Law
The apex court’s judgment is being hailed by many as a progressive step, the case has once against put focus on a problematic judgment by the Kerala High Court.
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The Supreme Court of India has stood by the freedom of choice in a recent judgment, where it held that two adults have the right to live together – even if they’re not of ‘marriageable age’, and even if they’re not married. The SC said this while setting aside a Kerala High Court order that gave ‘custody’ of a major woman to her father.

And while the apex court’s judgment is being hailed by many as a progressive step, the case has once against put focus on a problematic judgment by the Kerala High Court.

The case

Thushara and Nandakumar got married to each other in a temple in Thiruvananthapuram on April 12, 2017. At the time, Thushara was 19 years old, and Nandakumar was 20 years old. Two days before, on April 10, Thushara had left home without the knowledge of her family since they were opposed to her relationship with Nandakumar

Her father Binu Kumar had approached the police with a missing complaint on the same day that she left home. With the police unable to trace her, Thushara's father moved a habeas corpus petition at the Kerala HC, and it was admitted on April 25. By this time, the couple got married in a temple and had started living together as husband and wife.

On April 28, the police produced Thushara in court; at this point, Binu Kumar opposed the wedding, arguing that it was invalid since Nandakumar had not attained the “legal age to marry” – 21 years for men and 18 years for women. The High Court accepted this argument and concluded that Thushara was not the lawfully wedded wife of Nandakumar.

More controversially, they then “entrusted custody” of Thushara – an adult woman – to her father.

Does an adult woman need a ‘guardian’?

In July, two months after the HC annulled their marriage, Thushara left home to live with Nandakumar. On July 14, Binu Kumar approached the court again, and this time, too, the HC gave a controversial order.

Admonishing Thushara, the court said, "When this Court had interfered in the matter and asked the detenue to remain with her parents neither the 4th respondent or the detenue should not have violated such directions.”

“Acting against the directions issued by this Court amounts to willful contempt as well. But presently, we do not think that any action should be taken in the matter, especially when the 4th respondent had preferred a Special Leave Petition before the Apex Court," the HC further said.

Disregarding the fact that Thushara was an adult, the court insisted that she should stay with her parents despite her concern that her parents were trying to get her married to someone else.

Citing the time it would take for Nandakumar to be of “marriageable age”, the court said. "Though the detenue submits that she does not intend to remain with her parents, we are of the view that for such a long time she cannot be entrusted to any other person. She would like to remain in a hostel. But her father submits that she is not even attending her college where she was studying for nursing. ...therefore...The detenue shall remain with her parents. The parents of the detenue shall not force her for any other marriage against her wish."

Meanwhile, Nandakumar moved the Supreme Court, arguing that he and Thushara had a fundamental right to live together, even if he wasn’t of “marriageable age.”

What happened at the Supreme Court

Nandakumar’s petition at the SC said, "It is respectfully submitted that the flaw committed by the High Court is to direct the custody of the daughter... to be given to her father, without appreciating that the first petitioner (Nandakumar) having crossed the age of 18 years have the full freedom to live with whomsoever he chooses, even outside wedlock.” (sic)

The petition argued that the HC should have only considered whether Thushara had voluntarily chosen to live with Nandakumar, instead of handing over her custody to her father. The petition also argued that Thushara, being an adult, also has the fundamental right to choose who she wants to live with.

At the Supreme Court, a bench of Justice AK Sikri and Justice Ashok Bhushan set aside the Kerala High Court order, stating that the marriage of Thushara and Nandakumar was not void, although it is ‘voidable’ – that is, their marriage is valid, unless one of them decides to contest the legality of it.

Further, the court observed: "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."

SC slams Kerala HC judgment

The court also questioned the Kerala HC’s judgment denying Thushara her right to choice. "Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights,” the SC said.

“Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script," the judgment said.

Referring to the Hadiya case – where, too, the Kerala HC had controversially decided to annul a marriage – the Supreme Court said, "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 has been considered as ‘a great constitutional privilege’ or ‘the first security of civil liberty’.”

The contentious “marriageable age”

The Hindu Marriage Act of 1965 says that, at the time of marriage, the bridegroom must be at least 21 years of age, and the bride must be at least 18 years of age. Experts say this is problematic – since there is no logical explanation for the age being different for men and women.

Advocate Maya, a Kochi-based lawyer and human rights activist says that such a law is not founded on the basic principle of equality.

"It’s a bad law that marriageable age of men and women are different. There is no logical reason or explanation that is presented to us. The only reason we can decipher from this is the patriarchal and male-dominated mindset that believes that the man must be older than the woman,” she said.

“Discussions have been happening time and again for the need to amend the law and bring in equality in marriageable age. We need to have an open discussion on this," she added.

She added that it was ironic that a 20-year-old adult man is not legally allowed to marry, but he is allowed to cast his vote, which is considered as an important power.