NANDAKUMAR & ANR.versusTHE STATE OF KERALA & ORS.

                        [2018] 3 S.C.R. 1011                            1011


                    NANDAKUMAR & ANR.                                   A
                                 v.
                THE STATE OF KERALA & ORS.
                 (Criminal Appeal No. 597 of 2018)
                          APRIL 20, 2018                                B
         [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
       Habeas Corpus – Writ petition filed by respondent No. 4
alleging that his daughter was in illegal custody of appellant no. 1
and seeking direction to appellants to produce his daughter in the
                                                                        C
High Court – Case of writ petitioner was that the detenu and
appellant no. 1 had not attained the marriageable age on the day
when their marriage was solemnised and, therefore, his daughter
was not legally wedded wife of appellant no. 1 – High Court
accepted the prayer of petitioner and entrusted the custody of his
daughter to him – On appeal, held: Both appellant no. 1 and writ        D
petitioner’s daughter are major and have right to live together even
outside wedlock – Legislature authorises ‘live-in relationship’ – The
freedom 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, the
impugned order of High Court is set aside – Protection of Women
                                                                        E
from Domestic Violence Act, 2005 – Matrimonial laws – Hindu
Marriage Act, 1955 – ss.5, 12 – Constitution of India – Right of
choice of an adult person.
      Allowing the appeal, the Court
       HELD: Both appellant No. 1 and writ petitioner’s daughter        F
are major. Even if they were not competent to enter into wedlock
(which position itself is disputed), they have right to live together
even outside wedlock. ‘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 girl has expressed her desire to be with appellant       G
No. 1. The directions of the High Court entrusting the custody of
girl 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 Online
      SC 343 – relied on.                                               H
                              1011
1012            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


 A           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       597 of 2018.
             From the Judgment and Order dated 28.04.2017 of the High Court
       of Kerala at Ernakulam, in W. P. (Crl.) No. 149 of 2017.
             Siddhartha Dave, Ms. Jemti Ben, A. Raghunath, M. G. Yogamaya,
 B     Advs. for the Appellant.
             Vipin Nair, P. B. Suresh, Abhay Pratap Singh, Karthik Jayashankar,
       Advs. for the Respondents.
             The Judgment of the Court was delivered by
 C           A. K. SIKRI, J. 1. Leave granted.
              2. The brief facts leading to the present appeal are that appellant
       No. 1 has married Ms.Thushara. According to the appellant, this marriage
       was solemnised on 12.04.2017 at the Chakkulathukavu Bagavathi Temple
       situated in the Trivandrum District, Kerala. Insofar as Thushara is
 D     concerned, as on the date of marriage, she was admittedly 19 years of
       age and was, therefore, competent to enter into wedlock. It appears
       that after that marriage, she started living with appellant No. 1 as his
       wife.
              3. Respondent No. 4 is the father of Thushara. He filed Habeas
 E     Corpus petition being W.P.(Crl.) No. 149/2017(S) in the High Court of
       Kerala alleging therein that ever since 10.04.2017, his daughter Thushara
       was missing. He also stated in the said petition that Thushara was in the
       illegal custody of appellant No. 1. In fact, respondent No. 4 had lodged
       FIR regarding missing of his daughter on 10.04.2017. Stating this fact in
       the writ petition, he averred that though the said FIR was registered, but
 F
       no effective investigation had been conducted in the matter. On that
       basis, prayer made in the petition was to issue writ of Habeas Corpus
       commanding the appellants to produce his daughter in the High Court.
       This writ petition was admitted on 25.04.2017 and notice was ordered to
       the appellants herein by special messenger. On that day, the High Court
 G     also directed respondent Nos. 1 to 3 to trace out and produce the
       respondent No. 4’s daughter in the Court. On 28.04.2017, when the
       writ 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. The
       High Court interacted with the parties, including Thushara.
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           NANDAKUMAR v. THE STATE OF KERALA                                  1013
                    [A. K. SIKRI, J.]

