Allahabad HC: Custody Of Minor Husband Cannot Be Given To Wife As It Would Be Cohabitation Between Adult And Child

Facts of the Case

• Petitioner No. 1, Manish Kumar is aged about 16 years and a half. He married Jyoti, out of his freewill. 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 his wife, his mother-in-law, and his two brothers-in-law.
• Petitioner No. 2, Haushila Devi, Manish Kumar’s mother, believed that Jyoti, her mother, and her brothers, lured her minor son away from her and forced him into a marriage of sorts, which is illegal for want of the minor’s competence under the law.
• Petitioner No. 2 further held that her minor son is illegally detained by the Respondent nos. 5, 6, 7, and 8 who are Jyoti, her mother, and her two brothers.
• Petitioner No. 2 with that belief instituted the present Habeas Corpus Writ Petition, arraying Manish Kumar as the first petitioner and herself as the second, asking the Court to order Manish Kumar, her minor son, to be produced on a Rule Nisi before the Court.
• She also prayed that Manish Kumar be entrusted to her care and custody.

Issues formed by the Court

• Whether the marriage of a minor in contravention of Section 5 of the Hindu Marriage Act, 1955 and Sections 3(1) and 12 of the Prohibition of Child Marriage Act, 2006 is void ab initio?
• 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?
• 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?
• 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 Answer to the Issues

• 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 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.
• 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.
• While considering the third question, the Court held that a minor cannot be compelled to be restored 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.
• While considering the last issue, the Court opined that before entrusting the custody of the minor to an utter stranger, it should be clearly and unequivocally satisfied on the evidence of the case that the minor will be in a better place with the stranger in comparison to his natural guardians.

Court’s Order

• The Hon’ble Allahabad High Court ordered that Petitioner no. 1, Manish Kumar, who is a minor boy will stay in State facilities like a protection home or safe home or child care institution until he attains the age of 18, till February 2022.
• After that, he is free to go to whomever or wherever he wants, including the respondents 5 to 8.
• The Court also gave the minor boy an option that if he wishes to return to his mother before February 2022, he is free to do so after an application to the Child Welfare Committee from the official person of the home where is housed.

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