Case BriefsHigh Courts

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.

Case BriefsHigh Courts

Madras High Court: V. Bhavani Subbaroyan, J., while addressing a very significant issue with respect to a divorce being sought, expressed that:

“…concept of marriage in the present generation has been taken very lightly and even for trivial issues, divorce is filed, and marriage is broken.”

Wife filed the present petition against the petition filed by the Husband before the Family Court. The husband’s petition was filed on the ground that the wife was suffering from Polycystic Ovarian Syndrome (PCOS) and was not fit for cohabitation or to give birth to a child.

Husband also filed an interlocutory application seeking for an amendment to include the provision of law from 12(1)(a) and 12(1)(a) and (c). The said petition seeking for amendment was pending before the Family Court for decision.

Petitioners Counsel, S.P. Arthi submitted that PCOS disorder is an endocrine system disorder that affects the capacity of reproduction in women, and which is totally distinct and different from claiming to be impotence.

As per the contention of counsel for the petitioner, the said claim made by the husband was absolutely incorrect and the said usage of terminology of impotency against the wife could not be sustained and on the said ground striking off the petition was sought.

Analysis, Law and Decision

Bench noted the categorical allegation placed by the husband with regard to the issue of PCOS in the wife due to which the husband sought a divorce.

High Court expressed that:

The term ‘PSOS’ by itself cannot be termed as ‘impotency’. Impotency is different and unable to give birth to a child is different, owing to various physical and mental reasons.

 On careful consideration of the contentions placed on record, it was clear that the husband did not plead the wife’s inability to give birth to a child as ‘Impotency’, but he sought annulment of marriage on the reason that there was no cohabitation and wife could not bear a child. He also submitted that the wife did not cooperate for cohabitation owing to her medical condition, as she was almost 25 days on her menstrual cycle.

Marriage being a bondage between men and women as husband and wife, it not only limits to a biological needs and desires, but also as a companion in life caring forward to the next generation through their children.

Elaborating more in respect to the present set of facts and circumstances, Bench added that Family Courts have increased in numbers to cater to the demand of intolerant couple, who are unmindful of the institution of marriage, break the relationship on unimaginable trivial reasons.

As per the pleadings placed, nowhere the husband used the word connoting impotency towards his wife. He mainly approached with the complaint that the wife could not bear a child for two reasons:

  • No Cohabitation
  • Suffering from ‘PCOS’ due to which wife suffers from improper menstrual cycle.

Legitimate Expectation?

Bench expressed that it is the husband’s legitimate expectation to live with his wife and have cohabitation and bear children and if the same is not achieved owing to some physical or mental problems, it is quite logical that either of the parties will approach the Court for seeking a divorce.

Except for some case wherein the couple are understanding and come forward with the life issue-less or even go for adoption, however, the same has to be proved by the person claiming that his or her partner is incapacitated to give or bear the child.

Petitioner/Wife could not show the husbands averments to be illusive.

Hence, High Court did not find any grounds seeking for the intervention of this Court under Article 227 of the Constitution of India with regard to striking off the petition.[ Annapoorani v. S. Ritesh,  2021 SCC OnLine Mad 1079, decided on 16-03-2021]

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of A.A. Sayed and S.C. Gupte, JJ. allowed an appeal filed against the judgment of the Family Court whereby it had dismissed the appellant-husband’s divorce petition filed under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

The husband’s case was that his wife had deserted him for more than 20 years when she left the home and they have been living separately since. The family court dismissed the divorce petition filed by the husband holding that the separation was at the instance of the husband. Moreover, it was held that there was no animus deserendi or the intention to bring cohabitation permanently to an end on the part of the wife. Aggrieved thereby, the husband filed the present appeal.

The High Court perused the record and noted that the parties were living separately for 20 years. Though there was a dispute as to the reason why the wife left the home, the wife’s conduct thereafter suggested that there was absolutely no intention on her part to resume cohabitation at any time. The Court was of the view that there was animus deserendi on her part at least with reference to subsequent events. As explained by the High Court, “Animus deserendi or intention to bring cohabitation permanently to an end is nothing but the opposite of intention to resume cohabitation. If there is no intention at all to resume cohabitation for a reasonably long period, there could be said to be intention to bring cohabitation on an end. How much long a reasonably long period would be is a matter of inference to be drawn from the facts and circumstances of each case. But surely twenty years is, in any event, a reasonably long period. If there is no attempt on the part of the deserting spouse to resume cohabitation for twenty years after the initial separation, even if one were to grant that the original separation did not have the element of animus deserendi, there could be said to be presence of such animus afterwards.” Observing that there was no hope for any revival of marriage, the Court allowed the appeal and granted a decree of divorce on grounds of separation. [Shailendra Madhukar Bhalerao v. Suruchi Shailendra Bhalerao,2018 SCC OnLine Bom 5331, decided on 26-11-2018]

Case BriefsHigh Courts

Rajasthan High Court: The petitioners preferred a miscellaneous petition under Section 482 of CrPC for quashing of FIR No. 98/2013 registered at P.S. Kotwali, District Chittorgarh for the offence under Sections 406, 420, 376 IPC.

Since the  counsel for the petitioner was able to establish a lawful marriage between  Petitioner 1 and Respondent 2, he strongly urged that the ingredients of Section 493 shall not be attracted as on the bare perusal of Section 493 IPC, an offence under Section 439 relates to deceitfully inducing a belief of lawful marriage. Learned counsel for the petitioner further averred that the place of residence of the in-laws and the couple being different, a case under Sections 498-A and 406 of the IPC could not be made out against the in-laws. The Public Prosecutor opposed the submission and submitted a status report wherein an offence under Section 376 of IPC has not been made out on account of the lawfully valid marriage between  Petitioner 1 and Respondent 2.

After hearing counsel for the parties and perusing the record of the case, the High Court opined that the prosecution case under Section 493 of IPC was not made out as on the basis of the investigation report, it was clearly concluded that Petitioner 1 and Respondent 2 were residing together due to a lawful wedlock. The High Court partly allowing the miscellaneous appeal, held, “The cohabitation caused by a man deceitfully inducing a belief of lawful marriage is very specific ingredient and once the lawful marriage has been established between the parties then such offence cannot be sustained in the eye of law.” [Mukesh v. State of Rajasthan,  2017 SCC OnLine Raj 2665, decided on 3.10.2017]