Delhi High Court Judgement on Child Marriage

 

WP(Crl.) No.338/08 and connected matters                                                                                Page 1 of 62

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P. (Crl.) No.338/2008,  Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011,

   W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008, WP (Crl.) No.566/2010

Reserved on:      18.05.2012

%                          Pronounced on: 27.07.2012

1) W.P. (Crl.) No.338/2008

COURT ON ITS OWN MOTION (LAJJA DEVI) …..Petitioner

through: NEMO

VERSUS

STATE …..Respondent

through:Mr.A.S. Chandhiok, ASG with

    Mr.Baldev Malik for the UOI

    Mr. Pawan Sharma, Standing

    Counsel (Crl.) with Mr.Harsh

    Prabhakar and Mr.Sahil Mongia

    for the State

    Ms. Aparna Bhat for the

    National Commission for Women

2) Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011

SMT. LAXMI DEVI AND ANOTHER …..Petitioner

through:Mr.Javed Ahmed

VERSUS

STATE (GNCT OF DELHI) & ORS. …..Respondent

through: Mr. Pawan Sharma, Standing

    Counsel (Crl.) with Mr.HarshWP(Crl.) No.338/08 and connected matters                                                                                Page 2 of 62

3) W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008

MAHA DEV …..Petitioner

through:Mr. Arvind Jain with

   Mr.T.S. Chaudhary and

   Mr. Kuldeep Singh

VERSUS

STATE (GNCT OF DELHI) & ANR. …..Respondent

through: Mr. Pawan Sharma, Standing

    Counsel (Crl.) with Mr.Harsh

                AND

4) W.P. (Crl.) No.566/2010

DEVENDER @ BABLI …..Petitioner

through:Mr. M. Hussain

VERSUS

STATE (GNCT OF DELHI) & ANR. …..Respondent

through: Mr. Pawan Sharma, Standing

    Counsel (Crl.) with Mr.Harsh

CORAM :-

HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE SANJIV KHANNA

           HON’BLE MR. JUSTICE V.K. SHALI          

A.K. SIKRI (Acting Chief Justice)

1. Five questions are formulated by the Division Bench in its order dated

31.7.2008  passed in WP(Crl.) No.338/2008  for reference to the larger

Bench.  Though we shall take note of these questions  at a later and more WP(Crl.) No.338/08 and connected matters                                                                                Page 3 of 62

appropriate stage, we would like to point out at the outset that the issues

raised can be put in two compartments, viz., (i) what is the status of marriage

under Hindu Law when one of the parties to the marriage is below the age of

18 years  prescribed  under Section  5(iii) of the  Hindu Marriage Act, 1955

and Section 2 (a) of Prohibition of Child Marriage Act, 2006 (hereinafter

referred as the „PCM Act‟) and (ii) when the girl is minor (but the boy has

attained the age of marriage as prescribed) whether the husband he can be

regarded as the lawful guardian of the minor wife and claim her custody in

spite of contest and claim by the parents of the girl.  What is the effect of the

Prohibition of Child Marriage Act, 2006? 

2. After the aforesaid reference was made,  as some  other petitions involving

same questions came up for adjudication, they were also directed to be listed

along with Writ Petition (Crl.) No.338/2008.  That is the raison d‟etre that

all these petitions were heard together.  We would be in a better position to

appreciate the issues involved if facts in each of these cases are taken note of

in the first instance.

Writ Petition (Crl.) No.338/2008

3. A letter was addressed by Smt. Lajja Devi wife  of Sh.Het Ram, R/o

Village Mohra, P.L. Jagat, P.S. Musa Jhag, District Badayun, Uttar Pradesh

to the Hon‟ble the Chief Justice of this Court. In the letter, it was alleged by WP(Crl.) No.338/08 and connected matters                                                                                Page 4 of 62

Smt. Lajja Devi that her daughter named Ms.Meera, who was around 14

years of  age (date of birth being 6.7.1995) was kidnapped by Promod,

Vinod, Satish,  Manoj S/o Shri Raj Mal. This kidnapping is purported to

have taken place when Ms. Meera had visited Delhi to meet the brother-inlaw of the Complainant at A- 113, Rajiv Nagar Extension, Near Village

Begumpur, Delhi-110086.  On the basis of the said information, an FIR

bearing No.113/2008 under Section 363 IPC had been registered at P.S.

Sultanpuri on 21st February, 2008 against the aforesaid accused persons. 

4. This letter was treated  as a Writ  Petition  and was placed before  the

appropriate Bench on 14th March, 2008 whereupon notice was issued to the

State directing it to file the Status Report. Four Status Reports have been

filed by the Police from time to time. These Reports are dated 02.4.2008,

12.5.2008, 11.5.2008 and 11.7.2008.  The local Police, as a consequence of

registration of this FIR, had arrested Shri Charan Singh from Village

Sakatpur District Badayun, U.P. wherefrom the minor girl Ms.Meera was

also recovered, as both of them were living together. The girl had made a

statement under Section 164 of Cr.P.C. before the learned  Metropolitan

Magistrate, Rohini Courts Delhi that she had gone along with the  accused

Charan Singh of her own free will as her Uncle and Aunt were marrying her

against her wishes. Charan Singh was taken in Judicial Custody on WP(Crl.) No.338/08 and connected matters                                                                                Page 5 of 62

8.6. 2008.  Admittedly, Ms. Meera was a minor, and in all probabilities is

aged around 13 years and a month as on that date.

5. Initially, Ms. Meera refused to go along with her parents, her natural

guardians, on the ground that they intended were intending to marry her off

with some other person.  She was, thus, sent to Nirmal Chhaya in judicial

custody.  However, when the matter came up for hearing on 31.7.2008, she

desired to reside with her parents on the assurance given by the parents that

they would not marry her to someone else. 

6. When the matter was taken up for arguments on 31.7.2008, the aforesaid

facts were taken note of which points out that Ms. Meera was not abducted

by  Shri Charan Singh.  On the contrary, she went with him on her own

accord and they got married.  However, she was not only minor but even

less than 15 years of age.  She had initially expressed her apprehension in

joining her parental home.  On the other hand, her husband‟s family wanted

to have the custody of Ms. Meera as her husband was in judicial custody.  In

this backdrop, the question arose as to what would be the status of such a

marriage.  Can it be treated as a valid marriage?  Or was it the voidable by

law?  Or it was simply an illegal marriage not recognized.  The question of

entitlement of husband to have the custody of a minor person with whom he

married could depend upon the answer to the aforesaid question.  WP(Crl.) No.338/08 and connected matters                                                                                Page 6 of 62

Crl.M.C. No.1001/2011

7. This petition is filed under Section 482 of the Code of Criminal Procedure

seeking quashing of FIR registered against the petitioner No.2 under

Sections 363/366/376/465/467/494/497/120B and 506 of the Indian Penal

Code.  It is stated that the petitioner No.1 had of her own will joined the

company of the petitioner No.2 and got married with him according to

Hindu rites and ceremonies on 4.3.2010.  However, the respondent No.2,

father of the petitioner No.1, lodged a missing report on 5.3.2010 in the

Police Station.  It is alleged that in the said missing report he had stated that

the petitioner No.1 aged 20 years was missing.  Thereafter, in April, 2010 he

filed  habeas corpus petition taking the stand that the petitioner No.1 was

minor and she had been married by the respondent no.2 to someone else at

Rajasthan when she returned from her in laws from Rajasthan to Delhi.  She

was enticed away by the petitioner No.2.  The notice was issued in the said

writ petition and production of the petitioner No.1 was ordered.  The Police

recovered her and produced before the Court on 19.4.2010.  She stated that

she had married  the petitioner No.2 on her own accord  and without any

pressure and wanted to live with the petitioner No.2, who was her husband. 

In view of the conflicting claims  about her age, direction was given to the

I.O. to verify her age.  The Court sent the petitioner No.1 to Nirmal Chhaya WP(Crl.) No.338/08 and connected matters                                                                                Page 7 of 62

Nari Niketan for protective custody.  Ossification test was conducted and the

age of the petitioner No.1 was found between 17-19 years.  The respondent

No.2, father of the petitioner No.1, had produced the school leaving

certificate which showed her date of birth as 3.3.1993 and on this basis, she

was 17 years of age on the date  when  the parties allegedly  solemnised

marriage. 

The father of the petitioner No.1 wanted her custody.  However, she

gave the statement that she would like to stay at Nari Niketan rather than

joining her parents.  In view of this statement, the Court sent the petitioner

No.1 to Nari Niketan till the time she attained the age of majority vide orders

dated 31.5.2010.  However, at the same time the petitioner No.2 was allowed

to meet her twice a week at least for two hours on each occasion vide orders

dated 29.10.2011.  As per the school leaving certificate she completed the

age of 18 years on 3.3.2011.  She was, thus, released from Nari Niketan and

she decided to join the company of the petitioner No.2 and has been living

with him.  However, on 25.2.2011 the petitioner No.2 was arrested in the

FIR No.31/2011, PS Dabri  under Sections 363/366/376/465/467/494/

497/120-B/506 IPC.  This FIR was registered on the basis of the directions

given by the learned MM upon the complaint filed by the respondent No.2 WP(Crl.) No.338/08 and connected matters                                                                                Page 8 of 62

on 3.4.2010.  It is, in these circumstances, both the petitioners filed the

aforesaid petition seeking quashing of the FIR.

WP (Crl.) No.821/2008

8. The petitioner in this case is the father of a minor girl Kiran Devi, who

according to him was 15 years of age at that time.   As per the averments

made in the writ petition, Kiran Devi was found missing from her house on

27.10.2006 on which date a boy named Jagat Pal was also found missing

with his parents who were residing in the neighbourhood of the petitioner. 

The petitioner lodged missing report with Police Station Samaypur Badli

(now new Police Station Swaroop Nagar) on 30.10.2006.  Thereafter, FIR

No.968/2006 was lodged at that Police Station on 12.11.2006.  Pursuant to

this FIR the police became active and after search nabbed the boy Jagat Pal

and also took Kiran Devi into  custody on 5.12.2006.  According to the

petitioner, though he made various complaints to the police and even filed

complaint under Section 200 Cr.P.C. seeking direction to register  the case

and also passed orders of arrest of the accused persons.  As nothing

happened, he filed the instant petition for taking action against the person

involved in the forcible custody of his minor daughter with the direction to

produce the girl before the Court.  WP(Crl.) No.338/08 and connected matters                                                                                Page 9 of 62

9. After recovery Kiran Devi had been sent to Nirmal Chhaya on 5.9.2008 and

she made a statement that she wanted to continue to reside at Nirmal Chhaya

as her parents were not accepting her marriage.  Earlier she had made the

statement that she had gone with Jagat Pal of her own accord and willingly

married him without any pressure or coercion.  It is, in these circumstances,

question of validity of marriage  and  guardianship has arisen for

consideration in this case. 

Crl.M. No.566/2010

10.This petition is filed by one sh. Devender Kumar who states that he married

Shivani @ Deepika according to Hindu rites and ceremonies in a temple at

Delhi on 7.8.2009.  According to him, Shivani was a  major at that time. 

However,  at the instance of father of Shivani, FIR No.97/2009 at Police

Station Lahori Gate, Delhi was registered under Section 363 IPC on

10.8.2009 to which later on Section 366 and 376 were added.  The petitioner

stated in the petition that when he learnt about registration of that FIR he and

Shivani appeared before the learned MM where Shivani gave her statement

under Section 164 of the Cr.P.C. that she had married the petitioner of her

own accord.  After recording her statement and after her medical

examination, since she was prima facie found to be minor, Shivani was sent

to Nirmal Chhaya till 5.4.2010 when the aforesaid petition was filed by the WP(Crl.) No.338/08 and connected matters                                                                                Page 10 of 62

petitioner for issuance of writ of habeas corpus and giving him the custody

of Shivani.   The events, which took place in the meantime that after the

arrest of the petitioner in the aforesaid FIR, he was released on bail on

26.10.2009.  He moved application for custody of Shivani with the learned

MM, which was dismissed on 11.11.2009 and the matter of her release was

referred to the Child Welfare Committee (CWC).  However, the CWC was

not passing the order because of which the petitioner filed the petition for

habeas corpus.

