20-year-old woman free to live with underage husband; Couple has the right to live together even outside wedlock: SC

Supreme Court: In a unique case where a 19-year-old girl Thushara, who had married a 19-year-old boy Nandakumar on 12.04.2017, was sent to the custody of her father by the Kerala High Court on the ground that Thushara was not lawfully wedded to Nadakumar as Nandakumar was not of a marriageable age, the bench of Dr. AK Sikri and Ashok Bhushan, JJ removed Thushara from the custody of her father & held that the freedom of choice would be of Thushara as to with whom she wants to live.

The present case holds strong similarities to the Hadiya case, where a father had sought the custody of his major daughter as she had married a man of her choice. In the present case as well, Thushara’s father had alleged that she was in illegal custody of Nandakumar and hence, her custody should be entrusted to her. The High Court noticed the fact that Nandakumar will be attaining the marriageable age of 21 years on 30.05.2018 & hence, Thushara was not lawfully wedded wife. 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. Hence, the custody of Thushara, who was already a major when she married Nandakumar, was entrusted to her father.

When Nandakumar approached the Supreme Court against the order of the High Court, the Court noticed that merely because Nandakumar was less than 21 years of age, it cannot be said that marriage between the parties is null and void. The Court said that both the parties are Hindus and such a marriage is not a void marriage under the Hindu Marriage Act, 1955, and as per the provisions of section 12, which can be attracted in such a case, at the most, the marriage would be a voidable marriage.

Noticing that both the parties were major at the time of marriage, the Court said:

“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 Court also took note of the 3-judge bench verdict in Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343, wherein it was held:

“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.”

[Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

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