This article is written by Darshit Vora of SVKM, Narsee Monjee Institute of Management Studies. In this article, a case analysis of Nandakumar vs the State of Kerala is being done. 

Introduction

The judgment pronounced by the Supreme Court in Nandakumar vs the State of UP is a landmark Judgement. It allows the spouses to reside together consensual not necessarily that they should be in wedlock. Though previously there have been various decisions passed by Courts to legalize the concept of live-in-relationship. This case has its significant importance because in this case, the court held that spouses who have attained the age of majority can live together without the approval of the guardian. In this case, the Court gave reliance on freedom of Choice and Right to liberty both being essential fundamental rights. 

The concept of live-in-relationship 

Live-in-relationship refers to an arrangement made by the parties to live together with the consent of both the parties it also at the will of the parties for how long they want to stay in a relationship with the other party. In India it is a relatively new domain therefore there doesn’t exist any law to legalize such kinds of relationships. Due to the adapting culture, people are now opening up their minds to the concept of living-in-relationship. The reason for choosing to stay together before marriage is to check the compatibility between parties before they are legally wedded to each other. 

In India, there is no legal enactment made by the legislature to determine the right of the parties living in a live-in-relationship. However, a series of judgments by the courts have made some effort to legitimize such a relationship. 

Presumption of marriage:

 In Tulsa & Ors vs Durghatiya & Ors, the Supreme Court approved a 50-year live-in relationship of a couple. It was held that the court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sec. 50 and 114 of the Evidence Act together, the act of marriage can be presumed from the common course of natural events and the conduct of parties. There is also an assumption that the partners living together for a long period are presumed to be married couples. Though the presumption is not absolute, a heavy burden lies on him who seeks to deprive the relationship of its legal origin. Law tilts in favor of legitimacy rather than derecognizing it.

In Madan Mohan Singh v. Rajni Kant, the Supreme Court held that the live-in relationship for a long period, cannot be termed as a “walk-in and walk-out” relationship and it also leads to a presumption of marriage between the parties. By this approach of the Court, it can be inferred that the Court is in favor of granting live-in-relationship a legal status. 

Domestic Violence Act: 

The act provides relief to the woman from the man in case if he has caused any kind of torture to the woman. The Domestic Violence Act is also for couples living in a live-in-relationship. In Velusamy vs. D. Patchaiammal determined certain prerequisites for a live-in-relationship. The court held that the couple themselves decide to stay out of society as being in a legal age to marry or qualified to enter into a legal marriage, including being unmarried. The court also stated that the couple must have voluntarily cohabited. The couples must have been staying together for a significant period. The court held that not all relationships will amount to a relationship like marriage and get the benefit of the Act.

In Chanmuniya vs Virendra Kumar Singh Kushwaha, the Supreme Court held that in those cases where a man was living with a woman for a significant amount of time and even though they may not have undergone legal necessities of a valid marriage, in case physical, mental, economical or mental abuse should be made liable to pay the woman maintenance. The loophole should be used by the man to his advantage by enjoying the de facto marriage without undertaking the duties and obligations. 

Right to inheritance on the property of the partner:

Under a live-in relationship the partner does not enjoy a right of inheritance to the property of the other partner which they do when it is a marriage. The Hindu Succession Act, 1956 does not specify the inheritance of property in the scenario of li-in-relationship but in the case of Vidhyadhari v. Sukhrana Bai, the court held that a couple living together for a reasonably long time can receive property inheritance from either partner.

Status of Children in Live-in-relationship: 

The debates revolve around the legitimacy of children born out of live-in-relationship. Section 112 of the Evidence Act states that a person born during the continuance of the wedlock or within 280 days of the marriage after the dissolution of the marriage the child would be considered legitimate the only rebuttal against this provision for the husband is no accesses to the husband which refers to non-availability of the opportunity to have sexual intercourse. 

In the case of Tulsa v. Durghatiya, the Supreme Court resolved the debate by granting legitimate status to the child born out of live-in-relationship.

Important provision discussed in the case 

• S.5 subsection (iii) of the Hindu Marriage Act, 1955: 

This section mentions the conditions of a valid marriage between two Hindus. The provision which is violated in this case is: 

(iii) The bridegroom has attained the age of 21 Years and the bride has attained the age of 18 Years at the time of marriage. 

In this case, though the bride had attained the age of 18 bridegrooms was below the age of 21 years. 

• S.12 of the Hindu Marriage Act, 1955:

This section states that when the marriage can be held voidable. The Court while analyzing this Judgement clause(iii) of S.5 of the Hindu Marriage,1955 if breached would be held voidable. 

• S. 2(f) of the Domestic Violence Act, 2005: 

Domestic Relationship refers to a relationship between two persons who live or have at any point of time, lived together in a shared household when they are related in consanguinity, marriage, or through a relationship like marriage, adoption or a family member living together in a joint family. 

Though Live-in-relationship is not expressly defined in this section the Court through their various interpretations, has inserted this concept. 