11.It would be clear from the facts of all the aforesaid cases that in all these

cases the girls have given the statement that they were not kidnapped but

eloped with the respective persons of their own and got married with them. 

All the four girls maintained that the marriage was solemnized with their

free consent.  However, all the four girls were below 18 years when they got

married, whereas there is no dispute about the ages of the boys with whom

they got married as they were above 21 years of age at the time of marriage. 

12.In some cases, the girls were even less than 15 years.  It is under these

circumstances questions that have arisen in all these cases are common. 

Now, we proceed to reproduce the questions formulated by the Division

Bench in its order dated 31.7.2008 in W.P. (Crl.) No.338/2008, which are as

follows:WP(Crl.) No.338/08 and connected matters                                                                                Page 11 of 62

1) Whether a marriage contracted by a boy with a female of

less than 18 years and a male of less than 21 year could

be said to be valid marriage and the custody of the said

girl be given to the husband (if he is not in custody)?

2) Whether a minor can be said to have reached the age of

discretion and thereby walk away from the lawful

guardianship of her parents and refuse to go in their

custody?

3) If yes, can she be kept in the protective custody of the

State?

4) Whether the FIR under Section 363 IPC or even 376 IPC

can be quashed on the basis of the statement of such a

minor that she has contracted the marriage of her own?

5) Whether there may be other presumptions also which

may arise?”

13.We would like to mention here that the reason for referring the aforesaid

questions for consideration by Larger Bench arose on account of three

Division Bench judgments of this Court wherein  view was  taken that

marriage of a minor girl would neither be void nor voidable under the Hindu

Marriage Act, 1955 (hereinafter referred to as the HM Act). 

14.The Division Bench, however, was not willing to accept the decision of the

aforesaid three judgments as, according to it, in these  cases there was no

consideration of all extent statutes. 

15.The three judgments of the Division Bench, on the one hand and the views

expressed by the Division Bench in its orders dated 31.7.2008 reflect the

conflicting views on the issues involved.  However, much detailed WP(Crl.) No.338/08 and connected matters                                                                                Page 12 of 62

submissions were made before us at the time of arguments and we would

point out these submissions while giving our opinion on the questions

referred.    The Division bench made it clear in para 9 that the position

regarding Muslim Law was different as the said law recognizes marriage of

minor, who has attained puberty as valid and therefore, the status of marriage

under Muslim Law is specifically excluded from reference. 

Question 1:

Whether a marriage contracted by a boy with a female of less than 18

years and a  female of less than 21 year could be said to be valid

marriage and the custody of the said girl be given to the husband (if he

is not in custody)?

Statutory provisions of various enactments which have bearing on this

issue may be taken note of in the first instance. 

Prohibition of Child Marriage Act 2006

“Section 2 - Definition

In this Act, unless the context otherwise requires,--

(a) "child" means a person who, if a male, has not

completed twenty-one years of age, and if a female,

has not completed eighteen years of age;

(b) "child marriage" means a marriage to which either of

the contracting parties is a child;

           xxxxx xxxxx xxxxxx

(f) "minor" means a person who, under the provisions of

the Majority Act, 1875 (9 of 1875) is to be deemed ot

to have attained his majority.WP(Crl.) No.338/08 and connected matters                                                                                Page 13 of 62

xxxxx xxxxx xxxxxx

3. Child marriages to be voidable at the option of

contracting party being a child.–(1) Every child

marriage, whether solemnised 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:

Provided that a petition for annulling a child

marriage by a decree of nullity may be filed in the

district court only by a contracting party to the marriage

who was a child at the time of the marriage.

(2) If at the time of filing a petition, the petitioner is a

minor, the petition may be filed through his or her

guardian or next friend along with the Child Marriage

Prohibition Officer.

(3) The petition under this section may be filed at any

time but before the child filing the petition completes

two years of attaining majority.

(4) While granting a decree of nullity under this section,

the district court shall make an order directing both the

parties to the marriage and their parents or their

guardians to return to the other party, his or her parents

or guardian, as the case may be, the money, valuables,

ornaments and other gifts received on the occasion of the

marriage by them from the other side, or an amount

equal to  the value of such valuables, ornaments, other

gifts and money:

Provided that no order under this section shall be

passed unless the concerned parties have been given

notices to appear before the district court and show cause

why such order should not be passed.WP(Crl.) No.338/08 and connected matters                                                                                Page 14 of 62

xxxxx  xxxxx xxxxx xxxxx

“9. Punishment for male adult marrying a child.–

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 fine which may extend to one lakh rupees or with

both.”

xxxxx  xxxxx xxxxx xxxxx

“12. Marriage of a minor child to be void in certain

circumstances.-Where a child, being a minor--

(a) is taken or enticed out of the keeping of the

lawful guardian; or”

(b) by force compelled, or by any deceitful means

induced to go from any place; or

(c) is sold for the purpose of marriage; and made

to go through a form of marriage or if the

minor is married after which the minor is sold

or trafficked or used for immoral purposes,

such marriage shall be null and void.

xxxxx xxxxx xxxxx

“15. Offences to be cognizable and non- bailable–

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 od 1974), an offence

punishable under this Act shall be cognizable and nonbailable.”

Hindu Marriage Act

“5. Conditions for a Hindu marriage.–A marriage

may be solemnized between any two Hindus, if the

following conditions are fulfilled, namely-WP(Crl.) No.338/08 and connected matters                                                                                Page 15 of 62

         xxxxx xxxxx    xxxxx

(iii) the bridegroom has completed the age of

[twenty-one years] and the bride, the age of [eighteen

years] at the time of the marriage;”

xxxxx      xxxxx xxxxx

“11. Void marriages. – Any marriage solemnised after

the commencement of this Act shall be null and void and

may, on a petition presented by either party

thereto

1

[against the other party], be so declared by a

decree of nullity if it contravenes any one of the

conditions specified in clauses (i), (iv) and (v) of section

5.”

              xxxxx         xxxxx     xxxxx

12. Voidable marriages.–(1)  Any marriage

solemnised, whether before or after the commencement

of this Act, shall be voidable and may be annulled by a

decree of  nullity on any of the following grounds,

namely:-

1

[(a) that the marriage has not been consummated

owing to the impotence of the respondent; or]

(b) that the marriage is in contravention of the

condition specified in clause (ii) of section 5; or

(c) that the consent of the petitioner, or where the

consent of the guardian in marriage of the

petitioner

2

[was required under section 5 as it stood

immediately before the commencement of the

Child Marriage Restraint (Amendment) Act, the

1978 (2 of 1978)], the consent of such guardian

was obtained by force

3

[or by fraud as to the nature

of the ceremony or as to any material fact or

circumstance concerning the respondent]; or

(d) that the respondent was at the time of the

marriage pregnant by some person other than the

petitioner.WP(Crl.) No.338/08 and connected matters                                                                                Page 16 of 62

(2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of subsection (1) shall be entertained if-

(i) the petition is presented more than one

year after the force had ceased to operate or,

as the case may be, the fraud had been

discovered; or

(ii) the petitioner has, with his or her full

consent, lived with the other party to the

marriage as husband or wife after the force

had ceased to operate or, as the case may be,

the fraud had been discovered;

(b) on the ground specified in clause (d) of subsection (1) shall be entertained unless the court is

satisfied-

(i) that the petitioner was at the time of the

marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in

the case of a marriage solemnised before the

commencement of this Act within one year

of such commencement and in the case of

marriages solemnised after such

commencement within one year from the

date of the marriage; and

(iii) that marital intercourse with the consent

of the petitioner has not taken place since

the discovery by the petitioner of the

existence of

4

[the said ground].”

                xxxx     xxxxx   xxxxx

13. Divorce. -

                    xxxxx xxxxx xxxxxWP(Crl.) No.338/08 and connected matters                                                                                Page 17 of 62

(2) A wife may also present a petition for dissolution

of her marriage by a decree of divorce on the ground,-

                   xxxxx      xxxxx xxxxxx

(iv)   that her marriage (whether consummated or not)

was solemnised before she attained the age of fifteen

years and she has repudiated the marriage after attaining

that age but before attaining the age of eighteen years.

Explanation. – This clause applies whether the marriage

was solemnised before or after the commencement of the

Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

           xxxxx xxxxx xxxxxx

“18. Punishment for contravention of certain other

conditions for a Hindu marriage.–Every person who

procures a marriage of himself or herself to be

solemnized under this Act in contravention of the

conditions specified in clauses (iii), (iv),

1

[and (v)] of

section 5 shall be punishable-

[(a) in the case of contravention of the

condition specified in clause (iii) of section

5, with rigorous imprisonment which may

extend to two years or with fine which may

extend to one lakh rupees, or with both.]

(b) in the case of a contravention of the

condition specified in clause (iv) or clause

(v) of section 5, with simple imprisonment

which may extend to one month, or with

fine which may extend to one thousand

rupees, or with both;”

Special Marriage Act

“4. Conditions relating to solemnization of special

marriages. – Notwithstanding anything contained in any

other law for the time being in force relating to the

solemnization of marriages, a marriage between any two WP(Crl.) No.338/08 and connected matters                                                                                Page 18 of 62

persons may be solemnized under this Act, if at the time

of the marriage the following conditions are fulfilled,

namely:--

(a) neither party has a spouse living;

[(b) neither party--

(i) is incapable of giving a valid consent to it

in consequence of unsoundness of mind; or

(ii) though capable of giving a valid consent,

has been suffering from mental disorder of

such a kind or to such an extent as to be

unfit for marriage and the procreation of

children; or

(iii) has been subject to recurrent attacks of

insanity;]

(c) the male has completed the age of twentyone years and the female the age of eighteen

years;

[(d) the parties are not within the degrees of

prohibited relationship:

Provided that where a custom governing  at

least one of the parties permits of a marriage

between them, such marriage may be

solemnized, notwithstanding that they are

within the degrees of prohibited

relationship; and]

(e) where the marriage is solemnized in the

State of Jammu and Kashmir, both  parties are

citizens of India domiciled in the territories to

which this Act extends].

[Explanation.--In this section, "custom", in

relation to a person belonging to any tribe,

community, group or family, means any rule WP(Crl.) No.338/08 and connected matters                                                                                Page 19 of 62

which the State Government may, by

notification in the Official Gazette, specify in

this behalf as applicable to members of that

tribe, community, group or family:

Provided that no such notification shall be

issued in relation to the members of any

tribe, community, group or family, unless

the State Government is satisfied--

(i) that such rule has been continuously

and uniformly observed for a long time

among those members;

(ii) that such rule is certain and not

unreasonable or opposed to public

policy; and

(iii) that such rule, if applicable only to a

family, has not been discontinued by the

family.]”

          xxxxx         xxxxx        xxxxx

24. Void marriages.–(1) Any marriage solemnized

under this Act shall be null and void

1

[and may, on a

petition presented by either party thereto against the other

party, be so declared] by a decree of nullity if--

(i) any of the conditions specified in clauses (a),

(b), (c) and (d) of section 4 has not been

fulfilled; or

(ii) the respondent was impotent at the time of

the marriage and at the time of the institution of

the suit.

(2) Nothing contained in this section shall apply to

any marriage deemed to be solemnized under this

Act within the meaning of section 18, but the

registration of any such marriage under Chapter III WP(Crl.) No.338/08 and connected matters                                                                                Page 20 of 62

may be declared to be of no effect if the

registration was in contravention of any of the

conditions specified in clauses (a) to (e) of section

15:

Provided that no such declaration shall be

made in any case where an appeal  -has been

preferred under section 17 and the decision of the

district court has become final.

16.Interpreting the provisions of HM Act, the three Division Benches of this

Court,  as pointed out earlier, held the view that the marriage of a minor

under the HM Act was valid.  The genesis of arriving at such a conclusion is

discussed in brief by the Division Bench in its order dated 31.7.2008 in paras

4 to 8, which are as under:-

“4.  It may be pertinent here to mention that there are

three judgments of the Division Bench of this Court

which are having bearing so far as the questions arising

in the instant case are concerned.  In the first case titled

as Neetu Singh vs. State and Ors. 1999 (1) JCC (Delhi)

170, the Division Bench was called upon to test the

validity of an order passed by the Additional

Metropolitan Magistrate remanding the minor to Nari

Niketan for the purpose of custody, against her own

wishes. The Division Bench of the High Court quashed

the order of remanding the minor girl to Nari Niketan by

observing that a marriage of a minor girl in contravention

of Section 5(iii) of the Hindu Marriage Act is neither

void nor voidable and the only sanction which is

provided under Section 18 of the Act is a sentence of 15

days and a fine of Rs.1,000/-. The girl was released to the

husband. Reference was made to the judgments of other

High Courts namely  Mrs. Kalyani Chaudhary vs. The

State of U.P. and Ors. 1978 Cr.L.J. 1003 and Seema Devi WP(Crl.) No.338/08 and connected matters                                                                                Page 21 of 62

alias Simaran Kaur vs. State of H.P. 1998 (2) Crime 168,

which however did not consider the Child Marriage

Restraint Act, 1929 which now stands repealed by

Prohibition of Child Marriage Act, 2006.