       4. As pointed out above, insofar as Thushara is concerned, she         A
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 appellant No. 1 herein. It was the contention of respondent
No. 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 Court
                                                                              B
asked appellant No. 1 to inform his date of birth. He stated his date of
birth to be 30.05.1997, and in support thereof, produced driving licence
issued by the licensing authorities. Treating it to be the date of birth of
appellant No. 1, the High Court found that he would be attaining the age
of 21 years only on 30.05.2018. Therefore, on 12.04.2017, when the
marriage was solemnised between appellant No. 1 and Thushara,                 C
appellant No. 1 was not of marriageable age. On that basis, the High
Court concluded that the daughter of respondent No. 4 is not the lawfully
wedded wife of appellant No. 1. The High Court also remarked that
apart from the photographs of marriage which were produced in the
High Court, there was no evidence to show that a valid marriage was
                                                                              D
solemnised between the parties and that a certificate issued by the local
authority under the Kerala Registration of Marriages (Common) Rules,
2008, was also not produced. On these facts, the High Court allowed
the writ petition by entrusting the custody of Thushara to her father i.e.,
respondent No. 4 herein, as is clear from the following directions
contained in the impugned order:                                              E
      “We accordingly dispose of the writ petition by entrusting custody
      of Ms. Thushara, the daughter of the petitioner with the petitioner.
      The Sub Inspector of Police, Vattiyoorkavu shall, to ensure their
      safety accompany them to their residence at Thirvananthapuram.”
      5. Assailing the aforesaid order, the present appeal is preferred.      F

      6. Notice was issued to the respondents. Respondent No. 1/
State of Kerala as well as official respondent Nos. 2 and 3, viz., the
Superintendent of Police and Sub-inspector of Police, have put in their
appearance through the State counsel. Nobody has appeared on behalf
of respondent No. 4 in spite of service of notice. In the aforesaid           G
circumstances, we have heard learned counsel for the appellants as
well as learned counsel for the State.
      7. A neat submission which is made by the learned counsel for the
appellants is that the High Court has adopted an approach which is not
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1014            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


 A     permissible in law by going into the validity of marriage. It is submitted
       that when Thushara is admittedly a major i.e., more than 18 years of
       age, she has right to live wherever she wants to or move as per her
       choice. As she is not a minor daughter of respondent No. 4, “custody”
       of Thushara could not be entrusted to him.
 B            8. Learned counsel for the appellants is right in his submission.
       Even the counsel for the State did not dispute the aforesaid position in
       law and, in fact, supported this submission of the learned counsel for the
       appellants. Insofar as marriage of appellant No. 1 (who was less than
       21 years of age on the date of marriage and was not of marriageable
       age) with Thushara is concerned, it cannot be said that merely because
 C     appellant No. 1 was less than 21 years of age, marriage between the
       parties 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 in
       such a case, at the most, the marriage would be a voidable marriage.
 D            9. Section 5 and Section 12 of the Hindu Marriage Act make this
       position clear which are reproduced below:
             “5. Conditions for a Hindu marriage. - A Marriage may be
             solemnised between any two Hindus, if the following conditions
             are fulfilled, namely-
 E
             xxxx xxxx xxxx xxxx
             (iii) the bridegroom has completed the age of twenty one years
             and the bride, the age of eighteen years at the time of the
             marriage;”
 F           12. Voidable marriages.-(1) Any marriage solemnised, whether
             before or after the commencement of this Act, shall be voidable
             and may be annulled by a decree of nullity on any of the following
             grounds, namely:-
             1(a) that the marriage has not been consummated owing to the
 G           impotence of the respondent; or
             (b) that the marriage is in contravention of the condition specified
             in clause (ii) of section 5; or
             (c) that the consent of the petitioner, or where the consent of the
             guardian in marriage of the petitioner was required under section
 H
           NANDAKUMAR v. THE STATE OF KERALA                                     1015
                    [A. K. SIKRI, J.]

      5 as it stood immediately before the commencement of the Child             A
      Marriage Restraint (Amendment) Act, the 1978 (2 of 1978), the
      consent of such guardian was obtained by force or by fraud as to
      the nature of the ceremony or as to any material fact or
      circumstance concerning the respondent; or
      (d) that the respondent was at the time of the marriage pregnant           B
      by some person other than the petitioner.”
        10. We need not go into this aspect in detail. For our purposes, it
is sufficient to note that both appellant No. 1 and Thushara are major.
Even if they were not competent to enter into wedlock (which position
itself is disputed), they have right to live together even outside wedlock.      C
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.
       11. In a recent judgment rendered by this Court in the case of            D
‘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 Court made the following pertinent observations: -
      “28. Thus, the pivotal purpose of the said writ is to see that no one      E
      is deprived of his/her liberty without sanction of law. It is the
      primary duty of the State to see that the said right is not sullied in
      any manner whatsoever and its sanctity is not affected by any
      kind of subgterfuge. The role of the Court is to see that the
      detenue is produced before it, find out about his/her indpendent
      choice and see to it that the person is released form illegal restraint.   F
      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 sung
      with sincerity and the choice of an individual is appositely respected
      and conferred its esteemed status as the Constitution guarantees.
      It is so as the expression of choice is a fundamental right under          G
      Articles 19 and 21 of the Constitution, if the said choice does not
      transgress 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 the
      impugned verdict, has been erroneously guided by some kind of
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1016            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


