ARVIND JAIN ,ADVOCATE ARGUED ON CHILD MARRIAGE BEFOR SPECIAL BENCH OF DELHI HIGH COURT.

ADVOCATE ARVIND JAIN TODAY ARGUED BEFORE SPECIAL BENCH OF DELHI HIGH COURT COMPRISING JUSTICE VIKRAM JIT SEN,SANJIV KHANNA AND V.K.SHALI ON CONTRADICTIONS AND CONFLICTING PROVISIONS OF LAW REGARDING CHILD MARRIAGE. HE submitted that nothing could be more barbarous and heinous than the laws regarding child marriage. In brief the legal position, specifically in regard to child marriage and consequences thereof is that one of the conditions for a Hindu Marriage under section 5(iii) of the Hindu Marriage Act,1955(herein after referred as HMA) and Child Marriage Restraints Act, 1929 (CMRA) which has now been amended as Prohibition of Child Marriage Act,2006(PCMA) is that bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of marriage but marriage in contravention of section 5 (iii) of HMA is neither void nor voidable under sections 11 and 12 of HMA, though void under PCMA in certain circumstances only, meaning thereby that irrespective of age of bride or bridegroom the marriage will be legally valid and the husband, even if he is minor, shall be natural legal guardian of his minor wife under section 6(c) of the Hindu Minority and Guardianship Act,1956,(HMGA) though it is punishable offence under section 18 of HMA with imprisonment of fifteen days or a fine of Rs.1000/- only. The child bride, if she was below fifteen at the time of marriage, has been conceded a right to repudiate the marriage and seek Divorce (not annulment of marriage) after attaining the age of fifteen years but before attaining the age of eighteen years, under section 13(2) (4) of HMA, but if she is above fifteen years of age at the time of marriage, even this right is denied or not available to her. However, till she obtains a divorce on this ground, which may take years together, she remains the legally wedded wife and in a Petition for Restitution of Conjugal Rights, under section 9 of HMA, it is no defense that she was a child at the time of marriage. Since the husband has been declared as the natural legal guardian of his minor wife, she cannot even file any petition or complaint except through her so-called natural legal guardian. During this period, if the husband forcibly takes her away and compels her to submit to sex even by brute physical force, he commits no offence. He remains her guardian and hence, cannot be said to have abducted her out of his own guardianship. Although as per section 375 IPC a man is said to commit "rape" who, has sexual intercourse with a woman with or without her consent, when she is under sixteen years of age, yet as per exception of section 375 IPC sexual intercourse with one's own wife above the age of 15 years, does not amount to rape. Even if she is below fifteen, but above twelve, the husband - though acknowledged as a rapist, is entitled to a grand “special discount” in punishment, which may be imprisonment for two years or fine or both, under section 376 IPC, thereby making the offence non-cognizable and bailable and no court shall take cognizance of an offence under section 376 IPC, where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence, under section 198 (6) Cr.P.C, whereas as per section 468 of Cr.P.C the period of limitation is three years. The matter is adjourned for further hearing on 5.12.2008.This matter is going to be a mile stone on the legal question of validity of teen-age marriages.

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