Brief facts of the Case

Binu Kumar had lodged a missing complaint of her daughter on 10.04.2017. A writ petition was filed by the respondent to the High Court stating that the FIR was registered but no effective investigation is being conducted in the matter. The prayer that was made to produce her daughter in the High Court. Ms. Thushara daughter of Binu Kumar had solemnized the marriage, on 12.04.2017 at the Chakkulathukavu Bagavathi Temple situated in the Trivandrum District, Kerala. On the date of marriage, she was 19-years-old. The Nandakumar was below the age of 21 years and therefore not of marriageable age. On 28.04.2018 the writ petition was taken up by the Court. Binu Kumar along with his wife was present and Nanadakumar was also present in the Court he was brought by the Sub-inspector of the police. To ascertain the age of the Nandakumar, he revealed his date of birth, Driving license was issued by the licensing authority through which the High Court found that the appellant would attain the age of 21 years on 30.05.2018. When the marriage was solemnized between Nandakumar and Thushara he was not of marriageable age. 

The judgment of the High Court 

• The High Court concluded that the daughter of the respondent Thushara was not the lawfully wedded wife of the appellant. 
• Apart from photographs, no other evidence was produced in the High Court. The certificate issued by the Kerala registration of marriage rules was also not produced before the High Court. 
• The High Court allowed the writ petition to entrust the custody of Thushara to the respondent. 

After the Kerala High Court passed this decision a special leave petition was filed by Nandakumar against the decision of the High Court. 

Arguments of the Appellants

• Thushara is a major; she has the right to live wherever she wants. She wants her to move as per her choice. Thushara is not a minor therefore the custody cannot be entrusted to the respondent. 
• Marriage cannot be held null and void because the appellant is less than 21 years of age. 
• According to the provision of the Hindu Marriage Act, the marriage would be held voidable. 

Argument by the Respondents 

• The State Council argued that the appellant has not attained the age of 21 which is the legal age of marriage under the Hindu Marriage Act, 1955. Thus marriage won’t be held valid. 

Main Issues before the Supreme Court

1. Do the appellant and Thushara have the right to live outside the wedlock? 
2. Should marriage be held valid even if the condition of Hindu Marriage is not satisfied?
3. Does the girl who has attained the age of majority have the freedom to decide whether she intends to remain with her family or not? 

Observations of the Supreme Court 

1. The parties which solemnized marriage were Hindus and there according to the provision of the Hindu Marriage Act, 1955 the marriage would be held voidable and not void. 
2. Noticing that both parties were major at the time of marriage. Though they cannot enter into the wedlock they have the right to live together in the wedlock.’ Live-in-relationship’ is being recognized by the legislature it has found its place in the domestic Violence Act, 2005.
3. The Court took note of the case Safin Jahan vs Ashokan Km and Ors in that case the court made pertinent observations a writ is to see no one is being deprived of his/her liberty without the sanction of law. It is necessary to remember that individual liberty is being respected with the status granted by the constitution. 
4. In Safin Jahan vs Ashokan Km and Ors, the Court also emphasized the importance of the right of Choice, curtailment of expression will destroy the individualistic entity of the person. 
5. Non-acceptance of her choice would mean discomfort to the constitutional right by the constitutional Court is meant to be the protector of the fundamental rights. 
6. The Court also discussed the decision passed in Somi Gerry vs Gerry Douglas the court, in this case, observed that the girl who has attained the age of majority is entitled to exercise her choice and freedom. 
7. Attaining the age of majority has its special significance. The person is entitled to make his/her own choice. The Court cannot as long as the choice remains to assume the role of parents’ prairie. The daughter is entitled to enjoy her freedom the Court should not assume the role of Super Guardian being moved by mother or by any egotism father. Thushara expressed her to be with the appellant. 

The judgment of the Supreme Court

The set aside the judgment of the High Court because Thushara was not made a party to this proceedings while setting aside the Judgment the Court made it clear that Thushara has the freedom of choice as to whom she wants to reside with. 

Conclusion 

The Judgment passed by Justice Sikri and Justice Ashok Bhushan is a landmark judgment. The Court analyses the existing provisions of the Hindu Marriage Act, 1955. They considered that spouses were not competent to enter into wedlock; they still have the right to stay together. This Judgement comes as a relief for those adult couples whose parents and relatives don’t want them to stay together. It provides them legal sanctity and they can’t be harassed by the police or by their parents. 

Though this should not be considered as the end there is a long journey ahead in many parts of the society it is still not considered valid though it is not illegal in the eyes of law. Various amendments are supposed to be made on the topic of live-in-relationship. Though various courts have given judgments in favor of a live-in-relationship equal number of judgments have disregarded it there is a need for a special act to be passed which should discuss issues like the child born out of a live-in-relations, maintenance, etc. “With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today” Justice AK Ganguly. 

References 

[1]https://www.scconline.com/blog/post/2018/05/07/20-year-old-woman-free-to-live-with-underage-husband-couple-has-the-right-to-live-together-even-outside-wedlock-sc/. 

[2]https://www.vakilno1.com/legal-news/sc-marriage-of-adults-not-attained-marriageable-age.html.

[3]https://www.lawyersclubindia.com/amp/articles/right-of-adult-couple-to-live-together-without-marriage-sc-9101.asp.