A division bench of Justices A Muhamed Mustaque and Sophy Thomas of Kerala High Court observed that couple living together by virtue of an agreement cannot seek divorce as law does not recognize live-in relationships as marriage.
The bench was hearing an appeal filed by a couple who has challenged the order of the Family Court refusing them to grant divorce under the Special Marriage Act.
The couple had entered into a registered agreement to live together in the year of 2006. Both of them started living as husband-wife for a long period of time and also had a child together.
However, the couple then filed a mutual divorce petition before the Family court 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.
Following to which they approached High Court.
The bench said that the law accords recognition only if the marriage is solemnized in accordance with the personal law or in accordance with secular law like 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 bench said that the law recognizes divorce as means of separating legal marriage.
“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”.
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 bench came into view that the family court does not have jurisdiction to entertain such claim for divorce.
The bench in its order “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”.