Custody Of A Minor To His Adult Spouse: Allahabad HC’s Recent Order

KEY TAKEAWAYS

• The marriageable age in India for girls is 18 years and 21 years for boys.
• Despite measures and laws implemented by the Government, child marriages are still prevalent in India.
• A marriage between a minor and a major is only voidable if the party who was minor during the marriage chooses it to be.
• Child Marriage Restraint Act and the Prohibition of Child Marriage Act provide punishment to any male who contracts a child marriage.
• The Allahabad High Court recently made some significant observations in a case where a minor boy was married to an adult woman.
• Section 375 of IPC which provided an exception that the husbands from raping their minor wives was read down by the Supreme Court in a landmark judgment.

INTRODUCTION

Practicing child marriage leaves minors with emotional scars. Child marriage may seem a not-so-serious problem to the orthodox society, but they do have their dangers. However, a marriage between a minor and an adult is not void ab initio and is voidable only if the minor chooses it to be.

As per Section 3 (1) of the Prohibition of Child Marriage Act, 2006, “every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.”

Even though the Government has introduced so many laws and schemes to protect minors from child marriage; child marriages are still prevalent in Indian society.Making such marriages valid is not a progressive step for the nation and gives tacit consent to the old customary law in these contemporary times. According to reports, child marriages account for 27% of the marriages in India. The incidences of child marriages, especially of minor girls, are high in socially, economically, and educationally backward sections. The highest number of such marriages are reported from the states of Rajasthan and Bihar.

MARRIAGE BETWEEN A CHILD AND AN ADULT

Section 4 of the Child Marriage Restraint Act, 1929 states the any male adult above the age of 21 years who marries a child shall be punishable with 3 months of simple imprisonment and shall also be liable to fine.

Section 9 of the Prohibition of Child Marriage Act, 2006 states that whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with a fine which may extend to one lakh rupees or with both.

However, these provisions ensure protection for minor girls from marriage. What about a case where a minor boy is married to an adult woman? We have a case with such conventional facts. Let’s see what the court held in the said case!

MANISH KUMAR & ANR. VS. STATE OF U.P. & ORS.

Facts in Brief

In the recent case of Manish Kumar & Anr. Vs. State of UP & Ors; Manish Kumar, petitioner no. 1, is a youth, aged about 16 years and a half. He married Jyoti, out ofa freewill. However, Jyoti is an adult in the cognizance of law and just above the age of 18 years. Manish Kumar, after his marriage to Jyoti, was staying with her, her mother, and her two brothers. Haushila Devi, petitioner no. 2 is Manish Kumar’s mother believed that Jyoti, her mother Pramila Devi, and her two brothers, enticed her minor son and forced him into a marriage of sorts, which is illegal for want of the minor’s competence under the law. She also alleged that her son, Manish Kumar, is illegally detained by Respondent nos. 5, 6, 7, and 8 – Jyoti’s mother, her brothers, and Jyoti. Believing so, Haushila Devi instituted a writ of Habeas Corpus Writ, arraying Manish Kumar as the first petitioner and herself as the second. She prayed that the Court order Manish Kumar, her minor son, to be produced on a Rule Nisi before this Court and that he be entrusted to her care and custody.

Manish Kumar, when he was asked if wanted to stay with his mother answered in negative and when asked with whom he wanted to live, he answered that he wanted to live with his wife and her family. He claimed that whatever he did was out of a free will and that he wasn’t coerced into anything.

Questions before the Court

1. Whether the marriage of a minor in contravention of the Hindu Marriage Act and Section 14 of the Prohibition of Child Marriage Act, 2006 is void ab initio?
2. Whether a minor who does not want to stay with his parents, is entitled to stay with a person of his choice, particularly, where he is on the verge of attaining majority and in the age group of expressing his intelligent choice?
3. Whether a minor who decides to stay away from his parents or natural guardian with a stranger of his/her choice can be compelled by the natural guardian to be restored to his custody, particularly, through a writ of habeas corpus?
4. Whether a minor can be permitted to live with an utter stranger other than a natural guardian if the welfare of the minor is better ensured to the Court's satisfaction in the hands of the utter stranger?

Court’s Observations

Question 1: While considering the first question, the Hon’ble Court observed that marriage of a minor in view of Section 5 (iii) of the Hindu Marriage Act and Section 3 (1) of the Prohibition of Child Marriage Act is voidable at the discretion of the minor and not void ab initio for a rule. However, if any contingencies under section 12 of the PCMA can be proved, the marriage would be considered void.

Question 2: While considering the second question, the Hon’ble Court was of the opinion that considering the circumstances, facts of the case, and expression of his choice by the minor who is on the verge to attain majority, the court may be inclined to permit the minor to stay with a person of his choice in preference to his parents or other natural guardians.

Question 3: While considering this question, the Court held that a minor cannot be forced to return to his natural guardian through a writ of habeas corpus when he decides to stay away from his parents or natural guardian and chooses to stay with a stranger of his choice. However, this is if the Court concludes that the minor will be better secured with the stranger instead of the natural guardian.

Question 4: While considering the last question, the Court opined that before entrusting the custody of the minor to an utter stranger, it should be clearly and unequivocally content on the evidence of the case that the minor will be in a better place with the stranger in comparison to his natural guardians.

Courts Order

The Hon’ble Allahabad High Court, in this case, observed that giving the custody of Manish Kumar, who is minor, to his wife, who is major will not only be patently illegal but will also be permitting an offense under the 2012 Act, in violation of interest of the child the Act is designed to protect. The Court ruled that the custody of a minor that has the potential to make the minor a victim and his guardian an offender under the 2012 Act cannot be regarded as custody or arrangement in the welfare of the minor.

Accordingly, the Court ordered that the minor, Manish Kumar could stay in a State Facility like a protection home or safe home or child care institution till he becomes a major i.e. till February 2022. After that he free to go wherever and to whomever, he pleases, including the respondent-wife and her family. The Court has also given the minor boy an option to return to his mother during this period in case he has a change of mind. He can do so after the official person of the protection home where he is housed writes a letter to the Child Welfare Committee stating the same.

LANDMARK CASE REGARDING SECTION 375 OF IPC

Section 375 of the Indian Penal Code which deals with Rape gives an exception that when a man has sexual intercourse with his wife provided the wife is not below 15 years of age cannot be considered as rape. So this exception used to give freedom to men to rape their wives who were below 18 but above 15.

In the case of the landmark case of Independent Thought vs. Union of India, the Supreme Court struck down the exception in Section 375 of the Indian Penal Code permitting men to consummate marriage with their brides above 15 and below 18 years of age in 2017. So now, adult husbands can be booked for raping their minor wives.

Even though this doesn’t make the fact that marriage between a minor and a major ethical, it at least provides protection to the minor wives.

CONCLUSION

What can be concluded from this is that marriage between a minor and an adult is voidable only if the party who is a minor in the marriage decides it to be voidable. Otherwise, the marriage is not void ab initio. It’s the girls who are the victims of child marriage as compared to boys. So it is necessary that the entire community together along with the stakeholders in a child marriage case put in concerted efforts. Safeguarding the interests of minors when it comes to child marriage is important. Religious leaders can help in this too and create an impact on society! We can’t deny the fact that child marriages affect the mental health of children and hence a collective stand must be taken against child marriages and those who practice it only then can we progress as a society.