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

Bombay High Court: A Division Bench of Ujjal Bhuyan and Milind N. Jadhav, JJ., while addressing an issue with regard to the appointment of a guardian for a person who is lying in the state of coma, held that,

“…the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.”

State of Comatose

Petitioner’s husband is in a state of comatose with no signs or prospects of revival. Petitioner has two sons one of whom is a minor and a dependent mother-in-law to look after.

With the mounting medical bill and other household expenses, petitioner in a state of helplessness has approached this Court invoking its writ jurisdiction for relief.

Petitioners Counsel is Kenny Thakkar, for respondent 1 the counsel is A.D. Yadav, S.S. Panchpor, Assistant Government Pleader for respondent 2.

Since the petitioner’s husband is in a comatose condition he is unable to use his intellect, converse and sign various documents. Accordingly, the petitioner is required to act as his guardian so as to safeguard the business and other interests of the husband and also to look after her family.

Banks

Banks refused the petitioner to put her signature in place of her husband, rather the petitioner was advised to approach the competent court to get herself appointed as the guardian.

Next Friend/Guardian

Petitioner’s counsel submitted that by virtue of being the wife, the petitioner is in the best position to act as his husband who is in a comatose state for the last two years with no signs of revival as his guardian.

On a query by the Court on what basis she was invoking writ jurisdiction of the Court, petitioners counsel submits that there is no statutory provision relating to the appointment of a guardian of a person who is in a state of coma or lying in a vegetative state. Therefore, a writ court exercising jurisdiction under Article 226 of the Constitution of India would be in the best position to grant relief to the petitioner.

Analysis and Decision

Bench cited the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454 and stated that patients in a coma have a complete failure or the arousal system with no spontaneous eye-opening and are unable to be awakened by application of vigorous sensory stimulation.

When a person is in coma or in a comatose condition or in a vegetative state, it cannot be construed that such a person is physically challenged person or a mentally challenged person as is understood under the relevant statutes. Nor such a person can be construed to be a minor for the purpose of appointment of a guardian.

 Relevant statutes relating to the appointment of a guardian, such as the following would not be applicable to persons lying in a comatose condition or in a vegetative state:
  • The Guardian and Wards Act, 1980;
  • Mental Health Act, 1987 (repealed);
  • The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999;
  • Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (repealed);
  • Mental Health Care Act, 2017; and
  • Rights of Persons with Disabilities Act, 2016

“…at present, there is no legislation in India relating to the appointment of guardians to patients lying in comatose or vegetative state.”

Court observed that conceptually the wife can be said to be best suited to be the guardian of her husband who is under a state of incapacity or disability on account of being in a comatose condition or vegetative state.

In regard to the present matter bench stated that in today’s world a stray case of foul play cannot be ruled out, it will be wrong on the Court’s part to take such a jaundiced view of any claim made by a wife to the guardianship of her husband who is lying in a vegetative state.

Further reverting back to the Supreme Court decision in Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCC 454, Court had observed that the idea behind the doctrine of “parens patriae” is that if a citizen is in need of someone who can act as a parent, who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

“When the High Court exercises jurisdiction under Article 226 of the Constitution of India, it does so to further the cause of justice. To provide justice or discharge ex debito justiciae is the raison d’ etre of the courts. The Latin expression ex debito justitiae literally means a debt of justice; on account of justice; a claim, the refusal of which would involve an injustice, and therefore, one which justice owes it to the claimant to recognize and allow.”

Hence, Court in view of the facts and circumstances of the cases held that it will be reasonable to grant relief to the petitioner. However, it is also essential that there should be some kind of monitoring of the functioning of the petitioner as guardian albeit for a limited duration to ensure that guardianship is being used for the benefit of the person who is in a vegetative state.

Therefore, Member Secretary of Maharashtra State Legal Services Authority either through officials of the said authority or through a legal aid counsel or through a paralegal volunteer shall monitor the functioning of the petitioner as guardian.

In view of the above, petition was disposed of. [Rajni Hariom Sharma v. Union of India, 2020 SCC OnLine Bom 880, decided on 27-08-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of S.V. Bhati and Bechu Kurian Thomas, JJ., addressed an issue pertaining to the following terms,

Total deprivation, through a partition deed and a release deed, of the property of a deaf and dumb sister forced her to approach the Court to restore her rights in her property and claim partition.