5. In the recent years, there have been two judgments of a

Division Bench both headed by Hon‟ble Mr. Justice

Manmohan Sarin. In the first judgment titled as Manish

Singh Vs. State Govt. of NCT and Ors. reported in 2006

(1) CCC (HC) 208 and Sunil Kumar Vs. State NCT of

Delhi and Anr. 2007 (2) LRC 56 (Del) (DB), wherein

the Division Bench has affirmed its earlier view

approving Neetu Singh‟s case.

6. The Division Bench also referred to its own judgments

in Ravi Kumar Vs. The State and Anr. 2005 (124) DLT

and Phoola Devi vs. The State and Ors. 2005 VIII AD

Delhi 256.  The sum and substance of these authorities

is that marriage solemnized in contravention of the

age prescribed under Section 5(iii) of the Hindu

Marriage Act i.e. 21 years for male and 18 years for

female are neither void nor voidable under Sections

11 and 12 of the Hindu Marriage Act. The only

sanction prescribed against such marriages was

noticed to be a punishment prescribed under Section

18 of the said Act which was to the extent of 15 days

and a fine of Rs.1,000/-.

7. The Hon‟ble Division Bench was at pains to explain

that by making such pronouncement, the Court was only

interpreting the provisions of law and it could not have

been perceived as reducing the age of marriage, reducing

the age of consent or declining to nullify marriages of

minors. It was observed that this was neither the intent of

the Court nor was any such prayer made in these

petitions and it was primarily for the legislature to

consider as to whether the present provisions under the

Hindu Marriage Act and the Child Marriage Restraint

Act are insufficient or being failed to discourage child WP(Crl.) No.338/08 and connected matters                                                                                Page 22 of 62

marriages and take such remedial actions as may deemed

appropriate in their wisdom.

8. In Manish Singh‟s and Ram Ladle Chaturvedi‟s case,

the Division Bench directed quashing of FIR under

Section 363 against Ram Ladle Chaturvedi while as in

Sunil Kumar‟s case the Division Bench permitted the girl

who was aged 16 years to reside with her husband-the

alleged kidnapper on the ground that the girl had come of

age of discretion. We are of the opinion of these

judgments have not taken into consideration of the

prohibition of Child Marriage Act, 2006 which makes the

contracting of a marriage by a boy above the age of 18

with a girl who is less than 18 as a cognizable and nonbailable offence.”

17.However, in the reference order the Division Bench has recorded a

discordant note and the reason given in the reference order is that the

provisions of the PCM Act were not taken into consideration, which would

materially change the legal position.  Discussion in this behalf is contained

in para-10, which is as under:-

“10. The easiest course for us would have been to follow

the Division Bench judgments of our own High Court on

this question with regard to legality of marriage as well

as custody of the minor spouse. However, we are of the

view that a question of public importance is involved in

the matter which needs consideration by a Full Bench on

account of the absence of consideration of all extant

statutes:-

(a) The first reason why prima facie, we hesitate to agree

with the observations passed by the Division Bench of

this Court is on account of the fact that

although there may be different definitions of the word WP(Crl.) No.338/08 and connected matters                                                                                Page 23 of 62

„child‟ with regard to the age of the minor girl given in

different enactments but the purpose of each

enactment is to be seen. The enactment which is of

utmost importance with regard to the child marriage or

for that matter the marriage with a minor girl would be

the Prohibition of Child Marriage Act, 2006.

(b) According to Section 2 (a) of the Prohibition of Child

Marriage Act, 2006, a „child‟ means a person who, if a

male, has not completed twenty-one years of

age, and if female, has not completed eighteen years of

age.

(c) Section 12(a) of the said Act makes the marriage of a

minor girl who has been taken or enticed out of the

keeping of the lawful guardian shall be

null and void. The language of Section 12(a) of the said

Act is mandatory in nature and does not admit of any

reservation. Further it makes the marriage of

a child, or a minor girl as null and void. That means the

marriage itself is non-existent and the law does not

recognize the same. Section 9 of the said Act

provides for punishment for a male adult above 18 years

of age contracting a child marriage punishable with

rigorous imprisonment which may extend to two

years or with fine which may extend to Rs. 1 lac or with

both.

(d) The offence carries a punishment which may extend

up to 2 years and, therefore, clearly the offence would be

bailable and non-cognizable. Despite this, by virtue of

the non-obstante clause of the Section 15 of the Act, such

offence is a cognizable and non-bailable offence under

Cr.P.C. This aspect of the matter has not been previously

considered by the Court and accordingly

quashing of FIR under Section 363 or in the instant case

under Section 363 and 376 would not only be in

contravention of law but also against the letter and

spirit of the Act by observing that the girl has attained the WP(Crl.) No.338/08 and connected matters                                                                                Page 24 of 62

age of discretion with the reference to Sections 5(iii), 11,

12 and 18 of the Hindu Marriage Act.”

18.We would also like to  point out in the interregnum, this very issue is

discussed by other  Courts as well and the judgments to that effect  were

placed before us by the learned counsel for the parties.  In Amnider Kaur

and Anr. v. State of Punjab and Ors., 2010 Crl.L.J. 1154 decided by Punjab

and Haryana High Court, the Single Judge of the said Court has taken a view

that having regard to the provisions of Section 12 of the PCM Act, marriage

with a minor girl would be void.  A perusal of this judgment would show that

the learned Judge has proceeded almost on same lines as taken by the

Division Bench in the present reference order, which is clear from the

following passages of this judgment:-

“14.  In this case the facts are not in dispute. Petitioner

No. 1 was a minor girl being 16 years and 2 months of

age at the time of alleged marriage. According to Section

3 of The Majority Act, 1875 every person domiciled in

India shall attain the age of majority on his completing

the age of eighteen years and not before. According to

Section 2(f) of the Act "minor" means a person who,

under the provisions of the Majority Act, 1875 (9 of

1875) is to be deemed not to have attained his majority.

According to Section 2(a) of the Act, "child" means a

person, who, if a male, has not  completed twenty-one

years of age, and if a female, has not completed eighteen

years of age and according to Section 2(b) of the Act,

"child marriage" means a marriage to which either of the

contracting parties is a child. Then according to Section

12(a), the marriage of petitioner No. 1 which falls within WP(Crl.) No.338/08 and connected matters                                                                                Page 25 of 62

the definition of child and within the definition of minor

being the age of 16 years and 2 months who has been

enticed away out of the keeping of the lawful guardian

cannot contract the marriage and her marriage shall be

null and void.

15.  In view of those provisions, I have no other choice

but to hold that marriage of petitioners No. 1 and 2 which

is alleged to have been performed on 21.10.2009 as per

Marriage Certificate (Annexure P-1 undated) as void

marriage and none of the judgments which have been

cited by the learned Counsel for the petitioners in support

of their case, is applicable to the facts and circumstances

of the present case because in the case of Ravi Kumar

(supra), the Division Bench had considered only the

provisions of Sections 5 and 18 of the Act of 1955 to

observe that in case of violation of Section 5(iii) of the

Act of 1955, the punishment is only 15 days simple

imprisonment with fine of Rs. 1000/- or both but the

marriage is not illegal or void. However, much water has

flown thereafter and now for the contravention of Section

5(iii) of the Act of 1955, the punishment under Section

18 (a) has been enhanced to 2 years, rigorous

imprisonment and/or with fine up to of lac or with both.

Moreover, the case of Ravi Kumar (supra) was decided

on 5.10.2005. At that time, the Act was not in force as it

did not receive the assent of President of India and has

been notified w.e.f 1.11.2007. Therefore, the learned

Counsel for the petitioners cannot take the advantage of

the observations made in the case of Ravi Kumar (supra).

Insofar as the case of Ridhwana and another (supra) is

concerned, in that case also this Court had prima-facie

found that there is evidence collected by the police that

girl was more than 18 years of age but still while parting

with the judgment for the sake of argument, it was

decided that even if girl is 16 years and 2 months age and

has married with her own sweet will, no offence is said to

have been committed. This Court had no occasion to

refer to the provisions of Section 12 of the Act.

Therefore, the ratio laid down in these cases is not WP(Crl.) No.338/08 and connected matters                                                                                Page 26 of 62

applicable. The case of Lata Singh (2006 Crl.LJ 3309)

(supra) itself talks about the persons who were major at

that time when they got married and on that premise, it

was held that if the persons are major and have got

married on their own, their life and liberty should not be

threatened by the persons who are against their marriage.

Hence, the said judgment is also of no help to the present

petitioners. In the case of Pardeep Kumar Singh (supra)

this Court had laid down as many as nine directions but

in none of the directions it has been provided that if the

girl is minor and has been enticed away for the purpose

of marriage by alleged husband, the said marriage is

valid. Hence, I have found that provisions of Section 12

of the Act would apply with full rigour in the present

case and the marriage which has been solemnised by

petitioner No. 2 with petitioner No. l, who is child and a

minor,  is unsustainable in the eyes of law and is thus,

declared as void.

16.  The second question involved in this case is that

whether the persons, who have performed the marriage

are also liable for punishment. In this regard Sections 10

and 11 of the Act provides for punishment for such

persons and Section 15 of the Act provides that

notwithstanding anything contained in the Code of

Criminal Procedure, 1973, an offence shall be cognizable

and non-bailable. Therefore, I hold that the person who

has performed or abetted the child marriage of petitioner

No. 1, is also equally liable and for that purpose, I direct

the State to take appropriate action by lodging the case

against the persons who are responsible for the

performance of the child marriage in the present case. In

respect of the third question, the petitioners cannot be

allowed to take the benefit of the constitutional remedy

of protection of their life and liberty on the pretext of

their void marriage. The life and liberty of petitioners No.

1 and 2 is only endangered and is being threatened by

respondent No. 4 so long their marriage legally subsists

but once their marriage is declared to be void, there is no

threat left to their life and liberty. Moreover, such a case WP(Crl.) No.338/08 and connected matters                                                                                Page 27 of 62

where the allegation against the husband is of enticing

away minor girl from the lawful keeping of

guardian/parents and a case has been registered under

Sections 363/366-A IPC, no protection under Section 482

Cr.P.C. can be granted by this Court because in that

eventuality police protection  has to be granted to a

fugitive of law.”

19.Then, we have T. Sivakumar v. The Inspector of Police, (HCP No.907/11

decided on 3.10.2011), which is a judgment by the Full Bench of the Madras

High Court.  In that case also five questions were referred for answer by the

Division Bench as under:-

“(1)  Whether a marriage contracted by a person with a

female of less than 18 years could be said to be valid

marriage and the custody of the said girl be given to the

husband (if he is not in custody)?

(2)  Whether a minor can be said to have reached the

age of discretion and thereby walk away from the lawful

guardianship of her parents and refuse to go in their

custody?

(3)  If yes, can she be kept in the protective custody of

the State?

(4)  Whether in view of the provisions of Juvenile

Justice (Care and Protection of Children) Act, 2000, a

minor girl, who claims to have solemnized her marriage

with another person would not be a juvenile in conflict

with law and whether in violation of the procedure

mandated by the Juvenile Justice (Care and Protection of

Children) Act, 2000, the Court dealing with a Writ of

Habeas Corpus, has the power to entrust the custody of

the minor girl to a person, who contracted the marriage

with the minor girl and thereby committed an offence

punishable under Section 18 of the Hindu Marriage Act WP(Crl.) No.338/08 and connected matters                                                                                Page 28 of 62

and Section 9 of the Prohibition of Child Marriage Act,

2006? And

(5) Whether the principles of Section 17 and 19(a) of

the Guardians and Wards Act, 1890, could be imported to

a case arising out of the alleged marriage of a minor girl,

admittedly in contravention of the provisions of the

Hindu Marriage Act?”

