Case BriefsHigh Courts

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

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Anjani Kumar Mishra and Prakash Padia, JJ., addressed a petition wherein, two major adults who were in a live-in relation sought protection from harassment for living together.

The facts in the instant case are that petitioner 1 is a major and is aged about 24 years and petitioner 2 is aged about 28 years.

Both the petitioners decided to be in a live-in relationship without any compulsion or coercion.

Though respondents 4 and 5 forcibly tried to solemnize petitioner 1’s marriage against her wishes and on knowing the said fact, petitioner 1 decided to live with Ajay Kumar with her own free will and without fear and pressure.

It has been added that both the petitioners have been happily living with each other but respondent 4 and 5 tried to harass them.

In view of the harassment, petitioner 1 had filed a complaint seeking protection, but no action has been taken till date. Further, it was argued the law laid down by the Supreme Court from time to time petitioners are legally entitled to Live-­in relationship without any fear or pressure more especially when they are major.

Since no action was taken by the police authorities, the present petition was filed.

Decision

In the Supreme Court decision of Lata Singh v. State of U.P., (2006) 5 SCC 475, it was observed that a live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral.

In order to provide a remedy in civil law for the protection of women, from being victims of such relationship, and to prevent the occurrence of domestic violence in the society, first time in India, the DV Act has been enacted to cover the couple having a relationship in the nature of marriage, persons related by consanguinity, marriages, etc.

Few other legislations have been provided with respect to reliefs to women placed in certain vulnerable situations.

The issue in the instant matter had been already dealt with in the Supreme Court decision of Indra Sarma v. V.K.V. Sharma, (2013) 15 SCC 755.

Apart from the Supreme Court decision, a long line of decisions has settled the law that:

where a boy and a girl are major and they are living with their free will, then, nobody including their parents has the authority to interfere with their living together.

Bench further opined that the petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living.

Court further added that, in case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the Senior Superintendent of Police.[Kamini Devi v. State of U.P., Writ C No. 11108 of 2020, decided on 23-11-2020]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., addressed a petition wherein it was held that a girl who has attained the age of majority is free to reside with whosoever she wishes to.

The instant petition was preferred to seek a writ of Habeas Corpus for production of her sister Sulekha as she went missing on 12-09-2020.

The suspect is respondent 3 — Babloo.

Sulekha after being traced was produced before the Court.

As per the status report, Sulekha was a major on the date when she went missing. She stated that she went with Babloo on her own free will and is married to him.

The above-stated statement was recorded under Section 164 of Criminal Procedure Code, 1973.

In view of the above position, Bench held that

“Sulekha is free to reside wherever she wishes and with whosoever she wishes, she being a major.”

Court directed that Sulekha may be permitted to reside with respondent 3 — Babloo. Police authorities have been directed to escort her to the residence of Babloo and petitioners parents shall be counselled in order to not take the law into their hands or threaten Sulekha or Babloo.

The petition was disposed of in view of the above.[Parveen v. State (NCT of Delhi), 2020 SCC OnLine Del 1481, decided on 24-11-2020]

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., decided upon the prayer of protection being sought by a boy and girl living together on their own free will as husband and wife with threats and harassment.

The present matter is in regard to seek a direction upon the respondents to not interfere in the petitioner’s married life and the protection of their lives has also been sought.

Serious Danger to Life

Petitioners claimed that they are adults and living together on their own free will, though they are being threatened and harassed by the private respondent and his other family members.

Family Honour

Further, the petitioners added that they are living as husband and wife and have apprehension that private respondent can eliminate them for the honour of his family.

They seek protection as their lives may be endangered.

Decision

Bench stated that the present petition is to be disposed of in terms of the Rules of the Court.

Court referred to the decisions of the Supreme Court in Gian Devi v. Superintendent, Nari Niketan, Delhi, (1976) 3 SCC 234; Lata Singh v. State of U.P., (2006) 5 SCC 475; and Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 and observed that the law has been settled by the Supreme Court that,

“…where a boy and a girl are major and they are living with their free will, then, nobody including their parents, has authority to interfere with their living together.”

Therefore, petitioners are at liberty to live together and no person shall be permitted to interfere in their peaceful living.

Petitioners shall approach the police authority concerned in case of any disturbance of their peaceful living.

In view of the above, the petition was disposed of. [Priyanka v. State of U.P., Writ-C No. 13345 of 2020, decided on 03-09-2020]

Case BriefsHigh Courts

Allahabad High Court: A Single judge bench comprising of Kaushal Jayendra Thaker, J. partly allowed a civil writ petition directing no parental interference in the marital life of petitioner.

The petitioner’s case is that she and her husband are adults and living together out of their own free will. The private respondents – family members of the petitioner’s husband – who did not approve of their marriage, were constantly harassing and threatening them and as such a serious danger was posed to their lives. It is in this factual background that the petitioner preferred the instant writ petition praying for a direction to the private respondents to not interfere in her married life and also for the protection of her and her husband’s life and liberty. In order to lend credence to their averments, the petitioner submitted a copy of her and her husband’s Aadhar cards as proof of their age along with a copy of online application submitted to register their marriage.

Relying on the judgment of the Apex Court in Gian Devi v Superintendent, Nari Niketan, Delhi ,(1976) 3 SCC 234, the court observed that the law on the aforesaid factual matrix was no longer res integra and there were a catena of decisions holding that where a boy and a girl have attained the age of majority and are living together out of their own free will then nobody, not even their parents, has the authority to interfere with their liberty to live together.

The writ petition was disposed of holding that the petitioner was at liberty to live with her husband and that no person should be permitted to interfere in their peaceful living. In case any disturbance was caused in their peaceful living then the petitioners would have the liberty to approach the concerned police authority who shall provide immediate protection to them. Though no notice was issued to the private respondents, the court granted them liberty to file an application for recall of the present order in case the documents brought on record by the petitioner were forged or fabricated. [Shahin Bano v State of Uttar Pradesh,2018 SCC OnLine All 1346, decided on 20-09-2018]