Gujarat High Court on Wednesday ruled that the Prohibition of Child Marriage Act, 2006 is a secular law which specifically deals with the problem of child marriages. t is also held that the provisions of the Prohibition of Child Marriage Act, 2006 being a “Special Act” and being a subsequent legislation, to this extent and in case there is any conflict, will override the provisions of Muslim Personal Law, Hindu Marriage Act or for that matter any personal law. Religion of the contracting party does not matter.
Expressing his anguish over the marriage of the minor Muslim girl with a man 12 years elder to her, Justice Pardiwala observed, “This, in my view, is nothing, but the lack of maturity, understanding and education on the part of the girl. Sixteen years is not an age for a girl to get marries….Keeping this in mind those who have not allowed to change the Muslim Personal Law have done a great disservice to the community. At the same time, it is also true that as the social condition in the nation and throughout the world continues to change, the reality of life is, that even without a code of personal law of Muslim insofar as marriage is concerned, child marriage is going into oblivion.”
The Court was hearing a petition filed by the accused under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of an FIR filed against him under Section 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.) and Section 363 (punishment for kidnapping). He was also charged with an offence under Section 18 of the Prevention of Children from Sexual Offences Act, 2012.
The FIR had alleged that the accused had kidnapped the 16 year old daughter of the informant. It stated that the two were in love and that the accused kidnapped her from her lawful guardians.
The accused, on the other hand, had argued that the girl had left her parental home on her own volition and had decided to get married to the accused. Accordingly, Nikah was performed and the duo was staying together as lawfully wedded husband and wife.
The accused had contended that the two are governed by their personal law i.e. Mohammedan Law, according to which, a Muslim girl, who is above 15 years of age or has attained puberty, is at liberty to marry even if the parents don’t consent to it.
The accused relied on the decision of the High Court in the case of Mujamil Abdulsattar Mansuri vs. State of Gujarat (Criminal Miscellaneous Application No. 19811 of 2013), submitting that the continuation of investigation by the police would be nothing, but an abuse of process of law. The facts of this case were almost identical to the facts in issue. In Mujamil Abdulsattar’s case, the High Court had held that the prescription of marriageable age has no application for girls belonging to the Mohammedan community as they are governed by the Muslim Personal Law (Shariat) Application Act, 1937. The Court in that case had however, not considered the effect of the PCM Act.
The State had contended that the decision of the Court in Mujamil Abdulsattar’s case needed to be re-looked in the light of the conflict between the Personal Muslim law and the Prohibition of Child Marriage Act, 2006. Additional Public Prosecutor K.L. Pandya submitted that the Prohibition of Child Marriage Act, 2006 is a special Act and it does not distinguish between the accused according to his community. He hence submitted that the Act would have application to people belonging to all religions and regions, except for the State of Jammu and Kashmir.
He further submitted that the consequences of committing an offence under the PCM Act cannot be avoided on the ground of belonging to a particular religion. He relied on the decision of the Supreme Court in the case of Shabana Bano v. Imran Khan, (2009) 12 SCC 62, wherein it was held that a divorced Muslim woman is entitled to claim maintenance from her husband under Section 125 of the Cr.P.C., even after expiry of the iddat period so long as she does not remarry.
Considering Shabana Bano’s case, the State submitted that the decision in Mujamil Abdulsattar’s case is not good law.
He consequently submitted that the marriage was in violation of the PCM Act as the girl is a minor, being below the age of 18 years. In such circumstances, it was prayed that the FIR should not be quashed and the Police should be permitted to complete the investigation.
The Court found merit in the State’s argument that a statute can always extinguish the customary law and the customary rights. The Court referred to the judgment of the Supreme Court in the case of Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and Others, 1960 AIR (SC) 1368, wherein it was held that Mohammedan law of transfer of property cannot override the statutory law.
The general proposition of law that a special enactment on a subject would prevail against the general principles, was laid down in the case of JK Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh & Ors., 1961 AIR (SC) 1170.
The Court further relied on a judgment of the Karnataka High Court in the case of Seema Begaum v. State of Karnataka, Writ Petition No. 75889of 2013. Karnataka HC in that case had held in clear terms that “no India citizen on the ground of his belonging to a particular religion can claim immunity from the application of the PCM Act.”
A judgment by the Division Bench of the Madras High Court in M. Mohamed Abbas v. The Chief Secretary, Government of Tamil Nadu, Writ Petition No. 3133 of 2015 was also referred to by the Court. Madras High Court had held that the provisions of the PCM act are in no way against the religious rights guaranteed under Articles 25 and 29 of the Constitution of India.
In the light of these established principles, the Court held that the proposition of law laid down in Mujamil Abdulsattar’s case is not good in law. It also rejected the argument that Personal law would prevail over the PCM Act, 2006.
With respect to the charge of kidnapping, the bench was of the view that no case was made out to even prima facie show that the girl had received a promise or assurance or any tempting offer from the accused, due to which she was forced to leave her parental home. Accordingly, it ruled that no case was made out under Sections 363 and 376 of IPC, including Section 18 of the POSCO Act. The FIR was quashed to that extent.
The Police was however asked to look into any violation of the provisions of the Prohibition of Child Marriage Act, 2006 and file appropriate report before the Trial Court to add provisions of this Act in the FIR.
The conflict between Indian law and personal laws has been highlighted time and again through various decisions of the Courts throughout the country. Gujarat High Court had in December last year, upheld the marriage of a minor Muslim girl, observing that, “According to the personal law of Muslims, the girl no sooner she attains the puberty or completed 15 years, whichever is earlier is competent to get married without the consent of her parents
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8290 of 2015
YUNUSBHAI USMANBHAI SHAIKH Vs STATE OF GUJARAT
CORAM: MR.JUSTICE J.B.PARDIWALA
Date : 23/09/2015
Citation;2016 CRLJ717
Citation;2016 CRLJ717
1. Rule. Mr. K.L. Pandya, the learned Additional Public Prosecutor
waived the service of notice of rule for and on behalf of the respondent
No.1. The respondent No.2 the original first informant although served
with the notice issued by this Court dated 23.06.2015 yet has chosen not
to appear before this Court and oppose this application either in person
or through an advocate.
2. By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicant the original accused seeks to invoke the
inherent powers of this Court, praying for quashing of the First
Information Report bearing C.R. No.I38 of 2014 registered with the
Gayakwad Haveli Police Station, District: Ahmedabad for the offence
punishable under Sections 363 and 366 of the Indian Penal Code (for
short, 'the I.P.C.') and also for the offence punishable under Section 18
of the Prevention of Children from Sexual Offences Act (for short, 'the
POCSO Act').
3. The facts giving rise to this petition may be summarized as under:
3.1 The respondent No.2 is a resident of Ahmedabad. He has two
daughters, namely, Namira aged 16 years and 4 months, and Tahejib
aged 10 years. At the time when the First Information Report was
lodged, the elder daughter of the first informant, namely, Namira was
studying in standard 11th. In the First Information Report, it has been
stated that his daughter Namira was in love with the applicant herein. It
is further stated that the family members used to persuade Namira to
discontinue the relations with the applicant accused. It is further stated
that friends and relatives had also tried to persuade Namira not to keep
any relations with the applicant accused. It has been alleged in the F.I.R.
that on 17.04.2015 in the night hours, the applicant accused enticed the
daughter of the first informant, namely, Namira and kidnapped her from
the lawful guardianship of the first informant. It is alleged that on the
date of the lodging of the F.I.R., Namira was a minor.
4. The applicant accused has come up with this application, praying
for quashing of the F.I.R., mainly on the following grounds:
(1) The first informant, as father of Namira, has admitted in so many
words in the First Information Report that his daughter was in love with
the applicant accused.
(2) The first informant has also declared the age of his daughter as 16
years and 4 months on the date when the offence is alleged to have been
committed.
(3) According to the applicant accused, Namira had left her parental
home on her own free will and volition and decided to get married with
the applicant accused. Accordingly, the Nikah was performed, and as on
today, the applicant accused and Namira are residing together as lawful
wedded husband and wife.
(4) The applicant accused and Namira are governed by their Personal
Law i.e. the Mohammedan Law. A Muslim girl, who is above 15 years of
age or has attained puberty, is at liberty to marry even if there is no
consent from the parents.
(5) Article 251 of the Mohammedan Law deals with the capacity for
marriage.
(6) Article 348 deals with the age of majority.
(7) According to the applicant accused, no offence could be said to
have been committed in view of the decision of this Court in the case of
Mujamil Abdulsattar Mansuri vs. State of Gujarat (Criminal
Miscellaneous Application No.19811 of 2013 decided on 01.12.2014).
(8) Mr. Soeb R. Bhoharia, the learned counsel appearing for the
applicant accused submitted that even if the entire case of the first
informant is accepted as true, none of the ingredients to constitute the
offence of kidnapping are spelt out.
(9) He submitted relying on the decision of this Court in the case of
Mujamil (supra) that the continuation of the investigation by the police
would be nothing, but an abuse of the process of law.
5. On the other hand, this application has been vehemently opposed
by Mr. Pandya, the learned Additional Public Prosecutor appearing for
the respondent – State of Gujarat. He pointed out that in the decision of
this Court referred to above and which has been strongly relied upon,
the provisions of the Indian Majority Act were looked into in details, but
there is no reference of the effect of the provisions of the Prohibition of
Child Marriage Act, 2006 (for short, ‘the P.C.M. Act, 2006’). Mr. Pandya
submitted that the decision of this Court in the case of Mujamil (supra)
needs to be relooked in light of the conflict between the Personal
Muslim Law and the provisions of the Prohibition of Child Marriage Act,
2006.
6. He submitted that the Prohibition of Child Marriage Act, 2006 is a
special Act and it does not distinguish between the accused according to
his community. A Muslim boy or any other person of the Muslim
community is covered by the provisions of the Prohibition of Child
Marriage Act, 2006. He submitted that the P.C.M. Act has the application
for all the people belonging to all religions and regions. The only
exception made is in the case of State of Jammu and Kashmir. He
brought to my notice the provisions contained in Section 1(2) of the
P.C.M. Act, 2006, which reads as under:
“1. Short title, extent and commencement
(1)... … ...
