NANDAKUMAR & ANR. versus THE STATE OF KERALA & ORS. on 20 April 2018

[2018] 3 S.C.R. 1011

NANDAKUMAR & ANR.

v.

THE STATE OF KERALA & ORS.

(Criminal Appeal No. 597 of 2018)

APRIL 20, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Habeas Corpus – Writ petition filed by respondent No. 4alleging that his daughter was in illegal custody of appellant no. 1and seeking direction to appellants to produce his daughter in theHigh Court – Case of writ petitioner was that the detenu andappellant no. 1 had not attained the marriageable age on the daywhen their marriage was solemnised and, therefore, his daughterwas not legally wedded wife of appellant no. 1 – High Courtaccepted the prayer of petitioner and entrusted the custody of hisdaughter to him – On appeal, held: Both appellant no. 1 and writpetitioner’s daughter are major and have right to live together evenoutside wedlock – Legislature authorises ‘live-in relationship’ – Thefreedom of choice is on the girl as to with whom she wants to live –The girl having expressed her desire to be with appellant no. 1, theimpugned order of High Court is set aside – Protection of Womenfrom Domestic Violence Act, 2005 – Matrimonial laws – HinduMarriage Act, 1955 – ss.5, 12 – Constitution of India – Right ofchoice of an adult person.

Allowing the appeal, the Court

HELD: Both appellant No. 1 and writ petitioner’s daughterare major. Even if they were not competent to enter into wedlock(which position itself is disputed), they have right to live togethereven outside wedlock. ‘Live-in relationship’ is now recognizedby the Legislature itself which has found its place under theprovisions of the Protection of Women from Domestic ViolenceAct, 2005. The girl has expressed her desire to be with appellantNo. 1. The directions of the High Court entrusting the custody ofgirl to respondent No. 4 is set aside. [Paras 10, 14 and 15][1015-C; 1018-B-C]

Shafin Jahan v. Asokan K.M. & Ors. 2018 SCC OnlineSC 343 – relied on.

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.597 of 2018.

From the Judgment and Order dated 28.04.2017 of the High Courtof Kerala at Ernakulam, in W. P. (Crl.) No. 149 of 2017.

Siddhartha Dave, Ms. Jemti Ben, A. Raghunath, M. G. Yogamaya,BAdvs. for the Appellant.

Vipin Nair, P. B. Suresh, Abhay Pratap Singh, Karthik Jayashankar,Advs. for the Respondents.

The Judgment of the Court was delivered byCA. K. SIKRI, J. 1. Leave granted.

2. The brief facts leading to the present appeal are that appellantNo. 1 has married Ms.Thushara. According to the appellant, this marriagewas solemnised on 12.04.2017 at the Chakkulathukavu Bagavathi Templesituated in the Trivandrum District, Kerala. Insofar as Thushara isDconcerned, as on the date of marriage, she was admittedly 19 years ofage and was, therefore, competent to enter into wedlock. It appearsthat after that marriage, she started living with appellant No. 1 as hiswife.

3. Respondent No. 4 is the father of Thushara. He filed HabeasECorpus petition being W.P.(Crl.) No. 149/2017(S) in the High Court ofKerala alleging therein that ever since 10.04.2017, his daughter Thusharawas missing. He also stated in the said petition that Thushara was in theillegal custody of appellant No. 1. In fact, respondent No. 4 had lodgedFIR regarding missing of his daughter on 10.04.2017. Stating this fact inthe writ petition, he averred that though the said FIR was registered, butFno effective investigation had been conducted in the matter. On thatbasis, prayer made in the petition was to issue writ of Habeas Corpuscommanding the appellants to produce his daughter in the High Court.This writ petition was admitted on 25.04.2017 and notice was ordered tothe appellants herein by special messenger. On that day, the High CourtGalso directed respondent Nos. 1 to 3 to trace out and produce therespondent No. 4’s daughter in the Court. On 28.04.2017, when thewrit 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. TheHigh Court interacted with the parties, including Thushara.H

