Law Does Not Recognise Live-In Relationship As Marriage, Couples Living Together By Virtue Of Agreement Can't Seek Divorce: Kerala High Court

The Kerala High Court recently held that the law does not recognise a live in relationship as marriage and hence such a relationship cannot be recognised for the purpose of divorce either.

The law only allows parties to divorce if they are married under a recognised form of marriage as per personal law or secular law, the Court observed. So far, marriages entered into between parties through a contract does not have any recognition under law for the purpose of divorce, the Court noted.

A division bench comprising of Justice Muhamed Mustaque and Justice Sophy Thomas observed:

“Marriage as a social institution, as affirmed and recognised in legislation, reflects the social and moral ideals followed in the larger society. The Law is yet to recognise the live-in relationship as marriage. The Law accords recognition only if the marriage is solemnised in accordance with the personal law or in accordance with secular law like the Special Marriage Act.”

The Court was considering an appeal jointly filed by two persons, one Hindu and one Christian, who had been living together since 2006 after entering into a registered agreement. They also had a child together. The Appellants had filed a petition for mutual divorce under the Special Marriage Act which was dismissed by the Family Court holding that the marriage was not solemnised under the Act. Consequently, the Appellants approached the High Court against the order of the Family Court.

The Court held that the law does not recognise live in relationships as marriage and hence divorce could not be sought as a means of separation:

“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 law recognises divorce as a mean of separating a legal marriage. There may be a situation where the relationship qualifies for creation of reciprocal obligation or duties elsewhere. But that does not mean that such a relationship can be recognised for the purpose of divorce,” The Court observed.

Divorce can be allowed only when the marriage between the parties is recognised under a personal or secular law, the Court went on to observe:

“Law relating to divorce is peculiar in our country and customised 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 statute only recognise or allows the parties to divorce if they are married in accordance with the recognised form of marriage applicable as per the personal law or secular law.”

The Court also held that the Family Court had no jurisdiction to entertain such a claim as it can only deal with marriages recognised by law. Instead of dismissing the petition holding that the marriage was not solemnized under the Special Marriage Act, the Family Court ought to have held that the petition was not maintainable, the Court observed.

Accordingly, the Court directed the Family Court to return the petition, holding it to be not maintainable. ‘The parties are given liberty to work out their remedy elsewhere’, the Court stated in its order.

Counsel For Appellants: Advs. Dhanya P Ashokan, M R Venugopal, S Muhammad Alikhan

Case Title: X v. NIL

Citation: 2023 LiveLaw (Ker) 266

Click here to read/download judgment