(2) It extends to the whole of India except the State of Jammu and
Kashmir; and it applies also to all citizens without and beyond India;
Provided that nothing contained in this Act shall apply to the Renoncants
of the Union territory of Pendicherry.”
7. Mr. Pandya submitted that the consequences of committing the
Page 5 of 61
HC-NIC Page 5 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
offence under the P.C.M. Act cannot be avoided on the ground of the
offender belonging to a particular religion.
8. He submitted that the statute can always extinguish the customary
law and the customary right. Mr. Pandya relied on the decision of the
Supreme Court in the case of Shabana Bano v. Imran Khan, reported in
(2009) 12 SCC 62, wherein it was held that a divorced Muslim woman
is entitled to claim the maintenance from her husband under Section
125 of the Code of Criminal Procedure even after the expiry of the Iddat
period so long as she does not remarry. Just because her personal law
provides for the award of the maintenance only during the Iddat period,
the maintenance cannot be restricted to the Iddat period only.
9. He submitted that considering the above, the decision of this
Court in the case of Mujamil (supra) is not a good law. He submitted
that what is permitted or not prohibited by a religion does not become a
religious practice or a positive tenet of a religion. Mr. Pandya severely
criticized the Personal Muslim Law which permits a Muslim girl having
attained the age of 15 or puberty to get married even without the
consent of her parents. He submitted that the object behind enacting the
P.C.M. Act was to curb the menace of child marriage; which is still
prevalent in this Country. He submitted that the marriage of the
applicant accused with Namira is in violation of the provisions of the
Page 6 of 61
HC-NIC Page 6 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
P.C.M. Act, 2006, inasmuch as Namira is minor being below the age of
18 years. He submitted that Namira might have fallen in love with the
applicant accused, who is 12 years elder to her, without understanding
the implication of such marriage. He submitted that Namira could not be
said to be psychologically or physically fit to get married. He submitted
that consent of Namira is hardly of any consequence so far as the P.C.M.
Act is concerned.
10. In such circumstances, referred to above, Mr.Pandya, the learned
Additional Public Prosecutor prays that the First Information Report
should not be quashed and the police should be permitted to complete
the investigation. He submitted that the police has also overlooked the
provisions of the P.C.M. Act, 2006 while registering the F.I.R. He
submitted that the Police may have been guided by the dictum of law
laid down by this Court in the case of Mujamil (supra) that a Muslim
girl having attained the age of 15 or having attained the puberty can
marry even without the consent of her parents.
11. He submitted that this application deserves to be rejected.
• ANALYSIS:
12. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following three
questions fall for my consideration:
Page 7 of 61
HC-NIC Page 7 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
(1) Whether the decision of this Court in the case of Mujamil (supra)
lays down the correct proposition of law so far as the right of a Muslim
girl to get married at the age of 15 or having attained puberty is
concerned visàvis the provisions of the P.C.M. Act, 2006.
(2) Whether the Muslim Personal Law (Shariat) Application Act, 1937
would prevail over the P.C.M. Act, 2006.
(3) Even if the Muslim girl is a consenting party whether the offence
could be said to have been committed under the P.C.M. Act, 2006, if she
gets married being a minor in terms of the P.C.M. Act, 2006.
13. Before I proceed to consider the questions framed above, I deem it
necessary to look into the decision of this Court in the case of Mujamil
(supra). In the case of Mujamil (supra), the facts were almost identical.
Mujamil had an affair with a girl, namely, Reshambanu aged 17.
Reshambanu one day left her parental home and got married with
Mujamil. They got married by performing Nikah at the Ajmer Sharif. The
father of Reshambanu lodged a report in that regard alleging the offence
of kidnapping by Mujamil of his daughter. It was argued before this
Court that Reshambanu being a Muslim girl was within her right under
the Personal Muslim Law to get married since she had crossed the age of
15. It was also argued that Reshambanu was in love with Mujamil and
Page 8 of 61
HC-NIC Page 8 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
had left her parental home on her own free will and volition.
14. This Court considered the provisions of the Mohammedan Law
and also the decision of the Division Bench of the Patna High Court in
this regard. This Court also considered one another decision of this
Court in the case of Alimamad Mersha Shaikh vs. State of Gujarat,
2006 (3) GLR 2472. Taking into consideration the Personal Muslim Law
and the case law, it was held by this Court as under:
“12. Article 251 of the Mohammedan Law deals with capacity for
marriage. It reads as under:
251. Capacity for marriage. (1) Every Mahomedan of a
sound mind, who has attained puberty, may enter into a
contract of marriage. (2) Lunatics and minors who have
not attained puberty may be validly contracted in
marriage by their respective guardians, (3) A marriage
of a Mahomedan who is of sound mind and has attained
puberty, is void, if it is brought about without his
consent.
Explanation Puberty is presumed, in the absence of
evidence, on completion of the age of fifteen years.
This provision clearly shows that every Mahomedan who
has attained puberty, is capable to validly contract
marriage. The explanation of puberty is presumed, in
the absence of evidence, on completion of the age of
fifteen years. Therefore, every Mahomedan who has
attained puberty can enter into a contract of marriage
even if there is no consent of the parents or guardians.
Further in absence of evidence, puberty can be presumed
on completion of the age of fifteen years.
13. Article 348 deals with the age of majority. It reads as under:
348. Age of majority. In this Chapter, minor means a
person who has not completed the age of eighteen years.
Page 9 of 61
HC-NIC Page 9 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
14. It shows that a person who has not completed 18 years of age is a
minor. However, in the commentary on the text book Mulla, Principles of
Mahomedan Law, 19th Edition, by M. Hidayatullah, it is stated as under:
Age of majority under the Mahomedan Law.
According to the Islamic law, the minority of a male or
female terminates when he or she attains puberty.
Among the Hanafis and the Shia, puberty is presumed
on the completion of the fifteenth year. Under the
Indian Majority Act(s.3), minority cases on the
completion of the eighteenth year, unless a guardian of
the person or property or both of the minor has been or
shall be appointed before the minor has attained the
age of eighteen years, or the property of the minor is
under the superintendence of a Court of Wards, in
which case the age of minority is prolonged until the
minor has completed the age of twentyone years.
Under the Mahomedan Law any person who has
attained puberty is entitled to act in all matters
affecting his or her status or his or her property. But
that law has been materially altered by the Indian
Majority Act, and the only matters in which a
Mahomedan is now entitled to act on attaining the age
of fifteen years are (1) marriage, (2) dower and (3)
divorce. In all other matters his minority continues
until the completion at least of eighteen years. Until
then the Court has power to appoint a guardian of his
person or property or both under the Guardians and
Wards Act.
15. Thus, from the above, it is clear that when a person has attained
puberty, when he or she has willingly contracted the marriage, it is a valid
marriage under the Mohammedan Law.
16. I may quote with profit a Division Bench decision in the case of Mohd.
Idris Vs. State of Bihar, 1980, Criminal Law Journal, 764.
17. The Division Bench of the Patna High Court has observed as under:
5. So far as the factum of marriage is concerned, I may
say at the outset that in the instant case it has not
been disputed at any stage. From the order of the
learned Sessions Judge, it does not appear that the
petitioner disputed the factum of marriage. His only
assertion since the very beginning was that she is
below 15 years of age, and, as such, she could not
Page 10 of 61
HC-NIC Page 10 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
marry without the consent of her guardian. Even
before this Court in the writ application there is no
assertion that in fact there has been no marriage. This
aspect of the matter has been considered by a Bench in
the case of Mst. Bashiran V/s. Mohammad Hussain
[AIR 1941 Oudh 284] wherein it was
observed: .........It is well settled that the Indian
Majority Act which fixes the age of 18 years, at which
a minor becomes a major, exempt marriage and
divorce. The result will be that respondent No. 5 on the
relevant date may be minor under the Indian Majority
Act, or within the meaning of Sec. 361 of the Indian
Penal Code, but certainly she could have married
without the consent of her natural guardian. The
necessary corollary to this will be that whatever may
be the fate of the criminal case, which has been lodged
by the petitioner for prosecuting respondent No. 4 for
kidnapping, after the marriage, respondent No. 4 will
be deemed to be the husband, and as such, entitled to
live with respondent No. 5. In such a situation, in my
opinion, learned Sessions Judge has not committed any
error in directing the release of respondent No. 5
saying that she was at liberty to live with respondent
No. 4 whom she claims to have married.
18. The Bench has further observed as under:
6. I have not been able to appreciate under what
provision of law respondent No. 5 was taken in
custody because she is not alleged to have committed
any offence, and, as such, her detention in custody
was without any authority in law. We are informed
that even today she has been kept in Bihar State
[North] Care Home, Patna City6 under some order
passed either by the learned Magistrate or by the
Sessions Judge subsequently. As she is not an accused
in any case there is no justification for detaining her
in any Care Home. She should be allowed to go with
respondent No. 4 as directed by the learned Sessions
Judge.
19. The aforesaid observations, in my view, completely support the
submission advanced by Mr. Patel, the learned advocate appearing on
behalf of the applicant. The sumtotal of the aforesaid discussion of
Articles 251 and 348 of the Mohammedan Law is that for the purpose of
contracting marriage, a person is considered to be major when he or she
attains puberty and such person can contract marriage even without the
Page 11 of 61
HC-NIC Page 11 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
consent of the guardian, if he or she is of sound mind and not a lunatic.
20. In absence of any evidence, puberty can be assumed on completion of
the age of 15 years. (See Alimamad Mersha Shaikh Vs. State of
Gujart, 2006(3) GLR 2472.
21. However, the issue does not conclude over here. No doubt, according to
the Mohammedan Law, the occurrence of puberty or attaining 15 years of
age determines minority of the right of the girl to contract a marriage
without the consent of the parents, but in my opinion, for the present
purpose i.e. so far as Sections 360 and 366 of the Indian Penal Code are
concerned, regard must be only to the definition of minority under Section
3 of the Indian Majority Act 9 of 1875.
