Punjab and Haryana High Court: The Division Bench of Ritu Bahri and Arun Monga, JJ., held that in case of child marriage, the marriage is voidable not void and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.
The brief facts of the present case were that at the time of marriage i.e. on 27-02-2009, the appellant (husband) was major being of the age of 23 years, 5 months and 10 days the respondent (wife) was of the age of 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 had a male child out of the wedlock. The child had been living his father since 2017.
Findings of the Family Court
The grievance of the appellant was that the Family Court had dismissed his petition filed under Section 13-B of Hindu Marriage Act, 1955 for divorce by mutual consent. Relying on the decision of Madras High Court in Prema Kumari v. M. Palani, 2013 (6) RCR (Civil) 2953, the Family Court held that the marriage was not a valid one 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, therefore the parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.
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.
Analysis and Reasoning
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. Had she been 15 years of age, she could have invoked the provisions only before she attains the age of 18. Referring to the Delhi High Court’s decision in Lajja Devi v. State, 2012 (4) R.C.R. (Civil) 821, wherein the Delhi High Court while referring to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006, observed that if a marriage contracted with a female of less than 18 years or a male of less than 21 years, it 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.
Since both the parties continued to live together and cohabited as husband and wife since 2009 till 2017 and the respondent-wife had not chosen to file a petition for declaring her marriage void their marriage became a valid one, for all intents and purposes, when they made a petition under Section 13-B of Hindu Marriage Act, 1955, the respondent-wife was major and the marriage was valid. Hence, the Bench held that the Family Court had wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 and a petition for nullity under Section 13(2)(iv) could only be filed if she-wife had got married at the age of 15 that too only before she attains the age of 18.
In the light of the above, the appeal was allowed and the impugned decision 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.
Ms. Gitanjali Chhabra, Advocate for the appellant.
Mr. Raman B.Garg, Advocate for the respondent