20.The Full Bench of the Madras High Court referred to the provisions of HM

Act as well as PCM Act.  It observed that the position, which was under the

HM Act as well as Child Marriage Restraint Act (hereinafter referred to as

the „CMRA‟), was that these Acts do not declare marriage of a minor either

as void or voidable and such marriage of a child was treated all along as

valid.  There were number of judicial pronouncements to this effect.  In this

legal scenario, Hindu Minority and Guardianship Act also provided that the

husband of a wife is her natural guardian.  After taking note of this position,

which prevailed on the reading of HM Act and CMRA the Court discussed

the reason for enacting the PCM Act, namely, which replaced the  CMRA

and it has been pointed out that “it is manifestly clear that this Act is secular

in nature which has crossed all barriers of personal laws.”  Thus, irrespective

of personal laws, under this Act child marriages are prohibited.  Section 3 of

this Act makes the child marriage to be voidable at the option of contracting

party being a child.  The Full Bench noted that this is a great departure from

the  position in  HM Act.  When the PCM Act, 2006 was enacted, the WP(Crl.) No.338/08 and connected matters                                                                                Page 29 of 62

Parliament was aware of the provisions of Sections 5, 11, 12 and 18 of the

HM Act.  By declaring that the PCM Act shall apply to all citizens, the

Parliament has intended to allow the PCM Act to override the provisions of

HM Act to the extent of inconsistencies between these two enactments. 

Similarly, PCM Act will override the personal law.  This is manifest from

the statement of Objects and Reasons of the PCM Act, 2006, which reads as

follows:-

“1) The Child Marriage Restraint Act, 1929 was enacted

with a view to restraining solemnisation of child

marriages.  The Act was subsequently amended in 1949

and 1978 in order, inter alia, to raise the age limit of the

male and female persons for the purpose of marriage. 

The Act, though restrains solemnisation  of child

marriages yet it does not declare them to be void or

invalid.  The solemnisation of child marriage is

punishable under the Act.

2)  There has been a growing demand for making the

provisions of the Act more effective and the punishment

thereunder more stringent so as to eradicate or effectively

prevent the evil practice of solemnisation of child

marriages in the country.  This will enhance the health of

children and the status of women.  The National

Commission for women in its Annual Report for the year

1995-96 recommended that the Government should

appoint Child Marriage Prevention Officers immediately. 

It further recommended that  – (i) the punishment

provided under the Act should be made more stringent;

(ii) marriages performed in contravention of the Act

should be made void; and (iii) the offences under the Act

should be made cognizable.WP(Crl.) No.338/08 and connected matters                                                                                Page 30 of 62

3) The National Human Rights Commission undertook a

comprehensive review of the existing Act and made

recommendations for comprehensive amendments

therein vide its Annual Report 2001-2002.  The Central

Government, after consulting the State Governments and

Union Territory Administrations on the recommendations

of the National Commission for Women and the National

Human Rights Commission, had decided to accept

almost all the recommendations and give effect to them

by repealing and re-enacting the Child Marriage Restraint

Act, 1929.”

21.  On that basis, view of the Full Bench of Madras High Court was that the

law was enacted for the  purpose of effectually preventing evil practice of

solemnisation  of child marriages and also  to enhance the  health of the

children and the status of the marriage and therefore, it was a special

enactment in contrast with the HM Act, which is a general law  regulating

Hindu marriages.  Thus, the PCM Act, being a special law, will have

overriding effect over the HM Act to the extent of any inconsistency between

the two enactments.  For this reason, the Court took the view that Section 3

of this Act would have overriding effect over the HM Act and the marriage

with a minor child would not be valid but voidable and would become valid

if within two years from the date of attaining 18 years in the case of female

and 21 years in the case of male, a petition is not filed before the District

Court under Section 3(1) of the PCM Act for annulling the marriage. 

Similarly, after attaining eighteen years of age in the case of female, or WP(Crl.) No.338/08 and connected matters                                                                                Page 31 of 62

twenty-one years of age in the case of a male, if she or he elects to accept the

marriage, the marriage shall become a full-fledged valid marriage.  Until

such an event of acceptance of the marriage or lapse of limitation period, the

marriage shall continue to remain as a voidable marriage.

22.The circumstances under which this voidable marriage will become valid or

would be treated as annulled as per Section 3 of the Act, is stated by the Full

Bench in para 21 of the said judgment in the following manner:

“21. …..In our considered opinion, the marriage

shall remain voidable (vide Section 3) and the said

marriage shall be subsisting until it is avoided by

filing a petition for a decree of nullity by the child

within the time prescribed in Section 3(3) of the

Prohibition of Child Marriage Act.  If, within two

years from the date of attaining eighteen years in the

case of a female and twenty-one years in the case of

a male, a petition is not filed before the District

Court under Section 3(1) of the Prohibition of Child

Marriage Act for annulling the marriage, the

marriage shall become a full-fledged valid marriage. 

Similarly, after attaining eighteen years of age in the

case of female, or twenty-one years of age in the

case of a male, if she or he elects to accept the

marriage, the marriage shall become a full-fledged

valid marriage.  Until such an event of acceptance of

the marriage or lapse of limitation period as

provided in Section 12(3) occurs, the marriage shall

continue to remain as a voidable marriage.  If the

marriage is annulled as per Section 3(1) of the

Prohibition of Child Marriage Act,  the same shall

take effect from the date of marriage and, in such an

event, in the eye of law there shall be no marriage at

all between the parties at any point of time.WP(Crl.) No.338/08 and connected matters                                                                                Page 32 of 62

xxxxx  xxxxx xxxxx

26. But, in Saravanan‟s case cited supra, the

Division Bench has held that such a marriage

between a boy aged more than 21 years and a girl

aged less than 18 years is not voidable.  In other

words, according to the Division Bench such a child

marriage celebrated in contravention of the

Prohibition of Child Marriage Act is a valid

marriage.  With respect, we are of the opinion that it

is not a correct interpretation.  A plain reading of

Section 3 of the Prohibition of Child Marriage Act

would make it clear that such child marriage is only

voidable.  Therefore, we hold that though such a

voidable marriage subsists and though some rights

and liabilities emanate out of the same, until it is

either accepted expressly or impliedly by the child

after attaining the eligible age or annulled by a court

of law, such voidable marriage, cannot be either

stated to be or equated to a „valid marriage‟ strict

sensu as per the classification referred to above.”

23.We would be failing in our duty if we do not refer to another Division Bench

judgment of this Court delivered on 11.08.2010 in W.P. (Crl.) No.1003/2010

in the case entitled Sh. Jitender Kumar Sharma v. State and Another.   That

was a case where both the boy and the girl were minors, who had fallen in

love; eloped together and got married as per the Hindu rites and ceremonies. 

The Division Bench specifically considered the issue of validity of marriage. 

The Court took note of the earlier Division Bench judgments as well as the

provisions of PCM Act, 2006.  The Division Bench was, however, of the

view that the validity of marriage is primarily to be judged from the WP(Crl.) No.338/08 and connected matters                                                                                Page 33 of 62

standpoint of personal law applicable to the parties to the marriage.  The

Court was of the opinion that a Hindu marriage, which is not a void marriage

under the HM Act, would continue to be such provided the provisions of

Section 12 of the PCM Act, 2006 are not attracted.  A marriage in

contravention of Clause (3) of Section 5 of the HM Act was neither void nor

voidable.  However, Section 3 of the PCM Act had introduced the concept of

a voidable marriage.  This was a secular law.  In view of Section 3 thereof,

which made child marriages to be voidable at the option of the contracting

party being a child, the Division Bench observed that the position contained

in Clause (3) of Section 5 of the HM Act holding that such a marriage was

neither void nor voidable was the legal position prior to the enactment and

enforcement of PCM Act, 2006 and after this enactment the marriage in

contravention of Clause (3) of Section 5 of the HM Act would not be ipso

facto void but could be void if any of the circumstances enumerated in

Section 12 of the PCM Act, 2006 is triggered and the effect of Section 3 of

PCM Act and the interplay of Section 3 of the PCM Act and Clause (3) of

Section 5 of the HM Act is summarised in the following manner:-

“15. Returning to the facts of the present case, we

find that, merely on account of contravention of clause (iii)

of Section 5 of the HMA, Poonam‟s marriage with Jitender

is neither void under the HMA nor under the Prohibition of

Child Marriage Act, 2006.  It is, however, voidable, as now

all child marriage are, at the option of both Poonam and WP(Crl.) No.338/08 and connected matters                                                                                Page 34 of 62

Jitender, both being covered by the word „child‟ at the time

of their marriage.  But, neither seeks to exercise this option

and both want to reinforce and strengthen  their marital

bond by living together.  We also find that stronger

punishments for offences under the Prohibition of Child

Marriage Act, 2006 have been prescribed and that the

offences have also been made cognizable and non-bailable

but, this does not in any event have any impact on the

validity of the child marriage.  This is apparent from the

fact that while the legislature brought about these changes

on the punitive aspects of child marriages it, at the same

time brought about conscious changes to the aspects

having a bearing on the validity of child marriages.  It

made a specific provision for void marriages under certain

circumstances but did not render all child marriages void. 

It also introduced the concept of a voidable child marriage. 

The flip-side of which clearly indicated that all child

marriages were not void.  For, one cannot make something

voidable which is already void or invalid.”

24.Detailed submissions were made before us in the light of the provisions of

various enactments and the views expressed by the Court in various

judgments taken note of above.  Instead of reproducing arguments in detail,

it would be suffice to point out that  whereas Mr. Arvind Jain primarily

argued on the lines of the Full Bench judgment rendered by Madras High

Court in T. Sivakumar v. The Inspector of Police (supra), Mr. Chandhiok,

learned ASG, argued that view taken by the Division Bench of this Court in

Sh. Jitender Kumar Sharma v. State and Another (supra) was in tune with

law.  Since we have already given the gist of these two judgments and what WP(Crl.) No.338/08 and connected matters                                                                                Page 35 of 62

they decide, to avoid duplicity we are not reproducing in detail, arguments

of the learned counsel for the parties on this aspect.

25.At the outset we would like to point out that the object behind enacting PCM

Act was to curb the menace of child marriages, which is still prevalent in

this country and is most common in rural areas.  The Full Bench of Madras

High Court has undertaken indepth discussion of this evil of child marriage

in India.  A Division Bench of this Court in Association for Social Justice

& Research v.Union of India & others, [W.P. (Crl.) No.535/2010] decided

on 13.5.2010 also took note of this menace,  inter alia, pointing out as

under:-

“6. Sociologists even argue that for variety of reasons,

child marriages are prevalent in many parts of this

country and the reality is more complex than what it

seems to be.  The surprising thing is that almost all

communities where this practice is prevalent are well

aware of the fact that marrying child is illegal, nay, it is

even punishable under the law.  NGOs as well as the

Government agencies have been working for decades to

root out this evil.  Yet, the reality is that the evil

continues to survive.  Again, sociologists attribute these

phenomenon of child marriage to a variety of reasons. 

The foremost amongst these reasons are poverty, culture,

tradition and values based on patriarchal norms.  Other

reasons are: low-level of education of girls, lower status

given to the girls and considering them as financial

burden and social customs and traditions.  In many cases,

the mixture of these causes results in the imprisonment of

children in marriage without their consent.WP(Crl.) No.338/08 and connected matters                                                                                Page 36 of 62

7. The present case is a telling example, which proves the

sociologists correct.  

8. It cannot be disputed that the aforesaid marriage is in

violation of provisions of the Prohibition of Child

Marriage Act, 2006 inasmuch as Chandni is minor and in

below the age of 18 years.  At the same time, marriage is

not void under civil law.  The circumstances under which

Chandni is married to Yashpal are narrated above and

presumably under these forced circumstances, economic

or otherwise, Vijay Pal decided to marry Chandni to

Yashpal even when she was less than 18 years.  Be as it

may, since Vijay Pal and Yashpal are already arrested

and FIR is also registered against them, insofar as that

aspect is concerned, law will take its own course. 