22. Let me look into the provisions of the Indian Majority Act, more
particularly the objects and reasons:
INTRODUCTION
During the Brithish regime the mass of persons demiciled in
India were roughly divided into (I) Hindus, (ii)
Muhammadans, (iii) European Brithish Subjects and (iv)
persons to whom the Indian Succession Act applied. The ages
at which persons belonging to these classes attain their
majority were different according to the then prevalent laws.
In the highly important matter of the age at which persons
can enter into binding contracts with others and undertake
responsibilities as majors, the law of the country was most
confused and uncertain. To remedy this, the Indian Majority
Bill was introduced in the Legislature.
STATEMENT OF OBJECTS AND REASONS
The mass of persons demiciled in this country may roughly
be divided into (1) Hindus, (2) Muhammadans,(3)
European Brithish subjects, (4) persons to whom the Indian
Succession Act applies.
In the present state of law, the ages at which persons
belonging to these classes respectively attain their majority
may be stated as follows:
1. By the Hindu sastras, except those prevailing in Bengal,
the end of the sixteenth year is the limit of minority, in
Bengal the end of the fifteenth year is deemed to be the
limit of minority, according to the Hindu law as understood
there.
By Bengal Regulation XXVI of 1973 and Madras Regulation
V of 1804, the minority of Hindu proprietors of estates
paying revenue to Government was extended, in case of
Page 12 of 61
HC-NIC Page 12 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
such persons in each presidency respectively, to the end of
the eighteenth year.
By Acts XL of 1858 and XX of 1864, for the care of the
persons and property of minors in the Presidency of Fort
William in Bengal and in the Presidency of Bombay,
respectively, it was enacted that, for the purposes of those
Act, every person should be deemed to be a minor who had
not attained the age of eighteen years. European British
subjects are excluded from the purview of the Acts. The
effect of those Acts clearly was, for the purposes of those
Acts, to alter the Hindu law as to the age of majority in the
cases of persons to whom the Acts applied, and in course of
time the question was raised in the Calcutta High Court as
to whether the Acts did not similarly affect the age of
majority of Hindus subject to the ordinary original
jurisdiction of that Court, and was decided in the
affirmative. This opinion was not, however, accepted by
other Judges of the same Court before whom the question
arose and the matter having been by one of them expressed
to be in a complicated and unsatisfactory state was the
other day referred to a Full Bench of the Court, which
decided that a Hindu resident in Calcutta, who had no
property in the mofussil, attained his age of majority on
the completion of his fifteen year, and refrained from
deciding what was the effect of the Acts upon persons
resident in Calcutta and possessed of property in the
mofussil.
In Bombay it has been decided that, notwithstanding Act
XX of 1864, a Hindu resident in the mofussil came of age
on attaining sixteen years, so as to be able to prosecute a
claim by suit.
In a case which came before the late Sadr Diwani Adalat of
Bengal, it was held that, according to the Jain law,
majority begins on the completion of sixteen years.
2. By Muhammadan law, the end of the fifteenth year, or
the attainment of puberty, is the age of majority; but
Muhammadans are, equally with Hindus and other British
subjects in this country not being Europeans affected by
the Regulations and Acts already noticed.
3. European British subjects not domiciled in this country
come of age at twentyone, and it has been held that they
and their legitimate descendants, even though domiciled
in this country, do the same, so far as regards their
capacity to contract. This opinion has been questioned in
Page 13 of 61
HC-NIC Page 13 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
a recent case.
4. The class of persons to whom the Indian Succession Act
applies includes Europeans by birth or descent domiciled
in British India, East Indians or Eurasians, Jews,
Armenians, Parsis and Native Christians. The Indian
Succession Act defines a minor to be a person who has not
completed the age of eighteen years, and defines 'majority'
to be the status of such a person. In the case of Rollo v.
Smith, [(1867) I Beng LR (OC) 10], already referred to,
Mr, Justice Markby said that it would be carrying
implication much too far to suppose that this definition
was intended by the Legislature as an alteration of the age
of majority for all purposes; and held that a person of one
of the classes to whom the Act applies did not attain his
majority, so as to have the full capacity to contract, until
he attained the age of twentyone. In the later case of
Archur v. Watkins [(1872)8 Beng LR 372], Mr. Justice
Phear treated the question as still an open one, and held
that, by the provisions of Act XL of 1858, a person of one
of the classes to whom the Indian Succession Act applies
attained the age of majority, for all purposes of contract,
at eighteen years, The ground of this decision so far as
regards the effect of Act XL of 1858, was overruled in the
subsequent decision of the Full Bench in Mullick v.
Mullick; and the law respecting the age of majority of
persons in this class, is, perhaps, in a more unsatisfactory
state than even that relating to persons in the other
classes.
Such being, briefly, the present state of the law, it is
obvious that, in the highly important matter of the age at
which persons can enter into binding contracts with
others and undertake responsibilities as majors; the law
of this country is most confused and uncertain. To remedy
this the present Bill has been drawn. The alteration
proposed by it in the Hindu and Muhammadan laws, in
cases now governed on this point by those laws, is not one
which affects any principle of those laws touching the
religion or conscience of those persons who are subject to
them. The change has, already, in part, been made by the
Regulations and Acts above mentioned; and no objection
has ever been made to the change thus effected.
To avoid, however, the possibility of any mistake on this
Page 14 of 61
HC-NIC Page 14 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
point, it is expressly provided in the Bill that it is not to
affect the capacity of any person to act in matters
connected with marriage, dower, divorce and adoption.
By their own laws Muhammadans and Hindus are
empowered to act in these matters at an earlier age than
that here fixed as the age of majority, and it is not
intended to interfere with their capacity in these respects.
The Bill also provides that it shall not affect the religion
or religious rites and usages of any class of Her Majesty's
subjects or the capacity of any person who, before the
commencement of the proposed Act, shall have attained
majority under the law applicable to him.
It has been thought advisable to extend the Act to all
persons, including European British subjects domiciled in
British India. Were European British subjects excluded in
all cases, it would be necessary for all persons dealing
with them to ascertain whether they came within the
legal definition of the term, an enquiry often difficult, and
which would be most embarrassing were the exception
extended, as in Rollo v. Smith [(1867) 1 Beng LR (OC)
10], to all legitimate descendants, however remote,
domiciled in British India, of European British subjects.
The fourth section states the law as it now stands.
THE MAJORITY ACT, 1875
(Act No. 9 of 1875)
[2nd March, 1875]
An Act to amend the law respecting the age of majority.
WHEREAS, in the case of persons domiciled in India it is
expedient to specify the age of majority; It is hereby
enacted as follows :
SECTION 1 : Short title
This Act may be called the 1 [***] Majority Act, 1875.
Local extent. 2 It extends to the whole of India 3 [except
the State of Jammu and Kashmir];
Commencement and operation. and it shall come into
force and have effect only on the expiration of three
months from the passing thereof.
SECTION 2 : Savings
. Nothing herein contained shall affect
Page 15 of 61
HC-NIC Page 15 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
(a) the capacity of any person to act in the following
matters (namely) marriage, dower, divorce and
adoption;
(b) the religion or religious rites and usages of any class
of 4 [citizens of India]; or
(c) the capacity of any person who before this Act comes
into force has attained majority under the law applicable
to him.
SECTION 3 : Age of majority of persons domiciled in India
(1) Every person domiciled in India shall attain the age of
majority on his completing the age of eighteen years and not
before.
(2) In computing the age of any person, the day on which he
was born is to be included as a whole day and he shall be
deemed to have attained majority at the beginning of the
eighteenth anniversary of that day.".]
SECTION 4 : Age of majority how computed
. In computing the age of any person, the day on which he
was born is to be included as a whole day, and he shall be
deemed to have attained majority, if he falls within the first
paragraph of section 3 , at the beginning of the twentyfirst
anniversary of that day, and if he falls within the second
paragraph of section 3 , at the beginning of the eighteenth
anniversary of that day.
Illustration
(a) Z is born in India on the first day of January, 1850,
and has an Indian domicile. A guardian of his person is
appointed by a Court of Justice. Z attains majority at
the first moment of the first day of January, 1871.
(b) Z is born in India on the twentyninth day of
February, 1852, and has an Indian domicile. A
guardian of his property is appointed by a Court of
Justice. Z attains majority at the first moment of the
twentyeighth day of February, 1873.
(c) Z is born on the first day of January, 1850. He
acquires a domicile in India. No guardian is appointed
of his person or property by any Court of Justice, nor is
he under the jurisdiction of any Court of Wards. Z
attains majority at the first moment of the first day of
January, 1868.
Page 16 of 61
HC-NIC Page 16 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
23. I shall now look into the provisions of the Sections 361, 363 and
366 of the Indian Penal Code.
361. Kidnapping from lawful guardianship. Whoever
takes or entices any minor under [sixteen] years of age if a
male, or under [eighteen] years of age if a female, or any
person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind,
without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.
Explanation. The words lawful guardian in this section
include any person lawfully entrusted with the care or
custody of such minor or other person.
Exception. This section does not extend to the act of any
person who in good faith believes himself to be the father
of an illegitimate child, or who in good faith believes
himself to be entitled to lawful custody of such child,
unless such act is committed for an immoral or unlawful
purpose.
363. Punishment for kidnapping. Whoever kidnaps any
person from [India] or from lawful guardianship, shall be
punished with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine.
366. Kidnapping, abducting or inducing woman to
compel her marriage, etc. Whoever kidnaps or abducts
any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to
marry any person against her will, or in order that she
may be forced or seduced to illicit intercourse, or knowing
it to be likely that she will be forced or seduced to illicit
intercourse, shall be punished with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine; [and whoever, by
means of criminal intimidation as defined in this Code or
of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that
she may be, or knowing that it is likely that she will be,
forced or seduced to illicit intercourse with another
person shall be punishable as aforesaid.”
