‘REPORTABLE’ IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 597 OF 2018 (Arising out of SLP (Crl.) No. 4488 of 2017)

NANDAKUMAR & ANR.                                Appellants

VERSUS

THE STATE OF KERALA & ORS.                       Respondents

J U D G M E N T

A. K. SIKRI, J.

Leave granted.

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.

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

1

CRIMINAL APPEAL NO. 597 OF 2018

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.   

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 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 asked appellant No. 1 to inform

his  date  of  birth.   He  stated  his  date  of  birth  to  be

2

CRIMINAL APPEAL NO. 597 OF 2018

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, 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 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:

“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.”  

Assailing the aforesaid order, the present appeal is

preferred.   

3

CRIMINAL APPEAL NO. 597 OF 2018

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

circumstances,  we  have  heard  learned  counsel  for  the

appellants as well as learned counsel for the State.  

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 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.   

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 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

4

CRIMINAL APPEAL NO. 597 OF 2018

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.   

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-

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;”

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 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 5 as it stood immediately  before  the  commencement  of  the  Child 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  by  some  person  other  than  the petitioner.”  

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

5

CRIMINAL APPEAL NO. 597 OF 2018

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.   

In a recent judgment rendered by this Court in the

case  of  ‘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  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.  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 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 social phenomenon that  was  frescoed  before  it.   The  writ  court  has

6

CRIMINAL APPEAL NO. 597 OF 2018

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.   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 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 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.”

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 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 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 becomes a shadow.  It

7

CRIMINAL APPEAL NO. 597 OF 2018

has to be remembered that the realization 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 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 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.

We also reproduce the following discussion from the

concurring judgment rendered by Dr. Justice D.Y. Chandrachud

in the said case:  

“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:

“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 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. 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

8

CRIMINAL APPEAL NO. 597 OF 2018

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.”

It may be significant to note that insofar as Thushara

is  concerned,  she  has  expressed  her  desire  to  be  with

appellant No. 1.   

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 of

Thushara as to with whom she wants to live.

…………………………………………………………., J. [ A.K. SIKRI ]

…………………………………………………………., J. [ ASHOK BHUSHAN ]

New Delhi; April 20, 2018.

9