The High Court of Kerala has questioned the maintainability of a divorce petition filed by a live-in couple, observing that an agreement between two parties to live together does not amount to marriage.
The Division Bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that live-in relationships do not enjoy full legal recognition and therefore, divorce cannot be granted to the couple under the Special Marriage Act (SMA), 1954 or any other law in force in India.
It said when a marriage was solemnised either under the personal laws governing the parties or under the SMA, then only the parties had the right to approach the court for divorce.
The lawyer appearing for the appellants pointed out that registration of the agreement under the Registration Act, 1908 was sufficient to ensure that marriage was solemnised and the court should not adjudicate on whether marriage was duly performed or not.
The Counsel further said that it was only through the Registration (Amendment) Act of 2019 that the power of Sub-Registrar was taken.
The High Court, however, rejected the argument on the ground that though live-in-relationships were recognised for some purposes, yet law did not give them the status of marriage.
Divorce, which was a tool for separating legal marriage, could not be used in the present case, noted the High Court.
It returned the plea to the Family Court with the direction that the petition seeking divorce was not maintainable.
The parties belonging to the Hindu and Christian religion entered into a registered agreement on February 19, 2006 to live together as husband and wife. Through their arrangement, a child was born who is now 16-year-old.
A petition for divorce through mutual consent was filed by the couple under the Special Marriage Act before the Family Court in Ernakulam. The court denied the plea on the ground that marriage was not solemnised as per the legislation.
An appeal was filed before the High Court to challenge the order of the Family Court.