Whether prohibition of Child Marriage Act, 2006 will prevail over Hindu Marriage Act?

The said right of the
Hindu females to ask for divorce, does not mean that a petition before the
district court cannot be filed under Section 3 of the PCM Act. PCM Act as
noticed above is a secular law and is a latter enactment, which specifically
deals with the problem of child marriages. Religion of the contracting party
does not matter. PCM Act being a “special Act” and being a subsequent
legislation, to this extent and in case there is any conflict, will override the
provisions of HMA Act or for that matter any personal law.

IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (Crl.) No.338/2008, Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011,

Pronounced on: 27.07.2012

COURT ON ITS OWN MOTION (LAJJA DEVI)

VERSUS

STATE

CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE V.K. SHALI


1. 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. Though we shall take note of these questions at a later and more

appropriate stage, we would like to point out at the outset that the issues
raised can be put in two compartments, viz., (i) 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 (ii) 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?
2. After the aforesaid reference was made, as some other petitions involving
same questions came up for adjudication, they were also directed to be listed
along with Writ Petition (Crl.) No.338/2008. That is the raison d‟etre that
all these petitions were heard together. We would be in a better position to
appreciate the issues involved if facts in each of these cases are taken note of
in the first instance.
Writ Petition (Crl.) No.338/2008
3. A letter was addressed by Smt. Lajja Devi wife of Sh.Het Ram, R/o
Village Mohra, P.L. Jagat, P.S. Musa Jhag, District Badayun, Uttar Pradesh
to the Hon‟ble the Chief Justice of this Court. In the letter, it was alleged by
WP(Crl.) No.338/08 and connected matters
Page 3 of 62
Smt. Lajja Devi that her daughter named Ms.Meera, who was around 14
years of age (date of birth being 6.7.1995) was kidnapped by Promod,
Vinod, Satish, Manoj S/o Shri Raj Mal. This kidnapping is purported to
have taken place when Ms. Meera had visited Delhi to meet the brother-in-
law of the Complainant at A- 113, Rajiv Nagar Extension, Near Village
Begumpur, Delhi-110086. On the basis of the said information, an FIR
bearing No.113/2008 under Section 363 IPC had been registered at P.S.
Sultanpuri on 21st February, 2008 against the aforesaid accused persons.
4. This letter was treated as a Writ Petition and was placed before the
appropriate Bench on 14th March, 2008 whereupon notice was issued to the
State directing it to file the Status Report. Four Status Reports have been
filed by the Police from time to time. These Reports are dated 02.4.2008,
12.5.2008, 11.5.2008 and 11.7.2008. The local Police, as a consequence of
registration of this FIR, had arrested Shri Charan Singh from Village
Sakatpur District Badayun, U.P. wherefrom the minor girl Ms.Meera was
also recovered, as both of them were living together. The girl had made a
statement under Section 164 of Cr.P.C. before the learned Metropolitan
Magistrate, Rohini Courts Delhi that she had gone along with the accused
Charan Singh of her own free will as her Uncle and Aunt were marrying her
against her wishes. Charan Singh was taken in Judicial Custody on
WP(Crl.) No.338/08 and connected matters
Page 4 of 62
8.6. 2008. Admittedly, Ms. Meera was a minor, and in all probabilities is
aged around 13 years and a month as on that date.
5. Initially, Ms. Meera refused to go along with her parents, her natural
guardians, on the ground that they intended were intending to marry her off
with some other person. She was, thus, sent to Nirmal Chhaya in judicial
custody. However, when the matter came up for hearing on 31.7.2008, she
desired to reside with her parents on the assurance given by the parents that
they would not marry her to someone else.
6. When the matter was taken up for arguments on 31.7.2008, the aforesaid
facts were taken note of which points out that Ms. Meera was not abducted
by Shri Charan Singh. On the contrary, she went with him on her own
accord and they got married. However, she was not only minor but even
less than 15 years of age. She had initially expressed her apprehension in
joining her parental home. On the other hand, her husband‟s family wanted
to have the custody of Ms. Meera as her husband was in judicial custody. In
this backdrop, the question arose as to what would be the status of such a
marriage. Can it be treated as a valid marriage? Or was it the voidable by
law? Or it was simply an illegal marriage not recognized. The question of
entitlement of husband to have the custody of a minor person with whom he
married could depend upon the answer to the aforesaid question.
WP(Crl.) No.338/08 and connected matters
Page 5 of 62
Crl.M.C. No.1001/2011
7. This petition is filed under Section 482 of the Code of Criminal Procedure
seeking quashing of FIR registered against the petitioner No.2 under
Sections 363/366/376/465/467/494/497/120B and 506 of the Indian Penal
Code. It is stated that the petitioner No.1 had of her own will joined the
company of the petitioner No.2 and got married with him according to
Hindu rites and ceremonies on 4.3.2010. However, the respondent No.2,
father of the petitioner No.1, lodged a missing report on 5.3.2010 in the
Police Station. It is alleged that in the said missing report he had stated that
the petitioner No.1 aged 20 years was missing. Thereafter, in April, 2010 he
filed habeas corpus petition taking the stand that the petitioner No.1 was
minor and she had been married by the respondent no.2 to someone else at
Rajasthan when she returned from her in laws from Rajasthan to Delhi. She
was enticed away by the petitioner No.2. The notice was issued in the said
writ petition and production of the petitioner No.1 was ordered. The Police
recovered her and produced before the Court on 19.4.2010. She stated that
she had married the petitioner No.2 on her own accord and without any
pressure and wanted to live with the petitioner No.2, who was her husband.
In view of the conflicting claims about her age, direction was given to the
I.O. to verify her age. The Court sent the petitioner No.1 to Nirmal Chhaya
WP(Crl.) No.338/08 and connected matters
Page 6 of 62
Nari Niketan for protective custody. Ossification test was conducted and the
age of the petitioner No.1 was found between 17-19 years. The respondent
No.2, father of the petitioner No.1, had produced the school leaving
certificate which showed her date of birth as 3.3.1993 and on this basis, she
was 17 years of age on the date when the parties allegedly solemnised
marriage.
The father of the petitioner No.1 wanted her custody. However, she
gave the statement that she would like to stay at Nari Niketan rather than
joining her parents. In view of this statement, the Court sent the petitioner
No.1 to Nari Niketan till the time she attained the age of majority vide orders
dated 31.5.2010. However, at the same time the petitioner No.2 was allowed
to meet her twice a week at least for two hours on each occasion vide orders
dated 29.10.2011. As per the school leaving certificate she completed the
age of 18 years on 3.3.2011. She was, thus, released from Nari Niketan and
she decided to join the company of the petitioner No.2 and has been living
with him. However, on 25.2.2011 the petitioner No.2 was arrested in the
FIR No.31/2011, PS Dabri under Sections 363/366/376/465/467/494/
497/120-B/506 IPC. This FIR was registered on the basis of the directions
given by the learned MM upon the complaint filed by the respondent No.2
WP(Crl.) No.338/08 and connected matters
Page 7 of 62
on 3.4.2010. It is, in these circumstances, both the petitioners filed the
aforesaid petition seeking quashing of the FIR.
WP (Crl.) No.821/2008
8. The petitioner in this case is the father of a minor girl Kiran Devi, who
according to him was 15 years of age at that time. As per the averments
made in the writ petition, Kiran Devi was found missing from her house on
27.10.2006 on which date a boy named Jagat Pal was also found missing
with his parents who were residing in the neighbourhood of the petitioner.
The petitioner lodged missing report with Police Station Samaypur Badli
(now new Police Station Swaroop Nagar) on 30.10.2006. Thereafter, FIR
No.968/2006 was lodged at that Police Station on 12.11.2006. Pursuant to
this FIR the police became active and after search nabbed the boy Jagat Pal
and also took Kiran Devi into custody on 5.12.2006. According to the
petitioner, though he made various complaints to the police and even filed
complaint under Section 200 Cr.P.C. seeking direction to register the case
and also passed orders of arrest of the accused persons.
As nothing
happened, he filed the instant petition for taking action against the person
involved in the forcible custody of his minor daughter with the direction to
produce the girl before the Court.
WP(Crl.) No.338/08 and connected matters
Page 8 of 62
9. After recovery Kiran Devi had been sent to Nirmal Chhaya on 5.9.2008 and
she made a statement that she wanted to continue to reside at Nirmal Chhaya
as her parents were not accepting her marriage. Earlier she had made the
statement that she had gone with Jagat Pal of her own accord and willingly
married him without any pressure or coercion. It is, in these circumstances,
question of validity of marriage and guardianship has arisen for
consideration in this case.
Crl.M. No.566/2010
10.This petition is filed by one sh. Devender Kumar who states that he married
Shivani @ Deepika according to Hindu rites and ceremonies in a temple at
Delhi on 7.8.2009. According to him, Shivani was a major at that time.
However, at the instance of father of Shivani, FIR No.97/2009 at Police
Station Lahori Gate, Delhi was registered under Section 363 IPC on
10.8.2009 to which later on Section 366 and 376 were added. The petitioner
stated in the petition that when he learnt about registration of that FIR he and
Shivani appeared before the learned MM where Shivani gave her statement
under Section 164 of the Cr.P.C. that she had married the petitioner of her
own accord.
After recording her statement and after her medical
examination, since she was prima facie found to be minor, Shivani was sent
to Nirmal Chhaya till 5.4.2010 when the aforesaid petition was filed by the
WP(Crl.) No.338/08 and connected matters
Page 9 of 62
petitioner for issuance of writ of habeas corpus and giving him the custody
of Shivani. The events, which took place in the meantime that after the
arrest of the petitioner in the aforesaid FIR, he was released on bail on
26.10.2009. He moved application for custody of Shivani with the learned
MM, which was dismissed on 11.11.2009 and the matter of her release was
referred to the Child Welfare Committee (CWC). However, the CWC was
not passing the order because of which the petitioner filed the petition for
habeas corpus.
11.It would be clear from the facts of all the aforesaid cases that in all these
cases the girls have given the statement that they were not kidnapped but
eloped with the respective persons of their own and got married with them.
All the four girls maintained that the marriage was solemnized with their
free consent. However, all the four girls were below 18 years when they got
married, whereas there is no dispute about the ages of the boys with whom
they got married as they were above 21 years of age at the time of marriage.
12.In some cases, the girls were even less than 15 years. It is under these
circumstances questions that have arisen in all these cases are common.
Now, we proceed to reproduce the questions formulated by the Division
Bench in its order dated 31.7.2008 in W.P. (Crl.) No.338/2008, which are as
follows:
WP(Crl.) No.338/08 and connected matters
Page 10 of 62
1) 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)?
2) 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?
3) If yes, can she be kept in the protective custody of the
State?
4) 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?
5) Whether there may be other presumptions also which
may arise?”
13.We would like to mention here that the reason for referring the aforesaid
questions for consideration by Larger Bench arose on account of three
Division Bench judgments of this Court wherein view was taken that
marriage of a minor girl would neither be void nor voidable under the Hindu
Marriage Act, 1955 (hereinafter referred to as the HM Act).
14.The Division Bench, however, was not willing to accept the decision of the
aforesaid three judgments as, according to it, in these cases there was no
consideration of all extent statutes.
15.The three judgments of the Division Bench, on the one hand and the views
expressed by the Division Bench in its orders dated 31.7.2008 reflect the
conflicting views on the issues involved.
WP(Crl.) No.338/08 and connected matters
