Law Does Not Recognize Live In Relationship As Marriage, Couple Living In Such Relationship By Agreement Have No Right To Divorce: Kerala High Court

The Kerala High Court has recently held that on the basis of registered agreement, if two people decide to live together without getting married, then they will not have the right to claim marriage and divorce.

A bench of Justice A Muhamed Mustaque and Justice Sophy Thomas has given this decision after hearing a case.

In this case, the two appellants have challenged the order of a Family Court at Ernakulam.

The appellants started their live in relationship on the basis of a registered agreement with effect from 19 February 2006. The appellants have a 16 year old child. Both the appellants were living together as husband and wife for a long time.

The appellants had filed a joint petition for mutual divorce under Section 28 of the Special Marriage Act in the Family Court, Ernakulam.

The Family Court had dismissed the petition of the appellants finding that their marriage was not in accordance with the Special Marriage Act, following which both of them filed an appeal in the High Court against the decision of the Family Court.

According to the learned counsel for the appellants, when both the parties accepted their relationship as a marriage by declaration, it is not for the Court to decide that they are legally married or not.

The counsel appearing for the appellants submitted that “registration under the Registration Act alone would be sufficient to strengthen their claim that they are legally married”.

The Court, after hearing the appellants, said that “Marriage as a social institution reflects the social and moral ideals to be followed in a larger society. The law has not yet recognized a live-in relationship as a marriage.”

The Court observed that “the law recognizes or permits divorce only to those parties who are married in accordance with a recognized form of marriage as per personal law or secular law”.

We also note that the Family Court had no jurisdiction to entertain such claim for separation. If the Family Court does not have jurisdiction, it can only hold that the petition was not maintainable and cannot reject the claim of separation.

The Court directed the Family Court at Ernakulam to withdraw its order holding that the petition of the appellants is not maintainable and gave liberty to work out remedy elsewhere.

Case: XY V Nill (MAT.APPEAL NO. 784 OF 2022)

Read the Judgment here-