All HC | If a minor girl marries a major of her freewill, will such marriage be void or voidable? Court explains while discussing validity of child marriage

Allahabad High Court: J.J. Munir, J., directed that the minor in the instant case who stated that she married the accused of her free will, be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents, till she attains the age of eighteen years.

Chhavi a minor was the daughter of Chhanga who is the second petitioner. He had filed an FIR against Laxman under Sections 363 and 366 of Penal Code, 1860.

It was stated that Chhanga’s minor daughter had gone to fetch her cattle when the three accused were seen around her, after which she went traceless. A video was made viral by the co-accused in which it was shown that Chhavi was in the company of Laxman. Hence another FIR was registered under Section 66 of the Information Technology Act, 2000.

Chhavi in her statement before the Magistrate stated that she had accompanied Laxman of her free will and was in love with him. Further, it was added that she married Laxman and was now in her family way.

After investigation, a charge-sheet had been filed against Laxman under Sections 363, 366, 376 of IPC and Section 7/4 of the Protection of Children from Sexual Offences Act, 2012.

Bench noted that Chhavi was staying of her freewill without any compulsion, duress or pressure, which clearly implies that she was not in any kind of illegal confinement.

Whether Chhavi is within her rights under the law to stay of her freewill with Meena, who is Laxman’s sister, the man she has married?

If it were to be held that Chhavi was a minor on the date she married Laxman, a subsidiary question that would also be of some consequence to the parties’ future is, whether the marriage would be void or voidable?

With regard to the determination of age, Bench stated that principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well.

Bench noted that the provisions of Section 94(2) of the Act of 2015 spare no room for the Court to look into any evidence, in the face of date of birth certificate from the school or the matriculation, or an equivalent certificate from the examination board.

A plain reading of Section 94 of 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.

Therefore, notwithstanding the prosecutrix’s stand that she is 20-years-old and has married Laxman of her freewill, she cannot be heard to prove her age anything different from what it is recorded in her high school certificate.

Hence, Chhavi was to be held a minor on the date of her marriage and till date. CWC ordered her to be given in the foster care of Laxman’s sister.

Further, the Court added that even if Chhavi’s case that she married Laxman of her freewill were accepted, she cannot be permitted to live in the foster care of his sister, where access to each other cannot be guarded.

In view of the above discussed High Court held that so long as Chhavi is a minor, irrespective of the validity of her marriage to Laxman, she cannot be permitted to be placed in a position where there is a likelihood of carnal proximity. If it were permitted, it would be an offence both under the Penal Code and under the Act of 2012.

The Supreme Court decision in Independent Thought v. Union of India, (2017) 10 SCC 800 completely excludes the possibility of sanctioning or decriminalising carnal relations between a man and his wife, the wife being below the age of 18 years.

It is not difficult to infer that in the home, where Laxman’s sister Meena stays with her in-laws, Chhavi cannot be extended the protective cover envisaged for a girl below the age of 18 years, insulating her from any kind of sexual activity, even with her husband.

Validity of Chhavi’s marriage to Laxman

Court opined that, the validity of the marriage must be examined in order to do substantial justice to the parties.

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.

Since nothing was recorded by the Judicial Magistrate that may have attracted the provision of Section 12 of the  Prohibition of Child Marriage Act, 2006.

Thus, Chhavi’s marriage to Laxman was not a void marriage; rather a voidable marriage at the option of Chhavi, by virtue of Section 3 of the Act.

Lastly, the Bench held that Chhavi, after she turns a major or even before that, can petition the competent court to have the marriage annulled, and she could do so within two years of attaining majority. Of course, she can acknowledge and elect to accept the marriage.

Adding to its conclusion in view of the above discussion, Court stated that all that Chhavi chooses to do is not this Court’s determination, but it is to clarify the inter se rights of parties vis-à-vis their marriage, that the Court has ventured to examine the legal status of the marriage, which Chhavi supports as her voluntary act, while a minor.

In the opinion of this Court, under the circumstances, Chhavi has to be housed in a State facility or shelter home which shall be other than a Nari Niketan or a home meant for delinquents. She has to be accommodated in a safe home/shelter home with all necessary facilities, where she and her child can stay comfortably, till she attains the age of eighteen years.

Habeas Corpus Petition was allowed in view of the above. [Chhavi (Minor) v. State of U.P., 2021 SCC OnLine All 219, decided on 10-03-2021]


Advocates before the Court:

Counsel for Petitioner: Ajay Kumar

Counsel for Respondent :G.A., ,Pankaj Kumar Govil, Pankaj Govil

One comment

  • Good churning of judicial mind…worth reading…

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