Today, when division bench of Justices A Muhamed Mustaque and Sophy Thomas of Kerala High Court came on an interfaith couple's appeal challenging family court order dismissing their plea for divorce on the ground that their marriage was not solemnised under the Special Marriage Act.

The Court held that the law does not recognise live-in relationships as marriage; it considers as a legal union only weddings solemnised according to personal or secular laws.

Therefore, a couple that lives together by virtue of an agreement cannot claim it to be a marriage nor seek a divorce based on that, the high court said.

Case Brief - 

In the said matter, the couple, one a Hindu and the other Christian, had been living together since 2006 under a registered agreement and have a 16-year-old child. As they no longer wanted to continue their relationship, they had moved the family court for divorce.

"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 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 high court said that while there may be a situation where such a relationship qualifies for creation of reciprocal obligation or duties elsewhere, that does not mean it can be recognised for the purpose of divorce.

The bench further said that 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 recognises 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," it said in its order dated June 8.

The high court also held that in the present case, the family court did not have the jurisdiction to entertain such a claim for separation in the first place and instead of dismissing the couple's plea, it should have returned the petition by saying it was not maintainable.

"The family court enactment was made to resolve all disputes related to marriage and family affairs thereon. The marriage referred to in the preamble of the Family Court Act only denotes marriage as recognised by the law.

"Any marriage entered into between the parties through a contract has, so far, not got any recognition under law for the purpose of granting divorce. In such circumstances, the family court also does not have jurisdiction to entertain such a claim for divorce," the bench said.

It directed the family court to return the couple's plea holding that it was not maintainable.