However, much detailed
Page 11 of 62
submissions were made before us at the time of arguments and we would
point out these submissions while giving our opinion on the questions
referred.
The Division bench made it clear in para 9 that the position
regarding Muslim Law was different as the said law recognizes marriage of
minor, who has attained puberty as valid and therefore, the status of marriage
under Muslim Law is specifically excluded from reference.
Question 1:
Whether a marriage contracted by a boy with a female of less than 18
years and a female 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)?
Statutory provisions of various enactments which have bearing on this
issue may be taken note of in the first instance.
Prohibition of Child Marriage Act 2006
“Section 2 - Definition
In this Act, unless the context otherwise requires,--
(a) "child" means a person who, if a male, has not
completed twenty-one years of age, and if a female,
has not completed eighteen years of age;
(b) "child marriage" means a marriage to which either of
the contracting parties is a child;
xxxxx
xxxxx
xxxxxx
(f) "minor" means a person who, under the provisions of
the Majority Act, 1875 (9 of 1875) is to be deemed ot
to have attained his majority.
WP(Crl.) No.338/08 and connected matters
Page 12 of 62
xxxxx
xxxxx
xxxxxx
3. Child marriages to be voidable at the option of
contracting party being a child.–(1) Every child
marriage, whether solemnised before or after the
commencement of this Act, shall be voidable at the
option of the contracting party who was a child at the
time of the marriage:
Provided that a petition for annulling a child
marriage by a decree of nullity may be filed in the
district court only by a contracting party to the marriage
who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a
minor, the petition may be filed through his or her
guardian or next friend along with the Child Marriage
Prohibition Officer.
(3) The petition under this section may be filed at any
time but before the child filing the petition completes
two years of attaining majority.
(4) While granting a decree of nullity under this section,
the district court shall make an order directing both the
parties to the marriage and their parents or their
guardians to return to the other party, his or her parents
or guardian, as the case may be, the money, valuables,
ornaments and other gifts received on the occasion of the
marriage by them from the other side, or an amount
equal to the value of such valuables, ornaments, other
gifts and money:
Provided that no order under this section shall be
passed unless the concerned parties have been given
notices to appear before the district court and show cause
why such order should not be passed.
WP(Crl.) No.338/08 and connected matters
Page 13 of 62
xxxxx
xxxxx
xxxxx
xxxxx
“9.
Punishment for male adult marrying a child.–
Whoever, being a male adult above eighteen years of age,
contracts a child marriage shall be punishable with
rigorous imprisonment which may extend to two years or
with fine which may extend to one lakh rupees or with
both.”
xxxxx
xxxxx
xxxxx
xxxxx
“12. Marriage of a minor child to be void in certain
circumstances.-Where a child, being a minor--
(a) is taken or enticed out of the keeping of the
lawful guardian; or”
(b) by force compelled, or by any deceitful means
induced to go from any place; or
(c) is sold for the purpose of marriage; and made
to go through a form of marriage or if the
minor is married after which the minor is sold
or trafficked or used for immoral purposes,
such marriage shall be null and void.
xxxxx
xxxxx
xxxxx
“15. Offences to be cognizable and non- bailable–
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 od 1974), an offence
punishable under this Act shall be cognizable and non-
bailable.”
Hindu Marriage Act
“5. Conditions for a Hindu marriage.–A marriage
may be solemnized between any two Hindus, if the
following conditions are fulfilled, namely-
WP(Crl.) No.338/08 and connected matters
Page 14 of 62
xxxxx
xxxxx
xxxxx
(iii) the bridegroom has completed the age of
[twenty-one years] and the bride, the age of [eighteen
years] at the time of the marriage;”
xxxxx
xxxxx
xxxxx
“11. Void marriages. – Any marriage solemnised after
the commencement of this Act shall be null and void and
may, on a petition presented by either party
thereto1[against the other party], be so declared by a
decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of section
5.”
xxxxx
xxxxx
xxxxx
12. Voidable
marriages.–(1)
Any
marriage
solemnised, whether before or after the commencement
of this Act, shall be voidable and may be annulled by a
decree of nullity on any of the following grounds,
namely:-
1
[(a) that the marriage has not been consummated
owing to the impotence of the respondent; or]
(b) that the marriage is in contravention of the
condition specified in clause (ii) of section 5; or
(c) that the consent of the petitioner, or where the
consent of the guardian in marriage of the
petitioner 2[was required under section 5 as it stood
immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, the
1978 (2 of 1978)], the consent of such guardian
was obtained by force3[or by fraud as to the nature
of the ceremony or as to any material fact or
circumstance concerning the respondent]; or
(d) that the respondent was at the time of the
marriage pregnant by some person other than the
petitioner.
WP(Crl.) No.338/08 and connected matters
Page 15 of 62
(2) Notwithstanding anything contained in sub-
section (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of sub-
section (1) shall be entertained if-
(i) the petition is presented more than one
year after the force had ceased to operate or,
as the case may be, the fraud had been
discovered; or
(ii) the petitioner has, with his or her full
consent, lived with the other party to the
marriage as husband or wife after the force
had ceased to operate or, as the case may be,
the fraud had been discovered;
(b) on the ground specified in clause (d) of sub-
section (1) shall be entertained unless the court is
satisfied-
(i) that the petitioner was at the time of the
marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in
the case of a marriage solemnised before the
commencement of this Act within one year
of such commencement and in the case of
marriages
solemnised
after
such
commencement within one year from the
date of the marriage; and
(iii) that marital intercourse with the consent
of the petitioner has not taken place since
the discovery by the petitioner of the
existence of4[the said ground].”
xxxx
13.
xxxxx
xxxxx
Divorce. -
xxxxx
WP(Crl.) No.338/08 and connected matters
xxxxx
xxxxx
Page 16 of 62
(2) A wife may also present a petition for dissolution
of her marriage by a decree of divorce on the ground,-
xxxxx
xxxxx
xxxxxx
(iv) that her marriage (whether consummated or not)
was solemnised before she attained the age of fifteen
years and she has repudiated the marriage after attaining
that age but before attaining the age of eighteen years.
Explanation. – This clause applies whether the marriage
was solemnised before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
xxxxx
xxxxx
xxxxxx
“18. Punishment for contravention of certain other
conditions for a Hindu marriage.–Every person who
procures a marriage of himself or herself to be
solemnized under this Act in contravention of the
conditions specified in clauses (iii), (iv),1 [and (v)] of
section 5 shall be punishable-
[(a) in the case of contravention of the
condition specified in clause (iii) of section
5, with rigorous imprisonment which may
extend to two years or with fine which may
extend to one lakh rupees, or with both.]
(b) in the case of a contravention of the
condition specified in clause (iv) or clause
(v) of section 5, with simple imprisonment
which may extend to one month, or with
fine which may extend to one thousand
rupees, or with both;”
Special Marriage Act
“4. Conditions relating to solemnization of special
marriages. – Notwithstanding anything contained in any
other law for the time being in force relating to the
solemnization of marriages, a marriage between any two
WP(Crl.) No.338/08 and connected matters
Page 17 of 62
persons may be solemnized under this Act, if at the time
of the marriage the following conditions are fulfilled,
namely:--
(a) neither party has a spouse living;
[(b) neither party--
(i) is incapable of giving a valid consent to it
in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent,
has been suffering from mental disorder of
such a kind or to such an extent as to be
unfit for marriage and the procreation of
children; or
(iii) has been subject to recurrent attacks of
insanity;]
(c) the male has completed the age of twenty-
one years and the female the age of eighteen
years;
[(d) the parties are not within the degrees of
prohibited relationship:
Provided that where a custom governing at
least one of the parties permits of a marriage
between them, such marriage may be
solemnized, notwithstanding that they are
within
the
degrees
of
prohibited
relationship; and]
(e) where the marriage is solemnized in the
State of Jammu and Kashmir, both parties are
citizens of India domiciled in the territories to
which this Act extends].
[Explanation.--In this section, "custom", in
relation to a person belonging to any tribe,
community, group or family, means any rule
WP(Crl.) No.338/08 and connected matters
Page 18 of 62
which the State Government may, by
notification in the Official Gazette, specify in
this behalf as applicable to members of that
tribe, community, group or family:
Provided that no such notification shall be
issued in relation to the members of any
tribe, community, group or family, unless
the State Government is satisfied--
(i) that such rule has been continuously
and uniformly observed for a long time
among those members;
(ii) that such rule is certain and not
unreasonable or opposed to public
policy; and
(iii) that such rule, if applicable only to a
family, has not been discontinued by the
family.]”
xxxxx
xxxxx
xxxxx
24. Void marriages.–(1) Any marriage solemnized
under this Act shall be null and void1[and may, on a
petition presented by either party thereto against the other
party, be so declared] by a decree of nullity if--
(i) any of the conditions specified in clauses (a),
(b), (c) and (d) of section 4 has not been
fulfilled; or
(ii) the respondent was impotent at the time of
the marriage and at the time of the institution of
the suit.
(2) Nothing contained in this section shall apply to
any marriage deemed to be solemnized under this
Act within the meaning of section 18, but the
registration of any such marriage under Chapter III
WP(Crl.) No.338/08 and connected matters
Page 19 of 62
may be declared to be of no effect if the
registration was in contravention of any of the
conditions specified in clauses (a) to (e) of section
15:
Provided that no such declaration shall be
made in any case where an appeal -has been
preferred under section 17 and the decision of the
district court has become final.
16.Interpreting the provisions of HM Act, the three Division Benches of this
Court, as pointed out earlier, held the view that the marriage of a minor
under the HM Act was valid. The genesis of arriving at such a conclusion is
discussed in brief by the Division Bench in its order dated 31.7.2008 in paras
4 to 8, which are as under:-
“4. It may be pertinent here to mention that there are
three judgments of the Division Bench of this Court
which are having bearing so far as the questions arising
in the instant case are concerned. In the first case titled
as Neetu Singh vs. State and Ors. 1999 (1) JCC (Delhi)
170, the Division Bench was called upon to test the
validity of an order passed by the Additional
Metropolitan Magistrate remanding the minor to Nari
Niketan for the purpose of custody, against her own
wishes. The Division Bench of the High Court quashed
the order of remanding the minor girl to Nari Niketan by
observing that a marriage of a minor girl in contravention
of Section 5(iii) of the Hindu Marriage Act is neither
void nor voidable and the only sanction which is
provided under Section 18 of the Act is a sentence of 15
days and a fine of Rs.1,000/-. The girl was released to the
husband. Reference was made to the judgments of other
High Courts namely Mrs. Kalyani Chaudhary vs. The
State of U.P. and Ors. 1978 Cr.L.J. 1003 and Seema Devi
WP(Crl.) No.338/08 and connected matters
Page 20 of 62
alias Simaran Kaur vs. State of H.P. 1998 (2) Crime 168,
which however did not consider the Child Marriage
Restraint Act, 1929 which now stands repealed by
Prohibition of Child Marriage Act, 2006.
5. In the recent years, there have been two judgments of a
Division Bench both headed by Hon‟ble Mr. Justice
Manmohan Sarin. In the first judgment titled as Manish
Singh Vs. State Govt. of NCT and Ors. reported in 2006
(1) CCC (HC) 208 and Sunil Kumar Vs. State NCT of
Delhi and Anr. 2007 (2) LRC 56 (Del) (DB), wherein
the Division Bench has affirmed its earlier view
approving Neetu Singh‟s case.
