Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that marriage with minor is valid if no attempt is made to declare the same invalid once the child turns 18.
The brief facts of the present case were that at the time of marriage in 2009, the respondent-wife was of the age 17 years, 6 months and 8 days. Both the parties continued to live together and cohabited as husband and wife till 31-08-2017 and a male child namely Manas was born out of the wedlock, who had been living with the appellant-husband since 2017.
The grievance of the appellant was that the Family Court had dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent by holding that the marriage of the parties was not a valid marriage as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955. The Family Court had referred to a judgment passed by the Madras High Court in Prema Kumari v. M. Palani, 2011 SCC OnLine Mad 1815, and held that parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.
Opinion and Analysis
Section 13(2)(iv) is reproduced as under:-
13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.
Differentiating the judgment relied by the Family Court, the Bench stated that the wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act and had she been 15 years of age, she could have invoked the provisions only when she attains the age of 18.
In Lajja Devi v. State, 2012 SCC OnLine Del 3937, the Delhi High Court had observed that a 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 Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.
In the present case, after marriage both the parties continued to live together till 2017 and the respondent (wife) wife had not chosen to file a petition for getting her marriage void before turning major, therefore, the Bench held that the Family Court had wrongly dismissed the petition as when the couple made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid.
Accordingly, the appeal was allowed and the impugned order was set aside. The decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 was granted to the parties. [Yogesh Kumar v. Priya, FAO 855 of 2021, decided on 26-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Appellant: Gitanjali Chhabra, Advocate
For the Respondent: Raman B.Garg, Advocate