Marriage Of Minor At Her Own Accord Will Not Be Void But Voidable: Allahabad High Court
The Allahabad High Court observed that if the prosecutrix voluntarily leaves her home at her own accord and marries without any evidence of enticement, then the marriage would not be void under section 12 of the Prohibition of Child Marriage Act,2006 but would be voidable under section 3 of the Prohibition of Child Marriage Act,2006.
"It would be open for the prosecutrix upon attaining the age of majority to acknowledge the marriage or claim it to be void and to go wherever she likes and stay with whomsoever she wants", a Single Judge Bench comprising Justice JJ Munir held.
In the present case, the prosecutrix, a 16 years old minor as per her High School Examination Certificate, married the accused (her husband) on 21.09.2020. Upon the marriage, the prosecutrix's father lodged an FIR and made an application that he would not take her home. The trial court vide order dated 24.11.2020 permitted the prosecutrix to go along with the accused. Thus, the judicial Magistrate's order was challenged by way of a petition under Article 227 of the Constitution of India,1950.
To determine whether the prosecutrix was enticed away from her guardian's lawful custody, or she went away of her own, the Bench ascertained the stand of the prosecutrix and observed that the prosecutrix was not enticed away by the accused and that she left her home on her own accord and married him.
The Court relied on the relevant paragraphs of the Supreme Court's Judgement in Independent Thought v. Union of India and Anr 2017 10 SCC 800 with respect to the contention of the counsel for the petitioner that allowing a minor to live with her husband would permit statutory rape and an offence under section 5 and section 6 of the Protection of Children from Sexual Offences Act, 2012. It also relied on this to observe that the Magistrate was swayed while relying on the judgement of Smt. Rajkumari vs Superintendent, Nari Niketan, 1998 Cr. L.J 654 (All) and Smt. Ramsati @ Syamsati vs State of U.PHabeas Corpus Writ Petition No. 245 of 2015 to hold that a minor can be allowed to live her life if she marries according to her wishes.
"So far as the age of the prosecutrix is concerned, in the face of the High School Certificate, there is no cavil that evidence about her being a major, which is her stand, cannot be accepted. She cannot be referred to a medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available. This certificate indicates that she is a minor. There, her date of birth is 04.11.2004.", the Court while relying on Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 noted.
The Court further relied on Jarnail Singh v. The State of Haryana; (2013) 7 SCC 263, Smt. Priyanka Devi through her husband vs State of U.P. and others 2018 (1) ACR 1061 to observe that provisions of Section 94(2) make it vivid that in the face of date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into. Suppose the date of birth certificate as envisaged in clause (i) of sub-Section (2) of Section 94 of the Act is not available. In that case, a corporation's birth certificate or a municipal authority or a panchayat is the next evidence to be considered in the rung. It is only when the evidence about age envisaged under clauses (i) and (ii) of Sub-Section (2) of Section 94 of the Act is not available, that a victim can be referred to a medico-legal examination for the determination of her age.
The Court thus set aside the order of the Judicial Magistrate. Further, since the girl expressed her unwillingness to live with her parents, the Court issued the following directions:
- The State is to place the minor in a suitable State facility other than a Nari Niketan.
- The District Judge, Hapur is to ensure that a lady Judicial Officer, posted in his Judgeship, will visit the minor once a month and inquire about her welfare. In case there is anything objectionable, she will immediately report the matter to the District Judge.
- The minor would be permitted to live in the State facility/Safe Home/ Shelter Home till November 4, 2022, when she turns 18 as per her school records. After that, she may go wherever she wants and stay with whomsoever she likes, including the man she claims to be her husband.
Case Title: Pradeep Tomar And Another v. State of U.P and Anr
Law Point/Statute Involved: Section 3 and Section 12 of the Prohibition of Child Marriage Act,2006 and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.