6. The Division Bench also referred to its own judgments
in Ravi Kumar Vs. The State and Anr. 2005 (124) DLT
and Phoola Devi vs. The State and Ors. 2005 VIII AD
Delhi 256. The sum and substance of these authorities
is that marriage solemnized in contravention of the
age prescribed under Section 5(iii) of the Hindu
Marriage Act i.e. 21 years for male and 18 years for
female are neither void nor voidable under Sections
11 and 12 of the Hindu Marriage Act. The only
sanction prescribed against such marriages was
noticed to be a punishment prescribed under Section
18 of the said Act which was to the extent of 15 days
and a fine of Rs.1,000/-.
7. The Hon‟ble Division Bench was at pains to explain
that by making such pronouncement, the Court was only
interpreting the provisions of law and it could not have
been perceived as reducing the age of marriage, reducing
the age of consent or declining to nullify marriages of
minors. It was observed that this was neither the intent of
the Court nor was any such prayer made in these
petitions and it was primarily for the legislature to
consider as to whether the present provisions under the
Hindu Marriage Act and the Child Marriage Restraint
Act are insufficient or being failed to discourage child
WP(Crl.) No.338/08 and connected matters
Page 21 of 62
marriages and take such remedial actions as may deemed
appropriate in their wisdom.
8. In Manish Singh‟s and Ram Ladle Chaturvedi‟s case,
the Division Bench directed quashing of FIR under
Section 363 against Ram Ladle Chaturvedi while as in
Sunil Kumar‟s case the Division Bench permitted the girl
who was aged 16 years to reside with her husband-the
alleged kidnapper on the ground that the girl had come of
age of discretion. We are of the opinion of these
judgments have not taken into consideration of the
prohibition of Child Marriage Act, 2006 which makes the
contracting of a marriage by a boy above the age of 18
with a girl who is less than 18 as a cognizable and non-
bailable offence.”
17.However, in the reference order the Division Bench has recorded a
discordant note and the reason given in the reference order is that the
provisions of the PCM Act were not taken into consideration, which would
materially change the legal position. Discussion in this behalf is contained
in para-10, which is as under:-
“10. The easiest course for us would have been to follow
the Division Bench judgments of our own High Court on
this question with regard to legality of marriage as well
as custody of the minor spouse. However, we are of the
view that a question of public importance is involved in
the matter which needs consideration by a Full Bench on
account of the absence of consideration of all extant
statutes:-
(a) The first reason why prima facie, we hesitate to agree
with the observations passed by the Division Bench of
this Court is on account of the fact that
although there may be different definitions of the word
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„child‟ with regard to the age of the minor girl given in
different enactments but the purpose of each
enactment is to be seen. The enactment which is of
utmost importance with regard to the child marriage or
for that matter the marriage with a minor girl would be
the Prohibition of Child Marriage Act, 2006.
(b) According to Section 2 (a) of the Prohibition of Child
Marriage Act, 2006, a „child‟ means a person who, if a
male, has not completed twenty-one years of
age, and if female, has not completed eighteen years of
age.
(c) Section 12(a) of the said Act 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. That means the
marriage itself is non-existent and the law does not
recognize the same. 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.
(d) The offence carries a punishment which may extend
up to 2 years and, therefore, clearly the offence would be
bailable and non-cognizable. Despite this, by virtue of
the non-obstante clause of the Section 15 of the Act, such
offence is a cognizable and non-bailable offence under
Cr.P.C. This aspect of the matter has not been previously
considered
by
the
Court
and
accordingly
quashing of FIR under Section 363 or in the instant case
under Section 363 and 376 would not only be in
contravention of law but also against the letter and
spirit of the Act by observing that the girl has attained the
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age of discretion with the reference to Sections 5(iii), 11,
12 and 18 of the Hindu Marriage Act.”
18.We would also like to point out in the interregnum, this very issue is
discussed by other Courts as well and the judgments to that effect were
placed before us by the learned counsel for the parties. In Amnider Kaur
and Anr. v. State of Punjab and Ors., 2010 Crl.L.J. 1154 decided by Punjab
and Haryana High Court, the Single Judge of the said Court has taken a view
that having regard to the provisions of Section 12 of the PCM Act, marriage
with a minor girl would be void. A perusal of this judgment would show that
the learned Judge has proceeded almost on same lines as taken by the
Division Bench in the present reference order, which is clear from the
following passages of this judgment:-
“14. In this case the facts are not in dispute. Petitioner
No. 1 was a minor girl being 16 years and 2 months of
age at the time of alleged marriage. According to Section
3 of The Majority Act, 1875 every person domiciled in
India shall attain the age of majority on his completing
the age of eighteen years and not before. According to
Section 2(f) of the Act "minor" means a person who,
under the provisions of the Majority Act, 1875 (9 of
1875) is to be deemed not to have attained his majority.
According to Section 2(a) of the Act, "child" means a
person, who, if a male, has not completed twenty-one
years of age, and if a female, has not completed eighteen
years of age and according to Section 2(b) of the Act,
"child marriage" means a marriage to which either of the
contracting parties is a child. Then according to Section
12(a), the marriage of petitioner No. 1 which falls within
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the definition of child and within the definition of minor
being the age of 16 years and 2 months who has been
enticed away out of the keeping of the lawful guardian
cannot contract the marriage and her marriage shall be
null and void.
15. In view of those provisions, I have no other choice
but to hold that marriage of petitioners No. 1 and 2 which
is alleged to have been performed on 21.10.2009 as per
Marriage Certificate (Annexure P-1 undated) as void
marriage and none of the judgments which have been
cited by the learned Counsel for the petitioners in support
of their case, is applicable to the facts and circumstances
of the present case because in the case of Ravi Kumar
(supra), the Division Bench had considered only the
provisions of Sections 5 and 18 of the Act of 1955 to
observe that in case of violation of Section 5(iii) of the
Act of 1955, the punishment is only 15 days simple
imprisonment with fine of Rs. 1000/- or both but the
marriage is not illegal or void. However, much water has
flown thereafter and now for the contravention of Section
5(iii) of the Act of 1955, the punishment under Section
18 (a) has been enhanced to 2 years, rigorous
imprisonment and/or with fine up to of lac or with both.
Moreover, the case of Ravi Kumar (supra) was decided
on 5.10.2005. At that time, the Act was not in force as it
did not receive the assent of President of India and has
been notified w.e.f 1.11.2007. Therefore, the learned
Counsel for the petitioners cannot take the advantage of
the observations made in the case of Ravi Kumar (supra).
Insofar as the case of Ridhwana and another (supra) is
concerned, in that case also this Court had prima-facie
found that there is evidence collected by the police that
girl was more than 18 years of age but still while parting
with the judgment for the sake of argument, it was
decided that even if girl is 16 years and 2 months age and
has married with her own sweet will, no offence is said to
have been committed. This Court had no occasion to
refer to the provisions of Section 12 of the Act.
Therefore, the ratio laid down in these cases is not
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applicable. The case of Lata Singh (2006 Crl.LJ 3309)
(supra) itself talks about the persons who were major at
that time when they got married and on that premise, it
was held that if the persons are major and have got
married on their own, their life and liberty should not be
threatened by the persons who are against their marriage.
Hence, the said judgment is also of no help to the present
petitioners. In the case of Pardeep Kumar Singh (supra)
this Court had laid down as many as nine directions but
in none of the directions it has been provided that if the
girl is minor and has been enticed away for the purpose
of marriage by alleged husband, the said marriage is
valid. Hence, I have found that provisions of Section 12
of the Act would apply with full rigour in the present
case and the marriage which has been solemnised by
petitioner No. 2 with petitioner No. l, who is child and a
minor, is unsustainable in the eyes of law and is thus,
declared as void.
16. The second question involved in this case is that
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 and for that purpose, I direct
the State to take appropriate action by lodging the case
against the persons who are responsible for the
performance of the child marriage in the present case. In
respect of the third question, the petitioners cannot be
allowed to take the benefit of the constitutional remedy
of protection of their life and liberty on the pretext of
their void marriage. The life and liberty of petitioners No.
1 and 2 is only endangered and is being threatened by
respondent No. 4 so long their marriage legally subsists
but once their marriage is declared to be void, there is no
threat left to their life and liberty. Moreover, such a case
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where the allegation against the husband is of enticing
away minor girl from the lawful keeping of
guardian/parents and a case has been registered under
Sections 363/366-A IPC, no protection under Section 482
Cr.P.C. can be granted by this Court because in that
eventuality police protection has to be granted to a
fugitive of law.”
19.Then, we have T. Sivakumar v. The Inspector of Police, (HCP No.907/11
decided on 3.10.2011), which is a judgment by the Full Bench of the Madras
High Court. In that case also five questions were referred for answer by the
Division Bench as under:-
“(1) Whether a marriage contracted by a person with a
female of less than 18 years 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)?
(2) 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?
(3) If yes, can she be kept in the protective custody of
the State?
(4) Whether in view of the provisions of Juvenile
Justice (Care and Protection of Children) Act, 2000, a
minor girl, who claims to have solemnized her marriage
with another person would not be a juvenile in conflict
with law and whether in violation of the procedure
mandated by the Juvenile Justice (Care and Protection of
Children) Act, 2000, the Court dealing with a Writ of
Habeas Corpus, has the power to entrust the custody of
the minor girl to a person, who contracted the marriage
with the minor girl and thereby committed an offence
punishable under Section 18 of the Hindu Marriage Act
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and Section 9 of the Prohibition of Child Marriage Act,
2006? And
(5) Whether the principles of Section 17 and 19(a) of
the Guardians and Wards Act, 1890, could be imported to
a case arising out of the alleged marriage of a minor girl,
admittedly in contravention of the provisions of the
Hindu Marriage Act?”
20.The Full Bench of the Madras High Court referred to the provisions of HM
Act as well as PCM Act. It observed that the position, which was under the
HM Act as well as Child Marriage Restraint Act (hereinafter referred to as
the „CMRA‟), was that these Acts do not declare marriage of a minor either
as void or voidable and such marriage of a child was treated all along as
valid. There were number of judicial pronouncements to this effect. In this
legal scenario, Hindu Minority and Guardianship Act also provided that the
husband of a wife is her natural guardian. After taking note of this position,
which prevailed on the reading of HM Act and CMRA the Court discussed
the reason for enacting the PCM Act, namely, which replaced the CMRA
and it has been pointed out that “it is manifestly clear that this Act is secular
in nature which has crossed all barriers of personal laws.” Thus, irrespective
of personal laws, under this Act child marriages are prohibited. Section 3 of
this Act makes the child marriage to be voidable at the option of contracting
party being a child. The Full Bench noted that this is a great departure from
the position in HM Act.