 A           social phenomenon that was frescoed before it. The writ court
             has taken exception to the marriage of the respondent No. 9 herein
             with the appellant. It felt perturbed. As we see, there was nothing
             to be taken exception to. Initially, Hadiya had declined to go with
             her father and expressed her desire to stay with the respondent
             No. 7 before the High Court and in the first writ it had so directed.
 B
             The adamantine attitude of the father, possibly impelled by
             obsessive parental love, compelled him to knock at the doors of
             the High Court in another Habeas Corpus petition whereupon the
             High Court directed the production of Hadiya who appeared on
             the given date along with the appellant herein whom the High
 C           Court calls a stranger. But Hadiya would insist that she had entered
             into marriage with him. True it is, she had gone with the respondent
             No. 7 before the High Court but that does not mean and can
             never mean that she, as a major, could not enter into a marital
             relationship. But, the High Court unwarrantably took exception
             to the same forgetting that parental love or concern cannot be
 D
             allowed to fluster the right of choice of an adult in choosing a man
             to whom she gets married. And, that is where the error has crept
             in. The High Court should have, after an interaction as regards
             her choice, directed that she was free to go where she wished
             to.”
 E           12. The Court also emphasised due importance to the right of
       choice of an adult person which the Constitution accords to an adult
       person as under:
             “54. It is obligatory to state here that expression of choice in
             accord with law is acceptance of individual identity. Curtailment
 F           of that expression and the ultimate action emanating therefrom
             on the conceptual structuralism of obeisance to the societal will
             destroy the individualistic entity of a person. The social values
             and morals have their space but they are not above the
             constitutionally guaranteed freedom. The said freedom is both a
 G           constitutional and a human right. Deprivation of that freedom
             which is ingrained in choice on the plea of faith is impermissible.
             Faith of a person is intrinsic to his/her meaningful existence. To
             have the freedom of faith is essential to his/her automony; and it
             strengthens the core norms of the Constitution. Choosing a faith
             is the substratum of individuality and sans it, the right of choice
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          NANDAKUMAR v. THE STATE OF KERALA                                    1017
                   [A. K. SIKRI, J.]

      becomes a shadow. It has to be remembered that the realization           A
      of a right is more important than the conferment of the right.
      Such actualization indeed ostracises any kind of societal notoriety
      and keeps at bay the patriarchal supremacy. It is so because the
      individualistic faith and expression of choice are fundamental for
      the fructification of the right. Thus, we would like to call it
                                                                               B
      indispensable preliminary condition.
      55. 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. 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     C
      a valid authority of law. Sans lawful sanction, the centripodal
      value 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 concurring
judgment rendered by Dr. Justice D.Y. Chandrachud in the said case:            D

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

         “9…..She has, without any hesitation, clearly stated that she
         intends to go back to Kuwait to pursue her career. In such a
         situation, we are of the considered opinion that as a major, she
         is entitled to exercise her choice and freedom and the Court
         cannot get into the aspect whether she has been forced by the         F
         father or not. There may be ample reasons on her behalf to go
         back to her father in Kuwait, but we are not concerned with
         her reasons. What she has stated before the Court, that alone
         matters and that is the heart of the reasoning for this Court,
         which keeps all controversies at bay.                                 G
         10. 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 daughter is entitled to enjoy her freedom as the law permits
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1018              SUPREME COURT REPORTS                      [2018] 3 S.C.R.


 A                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.”
             14. It may be significant to note that insofar as Thushara is
       concerned, she has expressed her desire to be with appellant No. 1.
 B            15. Accordingly, we allow this appeal and set aside the impugned
       judgment of the High Court. However, since Thushara has not appeared
       as she was not made party in these proceedings, while setting aside the
       directions of the High Court entrusting the custody of Thushara to
       respondent No. 4, we make it clear that the freedom of choice would be
 C     of Thushara as to with whom she wants to live.


       Devika Gujral                                              Appeal allowed.



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