The Supreme Court in a recent judgment said that the two adults have the right to live together even if they have not attained the marriageable age.
This judgment was released after the Kerala High court ordered the custody of a major girl to her father.
The facts of the case include: A major girl ( completed the age of 18 years) named Thushara absconded with a major boy named Nandakumar for the purpose of marriage and was living together when her father filed a writ of Habeus Corpus (a writ requiring a person to be brought before a judge or court, especially for investigation of a restraint of the person’s liberty, used as a protection against illegal imprisonment) saying that the boy has illegally detained the girl.
Under the Hindu Marriage Act, A boy must have completed the age of 21 and the girl must have completed the age of 18 for the purpose of marriage to take place between the two. [Read Section 5 (iii)]
However in this case, the marriage between the two is itself disputed because no evidence was produced as such to show that an official marriage has taken place between the two and not even a marriage certificate has been produced by a competent authority regarding their completion of an official marriage.
Also, The girl have attained the marriageable age of 18 years but the boy has still not achieved the marriageable age of 21 ( He will turn 21 on 30th May).
After entrusting of the girl to her father by the Kerala High Court, the boy approached Supreme Court and claimed that the girl is a major and she has the right to live wherever she wants and Kerala High Court cannot have entrusted the girl to the father.
The Supreme Court Bench consisting of Justice AK Sikri and Justice Ashok Bhushan observed that under the Hindu Marriage Act, 1955, and as per the provisions of article 12 that as both the majors are Hindus so such a marriage would not be a void marriage but a voidable marriage. The Supreme Court also said that Live in Relationship is now recognized by the legislature under the provision of The Protection of Women from Domestic Violence Act, 2005.
“It is sufficient to note that both Nandakumar and Thushara are major. Even if they were not competent to enter into wedlock (which position itself is disputed), they have right to live together even outside wedlock,” the bench said. The apex court said that “we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live”.
The apex court had also clarified that a court cannot interfere in the marriage of two consenting adult and cannot annul the marriage in a habeas corpus petition as also referred to a recent case of a women from Kerala whose name was Hadiya , where it had restored her marriage with Shafin Jahn on the ground that it was a marriage between consenting adults.
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