Parliament was aware of the provisions of Sections 5, 11, 12 and 18 of the
HM Act. By declaring that the PCM Act shall apply to all citizens, the
Parliament has intended to allow the PCM Act to override the provisions of
HM Act to the extent of inconsistencies between these two enactments.
Similarly, PCM Act will override the personal law. This is manifest from
the statement of Objects and Reasons of the PCM Act, 2006, which reads as
follows:-
“1) The Child Marriage Restraint Act, 1929 was enacted
with a view to restraining solemnisation of child
marriages. The Act was subsequently amended in 1949
and 1978 in order, inter alia, to raise the age limit of the
male and female persons for the purpose of marriage.
The Act, though restrains solemnisation of child
marriages yet it does not declare them to be void or
invalid.
The solemnisation of child marriage is
punishable under the Act.
2) There has been a growing demand for making the
provisions of the Act more effective and the punishment
thereunder more stringent so as to eradicate or effectively
prevent the evil practice of solemnisation of child
marriages in the country. This will enhance the health of
children and the status of women. The National
Commission for women in its Annual Report for the year
1995-96 recommended that the Government should
appoint Child Marriage Prevention Officers immediately.
It further recommended that – (i) the punishment
provided under the Act should be made more stringent;
(ii) marriages performed in contravention of the Act
should be made void; and (iii) the offences under the Act
should be made cognizable.
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3) The National Human Rights Commission undertook a
comprehensive review of the existing Act and made
recommendations for comprehensive amendments
therein vide its Annual Report 2001-2002. The Central
Government, after consulting the State Governments and
Union Territory Administrations on the recommendations
of the National Commission for Women and the National
Human Rights Commission, had decided to accept
almost all the recommendations and give effect to them
by repealing and re-enacting the Child Marriage Restraint
Act, 1929.”
21. On that basis, view of the Full Bench of Madras High Court was that the
law was enacted for the purpose of effectually preventing evil practice of
solemnisation of child marriages and also to enhance the health of the
children and the status of the marriage and therefore, it was a special
enactment in contrast with the HM Act, which is a general law regulating
Hindu marriages.
Thus, the PCM Act, being a special law, will have
overriding effect over the HM Act to the extent of any inconsistency between
the two enactments. For this reason, the Court took the view that Section 3
of this Act would have overriding effect over the HM Act and the marriage
with a minor child would not be valid but voidable and would become valid
if within two years from the date of attaining 18 years in the case of female
and 21 years in the case of male, a petition is not filed before the District
Court under Section 3(1) of the PCM Act for annulling the marriage.
Similarly, after attaining eighteen years of age in the case of female, or
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twenty-one years of age in the case of a male, if she or he elects to accept the
marriage, the marriage shall become a full-fledged valid marriage. Until
such an event of acceptance of the marriage or lapse of limitation period, the
marriage shall continue to remain as a voidable marriage.
22.The circumstances under which this voidable marriage will become valid or
would be treated as annulled as per Section 3 of the Act, is stated by the Full
Bench in para 21 of the said judgment in the following manner:
“21. .....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.
Similarly, after attaining eighteen years of age in the
case of female, or twenty-one years of age in the
case of a male, if she or he elects to accept the
marriage, the marriage shall become a full-fledged
valid marriage. Until such an event of acceptance of
the marriage or lapse of limitation period as
provided in Section 12(3) occurs, the marriage shall
continue to remain as a voidable marriage. If the
marriage is annulled as per Section 3(1) of the
Prohibition of Child Marriage Act, the same shall
take effect from the date of marriage and, in such an
event, in the eye of law there shall be no marriage at
all between the parties at any point of time.
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xxxxx
xxxxx
xxxxx
26. But, in Saravanan‟s case cited supra, the
Division Bench has held that such a marriage
between a boy aged more than 21 years and a girl
aged less than 18 years is not voidable. In other
words, according to the Division Bench such a child
marriage celebrated in contravention of the
Prohibition of Child Marriage Act is a valid
marriage. With respect, we are of the opinion that it
is not a correct interpretation. A plain reading of
Section 3 of the Prohibition of Child Marriage Act
would make it clear that such child marriage is only
voidable. Therefore, we hold that though such a
voidable marriage subsists and though some rights
and liabilities emanate out of the same, until it is
either accepted expressly or impliedly by the child
after attaining the eligible age or annulled by a court
of law, such voidable marriage, cannot be either
stated to be or equated to a „valid marriage‟ strict
sensu as per the classification referred to above.”
23.We would be failing in our duty if we do not refer to another Division Bench
judgment of this Court delivered on 11.08.2010 in W.P. (Crl.) No.1003/2010
in the case entitled Sh. Jitender Kumar Sharma v. State and Another. That
was a case where both the boy and the girl were minors, who had fallen in
love; eloped together and got married as per the Hindu rites and ceremonies.
The Division Bench specifically considered the issue of validity of marriage.
The Court took note of the earlier Division Bench judgments as well as the
provisions of PCM Act, 2006. The Division Bench was, however, of the
view that the validity of marriage is primarily to be judged from the
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standpoint of personal law applicable to the parties to the marriage. The
Court was of the opinion that a Hindu marriage, which is not a void marriage
under the HM Act, would continue to be such provided the provisions of
Section 12 of the PCM Act, 2006 are not attracted.
A marriage in
contravention of Clause (3) of Section 5 of the HM Act was neither void nor
voidable. However, Section 3 of the PCM Act had introduced the concept of
a voidable marriage. This was a secular law. In view of Section 3 thereof,
which made child marriages to be voidable at the option of the contracting
party being a child, the Division Bench observed that the position contained
in Clause (3) of Section 5 of the HM Act holding that such a marriage was
neither void nor voidable was the legal position prior to the enactment and
enforcement of PCM Act, 2006 and after this enactment the marriage in
contravention of Clause (3) of Section 5 of the HM Act would not be ipso
facto void but could be void if any of the circumstances enumerated in
Section 12 of the PCM Act, 2006 is triggered and the effect of Section 3 of
PCM Act and the interplay of Section 3 of the PCM Act and Clause (3) of
Section 5 of the HM Act is summarised in the following manner:-
“15. Returning to the facts of the present case, we
find that, merely on account of contravention of clause (iii)
of Section 5 of the HMA, Poonam‟s marriage with Jitender
is neither void under the HMA nor under the Prohibition of
Child Marriage Act, 2006. It is, however, voidable, as now
all child marriage are, at the option of both Poonam and
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Jitender, both being covered by the word „child‟ at the time
of their marriage. But, neither seeks to exercise this option
and both want to reinforce and strengthen their marital
bond by living together. We also find that stronger
punishments for offences under the Prohibition of Child
Marriage Act, 2006 have been prescribed and that the
offences have also been made cognizable and non-bailable
but, this does not in any event have any impact on the
validity of the child marriage. This is apparent from the
fact that while the legislature brought about these changes
on the punitive aspects of child marriages it, at the same
time brought about conscious changes to the aspects
having a bearing on the validity of child marriages. It
made a specific provision for void marriages under certain
circumstances but did not render all child marriages void.
It also introduced the concept of a voidable child marriage.
The flip-side of which clearly indicated that all child
marriages were not void. For, one cannot make something
voidable which is already void or invalid.”
24.Detailed submissions were made before us in the light of the provisions of
various enactments and the views expressed by the Court in various
judgments taken note of above. Instead of reproducing arguments in detail,
it would be suffice to point out that whereas Mr. Arvind Jain primarily
argued on the lines of the Full Bench judgment rendered by Madras High
Court in T. Sivakumar v. The Inspector of Police (supra), Mr. Chandhiok,
learned ASG, argued that view taken by the Division Bench of this Court in
Sh. Jitender Kumar Sharma v. State and Another (supra) was in tune with
law. Since we have already given the gist of these two judgments and what
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they decide, to avoid duplicity we are not reproducing in detail, arguments
of the learned counsel for the parties on this aspect.
25.At the outset we would like to point out that the object behind enacting PCM
Act was to curb the menace of child marriages, which is still prevalent in
this country and is most common in rural areas. The Full Bench of Madras
High Court has undertaken indepth discussion of this evil of child marriage
in India. A Division Bench of this Court in Association for Social Justice
& Research v.Union of India & others, [W.P. (Crl.) No.535/2010] decided
on 13.5.2010 also took note of this menace, inter alia, pointing out as
under:-
“6. Sociologists even argue that for variety of reasons,
child marriages are prevalent in many parts of this
country and the reality is more complex than what it
seems to be. The surprising thing is that almost all
communities where this practice is prevalent are well
aware of the fact that marrying child is illegal, nay, it is
even punishable under the law. NGOs as well as the
Government agencies have been working for decades to
root out this evil. Yet, the reality is that the evil
continues to survive. Again, sociologists attribute these
phenomenon of child marriage to a variety of reasons.
The foremost amongst these reasons are poverty, culture,
tradition and values based on patriarchal norms. Other
reasons are: low-level of education of girls, lower status
given to the girls and considering them as financial
burden and social customs and traditions. In many cases,
the mixture of these causes results in the imprisonment of
children in marriage without their consent.
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7. The present case is a telling example, which proves the
sociologists correct.
8. It cannot be disputed that the aforesaid marriage is in
violation of provisions of the Prohibition of Child
Marriage Act, 2006 inasmuch as Chandni is minor and in
below the age of 18 years. At the same time, marriage is
not void under civil law. The circumstances under which
Chandni is married to Yashpal are narrated above and
presumably under these forced circumstances, economic
or otherwise, Vijay Pal decided to marry Chandni to
Yashpal even when she was less than 18 years. Be as it
may, since Vijay Pal and Yashpal are already arrested
and FIR is also registered against them, insofar as that
aspect is concerned, law will take its own course.
9. The purpose and rationale behind the Prohibition of
Child Marriage Act, 2006 is that there should not be a
marriage of a child at a tender age as he/she is neither
psychologically nor physically fit to get married. There
could be various psychological and other implications of
such marriage, particularly if the child happens to be a
girl. In actuality, child marriage is a violation of human
rights, compromising the development of girls and often
resulting in early pregnancy and social isolation, with
little education and poor vocational training reinforcing
the gendered nature of poverty. Young married girls are
a unique, though often invisible, group. Required to
perform heavy amounts of domestic work, under pressure
to demonstrate fertility, and responsible for raising
children while still children themselves, married girls and
child mothers face constrained decision making and
reduced life choices. Boys are also affected by child
marriage but the issue impacts girls in far larger numbers
and with more intensity. Where a girl lives with a man
and takes on the role of caregiver for him, the assumption
is often that she has become an adult woman, even if she
has not yet reached the age of 18. Some of the ill-effects
of child marriage can be summarized as under:
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(i) Girls who get married at an early age are
   often more susceptible to the health risks
  associated with early sexual initiation and
 childbearing, including HIV and obstetric
fistula.
(ii) Young girls who lack status, power and
    maturity are often subjected to domestic
   violence, sexual abuse and social isolation.
  Early marriage almost always deprives girls
 of their education or meaningful work,
which contributes to persistent poverty.
(iii)
(iv) Child Marriage perpetuates an unrelenting
    cycle of gender inequality, sickness and
   poverty.
(v) Getting the girls married at an early age
   when they are not physically mature, leads
  to highest rates of maternal and child
 mortality.
Young mothers face higher risks during pregnancies
including complications such as heavy bleeding, fistula,
infection, anaemia, and eclampsia which contribute to
higher mortality rates of both mother and child. At a
young age a girl has not developed fully and her body
may strain under the effort of child birth, which can
result in obstructed labour and obstetric fistula. Obstetric
fistula can also be caused by the early sexual relations
associated with child marriage, which take place
sometimes even before menarche. Child marriage also
has considerable implications for the social development
of child bridges, in terms of low levels of education, poor
health and lack of agency and personal autonomy. The
Forum on Marriage and the Rights of Women and Girls
explains that „where these elements are linked with
gender inequities and biases for the majority of young
girls... their socialization which grooms them to be
mothers and submissive wives, limits their development
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to only reproductive roles. A lack of education also
means that young brides often lack knowledge about
sexual relations, their bodies and reproduction,
exacerbated by the cultural silence surrounding these
subjects. This denies the girl the ability to make
informed decisions about sexual relations, planning a
family, and her health, yet another example of their lives
in which they have no control. Women who marry early
are more likely to suffer abuse and violence, with
inevitable psychological as well as physical
consequences. Studies indicate that women who marry at
young ages are more likely to believe that it is sometimes
acceptable for a husband to beat his wife, and are
therefore more likely to experience domestic violence
themselves. Violent behaviour can take the form of
physical harm, physical harm, psychological attacks,
threatening behaviour and forced sexual acts including
rape. Abuse is sometimes perpetrated by the husband‟s
family as well as the husband himself, and girls that enter
families as a bride often become domestic slaves for the
in-laws. Early marriage has also been linked to wife
abandonment and increased levels of divorce or
separation and child brides also face the risk of being
widowed by their husbands who are often considerably
older. In these instances, the wife is likely to suffer
additional discrimination as in many cultures divorced,
abandoned or widowed women suffer a loss of status,
and may be ostracized by society and denied property
rights.
10. The Prohibition of Child Marriage Act has been
enacted keeping in view the aforesaid considerations in
mind.”
26.Thus, child marriage is such a social evil which has the potentialities of
dangers to the life and health of a female child and plays havoc in their lives,
who cannot withstand the stress and strains of married life and it leads to
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early deaths of such minor mothers. It also reflects the chauvinistic attribute
of the Indian society. This menace is depicted in the following lines from a
song sung during marriages in Rajasthan:-
“Choti si umariya main parnanaya o babosa, kain main
tharoo kario kusoor”
“Oh father why had you given me off in the marriage at
such a tender age, for what sin did I commit.”
27.These lines itself symbolize the mixed pain of leaving the father‟s house and
at the same time the anguish as to why was she being married off at such a
tender age.
Such situation is unprecedented and the inner pain
unimaginable. The word „Child Marriage‟ is itself contradictory in itself as
one would wonder how marriage and child could go together.
28.When we look into the matter, keeping in view the aforesaid disastrous
consequences of the child marriage, which is even treated as violation of
human rights, including right to lead a life of freedom and dignity, the very
first thing which comes in mind is that the menace of child marriage needs
to be curbed.
Even the legislative thinking is in the same direction.
However, as would be seen hereafter, the legislature has still not made
adequate and effective provisions in the laws to make such a marriage as
void.
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29.We would like to mention that child marriage existed historically in India
and over a period of time it was perceived to be a wrongful practice. The
legislature stepped in more than 80 years ago when the CMRA (popularly
known as the Sarda Act) was enacted with the objective of eliminating the
practice of child marriage. It forbade the marriage of a male with less than
21 years and female with less than 18 years of age. However, the penal
provisions of the Sarda Act did not invalidate the effect of marriage. It laid
down punishment for male adult below twenty one years of age and for male
adult above twenty one years of age who contracted a child marriage and
also for the person, who performed, conducted or directed a child marriage.
Some amendments were carried out in this Act but it was felt that it was not
serving any purpose. It is for this reason that in 2006, the Prohibition of
Child Marriage Act was passed by the Parliament which is before us in the
present form. The Statement of Objects and Reasons of the PCM Act, 2006
have been quoted above. The salient features of the Bill, which culminated
in the enactment of the PCM Act, 2006 are as follows:-
“(i) To make a provision to declare child marriage as
voidable at the option of the contracting party to the
marriage, who was a child.
(ii) To provide a provision requiring the husband or, if
he is a minor at the material time, his guardian to pay
maintenance to the minor girl until her remarriage.
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(iii) To make a provision for the custody and
maintenance of children born of child marriages.
(iv) To provide that notwithstanding a child marriage has
been annulled by a decree of nullity under the proposed
section 3, every child born of such marriage, whether
before or after the commencement of the proposed
legislation, shall be legitimate for all purposes.
(v) To empower the district Court to add to, modify or
revoke any order relating to maintenance of the female
petitioner and her residence and custody or maintenance of
children, etc.
(vi) To make a provision for declaring the child marriage
as void in certain circumstances.
(vii) To empower the Courts to issue injunction
prohibiting solemnsation of marriages in contravention of
the provisions of the proposed legislation.
(viii)To make the offences under the proposed legislation
to be cognizable for the purposes of investigation and for
other purposes.
(ix) To provide for appointment of Child Marriage
Prevention Officers by the State Governments.
(x) To empower the State Governments to make rules
for effective administration of the legislation.”
30.A glance through the main provisions of the PCM Act, 2006 brings out the
following scheme of the Act:-
Section 2 (a) of PCM Act defines “child” and Section 2 (b) defines
“child marriage”. The legislature has, however, taken care to define “minor”
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separately in Section 2(f), as a person who under the provisions of the
Majority Act, 1875 is deemed to have not attained the age of majority.
Section 3 of the PCM Act relates to child marriages. It specifically
states that a child marriage shall be voidable at the option of the contracting
party to the marriage, who was a child at the time of marriage. The term
“child” in Section 2(a) means a person who, if a male, has not completed
twenty-one years of age, and if a female, has not completed eighteen years
of age.
A voidable marriage does not become void on its own or
immediately when the option is exercised.
It requires a decree on
adjudication issued by the district court. The said decree can be only passed
on a petition by a contracting party to the marriage who was a child at the
time of the marriage. The petition has to be filed before or within two years
of attaining “majority” (i.e. majority as defined in the Majority Act, 1875).
Sub-section (2) to Section 3 states that the petition can be moved through a
guardian or next friend along with the Child Marriage Prohibition Officer.
The use of the term “guardian” in Section 3 (2) does cause confusion and is
ambiguous. A husband under the Hindu Minority and Guardianship Act,
1956 is the guardian of the minor wife (see Section 6(c)). Obviously, the
husband, in such a situation, will not and cannot act as a guardian and move
a petition on behalf of his minor wife. “Guardian” in this case will mean the

