1. Habeas Corpus petition challenging the custody of an adult woman who married a man below the legal marriageable age for males under the Hindu Marriage Act. (Para 1 , 2 , 3 )
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2018 Supreme(SC) 523
SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
NANDAKUMAR & ANR. - Appellants
VERSUS
THE STATE OF KERALA & ORS. - Respondents
CRIMINAL APPEAL NO. 597 OF 2018
Decided on : 20-04-2018.
Advocates:
Advocate Appeared:
For the Petitioner: Mr. Siddhartha Dave, Adv., Ms. Jemti Ben, Adv., Mr. A. Raghunath, AOR, Mr. M. G. Yogamaya, Adv.
For the Respondents: Mr. Vipin Nair, AOR, Mr. P.B. Suresh, Adv., Mr. Abhay Pratap Singh, Adv., Mr. Karthik Jayashankar, Adv.
Advocate Appeared:
For the Petitioner: Mr. Siddhartha Dave, Adv., Ms. Jemti Ben, Adv., Mr. A. Raghunath, AOR, Mr. M. G. Yogamaya, Adv.
For the Respondents: Mr. Vipin Nair, AOR, Mr. P.B. Suresh, Adv., Mr. Abhay Pratap Singh, Adv., Mr. Karthik Jayashankar, Adv.
Important Points
IMPORTANT POINTS
Marriage between two major Hindus, a girl of marriageable age and a boy attaining marriageable age shortly is not void but voidable.
An adult person has the right of choice as to live with anybody.
Marriage between two major Hindus, a girl of marriageable age and a boy attaining marriageable age shortly is not void but voidable.
An adult person has the right of choice as to live with anybody.
Subject
Family Law - Marriage and Divorce
Act Referred
Headnote
(a) Hindu Marriage Act, 1955 – Section 5 and 12 – Marriage between two major Hindus, a girl of marriageable age and a boy attaining marriageable age shortly – Not void but voidable – Held, major persons have right to live-in relationship out of wedlock. (Para 7, 9)
(b) Constitution of India – Article 226 – Writ of Habeas Corpus – An adult person has the right of choice – Held, the girl being adult has a right of choice to live with appellant 1. (Para 13)
2018 SCC Online SC 343 – Relied upon
Facts of the case:
Appellant No. 1 married Ms.Thushara on 12.04.2017. As on the date of marriage, Thushara was admittedly 19 years of age and was, therefore, competent to enter into wedlock. After the marriage, Thushara started living with appellant No. 1 as his wife.
The appellant, however, was not of marriageable age on the date of marriage as he would attain the age of 21 years only on 30.05.2018.
In absence of any other evidence of marriage and a certificate issued by the local authority under the Kerala Registration of Marriages (Common) Rules, 2008 the High Court held thjat the marriage was not valid and entrusted custody of Thushara to her father.
Finding of the Court:
An adult person has the right of choice as to live with anybody.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether an adult woman's custody can be entrusted to her father if her marriage is deemed invalid due to the husband's age. (Para 6 )
3. Adults possess a fundamental right to choose their partner and residence; marriage by a male under 21 is voidable, not void, under Hindu law. (Para 7 , 9 , 10 , 11 , 12 )
4. The constitutionally guaranteed right to choice and liberty under Articles 19 and 21 overrides parental custody claims for adults, regardless of marriage validity. (Para 7 , 10 , 11 , 12 )
5. Appeal allowed and High Court order set aside; the adult woman's freedom of choice regarding her residence is upheld. (Para 13 )
6. What is the legal effect of a Hindu marriage where the groom is under 21 years of age?
Such a marriage is not null and void under the Hindu Marriage Act, 1955. Instead, it is considered a voidable marriage that may be annulled by a decree of nullity under Section 12. (Para 7 , 8 )
7. Does an adult have the right to live with a partner outside of a valid marriage?
Yes, adults have the right to live together even outside of wedlock. This live-in relationship is recognized by the legislature under the Protection of Women from Domestic Violence Act, 2005. (Para 9 )
8. Can a court entrust the custody of an adult to their parents based on social values or parental concern?
No. The right to choice is a fundamental right under Articles 19 and 21 of the Constitution. Courts cannot assume the role of parens patriae or super guardians for adults, as individual autonomy overrides societal will or parental love. (Para 10 , 11 , 12 )
JUDGMENT :
A. K. SIKRI, J.
Leave granted.