9. The purpose and rationale behind the Prohibition of

Child Marriage Act, 2006 is that there should not be a

marriage of a child at a tender age as he/she is neither

psychologically nor physically fit to get married.  There

could be various psychological and other implications of

such marriage, particularly if the child happens to be a

girl.  In actuality, child marriage is a violation of human

rights, compromising the development of girls and often

resulting in early pregnancy and social isolation, with

little education and poor vocational training reinforcing

the gendered nature of poverty.  Young married girls are

a unique, though often invisible, group.  Required to

perform heavy amounts of domestic work, under pressure

to demonstrate fertility, and responsible for raising

children while still children themselves, married girls and

child mothers face constrained decision making and

reduced life choices.  Boys are also affected by child

marriage but the issue impacts girls in far larger numbers

and with more intensity.  Where a girl lives with a man

and takes on the role of caregiver for him, the assumption

is often that she has become an adult woman, even if she

has not yet reached the age of 18.  Some of the ill-effects

of child marriage can be summarized as under:WP(Crl.) No.338/08 and connected matters                                                                                Page 37 of 62

(i) Girls who get married at an early age are

often more susceptible to the health risks

associated with early sexual initiation and

childbearing, including HIV and obstetric

fistula.

(ii) Young girls who lack status, power and

maturity are often subjected to domestic

violence, sexual abuse and social isolation.

(iii) Early marriage almost always deprives girls

of their education or meaningful work,

which contributes to persistent poverty.

(iv) Child Marriage perpetuates an unrelenting

cycle of gender inequality, sickness and

poverty.

(v) Getting the girls married at an early age

when they are not physically mature, leads

to highest rates of maternal and child

mortality.

Young mothers face higher risks during pregnancies

including complications such as heavy bleeding, fistula,

infection, anaemia, and eclampsia which contribute to

higher mortality rates of both mother and child.  At a

young age a girl has not developed fully and her body

may strain under the effort of child birth, which can

result in obstructed labour and obstetric fistula.  Obstetric

fistula can also be caused by the early sexual relations

associated with child marriage,  which take place

sometimes even before menarche.  Child marriage also

has considerable implications for the social development

of child bridges, in terms of low levels of education, poor

health and lack of agency and personal autonomy.  The

Forum on Marriage and the Rights of Women and Girls

explains that „where these elements are linked with

gender inequities and biases for the majority of young

girls… their socialization which grooms them to be

mothers and submissive wives, limits their development WP(Crl.) No.338/08 and connected matters                                                                                Page 38 of 62

to only reproductive roles.   A lack of education also

means that young brides often lack knowledge about

sexual relations, their bodies and reproduction,

exacerbated by the cultural silence surrounding these

subjects.  This denies the girl the ability to make

informed decisions about sexual relations, planning a

family, and her health, yet another example of their lives

in which they have no control.  Women who marry early

are more likely to suffer abuse and violence, with

inevitable psychological as well as physical

consequences.  Studies indicate that women who marry at

young ages are more likely to believe that it is sometimes

acceptable for a husband to beat his wife, and are

therefore more likely to experience domestic violence

themselves.  Violent behaviour can take the form of

physical harm, physical harm, psychological attacks,

threatening behaviour and forced sexual acts including

rape.  Abuse is sometimes perpetrated by the husband‟s

family as well as the husband himself, and girls that enter

families as a bride often become domestic slaves for the

in-laws.  Early marriage has also been linked to wife

abandonment and increased levels of divorce or

separation and child brides also face the risk of being

widowed by their husbands who are often considerably

older.  In these instances, the wife is likely to suffer

additional discrimination as in many cultures divorced,

abandoned or widowed women suffer a loss of status,

and may be ostracized by society and denied property

rights.

10.  The Prohibition of Child Marriage Act has been

enacted keeping in view the aforesaid considerations in

mind.” 

26.Thus,  child marriage is  such a social evil which has the potentialities of

dangers to the life and health of a female child and plays havoc in their lives,

who cannot withstand the stress and strains of married life and it leads to WP(Crl.) No.338/08 and connected matters                                                                                Page 39 of 62

early deaths of such minor mothers.  It also reflects the chauvinistic attribute

of the Indian society.  This menace is depicted in the following lines from a

song sung during marriages in Rajasthan:-

“Choti si umariya main parnanaya o babosa, kain main

tharoo kario kusoor”

“Oh father why had you given me off in the marriage at

such a tender age, for what sin did I commit.”

27.These lines itself symbolize the mixed pain of leaving the father‟s house and

at the same time the anguish as to why was she being married off at such a

tender age.  Such situation is unprecedented  and the inner pain

unimaginable.  The word „Child Marriage‟ is itself contradictory in itself as

one would wonder how marriage and child could go together.

28.When we look into the matter, keeping in view the aforesaid disastrous

consequences of the child marriage, which is even treated as violation of

human rights, including right to lead a life of freedom and dignity, the very

first thing which comes in mind is that the menace of child marriage needs

to be curbed.  Even the legislative thinking is in the same direction. 

However, as would be seen hereafter, the  legislature has still not made

adequate and effective provisions in the laws to make such a marriage as

void. WP(Crl.) No.338/08 and connected matters                                                                                Page 40 of 62

29.We would like to mention that child marriage existed historically in India

and over a period of time it was perceived to be a wrongful practice.  The

legislature stepped in more than 80 years ago when the CMRA (popularly

known as the Sarda Act) was enacted with the objective of eliminating the

practice of child marriage.  It forbade the marriage of a male with less than

21 years and female  with less than  18 years of age.   However, the penal

provisions of the Sarda Act did not invalidate the effect of marriage. It laid

down punishment for male adult below twenty one years of age and for male

adult above twenty one years of age who contracted a  child marriage and

also for the person, who performed, conducted or directed a child marriage. 

Some amendments were carried out in this Act but it was felt that it was not

serving any purpose.  It is for this reason that in 2006, the Prohibition of

Child Marriage Act was passed by the Parliament which is before us in the

present form.  The Statement of Objects and Reasons of the PCM Act, 2006

have been quoted above.  The salient features of the Bill, which culminated

in the enactment of the PCM Act, 2006 are as follows:-

“(i) To make a provision to declare child marriage as

voidable at the option of the contracting party to the

marriage, who was a child.

(ii)  To provide a provision requiring the husband or, if

he is a minor at the material time, his guardian to pay

maintenance to the minor girl until her remarriage.WP(Crl.) No.338/08 and connected matters                                                                                Page 41 of 62

(iii) To make a provision for the custody  and

maintenance of children born of child marriages.

(iv) To provide that notwithstanding a child marriage has

been annulled by a decree of nullity under the proposed

section 3, every child born of such marriage, whether

before or after the commencement of the proposed

legislation, shall be legitimate for all purposes.

(v) To empower the district Court to add to, modify or

revoke any order relating to maintenance of the female

petitioner and her residence and custody or maintenance of

children, etc.

(vi) To make a provision for declaring the child marriage

as void in certain circumstances.

(vii) To empower the Courts to issue injunction

prohibiting solemnsation of marriages in contravention of

the provisions of the proposed legislation.

(viii)To make the offences under the proposed legislation

to be cognizable for the purposes of investigation and for

other purposes.

(ix) To provide for appointment of Child  Marriage

Prevention Officers by the State Governments.

(x) To empower the State Governments to make rules

for effective administration of the legislation.”

30.A glance through the main provisions of the PCM Act, 2006 brings out the

following scheme of the Act:-

Section 2 (a) of PCM Act defines “child” and Section 2 (b) defines

“child marriage”.  The legislature has, however, taken care to define “minor” WP(Crl.) No.338/08 and connected matters                                                                                Page 42 of 62

separately in Section 2(f), as a person who under the provisions of the

Majority Act, 1875 is deemed to have not attained the age of majority. 

Section 3 of the PCM Act relates to child marriages.  It specifically

states that a child marriage shall be voidable at the option of the contracting

party to the marriage, who was a child at the time of marriage. The term

“child” in Section 2(a) means a person who, if a male, has not completed

twenty-one years of age, and if a female, has not completed eighteen years

of age.  A voidable marriage does not become void on its own or

immediately when the option is exercised.  It requires a decree on

adjudication issued by the district court.  The said decree can be only passed

on a petition by a contracting party to the marriage who was a child at the

time of the marriage. The petition has to be filed before or within two years

of attaining “majority” (i.e. majority as defined in the Majority Act, 1875).

Sub-section (2) to Section 3 states that the petition can be moved through a

guardian or next friend along with the Child Marriage Prohibition Officer. 

The use of the term “guardian” in Section 3 (2) does cause confusion and is

ambiguous.  A husband under the Hindu Minority and Guardianship Act,

1956 is the guardian of the minor wife (see Section 6(c)).  Obviously, the

husband, in such a situation, will not and cannot act as a guardian and move

a petition on behalf of his minor wife.  “Guardian” in this case will mean the WP(Crl.) No.338/08 and connected matters                                                                                Page 43 of 62

natural father or the mother of the girl.  Fortunately, the legislature has

permitted the next friend to also move an application for annulment of

marriage.  Sub-section (4) to Section 3 of the PCM Act states that before

passing such an order notices are required to be issued by the District Judge

to the parties concerned.  Sub-section (4) protects a female child, who was

married, and stipulates that the district court can pass an interim or final

order directing payment of maintenance to her. In case the male contracting

party is a minor, his parent or guardian is liable to pay maintenance.                  

Section 3 of the PCM Act has to contrasted with “void” marriages

mentioned in Section 12 of the same Act.  Void marriages are null and void

ab initio and accordingly are treated as different and not similar to voidable

child marriages.  As per Section 12, in three circumstances, a marriage of a

minor child is to be treated as void.  We record that sub-section 2 to Section

3 will not apply in case of a “child” after he has attained majority, for he or

she thereafter do not have any lawful guardian. 

Section 13 (2) (iv) of HMA gives the right to a wife to file a petition

for dissolution of her marriage by a decree of divorce under the said Act. 

The said provision was introduced with effect from 27

th

May, 1976.  It

stipulates that a Hindu wife can file a petition for divorce if the marriage is

solemnized before she had attained the age of 15 years and she repudiates WP(Crl.) No.338/08 and connected matters                                                                                Page 44 of 62

the marriage before she attains the age of 18 years.  The said right of the

Hindu females to ask for divorce, does not mean that a petition before the

district court cannot be filed under Section 3 of the PCM Act.  PCM Act as

noticed above is a secular law and is a latter enactment, which specifically

deals with the problem of child marriages.   Religion of the contracting party

does not matter.  PCM Act being a “special Act” and being a subsequent

legislation, to this extent and in case there is any conflict, will override the

provisions of HMA Act or for that matter any personal law. However, this

should not be interpreted that we have held that a petition for dissolution of

marriage under Section 13(2)(iv) is not maintainable.  Both provisions i.e.

Section 13(2)(iv) and Section 3 operate, apply and have their own

consequences.  These are two concurrent provisions, which can be invoked

by the “parties” satisfying the conditions stipulated in the two sections. 

As noticed below, a Division Bench of this Court in W.P.(Crl.)

1003/2010 decided on 11.08.2010  Jitender Kumar Sharma Vs. State and

Another, has been held that PCM Act is a secular law.  On this aspect we

respectfully agree with the view that PCM Act is a secular law. Decision of

the Full Bench of Madras High Court in T. Sivakumar Vs. The Inspector of

Police (supra) also accepts the said position.WP(Crl.) No.338/08 and connected matters                                                                                Page 45 of 62

31.We have already reproduced Sections 2(a), 9, 12 and 15 of this Act.  It is

clear therefrom that marriage of a minor child is treated as void only under

the circumstances mentioned in Section 12.  Otherwise, this Act does not

make the marriage of the child void but voidable at the option of the parties

to an underage marriage which option can be exercised within the stipulated

time.  It is intriguing that the  legislature accepted the menace of child

marriage.  It even accepted that the child marriage is violation of human

rights.  The legislature even made the child marriage a punishable offence by

incorporating provision for prosecution and imprisonment of certain persons. 

