By Sanjeev Sirohi on 11 June 2018
It has to be stated at the very outset that 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 20-year-old Kerala woman, whose marriage had been annulled, could choose whom she wanted to live with.
As it turned out, the Bench of the Apex Court held that, 'It would not be out of place to mention that 'live-in relationship' is now recognized 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!
It would be pertinent to mention here that 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.
Going forward, the Bench further observed that, 'For our purposes, it is sufficient to note that both appellant No. 1 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. It would not be out of place to mention that 'live-in relationship' is now recognized by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.' The Bench also quoted relevant observations made in Hadiya case including this observation made by Justice Chandrachud in his concurring opinion: '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 Bench also said while allowing the appeal that, 'We make it clear that the freedom of choice would be of Thushara (the Girl) as to whom she wants to live.'
Needless to say, the Apex Court emphasized due importance to the right of choice of an adult person which the Constitution accords to an adult person. In its concluding part, the Bench of Apex Court very rightly held that, 'It may be significant to note that in so far as Thushara is concerned, she has expressed her desire to be with appellant No. 1. Accordingly, we allow this appeal and set aside the impugned judgment of the High Court. However, since Thushara has not appeared as she was not made party in these proceedings, while setting aside the directions of the High Court entrusting the custody of Thushara to respondent No. 4, we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live.'
All said and done, this landmark judgment now makes it absolutely clear that adult couple have every right to live together even without marriage. They cannot be denied permission to live together just because they are not married. This landmark judgment will act as a beacon of hope to all those couples whose parents and relatives don't want them to stay together at any cost and under any circumstances.
It will also give them a legal cover with full sanctity and will always be cited by them whenever any of them are harassed by their parents or their relatives to prevent them from staying together! It will certainly not be an exaggeration from any angle if I say this with full responsibility that it is a very well written judgment and it has ensured that the freedom of adult couples to live together is protected always under all circumstances! This is exactly what makes this landmark judgment so special from all angles!
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