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The Supreme Court has reiterated that adults have the right to be in a live-in relationship, even if they have not attained the legal age for marriage.

The judgement was passed last April by a Bench comprising Justices AK Sikri and Ashok Bhushan in the case of Nandakumar v. the State of Kerala.

This case came before the Supreme Court after the Kerala High Court passed a judgement granting the custody of 19-year-old Thushara to her father, the respondent in appeal before the Supreme Court.

Thushara’s father had moved a Habeas Corpus petition in the Kerala High Court stating that his daughter was in the illegal custody of the appellant. The appellant had contended that he was married to Thushara, after which the two started living together.

On examining the case, the Kerala High Court found that while Thushara was of marriageable age, the appellant had still not attained the marriageable age of 21 years under the Hindu Marriage Act, 1955, although he was a major. Additionally, the appellants had no other evidence in support of their marriage except photographs of the ceremony.

The Kerala High Court had, therefore, declared that Thushara was “not the lawfully wedded wife of appellant No. 1” and had entrusted her custody to her father.

The Bench of Justice AK Sikri and Justice Ashok Bhushan agreed with these contentions made and observed that the marriage is not a void marriage under the Hindu Marriage Act, and, at the most, the marriage would be a voidable marriage. The Court “Even if they were not competent 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 Bench also quoted relevant observations made in Hadiya case including this observation made by Justice Chandrachud in his concurring opinion: “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 make it clear that the freedom of choice would be of Thushara (the Girl) as to with whom she wants to live, the Bench said while allowing the appeal.


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