natural father or the mother of the girl. Fortunately, the legislature has
permitted the next friend to also move an application for annulment of
marriage. Sub-section (4) to Section 3 of the PCM Act states that before
passing such an order notices are required to be issued by the District Judge
to the parties concerned. Sub-section (4) protects a female child, who was
married, and stipulates that the district court can pass an interim or final
order directing payment of maintenance to her. In case the male contracting
party is a minor, his parent or guardian is liable to pay maintenance.
Section 3 of the PCM Act has to contrasted with “void” marriages
mentioned in Section 12 of the same Act. Void marriages are null and void
ab initio and accordingly are treated as different and not similar to voidable
child marriages. As per Section 12, in three circumstances, a marriage of a
minor child is to be treated as void. We record that sub-section 2 to Section
3 will not apply in case of a “child” after he has attained majority, for he or
she thereafter do not have any lawful guardian.
Section 13 (2) (iv) of HMA gives the right to a wife to file a petition
for dissolution of her marriage by a decree of divorce under the said Act.
The said provision was introduced with effect from 27 th May, 1976. It
stipulates that a Hindu wife can file a petition for divorce if the marriage is
solemnized before she had attained the age of 15 years and she repudiates

the marriage before she attains the age of 18 years. The said right of the
Hindu females to ask for divorce, does not mean that a petition before the
district court cannot be filed under Section 3 of the PCM Act. PCM Act as
noticed above is a secular law and is a latter enactment, which specifically
deals with the problem of child marriages. Religion of the contracting party
does not matter. PCM Act being a “special Act” and being a subsequent
legislation, to this extent and in case there is any conflict, will override the
provisions of HMA Act or for that matter any personal law. However, this
should not be interpreted that we have held that a petition for dissolution of
marriage under Section 13(2)(iv) is not maintainable. Both provisions i.e.
Section 13(2)(iv) and Section 3 operate, apply and have their own
consequences. These are two concurrent provisions, which can be invoked
by the “parties” satisfying the conditions stipulated in the two sections.
As noticed below, a Division Bench of this Court in W.P.(Crl.)
1003/2010 decided on 11.08.2010 Jitender Kumar Sharma Vs. State and
Another, has been held that PCM Act is a secular law. On this aspect we
respectfully agree with the view that PCM Act is a secular law. Decision of
the Full Bench of Madras High Court in T. Sivakumar Vs. The Inspector of
Police (supra) also accepts the said position.

