Kerala HC shows progressive bent in allowing live-in relationships but protectionist approach infantilises women

In May 2017, the Kerala High Court upheld the habeas corpus petition of KM Ashokan, and pronounced that his daughter, Hadiya (Akhila) was not capable of taking her own decisions around marriage and religious rights. In doing so, the court also nullified her marriage to Shafin Jahan; the court had also invoked its parens patriae jurisdiction. The judgment went against all principles laid down in the Constitution of India and violated Hadiya’s constitutional rights under Article 14 (equality before law), Article 21 (right to life and dignity) and Article 25 (right to freedom of religion).

Representational image. Reuters

Representational image. Reuters

A year later, in a twist of fate, the Kerala High Court held that its power to issue writs of habeas corpus cannot be utilised to separate live-in couples, as long as they have attained the age of majority. The court observed, “We cannot close our eyes to the fact that live-in relationships have 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.”

A Bench of Justices V Chitambaresh and KP Jyothindranath passed the judgment as a response to a petition filed by the father of a 19-year-old woman who prayed for the issuance of a habeas corpus writ. The woman lives with her 18-year-old partner, and her father contended that his daughter was in the “illegal custody” of the respondent. The petition stated that since the respondent had not completed 21 years of age, he was a “child” as defined under Section 2(a) of the Prohibition of Child Marriage Act, 2006, and therefore, there could not be a valid marriage between his daughter and the respondent, and any child born of them can only be illegitimate in the eyes of the law. The father also added that he is not in favour of a live-in relationship but would be willing to let go of his daughter with the respondent after a legal and valid marriage.

The court observed that the couple is in a live-in relationship of their own volition. Moreover, the judges noted that the girl had attained puberty, and had the capacity to marry both under the provisions of Prohibition of Child Marriage Act as well as under Section 251 of the Mahomedan Law. Espousing a progressive bent and citing its judgment in Nandakumar v. State of Kerala as well as the Supreme Court’s decision in the Hadiya case, the court stated: “[S]he being a major has a right to live whatever she wants to as is permissible or to move as per her choice. The girl has every right to live with the youth even outside her wedlock since the live-in relationship has been statutorily recognised by the legislature itself.”

The judgment is progressive and liberal, but it fails to draw similarities between a marital and live-in relationship, and therefore, keeps live-in relationships in the grey area of morality. Live-in relationships have been “statutorily recognised” but such recognition holds no value if the judiciary believes it would not be “palatable to the orthodox section of the society.”

Moreover, by keeping the dichotomy of live-in relationships and heteronormative marriage at the Centre, the judiciary is reluctant to examine the larger issue of rights of women. There is a need to look the right to bodily autonomy and decision making of women as a broader right, and not just in context of marriage versus live-in relationships.

The judiciary is aware of coercion and the gross violations that occur against women in our society when it comes to the right to marry, and how it is symptomatic of something else that is underpinning such violations: The vulnerability of women, especially young women in India. However, the bench did not bring this up. It brought up the issue of rights of women to have live-in relationships but did not feel the need to define her rights.

In my opinion, the judgement feels incomplete. It does not examine the context or trajectory of the issue: It does not examine why or how parents have begun to use habeas corpus petitions to bring their daughters home, and how this is a gross violation of the right to bodily autonomy of women. Linked to this is a context that legitimises forced marriage, and how marriage is seen as a solution in the absence of other rights that women are denied.

The court could have deconstructed the right to bodily autonomy, and put a precedent in place which could have aided the judiciary in treating future cases regarding choice and marriage as rights violation cases, instead of adopting a protectionist approach that infantilises women. However, the bench decided not to comment on the broader issue of rights.

In many ways, this judgment could have righted the first order that the Kerala High Court passed in the Hadiya case. While it cited the Supreme Court decision on Hadiya, and stated that the courts “cannot, as long as the choice remains, assume the role of parens patriae”, it does not explain in constitutional principles the reason behind this. To me, the judgment feels perfunctory, and does very little to change the relationship of women and their right of choice and autonomy within marriages and within families.


Updated Date: Jun 04, 2018 14:21 PM

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