Case – Court On Its Own Motion Lajja … vs State, 2012
Fact – Five questions are formulated by the Division Bench in its order dated 31.7.2008 passed in WP(Crl.) No.338/2008 for reference to the larger Bench.
The issues raised can be put in two compartments, viz.,
- What is the status of marriage under Hindu Law when one of the parties to the marriage is below the age of 18 years prescribed under Section 5(iii) of the Hindu Marriage Act, 1955 and Section 2 (a) of Prohibition of Child Marriage Act, 2006 (hereinafter referred as the PCM Act) and
- When the girl is minor (but the boy has attained the age of marriage as prescribed) whether the husband he can be regarded as the lawful guardian of the minor wife and claim her custody in spite of contest and claim by the parents of the girl. What is the effect of the Prohibition of Child Marriage Act, 2006?
Issue – Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 year could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?
Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?
If yes, can she be kept in the protective custody of the State?
Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?
Whether there may be other presumptions also which may arise?”
Contentions and Judgement:
- Section 12(a) of Prohibition of Child Marriage Act, 2006 makes the marriage of a minor girl who has been taken or enticed out of the keeping of the lawful guardian shall be null and void. The language of Section 12(a) of the said Act is mandatory in nature and does not admit of any reservation. Further it makes the marriage of a child, or a minor girl as null and void.
- Section 9 of the said Act provides for punishment for a male adult above 18 years of age contracting a child marriage punishable with rigorous imprisonment which may extend to two years or with fine which may extend to Rs. 1 lac or with both.
- The question whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non- bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No. 1, is also equally liable.
- In our considered opinion, the marriage shall remain voidable (vide Section 3) and the said marriage shall be subsisting until it is avoided by filing a petition for a decree of nullity by the child within the time prescribed in Section 3(3) of the Prohibition of Child Marriage Act. If, within two years from the date of attaining eighteen years in the case of a female and twenty-one years in the case of a male, a petition is not filed before the District Court under Section 3(1) of the Prohibition of Child Marriage Act for annulling the marriage, the marriage shall become a full-fledged valid marriage.
- The applicability of Prohibition of Child Marriage Act, on various marriages of different communities and religion is unclear. Social customs and personal laws of different religious groups in India allows marriage of minor girls and the Prohibition Child Marriage Act,2006 does not mention whether it prohibit all the underage marriages that are sanctioned by religious laws.
- Registration of marriages has still not been made compulsory. Compulsory registration mandates that the age of the girl and the boy getting married have to be mentioned. If implemented properly, it would discourage parents from marrying off their minor children since a written document of their ages would prove the illegality of such marriages.
- PCM Act, 2006 does not render such a marriage as void but only declares it as voidable, though it leads to an anomalous situation where on the one hand child marriage is treated as offence which is punishable under law and on the other hand, it still treats this marriage as valid, i.e., voidable till it is declared as void.
- Having regard to the legal/statutory position that stands as of now leaves us to answer first part of question No.1 by concluding that the marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken by such “child” within the meaning of Section 2(a) of the PCM Act, 2002 under Section 3 of the said Act seeking declaration of this marriage as void.
Section 6 of the Hindu Minority and Guardianship Act, 1956, reads:- “6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) In the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) In case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) In the case of a married girl-the husband.
- It was accordingly submitted that the husband, even if a minor, would be the guardian of his wife. Fortunately, this argument has to be rejected. The overriding and compelling consideration governing custody of guardianship of the child is the child’s welfare and claim to the status as a guardian under the said section is not a right.
- We may also refer Section 13 of the Minority and Guardianship Act, 1956, which reads:- “13. Welfare of minor to be paramount consideration:
- In the appointment of declaration of any person as guardian of a Hindu minor by a court, the Welfare of the minor shall be the paramount consideration.
- No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.”
- There would be many other factors which the Court will have to keep in mind, particularly in those cases where the girl, though minor, eloped with the boy (whether below or above 21 years of age) and she does not want to go back to her parents. Question may arise as to whether in such circumstances, the custody can be given to the parents of the husband with certain conditions, including the condition that husband would not be allowed to consummate the marriage. Thus, we are of the opinion that there cannot be a straightforward answer to the second part of this question and depending upon the circumstances the Court will have to decide in an appropriate manner as to whom the custody of the said girl child is to be given.
- In case the girl is below 16 years, the answer is obvious that the consent does not matter. Offence under Section 376 IPC is made out. The chargesheet cannot be quashed on the ground that she was a consenting party. However, there can be special or exceptional circumstances which may require consideration, in cases where the girl even after attaining majority affirms and reiterates her consent exception can be made to the said constitutional mandate and the same has to be strictly and diligently enforced.
- If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. Here again no straight jacket formula can be applied. The Court has to be cautious, for the girl has right to get the marriage nullified under Section 3 of the PCM Act.
