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Nandakumar vs The State Of Kerala on 20 April, 2018

‘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
Signature Not Verified

Digitally signed by
NIDHI AHUJA 10.04.2017, his daughter Thushara was missing. He also
Date: 2018.05.03
17:01:05 IST
Reason:

stated in the said petition that Thushara was in the illegal

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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

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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.

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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

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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

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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

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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

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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

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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.

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