wedlock since live-in relationship has been statutorily recognized by the Legislature itself.”
“…the detenue…has the capacity to marry…under Section 251 of Mahomedan Law…But the marriage of the fourth respondent who has not completed 21 years of age is voidable at his instance…on the ground that he was a ‘child’ at the time of marriage.”
The court referred to the Supreme Court Judgement in “Shafin Jahan v. Asokan K.M. and others” 2018 (2) KLT 571(SC) ( popularly known as the Hadiya’s case):
“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. 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. We say so without any reservation.”
Thus the Court, dismissing the petition, ruled:
“The Constitutional Court is bound to respect the unfettered right of a major to have live-in relationship even though the same may not be palatable to the orthodox section of the society. We are therefore constrained to dismiss this writ petition declaring that the detenue is free to live with the fourth respondent or marry him later on his attaining the marriageable age”
This note is penned by Gunjeet Singh Bagga.
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