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4 Jul 2017

Boy poses a live-in riddle

R. Balaji, TT, New Delhi, July 3: The Supreme Court today agreed to examine whether an adult couple can claim a fundamental right to have a live-in relationship even if the boy is not of marriageable age.
Nandakumar, 20, has challenged a Kerala High Court order that handed the custody of 19-year-old Thushara, whom he claims to have married at a temple, to her father on the ground that the groom was not of marriageable age although the girl was.
Under the Hindu Marriages Act, a girl must be at least 18 and a boy at least 21 to be able to marry.
Today, the apex court bench of Justices A.K. Sikri and Ashok Bhushan issued notices to the Kerala government and Binu Kumar, father of Thushara, seeking their responses to Nandakumar's petition.
Binu Kumar had on April 10 this year lodged a complaint with Thiruvananthapuram police saying his daughter was missing. Nandakumar says he married Thushara on April 12 at the Chakkulathukavu Bagavathi Temple in Thiruvananthapuram district.
When the police failed to track Thushara, the father moved a habeas corpus petition in the high court seeking a directive to the police to produce his daughter.
The police then produced the couple in the high court, where it came to light that the boy had not attained the marriageable age of 21.
On April 28, a division bench of the high court held the marriage invalid on this ground and directed custody of the girl to her parents. Nandakumar then moved the apex court through advocate Siddhartha Dave.
He contends that whether or not he had attained the legal age to marry, he "had the fundamental and statutory right to stay with anybody he pleases even outside wedlock".
"It is respectfully submitted that the flaw committed by the high court is to direct the custody of the daughter... to be given to her father, without appreciating that the first petitioner (Nandakumar) having crossed the age of 18 years have (sic) the full freedom to live with whomsoever he chooses, even outside wedlock," the petition says.
Thushara, having reached 18, "has also the fundamental right... to live with anybody she pleases even though she may not be the legally wedded wife of the person with whom she is living", it adds.
Nandakumar's argument is that the high court should only have examined whether the couple had decided to live together voluntarily. If it found they had, it should not have handed Thushara's custody to her father.
The high court had ruled: "It is evident from the materials before us that the fourth respondent is not of marriageable age. The fourth respondent will attain the age of 21 years only on 30.5.2018. Such being the situation, it cannot be said that the petitioner's daughter is the lawfully wedded wife of the fourth respondent.
"Such being the situation, the fourth respondent cannot stand in the way of the petitioner having the custody of his daughter."

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