4. As pointed out above, insofar as Thushara is concerned, shewas 19 years of age and, therefore, competent to marry, as themarriageable age for females is 18 years. However, dispute arose aboutthe age of appellant No. 1 herein. It was the contention of respondentNo. 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 Courtasked appellant No. 1 to inform his date of birth. He stated his date ofbirth to be 30.05.1997, and in support thereof, produced driving licenceissued by the licensing authorities. Treating it to be the date of birth ofappellant No. 1, the High Court found that he would be attaining the ageof 21 years only on 30.05.2018. Therefore, on 12.04.2017, when themarriage was solemnised between appellant No. 1 and Thushara,appellant No. 1 was not of marriageable age. On that basis, the HighCourt concluded that the daughter of respondent No. 4 is not the lawfullywedded wife of appellant No. 1. The High Court also remarked thatapart from the photographs of marriage which were produced in theHigh Court, there was no evidence to show that a valid marriage wassolemnised between the parties and that a certificate issued by the localauthority under the Kerala Registration of Marriages (Common) Rules,2008, was also not produced. On these facts, the High Court allowedthe writ petition by entrusting the custody of Thushara to her father i.e.,respondent No. 4 herein, as is clear from the following directionscontained in the impugned order:

“We accordingly dispose of the writ petition by entrusting custodyof Ms. Thushara, the daughter of the petitioner with the petitioner.The Sub Inspector of Police, Vattiyoorkavu shall, to ensure theirsafety accompany them to their residence at Thirvananthapuram.”

5. Assailing the aforesaid order, the present appeal is preferred.

6. Notice was issued to the respondents. Respondent No. 1/State of Kerala as well as official respondent Nos. 2 and 3, viz., theSuperintendent of Police and Sub-inspector of Police, have put in theirappearance through the State counsel. Nobody has appeared on behalfof respondent No. 4 in spite of service of notice. In the aforesaidcircumstances, we have heard learned counsel for the appellants aswell as learned counsel for the State.

7. A neat submission which is made by the learned counsel for theappellants is that the High Court has adopted an approach which is not AB

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Apermissible in law by going into the validity of marriage. It is submittedthat when Thushara is admittedly a major i.e., more than 18 years ofage, she has right to live wherever she wants to or move as per herchoice. As she is not a minor daughter of respondent No. 4, “custody”of Thushara could not be entrusted to him.

B8. Learned counsel for the appellants is right in his submission.Even the counsel for the State did not dispute the aforesaid position inlaw and, in fact, supported this submission of the learned counsel for theappellants. Insofar as marriage of appellant No. 1 (who was less than21 years of age on the date of marriage and was not of marriageableage) with Thushara is concerned, it cannot be said that merely becauseCappellant No. 1 was less than 21 years of age, marriage between theparties is null and void. Appellant No. 1 as well as Thushara 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 insuch a case, at the most, the marriage would be a voidable marriage.D9. Section 5 and Section 12 of the Hindu Marriage Act make thisposition clear which are reproduced below:

“5. Conditions for a Hindu marriage. - A Marriage may besolemnised between any two Hindus, if the following conditionsare fulfilled, namely-Exxxx xxxx xxxx xxxx

(iii) the bridegroom has completed the age of twenty one yearsand the bride, the age of eighteen years at the time of themarriage;”

F12. Voidable marriages.-(1) Any marriage solemnised, whetherbefore or after the commencement of this Act, shall be voidableand may be annulled by a decree of nullity on any of the followinggrounds, namely:- 1(a) that the marriage has not been consummated owing to theGimpotence of the respondent; or(b) that the marriage is in contravention of the condition specifiedin clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the consent of theguardian in marriage of the petitioner was required under sectionH

5 as it stood immediately before the commencement of the ChildMarriage Restraint (Amendment) Act, the 1978 (2 of 1978), theconsent of such guardian was obtained by force or by fraud as tothe nature of the ceremony or as to any material fact orcircumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnantby some person other than the petitioner.”

10. We need not go into this aspect in detail. For our purposes, itis sufficient to note that both appellant No. 1 and Thushara are major.Even if they were not competent to enter into wedlock (which positionitself 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 nowrecognized by the Legislature itself which has found its place under theprovisions of the Protection of Women from Domestic Violence Act,2005.

11. In a recent judgment rendered by this Court in the case of‘Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343],after stating the law pertaining to writ of Habeas Corpus, this writ hasbeen considered as “a great constitutional privilege” or “the first securityof civil liberty”. The Court made the following pertinent observations: -

“28. Thus, the pivotal purpose of the said writ is to see that no oneis deprived of his/her liberty without sanction of law. It is theprimary duty of the State to see that the said right is not sullied inany manner whatsoever and its sanctity is not affected by anykind of subgterfuge. The role of the Court is to see that thedetenue is produced before it, find out about his/her indpendentchoice and see to it that the person is released form illegal restraint.The issue will be a different one when the detention is not illegal.What is seminal is to remember that the song of liberty is sungwith sincerity and the choice of an individual is appositely respectedand conferred its esteemed status as the Constitution guarantees.It is so as the expression of choice is a fundamental right underArticles 19 and 21 of the Constitution, if the said choice does nottransgress any valid legal framework. Once that aspect is clear,the enquiry and determination have to come to an end.