At the same time, except in certain circumstances contemplating under

Section 12 of the Act, the marriage is treated as voidable.  The interplay of

this Act with other enactments compounds this anomaly and comments on

such anomalies are stated in detail at the appropriate stage.   At present we

confine  ourselves to the issue at hand as the status of the child marriage

needs to be determined on the basis of statutory provisions, which exists as

of now.  As pointed out above, under the Hindu Marriage Act, child

marriage is still treated as valid and not a void marriage.  It is personal law,

in codified form, governing Hindus.  On the other hand, PCM Act, which is

a secular law, treats this marriage as voidable except those events which are

covered by Section 12 of the PCM Act.  In neither of the aforesaid statutes WP(Crl.) No.338/08 and connected matters                                                                                Page 46 of 62

the child marriage is treated as  void ab initio or nullity.  Therefore, we

cannot hold child marriage as  a  nullity or void.  The next question that

follows is as to whether the provisions of personal law, i.e., Hindu Marriage

Act should be applied to declare such a marriage as valid or the provisions

of PCM Act would prevail over the HM Act. 

32.It is distressing to note that the Indian Penal Code, 1860 acquiesces child

marriage. The exception to Section 375 specifically lays down that sexual

intercourse of man with his own wife, the wife not being under fifteen years

of age is not rape, thus ruling out the possibility of marital rape when the age

of wife is above fifteen years.  On the other hand, if the girl is not the wife of

the man, but is below sixteen, then the sexual intercourse even with the

consent of the girl amounts to rape? It is rather shocking to note the specific

relaxation is given to a husband who rapes his wife, when she happens to be

between  15-16 years. This provision in the Indian Penal Code, 1860 is a

specific illustration of legislative endorsement and sanction to child

marriages. Thus by keeping a lower age of consent for marital intercourse, it

seems that the legislature has legitimized the concept of child marriage. The

Indian Majority Act, 1875 lays down eighteen years as the age of majority

but the  non obstante  clause (notwithstanding anything contrary)  excludes

marriage, divorce, dower and adoption from the operation of the Act with WP(Crl.) No.338/08 and connected matters                                                                                Page 47 of 62

the result that the age of majority of an individual in these matters is

governed by the personal law to which he is a subject. This saving clause

silently approves of the child marriage which is in accordance with the

personal law and customs of the religion.  It is to be specifically noted that

the other legislations like the Indian Penal Code and Indian Majority Act are

pre independence legislations whereas the Hindu Minority and Guardianship

Act is one enacted in the post independent era.  Another post independent

social welfare legislation, the Dowry Prohibition Act, 1961 also contains

provisions which give implied validity to minor's marriages. The words

'when the woman was minor' used in section 6(1)(c) reflects the implied

legislative acceptance of the child marriage.  Criminal Procedure Code, 1973

also contains a provision which incorporates the legislative endorsement of

Child Marriage. The Code makes it obligatory for the father of the minor

married female child to provide maintenance to her in case her husband

lacks sufficient means to maintain her.

33.The insertion of option of dissolution of marriage by a female under Section

13(2)(iv) to the Hindu Marriage Act  through an amendment in 1976

indicates the silent acceptance of child marriages. The option of puberty

provides a special ground for divorce for a girl who gets married before WP(Crl.) No.338/08 and connected matters                                                                                Page 48 of 62

attaining fifteen years of age and who repudiates the marriage between 15-

18 years.

34.Legislative endorsement and acceptance which confers validity to minor's

marriage in other statutes definitely destroys the very purpose and object of

the PCM Act–to restrain and to prevent the solemnization of Child Marriage.

These provisions containing legal validity provide an assurance to the

parents and guardians that the legal rights of the married minors are secured.

The acceptance and acknowledgement of such legal rights itself and

providing a validity of Child Marriage defeats the legislative intention to

curb the social evil of Child Marriage.

35.Thus, even after the passing of the new Act i.e. the Prohibition of Child

Marriage Act 2006, certain loopholes still remain, the legislations are weak

as they do not actually prohibit child marriage. It can be said that though the

practice of child marriage has been discouraged by the legislations but it has

not been completely banned.

36.Mr. Deep Ray of NALSAR University of Law, Hyderabad has pointed out

the following three loopholes in his article “Child Marriage and the Law”. 

Firstly, Child Marriages are made voidable at the option at the parties but

not completely void. That means Child Marriages are still lawful. Making

such marriages voidable doesn‟t really help matter in most cases as girls on WP(Crl.) No.338/08 and connected matters                                                                                Page 49 of 62

attaining majority don‟t have the agency or adequate support from their

families to approach the court and go for annulment of the marriage. The

reason behind not making such marriages void probably is that child

marriages, once solemnized and consummated makes it very difficult, if not

impossible for girls to deny and step out of those marriages. Therefore, it is

in keeping with the social reality that such marriages are not declared void.

If the social reality largely remains the same, the likelihood that young girls

will now choose to nullify their marriages, which would probably be

consummated by the time she attains maturity and decides to approach the

courts, seems very unlikely. 

37.Secondly, the applicability of Prohibition of Child Marriage Act, on various

marriages of different communities and religion is unclear. Social customs

and personal laws of different religious groups in India allows marriage of

minor girls and the Prohibition Child Marriage Act,2006 does not mention

whether it prohibit all the underage marriages that are sanctioned by

religious laws.

38.Thirdly, registration of marriages has still not been made compulsory.

Compulsory registration mandates that the age of the girl and the boy getting

married have to be mentioned. If implemented properly, it would discourage

parents from marrying off their minor children since a written document of WP(Crl.) No.338/08 and connected matters                                                                                Page 50 of 62

their ages would prove the illegality of such marriages. This would probably

be able to tackle the sensitive issue of minor marriages upheld by personal

laws.

39.As held above, PCM Act, 2006 does not render such a marriage as void but

only declares it as voidable, though it leads to an anomalous situation where

on the one hand  child marriage  is  treated as  offence which is punishable

under law and on the other hand,  it still treats this marriage as valid, i.e.,

voidable till it is declared as void.  We would also hasten to add that there is

no challenge to the validity of the provisions and therefore, declaration by

the legislature of such a marriage as voidable even when it is treated  as

violation of human rights and also punishable as criminal offence as proper

or not, cannot be gone into in these proceedings.  The remedy lies with the

legislature which should take adequate steps by not only incorporating

changes under the PCM Act, 2006 but also corresponding amendments in

various other laws noted above.  In this behalf, we would like to point out

that the Law Commission has made certain recommendations to improve the

laws related to child marriage. 

40.Be as it may, having regard to the legal/statutory position that stands as of

now leaves us to answer first part of question No.1 by concluding  that the

marriage contracted with a female of less than 18 years or a male of less than WP(Crl.) No.338/08 and connected matters                                                                                Page 51 of 62

21 years would not be a void marriage but voidable one, which would

become valid if no steps are taken by such “child” within the meaning of

Section 2(a) of the PCM Act, 2002 under Section 3 of the said Act seeking

declaration of this marriage as void.

41.With this we come to the second part of the question relating to custody of

the female of less than 18 years to the husband.  This would be taken up

along with Question Nos.2 and 3 hereinbelow.

Question No.2 and 3

Whether a minor can be said to have reached the age of discretion and

thereby walk away from the lawful guardianship of her parents and

refuse to go in their custody?

If yes, can she be kept in the protective custody of the State?

42.We are of the opinion that simply because the marriage is not void, it should

automatically follow that the husband is entitled to the custody of the minor

girl.   We have already noted in detail the serious  repercussions  of child

marriage.  Some of the ill effects of the child marriage were taken note of in

the case of  Association for Social Justice & Research v.Union of India &

others (supra), some of which are reproduced again:-

(i) Girls who get married at an early age are often more

susceptible to the health risks associated with early WP(Crl.) No.338/08 and connected matters                                                                                Page 52 of 62

sexual initiation and childbearing, including HIV and

obstetric fistula.

(ii)Young girls who lack status, power and maturity are

often subjected to domestic violence, sexual abuse

and social isolation.

(iii) Early marriage almost always deprives girls of

their education or meaningful work, which contributes

to persistent poverty.

(iv) Child Marriage perpetuates an unrelenting cycle of

gender inequality, sickness and poverty.

(v)Getting the girls married at an early age when they are

not physically mature, leads to highest rates of

maternal and child mortality.

Young mothers face higher risks during pregnancies including

complications such as heavy bleeding, fistula, infection, anaemia, and

eclampsia which contribute to higher mortality rates of both mother and

child.  At a young age a girl has not developed fully and her body may strain

under the effort of child birth, which can result in obstructed labour and

obstetric fistula.  Obstetric fistula can also be caused by the early sexual

relations associated with child marriage, which take place sometimes even WP(Crl.) No.338/08 and connected matters                                                                                Page 53 of 62

before menarche.  Child marriage also has considerable implications for the

social development of child bridges, in terms of low levels of education,

poor health and lack of agency and personal autonomy.  The Forum on

Marriage and the Rights of Women and Girls explains that „where these

elements are linked with gender inequities and biases for the majority of

young girls… their socialization which grooms them to be mothers and

submissive wives, limits their development to only reproductive roles.   A

lack of education also means that young brides often lack knowledge about

sexual relations, their bodies and reproduction, exacerbated by the cultural

silence surrounding these subjects.  This denies the girl the ability to make

informed decisions about sexual relations, planning a family, and her health,

yet another example of their lives in which they have no control. 

43.Section 6 of the Hindu Minority and Guardianship Act, 1956, reads:-

“6. Natural guardians of a Hindu minor.- The

natural guardian of a Hindu minor, in respect of the

minor’s person as well as in respect of the minor’s

property (excluding his or her undivided interest in

joint family property), are-

(a) In the case of a boy or an unmarried girl-the

father, and after him, the mother: provided that

the custody of a minor who has not completed the

age of five years shall ordinarily be with the

mother;WP(Crl.) No.338/08 and connected matters                                                                                Page 54 of 62

(b) In case of an illegitimate boy or an illegitimate

unmarried girl-the mother, and after her, the

father;

(c) In the case of a married girl-the husband:

Provided that no person shall be entitled to act as

the natural guardian of a minor under the provisions

of this section-

(a)If he has ceased to be a Hindu, or

(b)If he has completely and finally renounced

the world by becoming a hermit

(vanaprastha) or an ascetic (yati or sanyasi).

Explanation.- in this section, the expression

“father” and “mother” do not include a

step-father and a step-mother.”   

44.It was stated that in the case of a  minor  married girl, the husband is the

guardian and in case of an unmarried minor girl father or the mother, is her

guardian.  It was accordingly submitted that the husband, even if a minor,

would be the guardian of his wife.   Fortunately, this argument has to be

rejected.  The overriding and compelling consideration governing custody of

guardianship of the child is the child‟s welfare and claim to the status as a

guardian under the said section is not a right.  This was declared long back

in 1973 in Rosy Jacob Vs. Jacob Chakramakkal, AIR 1973 SC 2090. 

45.We may also refer Section 13 of the Minority and Guardianship Act, 1956,

which reads:-WP(Crl.) No.338/08 and connected matters                                                                                Page 55 of 62

“13 . Welfare of minor to be paramount consideration.- (1)

In the appointment of declaration of any person as guardian

of a Hindu minor by a court, the welfare of the minor shall

be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtue

of the provisions of this Act or of any law relating to

guardianship in marriage among Hindus, if the court is of

opinion that his or her guardianship will not be for the

welfare of the minor.”

The said section has been interpreted and it has been repeatedly held

that while deciding the question of custody of a minor child, it is the interest

of the child, which is paramount and important. (See Kumar V. Jahgirdar

Vs. Chetana K. Ramatheertha AIR 2001 SC 2179 and AIR 2004 SC 1525). 

46.In such circumstances, allowing the husband to consummate a marriage may

not be appropriate more so when the purpose and rationale behind the PCM

Act, 2006 is that there should be a marriage of a child at a tender age as he

or she is not psychologically  or medically fit to get married.   There is

another important aspect which is to be borne in mind.  Such a marriage,

after all, is voidable and the girl child still has right to approach the Court

seeking to exercise her option to get the marriage declared as void till she

attains the age of 20 years.  How she would be able to exercise her right if in

the meantime because the marriage is consummated when she is not even in

a position to give consent which also could lead to pregnancy and child

bearing.   Such marriages, if they are made legally enforceable will have WP(Crl.) No.338/08 and connected matters                                                                                Page 56 of 62

deleterious effect and shall not prevent anyone from entering into such

marriages.  Consent of a girl or boy below the age of 16 years in most cases

a figment of imagination is an anomaly and a mirage and, and will act as a

cover up by those who are economically and/or socially powerful to

pulverize the muted meek into submission.   These are the considerations

which are to be kept in mind while deciding as to whether  custody is to be

given to the husband or not.  There would be many other factors which the

Court will have to keep in mind, particularly in those cases where the girl,

though minor, eloped with the boy (whether below or above 21 years of age)

and she does not want to go back to her parents.  Question may arise as to

whether in such circumstances, the custody can be given to the parents of the

husband with certain conditions, including the condition that husband would

not be allowed to consummate the marriage.  Thus, we are of the opinion

that there cannot be a straight forward answer to the second part of this

question and depending upon the circumstances the Court will have to

decide in an appropriate manner as to whom the custody of the said girl

child is to be given.