“26. I am of the view that so far as the offence under the Indian Penal
Page 17 of 61
HC-NIC Page 17 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Code is concerned i.e. of the offence under Section 361, the girl could be
termed as a minor, although under the Mohammedan Law she may have a
right to contract the marriage on attaining 15 years of age or puberty, as
the case may be, without the consent of her parents. To take the view that
the parties would be solely governed by the provisions of the personal law
ignoring the provisions of the Indian Majority Act would be extremely
dangerous. In a given case, a muslim girl might attain puberty even at the
age of 12 or 13, in such circumstances, it cannot be said that she is a
major and, therefore, no offence of kidnapping as defined under Section
361 of the Indian Penal Code is committed.
27. This brings me to the question, whether an offence under Section 363
could be spelt out in the background of the instant case.
28. Section 363 of the Indian Penal Code contemplates two kinds of
kidnapping(a) kidnapping from India and (b) kidnapping from lawful
guardianship. We are not concerned with the offence of kidnapping from
India. Section 361 defines kidnapping from the lawful guardianship. It
provides as follows:Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a female, or any
person of unsound mind out of the keeping of the lawful guardian of such
minor or person of unsound mind, without the consent of such guardian,
is said to kidnap such minor or person from lawful guardianship. some
observations would not be out of place. In order to come within the mischief
of that section the accused must have either taken away the minor
girl or must have enticed the minor girl out of the keeping of her lawful
guardian without the consent of such guardian. The two expressions
taking and enticing evidently have two different connotations. But both
the expressions call for some positive step having taken by the accused to
remove the girl from the lawful custody of her guardians. Neither of the
Sections would have any application if the girl has, of her own accord,
come out of the custody or come out of the keeping of her lawful
guardians and if it is thereafter that the accused had gone with her to
some place. To illustrate, the accused may go to the house of the girl and
may lift her from her house. He no doubt commits the act of kidnapping.
But if the girl is of the age of understanding and has left her parental
home of her own accord and meets some person and requests him to
accompany her to some place for her safety, the person accompanying the
girl is not guilty of kidnapping her. There may be cases in which the girl
might leave the custody of her guardian and might in fact go to a third
person and prevail upon him to take her to some distant place. In such
cases even if the person knew that the girl is a minor girl and knew the
names of her parents, still if he has not initiated the girl's coming out of
the house, mere passive acquiescence on his part evidenced by his
accompanying the girl to places would not necessarily spell the offence of
kidnapping on his part. It cannot be said in such cases that it is the
Page 18 of 61
HC-NIC Page 18 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
accused who has taken away the girl from out of her parents' custody. If
any authority is necessary for this proposition the same is to be found in
the judgment of the Supreme Court in the case of S. Varadarajan v. State
of Madras, AIR 1965 SC 942: (1965(2)Cri. LJ 33). In that case the girl
who had reached the state of understanding had candidly admitted that
on the morning of October 1st she herself telephoned to the accused to
meet her in his car at a certain place, went up to that place and finding
him waiting in the car got into that car of her own accord. This is what
the Supreme Court held further in that case in this context at page 36 of
Cri LJ;???...
Further, Savitri has stated that she had decided to marry
the appellant. There is no suggestion that the appellant
took her to the SubRegistrar's Office and got the
agreement of marriage registered there (thinking that this
was sufficient in law to make them man and wife) by
force or blandishments or anything like that. On the
other hand the evidence of the girl leaves no doubt that
the insistence of marriage came from her side. The
appellant, by complying with her wishes can by no stretch
of imagination be said to have taken her put of the
keeping of her lawful guardian. After the registration of
the agreement both the appellant and Savitri lived as man
and wife and visited different places. There is no
suggestion in Savitri's evidence, who, it may he mentioned
had attained the age of discretion and was on the verge of
attaining majority that she was made by the appellant to
accompany him by administering any threat to her or by
any blandishments. The fact of her accompanying the
appellant all along is quite consistent with Savitri's own
desire to he the wife of the appellant in which the desire of
accompanying him wherever he went was of course
implicit. In these circumstances we find nothing from
which an inference could be drawn that the appellant had
been guilty of taking away Savitri out of the keeping of
her father. She willingly accompanied him and the law
did not cast upon him the duty of taking her back to her
father's house or even of telling her not to accompany
him.....
29. The position in the instant case is not materially different. In the
instant case, Reshambanu is admitting in so many words that she had
accompanied the applicant on her own free will and volition and since she
was in love with the applicant and the applicant also loved her, they
decided to get married and, accordingly, got married at the Ajmer Sharif.
30. In my view no case is made out to even prima facie show that
Page 19 of 61
HC-NIC Page 19 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Reshambanu had received a promise or assurance or any tempting offer
from the applicant by virtue of which she was forced to leave her parental
home. There is, thus, nothing to even prima facie show to the Court the
taking of the girl by the accused, the evidence about his enticing her away
is equally absent. If this is so, there is no kidnapping of the girl and hence
the question for application of Section 363 of the Indian Penal Code does
not arise.
31. In my view, when no offence is constituted, the Police should not be
allowed to continue with the investigation. As on today, Reshambanu is
happily residing at her matrimonial home with her husband i.e. the
accused before me.”
15. Mr. Pandya, is quite right in submitting that in the case of
Mujamil (supra), referred to above, this Court had not considered the
effect of the P.C.M. Act, 2006. Having regard to the importance and
seriousness of the issue, which has fallen for my consideration, I deem it
necessary to first look into the provisions of the P.C.M. Act, 2006 and in
its objects.
16. The Statement of Objects and Reasons of the P.C.M. Act, 2006,
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 199596 recommended that the Government should
Page 20 of 61
HC-NIC Page 20 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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.
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 20012002. 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 reenacting the Child Marriage Restraint Act, 1929.”
17. The statutory provisions of the P.C.M. Act 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 twentyone
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 to have attained his majority.”
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
Page 21 of 61
HC-NIC Page 21 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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.”
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.”
“10. Punishment for solemnising a child marriage. Whoever
performs, conducts or directs or abets any child marriage shall be
punishable with rigorous imprisonment which may extend to two years
and shall be liable to fine which may extend to one lakh rupees unless he
proves that he had reasons to believe that the marriage was not a child
marriage.”
“11. Punishment for promoting or permitting solemnisation of child
marriages. (1) Where as child contracts a child marriage, any person
having charge of the child, whether as parent or guardian or any other
person or in any other capacity, lawful or unlawful, including any member
of an organization or association of person who does any act to promote
the marriage or permits it to be solemnised, or negligently fails to prevent
it from being solemnised, including attending or participating in a child
marriage, shall be punishable with rigorous imprisonment which may
extend to two years and shall also be liable to fine which may extend upto
Page 22 of 61
HC-NIC Page 22 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
one lakh rupees:
Provided that no woman shall be punishable with imprisonment.
(2) For the purpose of this section, it shall be presumed, unless and until
the contrary is proved, that where a minor child has contracted a
marriage, the person having charge of such minor child has negligently
failed to prevent the marriage from being solemnised.”
“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 of 1974),
an offence punishable under this Act shall be cognizable and nonbailable.”
“16. Child Marriage Prohibition Officers. (1) The State Government
shall, by notification in the Official Gazette, appoint for the whole State,
or such part thereof as may be specified in that notification, an officer or
officers to be known as the Child Marriage Prohibition Officer having
jurisdiction over the area or areas specified in the notification.
(2) The State Government may also request a respectable member of the
locality with a record of social service or an officer of the Gram Panchayat
or Municipality or an officer of the Government or any public sector
undertaking or an office bearer of any nongovernmental organization to
assist the Child Marriage Prohibition Officer and such member, officer or
office bearer, as the case may be, shall be bound to act accordingly.
(3) It shall be the duty of the Child Marriage Prohibition Officer
(a) to prevent solemnisation of child marriages by taking such
action as he may deem fit;
Page 23 of 61
HC-NIC Page 23 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
(b) to collect evidence for the effective prosecution of persons
contravening the provisions of this Act;
(c) to advise either individual cases or counsel the residents of the
locality generally not to indulge in promoting, helping, aiding or
allowing the solemnisation of child marriages;
(d) to create awareness of the evil which results from child
marriages;
(e) to sensitize the community on the issue of child marriages;
(f) to furnish such periodical returns and statistics as the State
Government may direct; and
(g) to discharge such other functions and duties as may be assigned
to him by the State Government.
(3) The State Government may, by notification in the Official Gazette,
subject to such conditions and limitations, invest the Child Marriage
Prohibition Officer with such powers of a police officer as may be specified
in the notification and the Child Marriage Prohibition Officer shall
exercise such powers subject to such conditions and limitations, as may be
specified in the notification.
(4) The Child Marriage Prohibition Officer shall have the power to move
the Court for an order under sections 4, 5 and 13 and along with the child
under section 3.”
18. I shall now look into the Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937, which is extracted herein below:
“2. Application of Personal Law to Muslims Notwithstanding any
customs or usage to the contrary, in all questions (save questions relating
to agricultural land) regarding interstate succession, special property of
females, including personal property inherited or obtained under contract
or gift or any other provision of Personal Law, marriage, dissolution of
marriage, including talaq, ila zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and
wakfs (other than charities and charitable institutions and charitable and
religious, endowments) the rule of decision in cases where the parties are
Muslims shall be the Muslim Personal Law (Shariat).
Page 24 of 61
HC-NIC Page 24 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
19. Section 2(a) of the P.C.M. Act, 2006 defines the “child” means a
person who, if a male, has not completed twentyone years of age, and if
a female, has not completed eighteen years of age.
20. The argument before me and accepted in the case of Mujamil
(supra) is that the prescription of the marriageable age has no
application for the girls belonging to the Mohammedan community, as
they are governed by the Muslim Personal Law (Shariat) Application Act,
1937, the provisions of which, are extracted herein above.
21. I find a lot of merit and substance in the arguments of Mr. Pandya,
the learned Additional Public Prosecutor that a statute can always
extinguish the customary law and the customary rights. In this regard, I
may quote paras 441 to 443 of Halsbury Law of England of IV Edition.