31.We have already reproduced Sections 2(a), 9, 12 and 15 of this Act. It is
clear therefrom that marriage of a minor child is treated as void only under
the circumstances mentioned in Section 12. Otherwise, this Act does not
make the marriage of the child void but voidable at the option of the parties
to an underage marriage which option can be exercised within the stipulated
time.
It is intriguing that the legislature accepted the menace of child
marriage. It even accepted that the child marriage is violation of human
rights. The legislature even made the child marriage a punishable offence by
incorporating provision for prosecution and imprisonment of certain persons.
At the same time, except in certain circumstances contemplating under
Section 12 of the Act, the marriage is treated as voidable. The interplay of
this Act with other enactments compounds this anomaly and comments on
such anomalies are stated in detail at the appropriate stage. At present we
confine ourselves to the issue at hand as the status of the child marriage
needs to be determined on the basis of statutory provisions, which exists as
of now.
As pointed out above, under the Hindu Marriage Act, child
marriage is still treated as valid and not a void marriage. It is personal law,
in codified form, governing Hindus. On the other hand, PCM Act, which is
a secular law, treats this marriage as voidable except those events which are
covered by Section 12 of the PCM Act. In neither of the aforesaid statutes
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the child marriage is treated as void ab initio or nullity. Therefore, we
cannot hold child marriage as a nullity or void. The next question that
follows is as to whether the provisions of personal law, i.e., Hindu Marriage
Act should be applied to declare such a marriage as valid or the provisions
of PCM Act would prevail over the HM Act.
32.It is distressing to note that the Indian Penal Code, 1860 acquiesces child
marriage. The exception to Section 375 specifically lays down that sexual
intercourse of man with his own wife, the wife not being under fifteen years
of age is not rape, thus ruling out the possibility of marital rape when the age
of wife is above fifteen years. On the other hand, if the girl is not the wife of
the man, but is below sixteen, then the sexual intercourse even with the
consent of the girl amounts to rape? It is rather shocking to note the specific
relaxation is given to a husband who rapes his wife, when she happens to be
between 15-16 years. This provision in the Indian Penal Code, 1860 is a
specific illustration of legislative endorsement and sanction to child
marriages. Thus by keeping a lower age of consent for marital intercourse, it
seems that the legislature has legitimized the concept of child marriage. The
Indian Majority Act, 1875 lays down eighteen years as the age of majority
but the non obstante clause (notwithstanding anything contrary) excludes
marriage, divorce, dower and adoption from the operation of the Act with
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the result that the age of majority of an individual in these matters is
governed by the personal law to which he is a subject. This saving clause
silently approves of the child marriage which is in accordance with the
personal law and customs of the religion. It is to be specifically noted that
the other legislations like the Indian Penal Code and Indian Majority Act are
pre independence legislations whereas the Hindu Minority and Guardianship
Act is one enacted in the post independent era. Another post independent
social welfare legislation, the Dowry Prohibition Act, 1961 also contains
provisions which give implied validity to minor's marriages. The words
'when the woman was minor' used in section 6(1)(c) reflects the implied
legislative acceptance of the child marriage. Criminal Procedure Code, 1973
also contains a provision which incorporates the legislative endorsement of
Child Marriage. The Code makes it obligatory for the father of the minor
married female child to provide maintenance to her in case her husband
lacks sufficient means to maintain her.
33.The insertion of option of dissolution of marriage by a female under Section
13(2)(iv) to the Hindu Marriage Act through an amendment in 1976
indicates the silent acceptance of child marriages. The option of puberty
provides a special ground for divorce for a girl who gets married before

