The Supreme Court declared that an adult couple has the right to live together without marriage while asserting that a 20-year-old Kerala woman whose marriage had been annulled could choose with whom she desires to live.
The high court ruled that the Legislature had also acknowledged live-in marriages and they had sought a position under the provisions of the Domestic Abuse Security Act, 2005.
The remarks came when a plea filed by one Nandakumar against a Kerala High Court order annulling his marriage to Thushara on the basis that he had not crossed the legal age of marriage was heard by the apex court.
The Child Marriage Prohibition Act specifies that a girl should not marry before the age of 18 and a boy before the age of 21.
On May 30 this year, Nandakumar, who had moved the top court, would turn 21.
After noting that she was not Nandakumar’s “lawfully wedded” wife, the high court also granted Thushara’s custody to her father.
A bench of Judges A K Sikri and Ashok Bhushan said their marriage could not be said to be “null and void” simply because at the time of the marriage, Nandakumar was less than 21 years of age.
Hindus are Appellant No 1 as well as Thushara. Under the Hindu Marriage Act, 1955, such a marriage is not a void marriage, and as per the provisions of Section 12, which can be attracted in such a situation, the marriage will be a voidable marriage at most.
It should be noticed that both Appellant No 1 and Thushara are of major significance. They have the right to live together even beyond wedlock, even though they were not qualified to enter wedlock (which status is disputed), the bench said.
While setting aside the high court order granting custody of a woman to her parent, the supreme court clarified that “we make it clear that the freedom of choice would be of Thushara as to with whom she wants to live.”
It also referred to a recent case involving a Kerala minor, Hadiya, where her marriage to Shafin Jahan had been restored on the basis that it was a marriage between two adults consenting to it.
The supreme court has explained that a court is powerless to intervene with the union of two consenting adults and is unable to annul the marriage in a petition for habeas corpus (a ruling requiring a person under arrest to be placed before a judge or court to ensure the freedom of the person).