1. The brief facts leading to the present appeal are that appellant No. 1 has married Ms.Thushara. According to the appellant, this marriage was solemnised on 12.04.2017 at the Chakkulathukavu Bagavathi Temple situated in the Trivandrum District, Kerala. Insofar as Thushara is concerned, as on the date of marriage, she was admittedly 19 years of age and was, therefore, competent to enter into wedlock. It appears that after that marriage, she started living with appellant No. 1 as his wife.
2. Respondent No. 4 is the father of Thushara. He filed Habeas Corpus petition being W.P.(Crl.) No. 149/2017(S) in the High Court of Kerala alleging therein that ever since 10.04.2017, his daughter Thushara was missing. He also stated in the said petition that Thushara was in the illegal custody of appellant No. 1. In fact, respondent No. 4 had lodged FIR regarding missing of his daughter on 10.04.2017. Stating this fact in the writ petition, he averred that though the said FIR was registered, but no effective investigation had been conducted in the matter. On that basis, prayer made in the petition was to issue writ of Habeas Corpus commanding the appellants to produce his daughter in the High Court. This writ petition was admitted on 25.04.2017 and notice was ordered to the appellants herein by special messenger. On that day, the High Court also directed respondent Nos. 1 to 3 to trace out and produce the respondent No. 4’s daughter in the Court. On 28.04.2017, when the writ petition was taken up, respondent No. 4 and his wife were present. Appellants were also present. The Sub Inspector of Police, Vatgtiyoorkavu Police Station produced the detenue in the Court. The High Court interacted with the parties, including Thushara.
3. As pointed out above, insofar as Thushara is concerned, she was 19 years of age and, therefore, competent to marry, as the marriageable age for females is 18 years. However, dispute arose about the age of appellant No. 1 herein. It was the contention of respondent No. 4 that appellant No. 1 was less than 21 years of age and, therefore, he was not of marriageable age. To ascertain this fact, the High Court asked appellant No. 1 to inform his date of birth. He stated his date of birth to be 30.05.1997, and in support thereof, produced driving licence issued by the licensing authorities. Treating it to be the date of birth of appellant No. 1, the High Court found that he would be attaining the age of 21 years only on 30.05.2018. Therefore, on 12.04.2017, when the marriage was solemnised between appellant No. 1 and Thushara, appellant No. 1 was not of marriageable age. On that basis, the High Court concluded that the daughter of respondent No. 4 is not the lawfully wedded wife of appellant No. 1. The High Court also remarked that apart from the photographs of marriage which were produced in the High Court, there was no evidence to show that a valid marriage was solemnised between the parties and that a certificate issued by the local authority under the Kerala Registration of Marriages (Common) Rules, 2008, was also not produced. On these facts, the High Court allowed the writ petition by entrusting the custody of Thushara to her father i.e., respondent No. 4 herein, as is clear from the following directions contained in the impugned order:
“We accordingly dispose of the writ petition by entrusting custody of Ms. Thushara, the daughter of the petitioner with the petitioner. The Sub Inspector of Police, Vattiyoorkavu shall, to ensure their safety accompany them to their residence at Thirvananthapuram.”
4. Assailing the aforesaid order, the present appeal is preferred.
5. Notice was issued to the respondents. Respondent No. 1/State of Kerala as well as official respondent Nos. 2 and 3, viz., the Superintendent of Police and Sub-inspector of Police, have put in their appearance through the State counsel. Nobody has appeared on behalf of respondent No. 4 in spite of service of notice. In th
