Allahabad High Court: Vikas Kunvar Srivastav, J., addresses whether a minor girl on attaining majority can ratify the agreement of marriage that she had entered into when she was a minor? The legality of such an agreement tested.
Instant petition was moved on behalf of ‘Sadhna Kumari’ aged about 18 years through her next friend. Next friend allegedly the husband aged about 19 years.
OPs 4 and 5 (Parents of Petitioner Sadhna Kumari) with whom petitioner’s unlawful detention was complained.
Next Friend pleaded that the detenue petitioner Sadhna Kumari and next friend Shekhar were legally wedded and living as husband and wife since after an agreement purported to be of marriage.
Analysis and Decision
Bench noted that the petitioner’s counsel failed to show material averment as to the ‘solemnization of marriage’. Its date, place and time so as to establish the wedding of the petitioner and her next friend the alleged husband.
‘Agreement’ dated 31-07-2020 was pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari.
Purpose of Writ
It is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (OPs 4 and 5) with whom she is presently residing.
Legality of Agreement dated 31-07-2020
As per the High School Examination certificate, Sadhna Kumari’s date of birth was 17-03-2003. In view of the stated material fact, the ‘agreement’ purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31-7-2020 she was a minor aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give valid consent in law.
A criminal case has been registered against the next friend on the complaint of the petitioner’s mother.
Agreement of which either party to it is a minor- Legal Status
Agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states that:
“every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.”
It is pertinent to keep in mind the age of the majority which capacitates a person to contract.
Since petitioner’s date of birth was 17-03-2003, she was undoubtedly on the date of ‘agreement’ dated 31-07-2020 a minor.
As per the definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such a person has termed a child.
Court stated that the petitioner was a minor as well as a child also when she allegedly entered into the agreement to marry on 31-7-2020. Further, she was party to an agreement of marriage.
An agreement must not be opposed to law. The law applicable to petitioner being a Hindu, is “The Hindu Marriage Act, 1955”.
Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled: –
“(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.”
High Court held that The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar. Court added that even Shekhar was not of marriageable age under the law.
India Law states that in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriage, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.
In the present matter, marriage was being claimed as an agreement to cohabit as husband and wife by virtue of an agreement dated 31-07-2021. Hence, the question was – whether on attaining the majority age a minor was competent to ratify his/her agreement executed in the age of minority?
Legal Position to address the above question:
(i) contract with minor is void and no legal obligation can ever arise on him/her therein,
(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and
(iii) no court can allow specific permission of a contract with minor because it is void altogether.
When a contract is entered on behalf of lawful authority of a minor then only the option is available attaining majority to minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf.
Therefore, in view of the above discussion, the agreement dated 31-7-2020 of which one of the parties namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the Indian Contract Act, 1872.
Elaborating its conclusion, High Court added that agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for the production of the petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.
Bench while dismissing the petition stated that this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise. [Sadhna Kumari v. State of U.P., 2021 SCC OnLine All 276, decided on 15-04-2021]
Advocates before the Court:
Counsel for the Petitioner: Janardan Singh
Counsel for the Respondent: G.A.