kerala high court

Kerala High Court: In a matrimonial appeal challenging dismissal of divorce petition by the Family Court due to marriage not being solemnized under the Special Marriage Act, 1954, the Division Bench of A. Muhamed Mustaque* and Sophy Thomas, JJ. held that the Family Court ought not to have entertained the matter in the first place and directed the Family Court to return the Original Petition on the ground of maintainability since the appellants in the instant matter only entered a registered agreement and started living together.

The Court regarded the instant appeal of a ‘peculiar nature’. The appellants in this matter were Hindu and Christian respectively, who entered into a registered agreement on 19-2-2006, started living together and gave birth to a child who is now 16 years old. The appellants lived as husband and wife for a long time and now no longer wish to live together but get rid of the relationship. In furtherance of the same, they initiated a joint petition for mutual divorce under Section 28 of Special Marriage Act before the Family Court.

The Family Court dismissed the said petition while noting that the marriage was not solemnized under the Special Marriage Act, 1954. The same was jointly challenged by the appellants in the instant appeal.

Interestingly, it was argued on behalf of the appellants that the Courts should not be deciding validity of marriage as the parties accepted their relationship as marriage by declaration. They further claim that registration under the Registration Act, 1908 would itself be sufficient to fortify their marriage claims, saying that the power of Sub-Registrar was taken away after 2009 amendment only.

The Court expressed that “Marriage as a social institution affirmed and recognized in legislation reflects the social and moral ideals followed in the larger society” and that law is yet to recognize live-in relationships as marriage. It clarified that law only recognizes a marriage solemnized in accordance with personal or secular marriage laws.

The Court observed that “If the parties decide to live together by virtue of an agreement, that by itself will not qualify them to claim it as a marriage and claim divorce since law recognizes divorces as a mean of separating a legal marriage.” It further explained that a relationship may qualify for creation of reciprocal obligation or duties but cannot be recognized for purpose of divorce because the law in India related to divorce is peculiar and customized through legislation.

The Court also noted that the Family Court had no jurisdiction to entertain such a claim for divorce in the first place because the enactment was made for resolving disputes related to family affairs and marriage recognized by law. The Court explained that any marriage through contract has not gained recognition under law so far for granting divorce. Thus, the Court viewed that the Family Court ought to have returned the petition holding the petition non-maintainable and could not dismiss the claim for separation. The Court directed the Family Court to return the Original Petition seeking divorce on the grounds of maintainability.

[X v. Nil, 2023 SCC OnLine Ker 3967, Decided on 8-6-2023]

Judgment by: Justice A. Muhamed Mustaque

Advocates who appeared in this case :

For Appellants: Advocate Dhanya P. Ashokan, Advocate M.R. Venugopal, Advocate S. Muhammad Alikhan.

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