In the present matter, Court held that persons having physical infirmities like deafness or dumbness which seriously affect their cognitive functions can file a suit through “next friend”.

Mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness.

Facts

Mary, Leelamma, and Aani are sisters. Mary being the eldest and Aani the youngest. Leelamma, the second amongst the sisters, is a deaf and dumb person. She is also illiterate.

The eldest sister claimed to have brought up Leelamma under her care and custody, conducted her marriage, and that of her daughter too. Leelamma’s conjugal life with her husband did not last long as she came back along with her daughter to Mary’s care.

Allegation

Leelamma alleged that partition deed and the release deed were executed on account of fraud and undue influence exerted over the plaintiff and thus sought to set aside the documents.

Partition Deed

As per the partition deed, the properties left behind the mother were divided between the three sisters.

Defendant 1 was allotted A schedule comprising 60 cents, while B schedule comprising just 5 cents, was allotted to the share of both plaintiff and defendant 1. Youngest sister and defendant 2 recited in the document that she is relinquishing her share in the properties.

Mary, defendant 1 the absolute owner of the entire 65 cents property.

Fraud and Dishonesty

Plaintiff conveyed to her daughter through gestures that she had been taken to some place to give her signature and that her thumb impression was taken.

Plaintiff alleged that release deed was cerated by undue influence, fraudulently, dishonestly, and without her knowledge or consent.

Next Friend

Defendant 1 questioned the right of the next friend to file the suit and also denied the incapacity of the plaintiff as far as her ability to comprehend and do things by herself was concerned and also denied the allegation of fraud, cheating and undue influence exerted by the defendants over the plaintiff.

Analysis and Decision

Next Friend

Order 32 Rule 15 of the Code of Civil Procedure, 1908 deal with Suits by or Against Minors and Persons of Unsound Mind. Appointment of next friend for a person with an unsound mind.

Further, the said provision deals with persons of mental infirmity, who are, by the said reason, incapable of protecting their interests, except with the assistance of a next friend, when suing or being sued.

Mental Infirmity

Living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response. These faculties when affected will have an effect on the person’s capacity to protect his civil rights.

Fraud, Undue Influence or Coercion

There is no dispute with the proposition that the burden of proof in respect of the plea of fraud, undue influence or coercion is upon the person who alleges the same.

Valid Contract

Free consent, competency to contract, lawful consideration, lawful object and agreement not declared to be void, are the main ingredients for a valid contract. It is a consensual act and the parties are free to settle any terms as they please.

Whether consent for partition and for the release deed has been obtained by undue influence or fraud played by the defendants upon the plaintiff?

High Court observed that, taking care of one’s own sister is a gratuitous or magnanimous act for which it cannot be believed that the entire property will be given away.

Position of Dominance

In the present matter, the defendants failed to prove good faith in the transaction and the execution of release deed documents was proved to have been done exploiting the position of dominance in which defendant 1 wielded over the plaintiff.

Principle of Undue Influence

Hence Court being of firm view stated that the said transactions relating to the share right of the plaintiff are void on the principle of undue influence.

Court also observed that nowhere does the document recite as to why more than 95% of the property (62.5 cents out of a total of 65 cents) left behind by mother of the parties to the document has been allotted to the share of the defendant 1, while the plaintiff is left with a meagre 4% (2.5 cents). Even the 2.5 cents allotted to the plaintiff was released in favour of the defendant1, within a period of five days of execution of Ext.A1. Though the document mentions payment of Rs 2.5 lakhs as consideration for the said transaction, it has come out in evidence that no such payment was received by the plaintiff.

“Fraud in the present case is evident and it has been deployed to exploit a hapless lady of her properties.”

Fraud

Referring to Section 34 of the Indian Registration Act, 1908 and the Rules made thereunder may be apposite in the present context and Court found that the failure to inform the Sub-Registrar about the deafness and dumbness of one of the parties to the document was a deft method in playing fraud.

Hence, defendant 1 is entitled to 2/3rd share in the plaint schedule property and held that defendant 2 is not entitled to any share. [Mary v. Leelamma, 2020 SCC OnLine Ker 2491, decided on 30-06-2020]