They are extracted herein below:
“441. Abolition only by statute. Customs, being in effect local common
law within the locality where it exists, can only be abolished or
extinguished by Act of Parliament. An Act of Parliament may abolish a
custom either by express provision or by the use of words which are
inconsistent with the continued existence of the custom.
442. Status repugnant to custom. As a general rule, if the provisions of
an Act of Parliament are repugnant to the continued existence of the
custom, the custom will be treated as abrogated and destroyed, although
the Act does not actually extinguish the custom by express words. Although
the question whether the customs is destroyed or not has been said to turn
on the question whether the statute is an affirmative or a negative statute,
this distinction appears to be merely one of the factors to be considered in
this rule, no one can allege a custom against an Act of Parliament, unless
the custom be saved or preserved by another of Act of Parliament.
Page 25 of 61
HC-NIC Page 25 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
443. Effect of confirmation by statute. Where an Act of Parliament has,
according to its true construction, embraced and confirmed a right which
has previously existed by custom, that right becomes henceforward a
statutory right and the lower title by custom is merged in and extinguished
by the higher title derived from the Act of Parliament, unless the Act of
Parliament merely intended to confirm the right as a custom. Where the
custom has been so extinguished, the old rights do not remerge on the
repeat of the Act or, it seems, at the termination or a temporary Act. It
appears that the custom would not be affected by the repeal of the Act if
the Act merely confirmed and recognised the custom.
An Act of Parliament which recognises the existence and validity of a
custom may not operate to create new statutory rights in favour of the
persons or classes of persons who might formerly have benefited by the
custom. Such a statute may merely have the effect of sanctioning the
validity of the custom as a custom, without merging the custom in the
higher title by statute. Thus some old customs in London have not only
had the force of a custom, but also have been supported and justified by
authority of Parliament.
In determining how far an Act of Parliament has effected rights of this
kind, the whole Act must be considered to see whether the rights given by
the Act are intended to supersede the rights which previously existed.”
22. The Supreme Court in the case of Radhakishan Laxminarayan
Toshniwal vs. Shridhar Ramchandra Alshi And others, 1960 AIR(SC)
1368 held that the transfer of property, where the Transfer of Property
Act applies, has to be under the provisions of the said Act only; the
Mohammedan Law of transfer of property cannot override the statutory
law. The Court took the view that wherever the Transfer of Property Act
is in force, the Mohammedan Law or any other transfer law would not
be applicable to the transfer of properties.
23. The general rule, as enshrined in the maxims “generalia
specialibus non derogant” and “generalibus specialie derogant”, is that a
Page 26 of 61
HC-NIC Page 26 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
special law prevails over the general law covering the same subject.
24. In the case of JK Cotton Spinning and Weaving Mills Co. Ltd vs.
State of Uttar Pradesh & Ors. 1961 AIR(SC) 1170 their lordships has
held a view that if there is a special enactment on the subject then such
an enactment shall prevail as against the general principles. It was
observed by their lordships as under:
“conflict between specific provision and general provision –
Specific provision prevails over general provision – General provision
applied only to such cases which are not covered by special provision –
Rule applies to resolve conflict between different provisions in different
statutes as well as in same statute.”
“In Pretty vs. Solly, 1859 53 ER 1032 quoted in Craies on Statute
Law at P. 206, 6th Ed.) Romelly, M.R., mentioned the rule thus:
“the rule is that whenever there is a particular enactment and a
general enactment in the same statute and the latter, taken in its most
comprehensive sense, would overrule the former, the particular
enactment must be operative, and the general enactment must be
taken to affect only the other parts of the statute to which it may
properly apply.”
25. A Division Bench of the Rajasthan High Court in the case of M/s.
Surajmal Roopchand & Co. Kota vs. State of Rajasthan, 1965 RajLW
429 observed as under:
“the maxim Generalia Speciabus Nenderogant is, therefore, attracted
and when a special law is found inconsistent with or repugnant to the
subsequent law of general nature which is not confined to the subject
matter of the special Act, and where there is no express indication of
the legislature that the special law will give way to the general law the
provisions of the special law will hold the field. Similarly in the case of
Page 27 of 61
HC-NIC Page 27 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Pannala v. Balbir Singh & Ors. 1969 WLN (Raj) 284, it has been
held as under: “Where there is a conflict between a special provision
and a general provision, the special provision prevails over the general
provisions and the latter applies only to such cases which are not
covered by the special provisions.”
26. The same principle would apply even in a case where there is a
conflict between any special law with personal law.
27. A learned Single Judge of the Karnataka High Court in the case of
Seema Begaum vs. State of Karnataka (Writ Petition Case No.75889 of
2013 decided on 26.02.2013) had the occasion to consider this very
issue and having gone through the entire decision, I find the view taken
by His Lordship of the Karnataka High Court quite commendable and I
propose to follow the same. The learned Single Judge made the
following observations:
“[20] An operative Act is the expression of the will of sovereign
legislature; it overrides the consistent provisions of the existing personal
law. The persona law has to submit to the statute law. The personal law
cannot be repugnant, contrariant or derogatory to the statute.
[21] When a later statute makes a contrary provision to the earlier
statute, it has to be taken that the Parliament has intended the earlier
statute to be repealed, though it may not have said so expressly. The same
is in accordance with the maxim leges posteriores priores contrarias
abrogant. (later laws abrogate earlier contrary laws).
[22] the statement of objects and reasons can be used for the limited
purpose of understanding the background and the antecedent state of
affairs leading up to the legislation. Reference to the statement of objects
and reasons is permissible to understand the surrounding circumstances
which render the remedying of the evil a paramount requirement.
[23] The prime reason for bringing in the P.C.M. Act is the prohibition
Page 28 of 61
HC-NIC Page 28 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
of the solemnization of the child marriage. When the prescribed
marriageable age of the girl is 18 years, this Court cannot be called upon
to issue the sought declaration that the provisions of the P.C.M. Act are
not applicable for the petitioner, as she belongs to Muslim community. The
Courts have the power coupled with the duty to prevent and not to
promote the child marriages. This Court cannot and would not pass an
order by virtue of which little girls become child brides.
[24] It is also profitable to refer to Section 13 of the P.C. M. Act, which
empower the Courts to issue injunctions prohibiting the solemnization of
marriages in contravention of the said Act. Section 13(1) reads as follows:
13. Power of court to issue injunction prohibiting child marriages.
(1) Notwithstanding anything to the contrary contained in this
Act, if, on an application of the Child Marriage Prohibition Officer
or on receipt of information thought complaint or otherwise from
any person, a Judicial Magistrate of the first class or a
Metropolitan Magistrate is satisfied that a child marriage in
contravention of this Act has been arranged or is about to be
solemnised, such Magistrate shall issue an injunction against any
person including a member of an organization or an association of
persons prohibiting such marriage.
[25] When there is legislative ban on the child marriages, the Courts
cannot go out of their way to help the promoters of child marriages.
[26] The Courts will prefer the construction, which advances the object
rather than the one which attempts to find some way of circumventing it.
It is the duty of the Courts not to facilitate the circumvention of the
parliamentary intent.
[27] As held by the Apex Court in the case of Radhakishan, when the
statutory law has commenced to govern a particular field, the personal
law becomes inapplicable. Reiterating this view in the subsequent case of
Kumar Gonsusab, the Hon’ble Supreme Court has held that the person law
dealing with the transfer of property cannot override the provisions of the
Transfer of Property Act.
[28] In the case of Shabana Bano, it was contended that under the
provisions of Muslim Women (Protection of Rights On Divorce) Act, 1986,
the divorced wife is not entitled to maintenance after the expiry of the
iddat period. Not accepting this contention, the Hon’ble Supreme Court
has laudably held as follows:
The appellant’s petition under Section 125 of the Cr.P.C. would be
maintainable before the Family Court as long as the appellant does
not remarry. The amount of maintenance to be awarded under
Page 29 of 61
HC-NIC Page 29 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Section 125 of theCr.P.C. cannot be restricted for the iddat period
only.
[29] In the case of Molly Joseph, the Apex Court has categorically held
that when the Legislature enacts the law in respect of the personal law of a
group of persons following a particular religion, then such statutory
provisions would prevail over and override any personal law, usage or
custom prevailing before the coming into force of such Act.
[30] In the case of Smt. Parayankandiyal, the Apex Court has negatived
the submissions that a person can be permitted to acquire a second wife
during the lifetime of the first wife and during the subsistence of the first
marriage, just because the second marriage was customarily permitted
under certain circumstances and for some purposes in the era of pre Hindu
Marriage Act, 1955.
[31] On the conspectus reading of paras 441, 442 and 443 of the
Halsbury’s Laws of England, the contents of which are extracted
hereinabove, it becomes clear that the customs stands abrogated or
destroyed, if it is running contrary to the statutory provisions, unless the
custom is saved or preserved by a statute. The previously existing rights do
not reemerge, as they are superseded by the statute.
[32] As the codified law prevails over all other laws, be they are
ecclesiastical, personal or customary, the rights which the Muslim girls
had under Muslim Personal Law (Shariat) Application Act, 1937 do not
remain alive on the commencement of the P.C.M. Act.
[33] There can be no dispute with what Patna and Delhi High Courts
have said, But then, in both the cases, the Courts were confronted with a
situation where the child marriage had already taken place. But the said
decisions cannot be used to demand that a Mohammedan girl be permitted
to marry before she attained the age of 18 years.
[34] The issue can be examined with reference to the territorial
dimension of the P.C.M. Act. That the P.C.M. Act has the application for
the people of all States and Union Territories of India except the State of
Jammu and Kashmir is spelt out in the P.C.M. Act itself. Section 1(2) of
the P.C.M. Act, the provisions of which are extracted supra, makes it
sternly clear that it applies to all the citizens of India, whether they are in
India or outside India. The only exceptions made are in respect of State of
Jammu and Kashmir and renocants of the Union Territory of Pondicherry.
Therefore, no Indian citizens on the ground of his belonging to a
particular religion, can claim immunity from the application of the P.C.M.
