Can a couple in a live-in relationship be separated by a High Court using the powers of habeas corpus if the man is not yet 21 years old, the minimum age for men to marry under law? The Kerala High Court on Friday gave an emphatic no to such an argument made by the parents of a 19-year-old woman who had left home to live in with her lover.
Habeas corpus is the power available to a court to order the authorities to present before it any person who is reported to be illegally detained. The court can then determine the veracity of the petition and set the person free according to the law.
In May, the father of Rifana Riyad had moved a habeas corpus petition in the Kerala High Court claiming that 18-year-old Hanize had detained his daughter illegally. However, Riyad and Hanize appeared before the court and said they had been in love since their school days. Following this, Riyad’s father changed his argument and said he was willing to let his daughter go with Hanize if they got married but that he would not allow them to live together before marriage. He followed this up by arguing that it was not immediately possible for the two to get married as Section 2 (a) of the Prohibition of Child Marriage Act mandated that the man must be 21 years old. He said that his daughter should therefore remain in his custody till the time Hanize attained the legal age for marriage.
However, the court rejected this argument, stating that while marriage was not possible under the Act now given the boy’s age, the woman had already reached the legal age of marriage, which is 18 years.
The court said:
“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 live-in relationship even though the same may not be palatable to the orthodox section of the society.”
The court added that live-in relationships have also been recognised by law itself through the Protection of Women from Domestic Violence Act. “We are therefore constrained to dismiss this writ petition declaring that the detenue [woman] is free to live with the fourth respondent or marry him later on his attaining the marriageable age,” the court asserted.
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