29. In the instant case, the High Court, as is noticeable from theimpugned verdict, has been erroneously guided by some kind of A

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Asocial phenomenon that was frescoed before it. The writ courthas taken exception to the marriage of the respondent No. 9 hereinwith the appellant. It felt perturbed. As we see, there was nothingto be taken exception to. Initially, Hadiya had declined to go withher father and expressed her desire to stay with the respondentNo. 7 before the High Court and in the first writ it had so directed.BThe adamantine attitude of the father, possibly impelled byobsessive parental love, compelled him to knock at the doors ofthe High Court in another Habeas Corpus petition whereupon theHigh Court directed the production of Hadiya who appeared onthe given date along with the appellant herein whom the HighCCourt calls a stranger. But Hadiya would insist that she had enteredinto marriage with him. True it is, she had gone with the respondentNo. 7 before the High Court but that does not mean and cannever mean that she, as a major, could not enter into a maritalrelationship. But, the High Court unwarrantably took exceptionto the same forgetting that parental love or concern cannot beDallowed to fluster the right of choice of an adult in choosing a manto whom she gets married. And, that is where the error has creptin. The High Court should have, after an interaction as regardsher choice, directed that she was free to go where she wishedto.”

E12. The Court also emphasised due importance to the right ofchoice of an adult person which the Constitution accords to an adultperson as under:

“54. It is obligatory to state here that expression of choice inaccord with law is acceptance of individual identity. CurtailmentFof that expression and the ultimate action emanating therefromon the conceptual structuralism of obeisance to the societal willdestroy the individualistic entity of a person. The social valuesand morals have their space but they are not above theconstitutionally guaranteed freedom. The said freedom is both aGconstitutional and a human right. Deprivation of that freedomwhich is ingrained in choice on the plea of faith is impermissible.Faith of a person is intrinsic to his/her meaningful existence. Tohave the freedom of faith is essential to his/her automony; and itstrengthens the core norms of the Constitution. Choosing a faithis the substratum of individuality and sans it, the right of choice G

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becomes a shadow. It has to be remembered that the realizationof a right is more important than the conferment of the right.Such actualization indeed ostracises any kind of societal notorietyand keeps at bay the patriarchal supremacy. It is so because theindividualistic faith and expression of choice are fundamental forthe fructification of the right. Thus, we would like to call itindispensable preliminary condition.

55. Non-acceptance of her choice would simply mean creatingdiscomfort to the constitutional right by a Constitutional Court whichis meant to be the protector of fundamental rights. Such a situationcannot remotely be conceived. The duty of the Court is to upholdthe right and not to abridge the sphere of the right unless there isa valid authority of law. Sans lawful sanction, the centripodalvalue of liberty should allow an individual to write his/her script.The individual signature is the insignia of the concept.

13. We also reproduce the following discussion from the concurringjudgment rendered by Dr. Justice D.Y. Chandrachud in the said case:

“81. In a more recent decision of a three Judge Bench in SoniGerry v. Gerry Douglas’, this Court dealt with a case where thedaughter of the appellant and respondent, who was a major hadexpressed a desire to reside in Kuwait, where she was pursuingher education, with her father. This Court observed thus:

“9…..She has, without any hesitation, clearly stated that sheintends to go back to Kuwait to pursue her career. In such asituation, we are of the considered opinion that as a major, sheis entitled to exercise her choice and freedom and the Courtcannot get into the aspect whether she has been forced by thefather or not. There may be ample reasons on her behalf to goback to her father in Kuwait, but we are not concerned withher reasons. What she has stated before the Court, that alonematters and that is the heart of the reasoning for this Court,which keeps all controversies at bay.

10. It needs no special emphasis to state that attaining the ageof majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, aslong as the choice remains, assume the role of parens patriae.The daughter is entitled to enjoy her freedom as the law permits AB

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Aand the court should not assume the role of a super guardianbeing moved by any kind of sentiment of the mother or theegotism of the father. We say so without any reservation.”

14. It may be significant to note that insofar as Thushara isconcerned, she has expressed her desire to be with appellant No. 1.

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15. Accordingly, we allow this appeal and set aside the impugnedjudgment of the High Court. However, since Thushara has not appearedas she was not made party in these proceedings, while setting aside thedirections of the High Court entrusting the custody of Thushara to respondent No. 4, we make it clear that the freedom of choice would beCof Thushara as to with whom she wants to live.

Devika Gujral

Appeal allowed.

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