Bench: Justice V. Chitambaresh and Justice K.P. Jyothindranath
This case revolves around the fact that Rifana, a 19-year-old girl was allegedly illegally detained by Hanize Harris, an 18-year-old boy. Earlier, when Rifana was reportedly taken away from her house by Hanize, the girl’s father had approached Judicial Magistrate (First Class) Court at Alappuzha. The lower court had then issued an interim order granting Rifana’s custody to her father. But the girl again moved out of her parental home and started living with Hanize and the girl’s father then approached the High Court.
Statement of Facts:
The Kerala High Court was approached by the girl’s father by way of a habeas corpus petition under Article 226 of the Constitution of India (WP-Crl. No. 178/2018) alleging that she had been illegally detained by the 18-year-old Hanize Harris of Thrikkunnapuzha in Alappuzha and asked for her daughter’s body to be presented to him under the Writ of Habeas Corpus. He had also submitted that the boy had not completed 21 years of age, and was hence a “child” as defined under Section 2(a) of the Prohibition of Child Marriage Act. However, the duo appeared before the Bench and claimed that they were in a live-in relationship out of their own free will.
Relevant Issues/Law Points Involved:
Can the writ of Habeas Corpus be used to separate partners engaged in a live-in relationship?
- Both the parties in the live-in relationship are unmarried.
- Even if they were married, their marriage would not be legal as the boy was 18 well, i.e. below the legal marriage age in India.
- The Petitioner contended that Hanize has not completed 21 years of age and is hence a ‘child’ as defined under Section 2(a) of the Prohibition of Child Marriage Act, 2006.
- Any offspring born to Hanize and Rifana will be an illegitimate child in the eye of law.
Observation by the Court:
“We cannot close our eyes to the fact that live-in relationship has become rampant in our society and such living partners cannot be separated by the issue of a writ of habeas corpus provided they are major. The Constitutional Court is bound to respect the unfettered right of a major to have a live-in relationship even though the same may not be palatable to the orthodox section of the society. We are therefore constrained to dismiss this writ petition declaring that the detenue is free to live with the fourth respondent or marry him later on his attaining the marriageable age.
It transpires that the detenue is living with the fourth respondent out of her own volition and she being a major has a right to live wherever she wants to as is permissible or to move as per her choice. The detenue has every right to live with the fourth respondent even outside her wedlock since live-in relationship has been statutorily recognised by the Legislature itself.”
“The Constitutional Court is bound to respect the unfettered right of a major to have a live-in relationship even though the same may not be palatable to the orthodox section of the society. We are therefore constrained to dismiss this writ petition declaring that the detenue is free to live with the fourth respondent or marry him later on his attaining the marriageable age.”
The above judgement has the following significant outcomes:
- Recognition of legality and validity of live-in relationships.
- Recognition of prevalence of free will for a major to reside with anyone or anywhere of choice irrespective of the wishes of the prior legal guardians or parents.
This judgment is going to be a building block for the modern society which is slowly derecognising the importance of the institution of marriage for cohabitation of opposite or same gender. It is also going to serve a landmark in future cases of habeas corpus regarding live-in which are bound to increase.