The High Court said that law grants recognition only if the marriage is solemnized in accordance with personal law or in accordance with a secular law like the Special Marriage Act.
The Kerala High Court recently observed that law does not recognise live-in relationships as as marriage and when two parties decide to live together by virtue of a mere agreement, and not in accordance with any personal law or the Special Marriage Act, they cannot claim it to be a marriage or seek divorce.
A division bench of Justices A Muhamed Mustaque and Sophy Thomas observed that live-in-relationships are yet to recognized legally and the law grants recognition to a relationship only if the marriage is solemnized in accordance with personal law or in accordance with secular law like the Special Marriage Act.
“Marriage as a social institution, as affirmed and recognized in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognize the live-in relationship as a marriage. The Law accords recognition only if the marriage is solemnized in accordance with the personal law or in accordance with secular law like the Special Marriage Act. If the parties decide to live together by virtue of an agreement, that by itself will not qualify them to claim it as a marriage and claim divorce thereon,” the Court explained.
The Court said that divorce is only a means of separating a legal marriage and while live-in relationships may be recognised for other purposes, it is not recognised for divorce.
“The law recognizes divorce as a means of separating a legal marriage. There may be a situation where the relationship qualifies for the creation of reciprocal obligations or duties elsewhere. But that does not mean that such a relationship can be recognized for the purpose of divorce,” the the Court said in its judgment.
Parties can be allowed to divorce only if they are married in accordance with the said recognized form of marriage, the bench underscored.
“A divorce is peculiar in our country and customized through legislation. The extra-judicial divorce followed in some communities also got recognition through statutory laws. All other forms of divorce are of statutory nature,” the judgment said.
The High Court was considering an appeal filed by a couple who were in a live-in-relationship challenging an order of the Family Court refusing to grant them divorce under the Special Marriage Act.
The appellant-couple one a Hindu and the other a Christian, had entered into a registered agreement in February, 2006 to live together.
They lived as husband and wife for a long time and also had a child together.
However, now they wished to separate and end the relationship and approached the Family Court with a joint petition for mutual divorce under the Special Marriage Act.
The Family Court refused to grant them divorce taking note of the fact that they were not married under the Special Marriage Act.
This prompted the appellants to approach the High Court.
The counsel for the appellants said that when both parties accepted their relationship as a marriage by declaration, it is not for the Court to decide whether they are legally married or not.
The High Court observed that when two parties decide to live together by virtue of a mere agreement and not in accordance with any personal law or Special Marriage Act, they cannot claim it to be a marriage or seek divorce.
Noting that the Family Court does not have jurisdiction to entertain such a claim of divorce, the High Court directed it to return the petition holding it as not maintainable.
“Any marriage entered into between the parties through a contract has, so far, not got any recognition under the law for the purpose of granting a divorce. In such circumstances, the Family Court also does not have jurisdiction to entertain such a claim for divorce..In such circumstances, we are of the view that the Family Court ought to have returned the petition holding that it is not maintainable,” the judgment stated.
