KOCHI: The Kerala High Court has held that a couple living together could not claim to be married and seek divorce from a family court, as the law was yet to recognise live-in relationship as a marriage. The division bench issued the order on June 8 while disposing of an appeal filed by a couple against family court order dismissing their divorce petition.
The couple — one a Hindu and the other a Christian — had entered into an agreement on February 19, 2006, and started living together. They have a 16-year-old child. The family court had dismissed their plea noting that the marriage was not solemnised under the Special Marriage Act (SMA), 1954. The HC bench observed that “marriage as a social institution, as affirmed and recognised in legislation, reflects social and moral ideals followed in the larger society.
The law is yet to recognise live-in relationship as marriage. It accords recognition only if marriage is solemnised by personal law or by secular law like SMA.”
The bench said if the parties decide to live together by an agreement, that will not qualify them to claim it as marriage and seek divorce.
“The law recognises divorce as a means of separating a legal marriage,” the bench said, adding the law relating to divorce was peculiar in India and customised through laws.
‘Family court ought to have returned plea’
“The extra-judicial divorce followed in some communities also got recognition through statutory laws. All other forms of divorce are statutory. The statute only recognises or allows the parties to divorce if they are married by the recognised form of marriage applicable as per personal or secular law,” the bench said.
The couple contended that when both parties had accepted their relationship as a marriage by declaration, it was not for the court to decide whether they were legally married or not.
The bench said marriage referred to in the preamble of the Family Court Act only denoted one as recognised by law. “Any marriage...through a contract had, so far, no recognition under law to grant a divorce. Therefore, the family court does not have jurisdiction to entertain such a claim. The court ought to have returned the petition holding it is not maintainable,” said the bench.