NANDAKUMAR & ANR. versus THE STATE OF KERALA & ORS.

Citation: [2018] 3 S.C.R. 1011 · Decided: 20-04-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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NANDAKUMAR & ANR.
v.
THE STATE OF KERALA & ORS.
(Criminal Appeal No. 597 of 2018)
APRIL 20, 2018
[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
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
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
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
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
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.
[2018] 3 S.C.R. 1011
1011
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SUPREME COURT REPORTS
[2018] 3 S.C.R.
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,
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
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
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
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
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
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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4. As pointed out above, insofar as Thushara is concerned, she
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
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