Act. The Legislature has not left anything to implication or interpretation
as far as the application of P.C.M. Act is concerned.
Page 30 of 61
HC-NIC Page 30 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
[35] The childhood of a person is precious. On the child attaining the
age of majority, anything may be given to it like the job, house,
husband/wife; but what cannot be got back is its precious childhood.
What is therefore of paramount importance is that the child should fully
enjoy his/her childhood before entering the wedlock. More often than not,
it is the girl’s haply childhood that would ensure a happy wifehood and
happy motherhood. In whatever for it is, the child marriage is a gross
violation of human rights of a girl or boy. For all the aforesaid reasons, I
dismiss this petition. No order as to costs.”
28. A Division Bench of the Madras High Court (Madurai Bench) in
the case of M. Mohamed Abbas vs. The Chief Secretary, Government
of Tamil Nadu (Writ Petition (MD) No.3133 of 2015 decided on
31.03.2015) had also the occasion to consider this issue. The very same
arguments were canvassed before the Division Bench. Various case laws
were cited in support of the submissions that the Muslims are governed
by the Mohammedan Law, being their personal law, so far as marriage,
divorce and other matrimonial rights were concerned. It was submitted
that a Muslim girl is entitled to marry on attaining her puberty or after
the age of 15 years, for which, even the consent of her parents or
guardian is not required. It was also argued before the Bench that
invoking the provisions pertaining to the P.C.M. Act was improper and
illegal so far as Muslims were concerned. It was argued that the
provisions of the Prohibition of Child Marriage Act, 2006 stipulating the
minimum age limit as 18 years, so far as, any Muslim girl was
concerned, to be avoided. The case before the Division Bench of the
Madras High Court was filed as “Probono publico”, seeking an order in
Page 31 of 61
HC-NIC Page 31 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
the nature of writ of mandamus or any other writ, forbearing the
respondents from interfering with any marriage being solemnized
according to the Muslim Personal Law, by invoking the provisions of the
Prohibition of Child Marriage Act, 2006. The Division Bench, while
dismissing the writ petition, made the following observations:
“10. It is well settled that custom, Rules or byelaws cannot override any
statute or Act enacted by legislature. Even the enacted law or Act should be
within the purview of the Constitutional mandate, otherwise, as per Article
13(2), the law made in contravention of Part III of the Constitution or to
the extent of the contravention of such law be declared void. Similarly, the
State shall not make any law which takes away or abridges the
Fundamental Rights, guaranteed under PartIII of the Constitution. It is
well settled that usage in a long run becomes custom and custom is
accepted as a source of law, however, custom cannot over ride the statute.
Even as per Article 13(3)(a), "laws" includes any Ordinance, order, byelaw,
rule, regulation, notification, custom or usage having the force of law,
in the territory of India. When there is possibility for conflicting views,
while interpreting two different Articles of the Constitution, the Court has
to adopt the legal principle of harmonious construction.
11. Learned Additional AdvocateGeneral, contended that the relief
sought for in the writ petition is not legally sustainable and in support of
his arguments, he relied on Mohd.Ahmed Khan vs. Shah Bano Begum and
others, reported in AIR 1985 SC 945 and other decisions. In the decision
reported in AIR 1985 SC 945, while deciding the Constitutional validity of
Section 125 of the Code of Criminal Procedure, so far as muslims are
concerned, a Five Judge Constitution Bench of the Hon'ble Apex Court
categorically held that the said provision is applicable to all the people in
the territory of India, irrespective of their religion. It was also found in the
decision that Mulla's Mahomedan Law (18 the edition); Tyabji's Muslim
law (4th edition) are inadequate to establish the proposition that a
Muslim husband is not under an obligation to provide maintenance to his
divorced wife, who has nor performed any remarriage, after the divorce
and unable to maintain herself. Section 125Cr.P.C, deals with any
husband, who possess sufficient means but neglects or refuses to maintain
his wife, including a divorced wife, who is unable to maintain herself. It
was argued on the side of the petitioner that the Muslim Personal Law,
limits the husband's liability to provide maintenance for the divorced wife
till the period of iddat, which does not contemplate or countenance the
situation envisaged by Section 125 Cr.P.C and a muslim husband, as per
his personal law, is not under an obligation to provide provide
Page 32 of 61
HC-NIC Page 32 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
maintenance, beyond the period of iddat, to his divorced wife, even if she is
unable to maintain herself.
12. However, Hon'ble Supreme Court has categorically ruled that
Section 125 Cr.P.C, provides for payment of maintenance to a wife even
after divorce, if she remains without any remarriage with another person
and hence, she is entitled to claim maintenance from her husband,
irrespective of her religion. Mr. K.Chellapandian, learned Additional
AdvocateGeneral argued that the Hon'ble Supreme Court has ruled that
statutory law prevails over personal law of any parties, as it is a welfare
legislation with a noble object of providing financial assistance to any
divorced wife, who is unable to maintain herself, irrespective of any
religion.
13. Relying on the decision of the Hon'ble Apex Court in Javed and
others vs. State of Haryana and others, reported in (2003) 8 SCC
369, learned Additional AdvocateGeneral submitted that personal law
does not prevail over the general law, as held by the Hon'ble Apex Court.
While interpreting the scope of Article 25 of the Constitution, the Supreme
Court has held as follows:
"42.It was then submitted that the personal law of Muslims
permits performance of marriages with four women, obviously for
the purpose of procreating children and any restriction thereon
would be violative of the right to freedom of religion enshrined in
Article 25 of the Constitution. The relevant part of Article 25 reads
as under:
"25.Freedom of conscience and free profession, practice and
propagation of religion.(1)Subject to public order, morality and
health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing
law or prevent the State from making any law
(a)regulating or restricting any economic, financial,
political or other secular activity which may be associated with
religious practice;
(b)providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all
classes and sections of Hindus."
14. In Mohd.Ahmed Khan vs. Shah Bano Begum and others,
reported in AIR 1985 SC 945, it has been held by a Constitution Bench
Page 33 of 61
HC-NIC Page 33 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
of the Apex Court that a muslim husband is also bound to pay
maintenance to his wife, as per Section 125 Cr.P.C and cannot raise any
defence under the Muslim personal law. In the decision, the legal question
was: when the personal law makes a provision for maintenance to a
divorced wife, whether the provision for maintenance under Section 125
Cr.P.C, would run in conflict with the personal law. The Constitution
Bench of the Hon'ble Supreme Court has laid down two principles; firstly,
the two provisions operate in different fields and therefore there is no
conflict, and secondly, even if there is a conflict it should be set at rest by
holding that the statutory law will prevail over the personal law of the
parties, in cases both are in conflict to each other.
15. In Sarla Mudgal v. Union of India ? (1995) 3 SCC 635, the
Supreme Court held that polygamy can be superseded by the State just as
it can prohibit human sacrifice or the practice of sati in the interest of
public order. The personal law operates under the authority of the
legislation and not under any religion and, therefore, the personal law can
always be superseded or supplemented by legislation.
16. Mr. W.Peter Ramesh Kumar, learned counsel appearing for the
petitioner submitted that minority rights are being taken away by way of
interference in the personal Mahomedan law. According to him, as per
Principles of Mulla's Mohammed Law, Edition 9, on attaining puberty or
at the age of 15, a muslim girl is entitled to enter into a marital contract
with a male member, for which even consent of her parents or guardian is
not required and further he contended that 'majority' under Mahomedan
Law for a girl is, on her attaining puberty or attaining the age of 15.
17. It is well settled that as per civil laws in India, one could be a major
only on attaining the age of 18 years, irrespective of any religion and for
the purpose of marriage, a girl attaining the age of 18 years and a boy
attaining 21 years of age are one of the eligible conditions. The
Prohibition of Child Marriage Act, 2006 says "child"means a person
who, if a male, has not completed twentyone year of age, and if a female,
not completed eighteen years of age.
18. The short question involved in the writ petition, is whether the
minimum age limit fixed as 18 years for a girl and preventing muslim girls
before attaining the age of 18 years under the Prohibition of Child
Marriage Act, 2006 is violating the Constitutional mandate, in view of
Mahomedan Personal Law, which permits a girl to marry either on
attaining puberty or completing 15 years.
19. The main issue involved in the writ petition relates to the validity
and the legal bar of marriage being performed for any muslim girl below
the age of 18 years, in view of Prohibition of Child Marriage Act, 2006.
The object of the Prohibition of Child Marriage Act, 2006, as stated in the
Page 34 of 61
HC-NIC Page 34 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Act is to enhance the health of children and the status of women in the
society, hence, marriage should not be performed below the age of 18
years for a girl child. Considering the maturity of mind required for the
bride and the bride groom in understanding their marital life, their health
factor and also their right to have proper education and empowerment,
the age limit has been fixed for a girl as 18 years. It was argued by the
learned Additional AdvocateGeneral, that permitting to perform the
marriage of a girl immediately after attaining puberty or at the age of 15
would not be a right of any muslim to file PIL, since the right of the bride
and the bride groom should be paramount. Hence, the provisions of
Prohibition of Child Marriage Act, 2006 cannot be construed, as it affects
the rights of a muslim girl. While deciding the age factor of a girl and boy,
who are bride and bridegroom in a marriage, the Court cannot ignore the
laudable object of the Act, which considers mainly the welfare of the bride
and bridegroom.
20. Therefore, performing marriage of a girl below 18 years would not
be a religious right as contemplated under Articles 25 and 26 of the
Constitution of India. The Court has to consider, whether performing
marriage of a girl below 18 years would be for the welfare of the girl or
bride in the marriage. Mr. W.Peter Rameshkumar, learned counsel for the
petitioner submitted that though Shariat Law permits polygamy,
permitting muslim male to have number of wives, as per the normal,
practice, every muslim male member is having only one wife and the
counsel further submitted that even after marriage, there could be
possibility for a muslim girl to continue her studies. However, we are not
inclined to accept the view, since it would not be a reasonable opportunity,
that is available to a girl belongs to other religions. While interpreting the
Fundamental Rights, Courts are considering Directive Principles of State
Policy and various International Conventions, to which India is a party.