Question No.4

Whether the FIR under Section 363 IPC or even 376 IPC can be

quashed on the basis of the statement of such a minor that she has

contracted the marriage of her own?WP(Crl.) No.338/08 and connected matters                                                                                Page 57 of 62

47.This brings us to the anomaly with and in the Indian Penal Code.  Consent

below the age of 16 years is immaterial, except when the rape is committed

by a male who is married to the girl.   Section 376 IPC does not treat the

rape committed by a husband on his wife above the age of 15 years as an

offence.  This certainly requires a relook.  This provision is not in

consonance with the PCM Act.   Section 376 IPC is required to be

rationalized and amended in consonance with the PCM Act, and it may be

difficult to implement and effectively enforce the PCM Act otherwise.  The

question of age of consent for the purpose of Indian Penal Code is a larger

issue, and not being a subject matter of the reference, has not been examined

by us. 

48.We often come across cases where girl and boy elope and get married in

spite of the opposition from the family or parents.  Very often these

marriages are inter-religion, inter-caste and take place in spite of formidable

and fervid opposition due to deep- seated social and cultural prejudices.

However, both the boy and girl are in love and defy the society and their

parents.  In such cases, the courts face a dilemma and a predicament as to

what to do.  This question is not easy to answer.  We feel that no straight

jacket formula or answer can be given.  It depends upon the facts and

circumstances of each case.  The decision will largely depend upon the WP(Crl.) No.338/08 and connected matters                                                                                Page 58 of 62

interest of the boy and the girl, their level of understanding and maturity,

whether they understand the consequences, etc.  The attitude of the families

or parents has to be taken note of, either as an affirmative or a negative

factor in determining and deciding whether the girl and boy should be

permitted to stay together or if the girl should be directed to live with her

parents.  Probably the last direction may be legally justified, but for sound

and good reasons, the Court has option(s) to order otherwise.  We may note

that in many cases, such girls severely oppose and object to their staying in

special homes, where they are not allowed to meet the boy or their parents. 

The stay in the said special homes cannot be unduly prolonged as it virtually

amounts to confinement, or detention. The girl, if mature, cannot and should

not be denied her freedom and her wishes should not get negated as if she

has no voice and her wishes are of no consequence.    The Court while

deciding, should also keep in mind that such marriages are voidable and the

girl has the right to approach the Court under Section 3 of the PCM Act to

get the marriage declared void till she attains the age of 20 years. 

Consummation of marriage may have its own consequences. 

49.In case the girl is below 16 years, the answer is obvious that the consent

does not matter. Offence under Section 376 IPC  is made out. The

chargesheet cannot be quashed on the ground that she was a consenting WP(Crl.) No.338/08 and connected matters                                                                                Page 59 of 62

party.  However, there can be special or exceptional circumstances which

may require consideration, in cases where the girl even after attaining

majority affirms and reiterates her consent.

50.Consummation, with the wife below the age of 15 years, is an offence under

Section 375. No exception can be made to the said constitutional mandate

and the same has to be strictly and diligently enforced.   Consent in such

cases is completely immaterial, for consent at such a young age is difficult to

conceive and accept.  It makes no difference whether the girl is married or

not.  Personal law applicable to the parties is also immaterial. 

51.If the girl is more than 16 years, and the girl makes a statement that she went

with her consent and the statement and consent is without any force,

coercion or undue influence, the statement could be accepted and Court will

be within its power to quash the proceedings under Section 363 or 376 IPC.  

Here again no straight jacket formula can be applied.  The Court has to be

cautious, for the girl has right to get the marriage nullified under Section 3 of

the PCM Act.  Attending circumstances including the maturity and

understanding of the girl, social background of girl, age of the girl and boy

etc. have to be taken into consideration.

Question No.5

Whether there may be other presumptions also which may arise?WP(Crl.) No.338/08 and connected matters                                                                                Page 60 of 62

52.In view of our discussion on questions No.1 to 4, no further  observations

need to be made in so far as this question is concerned.

53.Having answered the aforesaid questions we now take up each case as was

agreed by the counsel for the parties and it is not necessary to refer the case

to the Division Bench.

WP (Crl.) No.388/2008

54.As per the facts noted in paras 3-6 above, Ms.Meera is the girl in question

whose date of birth is 6.7.1995.  When she married Charan Singh she was 13

years of age.  She had made a statement under Section 164 of the Cr.P.C.

before the learned MM, Rohini that she had gone with Charan Singh of her

own free will.  This petition was registered on the basis of letter written by

her mother Smt. Lajja Devi.  During the pendency of this petition, order

dated 31.7.2008 was passed permitting her to go with her parents as she

desired to live with them on assurance given by her parents that they would

not marry her to anyone else.  She is still 17 years of age.  This marriage, as

per our discussion above, is voidable.  Since she has not attained majority

and is residing with her parents, this arrangement would continue.  When

she becomes major it would be for her to exercise her right under the PCM

Act if she so desires and future course of action would depend threon. 

With these directions, the petition is disposed of.WP(Crl.) No.338/08 and connected matters                                                                                Page 61 of 62

Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/201

55.Facts of this case have already been noted above.  As per the ossification

test, the girl/petitioner No.1 was found between 17-19 years of age.  As per

the school leaving certificate, she was 17 years of age on the date when the

parties solemnised  marriage.  Since she has given the statement that she

married of her own accord to the petitioner No.2 and was more than 16 years

of age, FIR  No.31 of 2011, P.S. Dabri under Sections

363/366/376/465/467/494/497/120-B/506 IPC  registered  against the

petitioner No.2 is hereby quashed.

W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008

56.In this Writ Petition, the question is only of validity of marriage and

guardianship.  Even if the age of the girl is taken as 15 years at the time of

incident, i.e., 27.10.2006, she would be 21 years of age as of now.  She has

not filed any proceedings for declaring the marriage as void.  Therefore, the

marriage becomes valid now.  The question of guardianship does not arise at

this stage as she is major and during the period she was minor she resided at

Nirmal Chhaya.  Thus, the Writ Petition is disposed of in the aforesaid

terms.WP(Crl.) No.338/08 and connected matters                                                                                Page 62 of 62

WP (Crl.) No.566/2010

57.As per the facts noted in para 10 above, Shivani @ Deepika at the time of

her marriage was less than 16 years of age, her date of birth being 3.6.1994. 

It was directed that she would remain at Nirmal Chhaya.  However, as per

the aforesaid date of birth, i.e., 3.6.1994 she has attained majority on

3.6.20012.  The petition was filed by Sh. Devender Kumar who married her

habeas corpus and was claiming her custody.  She has attained majority, she

is free to go anywhere. 

58.With these directions, this petition stands disposed of.

ACTING CHIEF JUSTICE

           (SANJIV KHANNA)

        JUDGE

       (V.K. SHALI)

             JUDGE

July 27, 2012

HP.

Cruelty by wife ground for Divorce

 

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 09.05.2013. 

Delivered on 31.05.2013. 

Case :- FIRST APPEAL No. - 175 of 2010 

Appellant :- Smt. Ruchita Srivastava 

Respondent :- Vivek Swaroop 

Counsel for Appellant :- Pankaj Lal,A.K. Gupta,A.P. Paul,Ajay P. Paul,B.B. Paul 

Counsel for Respondent :- Anoop Trivedi,A.K.Gupta,Rajesh Kumar Sachan,S.K.Singh 

Hon'ble Ashok Bhushan,J. 

Hon'ble Surya Prakash Kesarwani,J. 

(Delivered by Hon'ble Ashok Bhushan, J.) 

This appeal has been filed by Smt. Ruchita Srivastava, the appellant, against the judgment and order of Principal Judge, Family Court, Allahabad dated 30th March, 2010 by which the Principal Judge, Family Court has dismissed the petition filed by the appellant under Section 9 of the Hindu Marriages Act, 1955 and decreed the petition of the husband, the respondent, under Section 13 of the Hindu Marriages Act, 1955. 

Brief facts giving rise to this appeal are; the appellant was married with respondent on 12th February, 2007 at Allahabad. At the time of marriage, the respondent was posted as Senior Treasury Officer, Haridwar, State of Uttrakhand. Both, husband and wife are resident of district Allahabad. After the marriage, the appellant lived at Mumford Ganj house of the parents of the respondent. the respondent used to come from Haridwar and stay with wife at Mumford Ganj, Allahabad. On 5th May, 2007, the respondent took the appellant to Haridwar who stayed there at the official residence of the respondent. On 9th May, 2007, the respondent got the appellant examined by Dr. Deepa who advised to consult a psychologist. On 31st May, 2007, the respondent took the wife to Allahabad. On 6th July, 2007 the appellant came to Haridwar along with her parents and continued at Haridwar to live with her husband. On 6th July, 2007 there was a scuffle between the parents of the appellant and the respondent. The husband alleging that he suffered teeth bite by the mother of the appellant, got him medically examined on 7th July, 2007 and is said to have sent a complaint to Kotwali, Haridwar. On 13th July, 2007, the wife filed Petition No.794 of 2007 before the Principal Judge, Family Court, Allahabad for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as the Act). On 23rd July, 2007, the husband received a call on his mobile from his father that father of the appellant has abused him and threatened to implicate in the dowry case. On 23rd July, 2007 itself the respondent claims to have submitted an application to Station House Officer, Haridwar about the threatening. On 26th July, 2007, the husband took the wife to Allahabad at his Mumford Ganj residence. On 26th July, 2007 itself the father, mother and brother of the appellant came at the Mumford Ganj residence and threatened the respondent and his family members. On 27th July, 2007 the husband sent an application to the Senior Superintendent of Police, Allahabad and Police Station Colonel Ganj, Allahabad by registered post narrating the incident dated 26th July, 2007. In the evening of 27th July, 2007, the parents of appellant came along with police of police station Colonel Ganj to the Mumford Ganj residence of the husband and the appellant was taken to her parents house at Allahpur. On 27th July, 2007 itself a first information report was lodged by the wife against the husband, his parents, his sister and brother-in-law under Sections 498A, 323, 506 of I.P.C. and Section 3/4 of the Dowry Prohibition Act on which Case Crime No.601 of 2007 was registered. The respondent was arrested by the police and remained in jail for 12 days till his bail application was allowed by the Sessions Judge, Allahabad on 8th of August, 2007. A news publication was published on 28th July, 2007 in the Hindi Daily Newspapers "Amar Ujala" and "Dainik Jagaran" mentioning about the arrest of the respondent on the allegation of demand of dowry. The appellant also gave an interview to the news channel "Sahara Samay" along with her parents making allegation on respondent and his entire family. The wife also wrote a letter to the Senior Superintendent of Police, Haridwar dated 12th August, 2007 informing lodging of first information report and making allegations of demand of dowry against the respondent and his family members. The complaint also alleged that on 7th July, 2007 she and her parents were misbehaved by the respondent. It was alleged that on 26th July, 2007 demand of dowry of Rs.8 lacs was made. The complaint was also sent by the appellant to the Finance Secretary, Government of Uttrakhand informing about the F.I.R. It was further mentioned in the complaint that on 27th July, 2007 appellant informed her father on mobile that the respondent and family members are making plan to kill the appellant after which father of the appellant came with the police and took away the appellant from her in-laws house to their house at Allahpur. The complaint sent to the Finance Secretary was also sent to all administrative officers of Uttrakhand and Uttar Pradesh. On 4th October, 2007 the respondent filed a petition under Section 13 of the Act for divorce at Family Court, Haridwar against the appellant. On 21st January, 2008, the Family Court, Haridwar passed an ex-parte decree in favour of the respondent which on the application of the appellant was set-aside. By an order passed by the Apex Court in Transfer Petition No.598 of 2008, the Petition No.302 of 2007 was transferred from Family Court, Haridwar to Family Court, Allahabad. The said petition was tagged with petition under Section 9 of the Act filed by the appellang being case No.794 of 2007. After one year of lodging of the first information report, the appellant again filed a complaint against the respondent and his family members under the Domestic Violence Act before the Court of Magistrate at Allahabad in which the respondent and family members were summoned. Before the Principal Judge, Family Court, the wife examined herself in support of her case whereas the husband appeared in support of his case. No other witness was examined by either of the parties before the Principal Judge, Family Court. Both the parties filed documentary evidence including the first information report, bail orders, several letters and news items. The respondent also filed pass book of the saving bank account opened in the name of his wife at Union Bank of India, Mumfordganj, cash certificate of 48,000/- in the name of Ruchita Srivastava and Kusum Srivastava, deposit of Rs.48,000/- in the ICICI Bank in the name of Ruchita Srivastava and Kusum Srivastava, Public Provident Fund pass book in the name of Ruchita Srivastava dated 4th June, 2007 showing deposit of Rs.70,000/-. The Principal Judge, Family Court vide its judgment and order held that the marriage between the parties has been broken and there is no possibility of both living together. The Principal Judge, Family Court also recorded finding that lodging of first information report by the appellant against the respondent under Section 498A of I.P.C. and arrest of the respondent therein and also publishing allegations against her husband and his family members in the newspapers and media are act of mental cruelty. The Principal Judge, Family Court dismissed the petition filed by the appellant under Section 9 of the Act and decreed the petition filed by the husband for divorce against which judgment this appeal has been filed. 