attaining fifteen years of age and who repudiates the marriage between 15-
18 years.
34.Legislative endorsement and acceptance which confers validity to minor's
marriage in other statutes definitely destroys the very purpose and object of
the PCM Act–to restrain and to prevent the solemnization of Child Marriage.
These provisions containing legal validity provide an assurance to the
parents and guardians that the legal rights of the married minors are secured.
The acceptance and acknowledgement of such legal rights itself and
providing a validity of Child Marriage defeats the legislative intention to
curb the social evil of Child Marriage.
35.Thus, even after the passing of the new Act i.e. the Prohibition of Child
Marriage Act 2006, certain loopholes still remain, the legislations are weak
as they do not actually prohibit child marriage. It can be said that though the
practice of child marriage has been discouraged by the legislations but it has
not been completely banned.
36.Mr. Deep Ray of NALSAR University of Law, Hyderabad has pointed out
the following three loopholes in his article “Child Marriage and the Law”.
Firstly, Child Marriages are made voidable at the option at the parties but
not completely void. That means Child Marriages are still lawful. Making
such marriages voidable doesn‟t really help matter in most cases as girls on

attaining majority don‟t have the agency or adequate support from their
families to approach the court and go for annulment of the marriage. The
reason behind not making such marriages void probably is that child
marriages, once solemnized and consummated makes it very difficult, if not
impossible for girls to deny and step out of those marriages. Therefore, it is
in keeping with the social reality that such marriages are not declared void.
If the social reality largely remains the same, the likelihood that young girls
will now choose to nullify their marriages, which would probably be
consummated by the time she attains maturity and decides to approach the
courts, seems very unlikely.
37.Secondly, 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.
38.Thirdly, 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. This would probably
be able to tackle the sensitive issue of minor marriages upheld by personal
laws.
39.As held above, 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. We would also hasten to add that there is
no challenge to the validity of the provisions and therefore, declaration by
the legislature of such a marriage as voidable even when it is treated as
violation of human rights and also punishable as criminal offence as proper
or not, cannot be gone into in these proceedings. The remedy lies with the
legislature which should take adequate steps by not only incorporating
changes under the PCM Act, 2006 but also corresponding amendments in
various other laws noted above. In this behalf, we would like to point out
that the Law Commission has made certain recommendations to improve the
laws related to child marriage.
40.Be as it may, 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
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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.
41.With this we come to the second part of the question relating to custody of
the female of less than 18 years to the husband. This would be taken up
along with Question Nos.2 and 3 hereinbelow.
Question No.2 and 3
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?
42.We are of the opinion that simply because the marriage is not void, it should
automatically follow that the husband is entitled to the custody of the minor
girl. We have already noted in detail the serious repercussions of child
marriage. Some of the ill effects of the child marriage were taken note of in
the case of Association for Social Justice & Research v.Union of India &
others (supra), some of which are reproduced again:-
(i) Girls who get married at an early age are often more
susceptible to the health risks associated with early
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sexual initiation and childbearing, including HIV and
obstetric fistula.
(ii) Young girls who lack status, power and maturity are
often subjected to domestic violence, sexual abuse
and social isolation.
(iii)
Early marriage almost always deprives girls of
their education or meaningful work, which contributes
to persistent poverty.
(iv)
Child Marriage perpetuates an unrelenting cycle of
gender inequality, sickness and poverty.
(v) Getting the girls married at an early age when they are
not physically mature, leads to highest rates of
maternal and child mortality.
Young mothers face higher risks during pregnancies including
complications such as heavy bleeding, fistula, infection, anaemia, and
eclampsia which contribute to higher mortality rates of both mother and
child. At a young age a girl has not developed fully and her body may strain
under the effort of child birth, which can result in obstructed labour and
obstetric fistula. Obstetric fistula can also be caused by the early sexual
relations associated with child marriage, which take place sometimes even