International Conventions, relating to women and children emphasis for
gender equality and gender justice and accordingly, education and
empowerment of a women are mandatory, in any civilized society. In
public appointments, election to local bodies, 1/3 reservation is being
provided for women in our country to maintain gender equality, in view of
the provisions of CEDAW. In order to implement the mandate of Articles
14 and 15 and also 'CEDAW', providing opportunity to all the girl children
for proper education, irrespective of any religion is a prerequisite,
otherwise they will be the losers in the society. Even the Court can take a
judicial notice that all educated people, having higher strata in the society
used to perform marriage for their daughter, only after attaining the age
of below 18 years. Only uneducated poor people living in remote rural
areas and tribal areas, are indulging in child marriages, detrimental to
the welfare of the girl child.
21. Therefore, we are of the view that any claim to perform marriage of
a girl less than 18 years would not be for the welfare of the girl child but,
Page 35 of 61
HC-NIC Page 35 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
such marriage would be against the interest of the girl, whereby education
and empowerment of the girl is being denied unreasonably. In Saifuddin
Saheb case (supra), it was held by the Hon'ble Supreme Court, that a
divorced muslim woman is also entitled to get maintenance from his
husband like any other divorced wife of other religion, in view of Section
125 of the Code of Criminal Procedure. Such interpretation of the Hon'ble
Supreme Court has properly protected any helpless divorced muslim
woman, which cannot be considered as a view against muslims. Judicial
wisdom in the landmark decision has ruled that a muslim woman is
equally entitled to get rights like any other woman of other religions. In
the same way, Prohibition of Child Marriage Act, 2006 would enable
muslim girls to get proper education, empowerment and also opportunity
of understanding to lead proper marital life like other girls, which cannot
be considered as an Act by implementing the Act against Muslim
Community in general. Providing education and empowerment to any girl
child will certainly strengthen the society, which would not be detrimental
to any religion.
22. While deciding harmonious construction, in case of possibility of
conflicting views pertaining to different Articles of the Constitution, the
Court has to consider the prime object of the Articles towards the
harmonious construction. In the instant case, the Court has to consider the
mandate of Articles 25, 26 with reference to Articles 14, 15 and 21 of the
Constitution. Article 14, 15(1) and 16 prohibits discrimination. There
shall be no discrimination, solely based on the ground of religion, race,
caste, sex, place of birth. However, Article 15(3) emphasises that if there is
any concession or benefit in favour of women and children, that would not
be a discrimination and if it is in favour of the male members, that would
be a discrimination, violative of Articles 14 and 15. Article 21 has been
interpreted by the Hon'ble Supreme Court so as to maintain proper social
justice, accordingly, right to life and personal liberty, guaranteed under
Article 21 emphasize for decent living, which should be available to
everyone, including muslim girls, to decide their future by getting proper
education and empowerment and also to decide their marital life. Hence,
merely referring Articles 25 and 29, the Constitutional safeguards given
under Articles 14, 15(3), 16 and 21 cannot be taken away, as the prime
objective is towards gender equality.
23. When the World community is considered as a global village in the
modern society and the Constitution emphasises equal right for men and
women, legitimate right of education and empowerment should not be
denied for any girl. It is also relevant to note that Shariat Law, never says
that marriage should be performed for a girl before she attains the age of
18 years. In olden days Hindus were also accepting 'Balya Vivaha' or Child
marriage, which is prohibited under the prohibition of Child Marriage Act.
Hence, the Act is not against muslim religion and that the Prohibition of
Child Marriage Act, 2006 would not be detrimental to the muslim
Page 36 of 61
HC-NIC Page 36 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
community.
24. Having considered the facts and circumstances as discussed above,
we hold that the provisions of Prohibition of Child Marriage Act, 2006 are
in no way against the religious rights guaranteed under Articles 25 and 29
of the Constitution of India. In fact, the same is in favour of all the girl
children in getting proper education and empowerment and equal status
as that of men in the Society, as guaranteed under Articles 14, 15, 16 and
21 of the Constitution. Therefore, the writ petition is liable to be dismissed
as not legally sustainable.
25. In the result, the writ petition is dismissed. The interim order
passed, while handing over the minor girl Ms. Aysha Banu to her parents,
on the undertaking given by her father not to perform marriage of the
minor girl until further orders to be passed in the writ petition is made
absolute. It is made clear that it is open to the minor Aysha Banu to
solemnize her marriage independently or according to the wishes of her
parents on attaining majority.
29. Thus, having given my thoughtful consideration to the issue in
hand, I have no doubt in my mind that the proposition of law explained
in the case of Mujamil (supra) to the extent it takes the view that a
Muslim girl having attained the age of 15 or having attained the puberty
has a right to marry even without the consent of her parents is not a
correct statement of law or legal proposition.
30. In Amnider Kaur and Anr. v. State of Punjab and Ors., 2010
Crl.L.J. 1154 decided by the 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
Page 37 of 61
HC-NIC Page 37 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Judge has proceeded almost on same lines as taken by the Division
Bench of the Madras High Court, 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 twentyone 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 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 P1
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 primafacie 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
Page 38 of 61
HC-NIC Page 38 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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
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 nonbailable. 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 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 363/366A 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.”
31. The object behind enacting the P.C.M. Act was to curb the menace
of child marriages, which is still prevalent in this country and is most
common among the Muslim community and in rural areas. A Division
Page 39 of 61
HC-NIC Page 39 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
Bench of the Delhi High Court in the case of Association for Social
Justice and Research vs. Union of India and others (Writ Petition
(Criminal) No.535 of 2010 decided on 13.05.2010) 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: lowlevel 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.
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
Page 40 of 61
HC-NIC Page 40 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 illeffects of child
marriage can be summarized as under:
(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.
(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,
Page 41 of 61
HC-NIC Page 41 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 inlaws. 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.”
32. A Full Bench of the Delhi High Court in the case of Lajadevi vs.
State, reported in 2013 Criminal Law Journal 3458 has dealt with this
aspect at length. His Lordship A.K. Sikri, J. (as His Lordship then was)
made the following observations:
“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 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
Page 42 of 61
HC-NIC Page 42 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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.
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 culminate in the enactment of the PCM
Act, 2006 are as follows :
"(i) To make a provisions 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.
(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.
Page 43 of 61
HC-NIC Page 43 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
(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 empowers 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"
separately in S. 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 S. 2(a) means a person who, if a male, has not completed
twentyone 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). Subsec. (2) to S. 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 S. 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. Subsection (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. Subsection (4)
protects a female child, who was married, and stipulates that the district
Page 44 of 61
HC-NIC Page 44 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 subsection
(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 27th 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. (Cri.)
1003/2010 decided on 1182010 Jitender Kumar Sharma v. 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 v. 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
Page 45 of 61
HC-NIC Page 45 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 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 disteressing 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 1516 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 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 preindependence
legislations whereas the Hindu Minority and Guardianship
Act is one enacted in the post independent era. Another postindependent
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,
Page 46 of 61
HC-NIC Page 46 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 1518 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 Actto 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 acknowledgment 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 does'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 group in India allows
marriage of minor girls and the Prohibition of Child Marriage Act, 2006
Page 47 of 61
HC-NIC Page 47 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 has ten 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 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.”
32.1 His Lordship also considered the question whether a minor can be
said to have reached the age of discretion and thereby walk away from
the lawful guardianship of the parents and refuse to go in their custody.
While answering the said question, His Lordship observed as under:
“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
Page 48 of 61
HC-NIC Page 48 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
the minor girl. We have already noted in detail the serious reprecussions of
child marriage. Some of the ill effects of the child marriage were taken
note of in the case of Association for Social Justice and Research v. Union
of India and 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 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. Obstertric 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
Page 49 of 61
HC-NIC Page 49 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 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 stepfather and a stepmother."
44. It was stated that in the case of a minor married girl, the husband is
the guardian and in case of 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 v. Jacob Chakramakkal, AIR
1973 SC 2090.
45. We may also refer Section 13 of the Minority and Guardianship Act,
1956, which reads :
"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 v.
Chetana K. Ramatheertha, AIR 2001 SC 2179 and AIR 2004 SC 1525).
46. In such circumstances, allowing the husband to consummate a
Page 50 of 61
HC-NIC Page 50 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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 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, 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.”
33. I may clarify that the Full Bench of the Delhi High Court was
concerned with the P.C.M. Act, 2006 in conjunction with the Hindu
Marriage Act. However, the observations made by the Full Bench of the
Delhi High Court go to the root of the matter and are apt for the purpose
of deciding the present case.
34. The last question which the Full Bench considered was whether
the F.I.R. under Sections 363 of the IPC or 376 of the IPC could be
quashed on the basis of the statement of such minor that she had
Page 51 of 61
HC-NIC Page 51 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
contracted the marriage of her own. Answering the said question, His
Lordship observed as under:
“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. This provision is not
in consonance with the PCM Act. 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 interreligion, intercaste and take place in spite of
formidable and fervid opposition due to deepseated 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
Page 52 of 61
HC-NIC Page 52 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
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.”
35. Thus, in my view, the arguments of the learned counsel appearing
for the applicant accused that the Personal Law would prevail over the
P.C.M. Act, 2006 cannot be countenanced and is rejected. To that extent,
the dictum of law laid down in Mujamil (supra) is not a good law.
36. The Article 44 of the Constitution of India states:
“The state shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India”.
36.1 No doubt, Article 44 is in the Directive Principles, and not the
Fundamental Rights of our Constitution, but Article 37 states:
“The provisions contained in this Part shall not be enforceable in
any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of
the State to apply these principles in making laws.
Page 53 of 61
HC-NIC Page 53 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
The Constitution was made in 1950, and 64 years have passed
since it was promulgated, but Article 44 has till now been totally ignored.”
37. Justice Markandey Katju (as His Lordship then was) in one of his
articles observed thus:
“It can be seen that much of the Muslim personal law is totally
outdated and inhuman, but it is not allowed to be changed due to vote
bank politics.
