New Delhi: The Supreme Court has reiterated that the right of a major girl to marry a person of her choice cannot be curtailed by her father and even if the boy has not attained the marriageable age of 21, she can have 'living together’ relationship with him.
Giving this ruling a Bench of Justices A.K. Sikri and Ashok Bhushan restored the girl, whose marriage was annulled by the Kerala High Court, to her husband.
The High Court while setting aside the marriage in a habeas corpus petition handed over the girl to her father.
The Bench passed this order relying on a recent ruling given in the Kerala love jihad case of Hadiya alias Akhila, who was allowed to go with her Muslim husband to allow this petition filed by Nandakumar, husband of the girl Tushara.
The Bench in its order said “we make it clear that the freedom of choice would be of Tushara as to with whom she wants to live.
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 “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. 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 Bench said "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," the Bench added.
In this case at the time of marriage in April 2017 the girl Tushara was 19 years of age and the boy Nandakumar was 20 years.
On a petition from girl’s father that the boy had kidnapped his daughter, the Kerala High Court directed the police to produce the girl in the court and thereafter annulled the marriage. The girl was restored to her father.
The present appeal by Nandakumar is directed against this judgment.
The Bench said 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 Nandakumar.
It was the contention that he was 20 years and not of marriageable age.
It cannot be said that merely because appellant was less than 21 years of age, marriage between the parties is null and void.
The appellant as well as Tushara are Hindus.
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 it is only a voidable marriage at the option of the parties.
Therefore the High Court cannot annual a marriage, the Bench said and set aside the order and restored the girl to her husband.