before menarche. Child marriage also has considerable implications for the
social development of child bridges, in terms of low levels of education,
poor health and lack of agency and personal autonomy. The Forum on
Marriage and the Rights of Women and Girls explains that „where these
elements are linked with gender inequities and biases for the majority of
young girls... their socialization which grooms them to be mothers and
submissive wives, limits their development to only reproductive roles.
A
lack of education also means that young brides often lack knowledge about
sexual relations, their bodies and reproduction, exacerbated by the cultural
silence surrounding these subjects. This denies the girl the ability to make
informed decisions about sexual relations, planning a family, and her health,
yet another example of their lives in which they have no control.
43.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;
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(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:
Provided that no person shall be entitled to act as
the natural guardian of a minor under the provisions
of this section-
(a) If he has ceased to be a Hindu, or
(b) If he has completely and finally renounced
the world by becoming a hermit
(vanaprastha) or an ascetic (yati or sanyasi).
Explanation.- in this section, the expression
“father” and “mother” do not include a
step-father and a step-mother.”
44.It was stated that in the case of a minor married girl, the husband is the
guardian and in case of an unmarried minor girl father or the mother, is her
guardian. 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. This was declared long back
in 1973 in Rosy Jacob Vs. Jacob Chakramakkal, AIR 1973 SC 2090.
45.We may also refer Section 13 of the Minority and Guardianship Act, 1956,
which reads:-
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“13 . Welfare of minor to be paramount consideration.- (1)
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.
(2) 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.”
The said section has been interpreted and it has been repeatedly held
that while deciding the question of custody of a minor child, it is the interest
of the child, which is paramount and important. (See Kumar V. Jahgirdar
Vs. Chetana K. Ramatheertha AIR 2001 SC 2179 and AIR 2004 SC 1525).
46.In such circumstances, allowing the husband to consummate a marriage may
not be appropriate more so when the purpose and rationale behind the PCM
Act, 2006 is that there should be a marriage of a child at a tender age as he
or she is not psychologically or medically fit to get married. There is
another important aspect which is to be borne in mind. Such a marriage,
after all, is voidable and the girl child still has right to approach the Court
seeking to exercise her option to get the marriage declared as void till she
attains the age of 20 years. How she would be able to exercise her right if in
the meantime because the marriage is consummated when she is not even in
a position to give consent which also could lead to pregnancy and child
bearing. Such marriages, if they are made legally enforceable will have
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deleterious effect and shall not prevent anyone from entering into such
marriages. Consent of a girl or boy below the age of 16 years in most cases
a figment of imagination is an anomaly and a mirage and, and will act as a
cover up by those who are economically and/or socially powerful to
pulverize the muted meek into submission. These are the considerations
which are to be kept in mind while deciding as to whether custody is to be
given to the husband or not. 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 straight forward 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.
Question No.4
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?

47.This brings us to the anomaly with and in the Indian Penal Code. Consent
below the age of 16 years is immaterial, except when the rape is committed
by a male who is married to the girl.
Section 376 IPC does not treat the
rape committed by a husband on his wife above the age of 15 years as an
offence.
This certainly requires a relook.
consonance with the PCM Act.
This provision is not in
Section 376 IPC is required to be
rationalized and amended in consonance with the PCM Act, and it may be
difficult to implement and effectively enforce the PCM Act otherwise. The
question of age of consent for the purpose of Indian Penal Code is a larger
issue, and not being a subject matter of the reference, has not been examined
by us.
48.We often come across cases where girl and boy elope and get married in
spite of the opposition from the family or parents.
Very often these
marriages are inter-religion, inter-caste and take place in spite of formidable
and fervid opposition due to deep- seated social and cultural prejudices.
However, both the boy and girl are in love and defy the society and their
parents. In such cases, the courts face a dilemma and a predicament as to
what to do. This question is not easy to answer. We feel that no straight
jacket formula or answer can be given. It depends upon the facts and
circumstances of each case. The decision will largely depend upon the

interest of the boy and the girl, their level of understanding and maturity,
whether they understand the consequences, etc. The attitude of the families
or parents has to be taken note of, either as an affirmative or a negative
factor in determining and deciding whether the girl and boy should be
permitted to stay together or if the girl should be directed to live with her
parents. Probably the last direction may be legally justified, but for sound
and good reasons, the Court has option(s) to order otherwise. We may note
that in many cases, such girls severely oppose and object to their staying in
special homes, where they are not allowed to meet the boy or their parents.
The stay in the said special homes cannot be unduly prolonged as it virtually
amounts to confinement, or detention. The girl, if mature, cannot and should
not be denied her freedom and her wishes should not get negated as if she
has no voice and her wishes are of no consequence.
The Court while
deciding, should also keep in mind that such marriages are voidable and the
girl has the right to approach the Court under Section 3 of the PCM Act to
get the marriage declared void till she attains the age of 20 years.
Consummation of marriage may have its own consequences.
49.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.
50.Consummation, with the wife below the age of 15 years, is an offence under
Section 375. No exception can be made to the said constitutional mandate
and the same has to be strictly and diligently enforced.
Consent in such
cases is completely immaterial, for consent at such a young age is difficult to
conceive and accept. It makes no difference whether the girl is married or
not. Personal law applicable to the parties is also immaterial.
51.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.
Attending circumstances including the maturity and
understanding of the girl, social background of girl, age of the girl and boy
etc. have to be taken into consideration.
Question No.5
Whether there may be other presumptions also which may arise?

52.In view of our discussion on questions No.1 to 4, no further observations
need to be made in so far as this question is concerned.
53.Having answered the aforesaid questions we now take up each case as was
agreed by the counsel for the parties and it is not necessary to refer the case
to the Division Bench.

54.As per the facts noted in paras 3-6 above, Ms.Meera is the girl in question
whose date of birth is 6.7.1995. When she married Charan Singh she was 13
years of age. She had made a statement under Section 164 of the Cr.P.C.
before the learned MM, Rohini that she had gone with Charan Singh of her
own free will. This petition was registered on the basis of letter written by
her mother Smt. Lajja Devi. During the pendency of this petition, order
dated 31.7.2008 was passed permitting her to go with her parents as she
desired to live with them on assurance given by her parents that they would
not marry her to anyone else. She is still 17 years of age. This marriage, as
per our discussion above, is voidable. Since she has not attained majority
and is residing with her parents, this arrangement would continue. When
she becomes major it would be for her to exercise her right under the PCM
Act if she so desires and future course of action would depend threon.
With these directions, the petition is disposed of.
55.Facts of this case have already been noted above. As per the ossification
test, the girl/petitioner No.1 was found between 17-19 years of age. As per
the school leaving certificate, she was 17 years of age on the date when the
parties solemnised marriage. Since she has given the statement that she
married of her own accord to the petitioner No.2 and was more than 16 years
of
age,
FIR
No.31
of
2011,
363/366/376/465/467/494/497/120-B/506
P.S.
IPC
Dabri
under
registered
Sections
against
the
petitioner No.2 is hereby quashed.

56.In this Writ Petition, the question is only of validity of marriage and
guardianship. Even if the age of the girl is taken as 15 years at the time of
incident, i.e., 27.10.2006, she would be 21 years of age as of now. She has
not filed any proceedings for declaring the marriage as void. Therefore, the
marriage becomes valid now. The question of guardianship does not arise at
this stage as she is major and during the period she was minor she resided at
Nirmal Chhaya. Thus, the Writ Petition is disposed of in the aforesaid
terms.

57.As per the facts noted in para 10 above, Shivani @ Deepika at the time of
her marriage was less than 16 years of age, her date of birth being 3.6.1994.
It was directed that she would remain at Nirmal Chhaya. However, as per
the aforesaid date of birth, i.e., 3.6.1994 she has attained majority on
3.6.20012. The petition was filed by Sh. Devender Kumar who married her
habeas corpus and was claiming her custody. She has attained majority, she
is free to go anywhere.
58.With these directions, this petition stands disposed of.
ACTING CHIEF JUSTICE
(SANJIV KHANNA)
JUDGE
(V.K. SHALI)
JUDGE
July 27, 2012

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