Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a habeas corpus petition filed by the partner of a lesbian held that persons of the same gender are entitled to be in a live-in relationship.

The present petition seeking a writ of habeas corpus was filed by the petitioner alleging that her lesbian partner, Ms Aruna, had been illegally confined by her parents against her free will. The detenue had informed the petitioner that her parents had admitted her in a mental hospital. When the petitioner went to meet her in the said hospital, she was ready and willing to come along with her but the hospital authorities insisted for production of a court order to release the detenue.

The question before the court was whether the detenue could be permitted to go along with the petitioner to lead a live-in relationship because both of them belonged to the same gender and could not solemnize a valid marriage between them.

At the outset, the Bench relied on the judgment of Apex Court in Soni Gerry v. Gerry Douglas, (2018) 2 SCC 197 and observed that the court cannot assume the role of parens patriae and curtail the liberty of a person who has attained the age of majority.

Shafin Jahan v. Asokan, 2018 SCC OnLine SC 343 was relied on to note that in habeas corpus petitions the role of Court is to find out the independent choice of detenue and in exercising its jurisdiction, caution must be exercised to not transgress into the area of determining the suitability of partners to a marital life.

The Bench observed that the Apex Court in the case of Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492 had clearly held that even if parties are not competent to enter into wedlock, they have the right to live together even outside the wedlock.

Lastly, the Bench noted down observations in the case of Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350stating that discrimination on the basis of one’s sexual orientation is violative of the fundamental right to freedom of expression and constitutional morality cannot be martyred at the altar of social morality.

On the strength of principles enumerated in the aforesaid pronouncements of Supreme Court, the Bench held that live-in relationship between petitioner and the detenue would not offend any provision of the law and directed the detenue to be set at liberty to go along with the petitioner, as desired by her. [Sreeja S. v. Commissioner of Police, 2018 SCC OnLine Ker 3578, decided on 24-09-2018]

Case BriefsSupreme Court

Supreme Court: In a unique case where a 19-year-old girl Thushara, who had married a 19-year-old boy Nandakumar on 12.04.2017, was sent to the custody of her father by the Kerala High Court on the ground that Thushara was not lawfully wedded to Nadakumar as Nandakumar was not of a marriageable age, the bench of Dr. AK Sikri and Ashok Bhushan, JJ removed Thushara from the custody of her father & held that the freedom of choice would be of Thushara as to with whom she wants to live.

The present case holds strong similarities to the Hadiya case, where a father had sought the custody of his major daughter as she had married a man of her choice. In the present case as well, Thushara’s father had alleged that she was in illegal custody of Nandakumar and hence, her custody should be entrusted to her. The High Court noticed the fact that Nandakumar will be attaining the marriageable age of 21 years on 30.05.2018 & hence, Thushara was not lawfully wedded wife. 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 solemnised between the parties. Hence, the custody of Thushara, who was already a major when she married Nandakumar, was entrusted to her father.

When Nandakumar approached the Supreme Court against the order of the High Court, the Court noticed that merely because Nandakumar was less than 21 years of age, it cannot be said that marriage between the parties is null and void. The Court said that both the parties are Hindus and 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.

Noticing that both the parties were major at the time of marriage, the Court said:

“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.”

The Court also took note of the 3-judge bench verdict in Shafin Jahan v. Asokan K.M. & Ors.’ [2018 SCC Online SC 343, wherein it was held:

“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 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.”

[Nandakumar v. State of Kerala, 2018 SCC OnLine SC 492, decided on 20.04.2018]

Case BriefsHigh Courts

Gujarat High Court: The present case being decided for a petition filed under Article 226 of the Constitution of India, for issuance of writ of ‘Habeas Corpus’, addressed by a bench comprising of Abhilasha Kumari and B.N. Karia, JJ.

The petition was filed by the ‘mother of the corpus’ with a prayer to issue directions to the respondents to produce her daughter before the Court, with the allegations that her daughter was illegally abducted and confined by the respondent with the aid of his brother and father, and also the petitioner was threatened to pay a ransom of Rs 5,00,000, failing which the respondent warned to sell her daughter.

Upon an advance copy of the petition being served, the police traced the corpus and the respondent and presented them before the Court, and the presiding Judge spoke to the ‘Corpus’ and the respondent in his chambers, where both of them did agree that the Corpus was not illegally abducted, and that she had voluntarily left her mother’s house as she was in love with the respondent and that their parents, of both the sides, were not ready to accept their marriage. Hence, since then, they have been in a live-in relationship. Also, both (the Corpus and the respondent) denied making any telephone calls to the petitioner for the alleged demand of ransom money.

After proper investigation, the Court observed that such averments of telephone call were introduced in the court to give more serious color to the matter. The Court  held that since both (the corpus and the respondent) are adults and want to live together, it had no other option but to permit the corpus and the respondent to leave and live together. Accordingly, the Court disposed of the petition. [Ishmatara Sharafathussain Shaikh v. State of Gujarat, 2017 SCC OnLine Guj 1409, decided on 04.12.2017]