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  • Writer's pictureKohli Associates

No Marriage- Still Consenting adults can live together...



Criminal Appeal No. 597 of 2018




We as humans have evolved; we have reached Mars, gone beyond skies, however, the society we live in has set its own parameters to judge us, to bind us, to rule us and to suppress us. ‘What will the society say/ think?’, this thought process has spoiled more lives than the deadliest of diseases. The pressures of society have often resulted in a clash between “what I want” and “what others want from me”. As a millennial adult, every individual needs logic and not just preaching. These are times when everyone wants to take control of his or her own life and wants to take decisions based upon his or her experiences in life. We want to make our own career choices, life choices without being judged. We want to express ourselves in the fields of our own liking. These are the kinds of experiments, mental growth, people reaching new heights in the career in the field is that no one ever imagined 20 years back. However, this is just the talk of MODERN INDIA, on the flipside of the coin, there is still that TRADITIONAL INDIA; that still wants to control and rule the lives of others. This traditional school of thought still believes that they own the lives of the children because they brought them to this world biologically. This mentality still believes that their children cannot have their own dreams or cannot be allowed to make their own life choices or career choices. In this clash, many have lost their lives and their dreams. Many great minds have been laid to rest because they chose a life partner which their parents didn’t approve of. This mentality/ school of thought is pushing the country many years behind. Judiciary has been the only hope in these trying times trying to protect the rights citizens of this great country.

Hon’ble Supreme Court of India and various other High Courts of our country, have time and again, come in defence to safeguard the rights and liberties of the ordinary citizens of our country. One such scenario again came up for the kind consideration of Hon’ble Supreme Court of India, when an ordinary citizen approached the highest court of law in a country challenging the order passed by Hon’ble High Court of Kerala in W.P. (Crl.) No. 149/ 2017 (S), wherein the custody of his wife was handed over to her father that on the date of marriage, the appellant before the Hon’ble Supreme Court i.e., the husband was less than the age of 21 years. This order passed by the Hon’ble High Court of Kerala was challenged before the Apex Court primarily on the premise that admittedly the wife of the Appellant was more than the age of 18 years and as such had a right to live at a piece of the own choice. As such, in the backdrop of the fact that she was admittedly a major (in terms of age), her custody could not have been interested to her father against her wishes or choice. Hon’ble Supreme Court of India not only accepted the version of the Appellant, but also opined that even if two individuals were not competent to enter into wedlock (the position which was disputed in the facts of above referred case), they are right to live together even outside wedlock.

Hon’ble Supreme Court of India in the said case opined:

“We need not go into this basket 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 positioned 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 recognised by the Legislature itself which has found its place under the provisions of the Protection of Women from Domestic Violence Act, 2005.”

Hon’ble Supreme Court of India in the said case also placed its reliance in the case of ‘Shajin Jahan Vs. Asokan K.M. & Others’ [2018 SCC online SC 343], wherein, the court had emphasised on the 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 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 the space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of the freedom which is ingrained in choice on the plea of fate is impermissible. Fate of a person is intrinsic to his/ her meaningful existence. To have the freedom of fate is essential to his/ her autonomy; and it strengthens the Court norms of the Constitution. Crossing of fate is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keep 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 indispensable preliminary condition.

55. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by our 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 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.”

I.P.S. Kohli

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