I submit that those who have not allowed changes in the Muslim
personal law have done a great disservice to Muslim. Retaining the
outdated personal law has contributed to keeping Muslims backward.
Law has to change with changes in society. To insist that laws
made 1500 years ago must continue in the 21st century is totally stupid
and unrealistic.
Among the comments to my previous post (regarding uniform civil
code) was a comment that if the Muslim Law was amended by Parliament
it will violate the fundamental right of Muslims to practice their religion.
To my mind this is a specious argument. The Hindu Law was
drastically amended by Parliament in 1955, but that did not violate the
right of Hindus to practice their religion. Moreover much of Muslim law
has already been amended and a uniform law made for all. For instance,
the Muslim criminal law has been replaced by the Indian Penal Code and
Criminal Procedure Code a hundred years ago. Now people cannot stone a
person to death for adultery, as was permitted by Muslim law. In fact it
will amount to murder under section 302 I.P.C. By abolishing the Muslim
Criminal law have the Muslims in India been deprived of their right to
practice their religion? The land laws in rural India are also common to
both Hindus and Muslims, e.g. the U.P. Zamindari Abolition Act, 1951,
and to that extent the Muslim law has been abolished. Has that denied to
the Muslims the right to practice their religion? Similarly, if there is a
common civil code Muslims will not in any way be denied the right to
practice their religion.
Law reflects social relations in a society at a particular stage of its
historical development. Muslim law, like the old (non statutory) Hindu
law, was a law made in the middle ages in feudal society. Obviously that
law is outdated in modern society. For instance, in feudal society, women
were regarded as inferior to men. Hence the law discriminated against
them. Thus, while a Muslim male can marry four wives, a Muslim female
Page 54 of 61
HC-NIC Page 54 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
can marry only one husband. A Muslim husband can divorce his wife
without going to court and without giving any reason, but a Muslim wife
who wants a divorce has to file a petition in Court6, and plead and prove
one of the grounds mentioned in section 2 of the Dissolution of Muslim
Marriages Act, 1939. That petition may take years to decide. A Muslim
daughter gets only half what the son inherits. Many more examples of
discrimination against women in Muslim Law can be given.
The modern age is the age of equality. Monogamy represents
equality between men and women. The Muslim law, being a law of
medieval society, is totally outdated in the modern age, and needs to be
drastically amended.
In all modern countries there is one law for all communities. The
Muslim law was not allowed to be amended by certain bigoted people and
for vote bank politics, and this refusal to modernize Muslim law or enact a
common civil code has contributed to keeping Muslims backward in our
country, and has thus done great harm to Muslims.”
38. The last question that falls for my consideration is whether the
applicant could be said to have been committed any offence of
kidnapping punishable under Sections 363 and 366 of the IPC including
Section 18 of the POCSO Act.
39. At the cost of repetition, I may state that the marriage of the
applicant with Namira is not in dispute. The first informant as father of
Namira seems to have resigned to the fact that he has lost his daughter.
This is the reason perhaps why he has not thought fit to appear before
the Court and say something as regards this application filed by the
applicant for quashing of the F.I.R. The father would definitely be feeling
very bad as his feelings are hurt. The father must have toiled day and
night to take care of his family, more particularly, his two minor
daughters. One day, the father finds that the daughter has left the
Page 55 of 61
HC-NIC Page 55 of
61
Created On Thu Sep 24 21:11:40 IST 2015R/CR.MA/8290/2015 CAV JUDGMENT
parental home and has got married with a man who is 12 years elder to
her. This, in my view, is nothing, but the lack of maturity, understanding
and education on the part of the girl. Sixteen years is not an age for a
girl to get married. At this age, probably, a girl would not even clear her
S.S.C. Exam. At times, I fail to understand that how she would be able to
go ahead in life. Most of the time, unfortunately, this type of marriages
fail, and one day, the girl would come back to her parents. By that time,
it is too late in her life to realize her mistake as it would be very
difficulty for the parents to get her again settled in life.
40. Keeping the above in mind, it can be said that those who have not
allowed to change the Muslim Personal Law have done a great disservice
to the community. At the same time, it is also true that as the social
condition in the Nation and through out the world continues to change,
the reality of life is, that even without a code on personal law of Muslim
insofar as the marriage is concerned, the child marriage is going into
oblivion. Education, changing pattern of the family structure, the
structure of the family in the context of reality of the world, and
economic necessities are on their own precipitating the situation. The
members of the community have realized the evil consequences of
getting a Muslim girl married at a tendered age of 16 or 17 years.
41. As observed by the Full Bench of the Delhi High Court, noted
above, that 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 the Court would be within its power to quash the
proceedings of the offence punishable under Sections 363 or 376 of the
I.P.C.
42. The Section 3 of the P.C.M. Act, 2006 does not make the marriage
as void marriage, but makes it voidable at the option of the contracting
party being a child at the time of the marriage. However, Section 9
provides for punishment for a male adult about 18 years of age who
contracts a child marriage. The marriage of a minor child would be void
only in the circumstance as explained under Section 12 of the Act.
Section 15 has made the offence under the P.C.M. Act, 2006, both
cognizable and nonbailable.
43. Section 363 of the Indian Penal Code contemplates two kinds of
kidnapping(a) kidnapping from India and (b) kidnapping from lawful
guardianship. I am not concerned with the offence of kidnapping from
India. Section 361 defines kidnapping from the lawful guardianship. It
provides as follows: “Whoever takes or entices any minor under sixteen
years of age if a male, or under eighteen years of age if a female, or any
person of unsound mind out of the keeping of the lawful guardian of
such minor or person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from lawful
guardianship. “Some observations would not be out of place. In order to
come within the mischief of that section the accused must have either
taken away the minor girl or must have enticed the minor girl out of the
keeping of her lawful guardian without the consent of such guardian.
The two expressions taking and enticing evidently have two different
connotations. But both the expressions call for some positive step having
taken by the accused to remove the girl from the lawful custody of her
guardians. Neither of the Sections would have any application if the girl
has, of her own accord, come out of the custody or come out of the
keeping of her lawful guardians and if it is thereafter that the accused
had gone with her to some place. To illustrate, the accused may go to
the house of the girl and may lift her from her house. He no doubt
commits the act of kidnapping. But if the girl is of the age of
understanding and has left her parental home of her own accord and
meets some person and requests him to accompany her to some place for
her safety, the person accompanying the girl is not guilty of kidnapping
her. There may be cases in which the girl might leave the custody of her
guardian and might in fact go to a third person and prevail upon him to
take her to some distant place. In such cases even if the person knew
that the girl is a minor girl and knew the names of her parents, still if he
has not initiated the girl's coming out of the house, mere passive acquiescence
on his part evidenced by his accompanying the girl to places
would not necessarily spell the offence of kidnapping on his part. It
cannot be said in such cases that it is the accused who has taken away
the girl from out of her parents' custody. If any authority is necessary for
this proposition the same is to be found in the judgment of the Supreme
Court in the case of S. Varadarajan v. State of Madras, AIR 1965 SC 942:
(1965(2)Cri. LJ 33). In that case the girl who had reached the state of
understanding had candidly admitted that on the morning of October 1st
she herself telephoned to the accused to meet her in his car at a certain
place, went up to that place and finding him waiting in the car got into
that car of her own accord. This is what the Supreme Court held further
in that case in this context at page 36 of Cri LJ;???...
Further, Savitri has stated that she had decided to marry
the appellant. There is no suggestion that the appellant took
her to the SubRegistrar's Office and got the agreement of
marriage registered there (thinking that this was sufficient
in law to make them man and wife) by force or
blandishments or anything like that. On the other hand the
evidence of the girl leaves no doubt that the insistence of
marriage came from her side. The appellant, by complying
with her wishes can by no stretch of imagination be said to
have taken her put of the keeping of her lawful guardian.
After the registration of the agreement both the appellant
and Savitri lived as man and wife and visited different
places. There is no suggestion in Savitri's evidence, who, it
may he mentioned had attained the age of discretion and
was on the verge of attaining majority that she was made
by the appellant to accompany him by administering any
threat to her or by any blandishments. The fact of her
accompanying the appellant all along is quite consistent
with Savitri's own desire to he the wife of the appellant in
which the desire of accompanying him wherever he went
was of course implicit. In these circumstances we find
nothing from which an inference could be drawn that the
appellant had been guilty of taking away Savitri out of the
keeping of her father. She willingly accompanied him and
the law did not cast upon him the duty of taking her back to
her father's house or even of telling her not to accompany
him.....”
44. The position in the instant case is not materially different. In the
instant case, Namira is admitting in so many words that she had
accompanied the applicant on her own free will and volition and since
she was in love with the applicant and the applicant also loved her, they
decided to get married.
45. In my view no case is made out to even prima facie show that
Namira had received a promise or assurance or any tempting offer from
the applicant by virtue of which she was forced to leave her parental
home. There is, thus, nothing to even prima facie show to the Court the
the “taking” of the girl by the accused, the evidence about his enticing
her away is equally absent. If this is so, there is no kidnapping of the girl
and hence the question for application of Section 363 of the Indian Penal
Code does not arise.
46. In view of the above, no case is made out so far as the offence
under Sections 363 and 376 of the I.P.C., including Section 18 of the
POCSO Act, 2012 is concerned. To that extent, the F.I.R. could be
quashed and is hereby ordered to be quashed. However, the police shall
look into the matter from the point of view of the provisions of the
Prohibition of Child Marriage Act, 2006 and file an appropriate report
before the trial Court to add the provisions of the P.C.M. Act, 2006 in the
F.I.R. After filing such report, the police shall proceed further in
accordance with law and complete the investigation. The police, while
investigating the F.I.R. shall keep in mind Sections 10 and 11 of the
P.C.M. Act, 2006. In the course of the investigation, if it is found out that
a particular person had performed, conducted, directed or abetted the
marriage (Nikah) of Namira, then according to Section 10, such person
would be an accused.
47. With the above, this petition is disposed of.
(J.B.PARDIWALA, J.)
No comments:
Post a Comment