We have heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Pankaj Lal and Sri S.K. Srivastava for the appellant and Sri Anoop Trivedi and Sri A.K. Gupta for the respondent. 

Learned counsel for the appellant submitted that mere filing of criminal case does not amount to cruelty, it is a legal right given to a women. The police has already filed charge-sheet and the trial is going on. He submits that the family court has not considered the testimony of both the parties. In the cross examination the husband has not disclosed about any cruelty committed by the wife. The Court has not passed any decree of alimony or for return of jewelry. The appellant was not employed but now has been registered as an Advocate. 

Learned counsel for the respondent, refuting the submission of the learned counsel for the appellant, contended that lodging of first information report and getting the husband arrested and thereafter giving T.V. interview are acts of mental cruelty caused by the wife which has rightly been found to be sufficient for grant of decree of divorce. He submitted that wife even opposed the bail application of the husband in the Sessions Court, Allahabad. The husband had to remain in jail for 12 days and he was suspended from his service and for about four months he was under suspension when authorities after coming to know full facts have revoked the suspension. The old parents of the husband had to surrender in the Court and were granted bail by Special Chief Judicial Magistrate. The wife sent complaint to various authorities in the State of Uttrakhand as well as State of U.P. making allegations against the husband and his family members with intent to malign the image of the husband and to cause mental cruelty. The complaint under the Domestic Violence Act has been instituted after one year of the lodging of the first information report in which husband has also been summoned. The wife did not claim any alimony before the Court. 

We have considered the submissions of learned counsel for the parties and perused the record. 

The decree of divorce has been granted by the Principal Judge, Family Court substantially on following two grounds:- 

(i)The wife has treated the husband with cruelty. 

(ii)The marriage between the parties have been irretrievably broken. 

The principal submission of the appellant's counsel is that there was no sufficient material to prove any cruelty on the part of wife. It is further submitted that lodging of first information report is a right of a women and when the first information report accounts for true events, no benefit can be taken by the husband of the aforesaid fact. 

Before we proceed to examine the evidence in the present case, it is necessary to look into the concept of mental cruelty. 

The Apex Court had occasion to consider the mental cruelty in context of Hindu Marriages Act in Samar Ghosh Vs. Jaya Ghosh reported in (2007)4 SCC 511. The Apex Court had taken into consideration all the earlier judgments of the Apex Court and other courts and elaborately discussed the concept of mental cruelty. It is relevant to note the paragraph Nos. 39, 40, 44, 46, 47, 48, 49, 50 and 101 of the judgment which throws considerable light on the controversy which has arisen in the present case. 

"39.Shorter Oxford Dictionary defines 'cruelty' as 'the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another's pain; mercilessness; hard-heartedness'. 

40. The term "mental cruelty" has been defined in the Black's Law Dictionary [8th Edition, 2004] as under: 

"Mental Cruelty - As a ground for divorce, one spouse's course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse." 

44. This Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :

"The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent." 

46. In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word 'cruelty' has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment. 

47. In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society. 

48. Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:

"16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made." 

49. This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under: 

"14.Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of "irretrievably broken marriage" as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case." 

50. In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under: 

"Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other." 

101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive. 

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. 

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. 

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. 

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. 

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. 

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. 

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. 

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. 

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty. 

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. 

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. 

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. 

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. 

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty." 

The Apex Court in the case of Satish Sitole Vs. Ganga (SMT), reported in (2008) 7 SCC 734, has held that when there are acrimonious allegations against each other and attempt to reconciliation has failed, continuance of such marriage itself would amount to cruelty. Following was laid down by the Apex Court in paragraphs 7, 10 and 12 which are as under:- 

"7. Since despite the attempts at reconciliation the Gordian Knot could not be untied and clearly the marriage has broken down irretrievably, it was submitted on behalf of both the parties that it would perhaps be to the best interest of the parties to have the marriage tie dissolved with adequate provision by way of permanent alimony for the respondent. 

10. The power vested in this Court under Article 142 of the Constitution was also exercised in - i)Anjana Kishore vs. Puneet Kishore, (2002) 10 SCC 194; (ii) Swati Verma vs. Rajan Verma and ors., (2004) 1 SCC 123; and (iii) Durga Prasanna Tripathy vs. Arundhati Tripathy, (2005) 7 SCC 352. Of the three aforesaid cases, in the first two cases orders passed were on Transfer Petitions where ultimately the parties agreed to divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955. Resorting to the powers reserved to this Court under Article 142, decrees of divorce were granted to put a quietus to all litigations pending between the parties on the ground that their marriages had broken down irretrievably. In the last of the three cases, while holding that the marriage had broken down irretrievably, this Court affirmed the decree of divorce passed by the Family Court, but directed payment of alimony to the extent of Rs.1,50,000. 

12. In the said circumstances, following the decision of this Court in Romesh Chander's case (supra) we also are of the view that since the marriage between the parties is dead for all practical purposes and there is no chance of it being retrieved, the continuance of such marriage would itself amount to cruelty, and, accordingly, in exercise of our powers under Article 142 of the Constitution we direct that the marriage of the appellant and the respondent shall stand dissolved, subject to the appellant paying to the respondent a sum of Rupees Two lakhs by way of permanent alimony. In addition, the appellant shall also pay the costs of this appeal to the respondent, assessed at Rs.25,000/-. The appeal is disposed of accordingly." 

To the similar effect there is another judgment of the Apex Court in the case of Durga Prasanna Tripathy vs. Arundhati Tripathy reported in AIR 2005 SC 3297. Paragraph 29 and 30 of the said judgment are to the following effect:- 

"29. The facts and circumstances in the above three cases disclose that reunion is impossible. Our case on hand is one such. It is not in dispute that the appellant and the respondent are living away for the last 14 years. It is also true that a good part of the lives of both the parties has been consumed in this litigation. As observed by this Court, the end is not in sight. The assertion of the wife through her learned counsel at the time of hearing appears to be impractical. It is also a matter of record that dislike for each other was burning hot. 

30. Before parting with this case, we think it necessary to say the following: Marriages are made in heaven. Both parties have crossed the point of no return. A workable solution is certainly not possible. Parties cannot at this stage reconcile themselves and live together forgetting their past as a bad dream. We, therefore, have no other option except to allow the appeal and set aside the judgment of the High Court and affirming the order of the Family Court granting decree for divorce. The Family Court has directed the appellant to pay a sum of Rs. 50,000/- towards permanent alimony to the respondent and pursuant to such direction the appellant had deposited the amount by way of bank draft. Considering the status of parties and the economic condition of the appellant who is facing criminal prosecution and out of job and also considering the status of the wife who is employed, we feel that a further sum of Rs. 1 lakh by way of permanent alimony would meet the ends of justice. This shall be paid by the appellant within 3 months from today by an account payee demand draft drawn in favour of the respondent-Arundhati Tripathy and the dissolution shall come into effect when the demand draft is drawn and furnished to the respondent." 

In a recent judgment in the case of K. Srinivas Rao vs. D.A. Deepa in Civil Appeal No.1794 of 2013 decided on 22.2.2013, the Apex Court had occasion to consider matrimonial dispute between the husband and wifes specifically in context of mental cruelty. Elaborating the concept of cruelty following was laid down in paragraphs 10, 11, 13 and 14 of the said judgment:- 

"10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term ''cruelty'. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental. 

12. In V. Bhagat v. D. Bhagat in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from ''paranoid disorder'. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband. 

13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable. 

14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse." 

In the aforesaid case the wife had filed complaint under Section 498A of I.P.C. before the Metropolitan Magistrate, Hyderabad. The Family Court dismissed the petition for restitution of conjugal rights and granted decree of divorce holding that by filing complaints against the husband, the wife caused mental cruelty. The High Court set-aside the judgment and decree of the Family Court against which husband filed the appeal. The appeal was allowed by the Apex Court making following observations in paragraphs 23, 25, 26, 27 and 28 which are as under:

"23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondent-wife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellant-husband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondent- wife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant- husband. 

25. It is also to be noted that the appellant-husband and the respondent- wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty. 

26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree. 

27. In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. 

28. In the ultimate analysis, we hold that the respondent-wife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellant-husband because a lot of bitterness is created by the conduct of the respondent-wife." 

The Apex Court in ultimate analysis held that the wife has caused by her conduct mental cruelty to the husband and the marriage has irretrievably broken down. The law laid down by the Apex Court in the said case is fully applicable and supports the contention of the learned counsel for the respondent. 

Now coming to the facts of the present case and the evidence brought on the record. There is no dispute between the parties that first information report was lodged by the wife on 27th July, 2007 against the husband in which husband was arrested and sent to jail. The wife also gave interview before the television news channel "Sahara Samay" where the allegations were made against the husband and his family members. Filing of various letters and complaint by the appellant to Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and other authorities, which are on the record have not been denied by the appellant and have been taken note by the Principal Judge, Family Court clearly proves that wife persisted with allegations against her husband of demand of dowry. In the written statement filed by the wife, the wife has made allegation of demand of dowry against the husband and his family members. It has further been pleaded in the written statement that she has threat of her life if she lives with in-laws. The allegations have been made against the family members of the husband that they have threatened to kill her. It has further been alleged that on 27th July, 2007 amount of Rs.8 lacs as dowry was demanded for and she was beaten. The copy of the affidavit filed by the wife opposing the bail application of the husband is on the record in which wife has opposed grant of bail to the husband. Even after one year of lodging of first information report another complaint under the Domestic Violence Act has been filed by the wife in the Court of Special Chief Judicial Magistrate, Allahabad which is pending consideration. 

There cannot be any denial to the fact that every person can take recourse of law if any offence is committed to him. Right to lodge a first information report or to take such legal action as permissible under the law cannot be denied. However, in facts of the present case we have to examine as to whether action taken by the wife and acts done by her within less than six months of the marriage are the action which gives reasonable apprehension in the mind of husband that it is not safe to live with wife any more. It is not necessary for us in this appeal to enter into or record any finding as to whether there was demand of Rs.8 lacs on 26th July, 2007 as dowry by the respondent or his family members from the wife or not but it is relevant to note that apart from allegations made by the wife there is nothing more to support the said allegation. However, it was admitted to the wife also in her cross examination that she filed various complaints against the husband before the Senior Superintendent of Police, Haridwar, Finance Secretary, Uttrakhand and Director (Treasury). The wife was confronted with the said letters in her cross examination and she admitted sending of those complaints. The wife in her written statement as well as statement has continued with leveling allegations against the husband and her family members. It was alleged that she was mentally tortured and also beaten. It was stated in her statement that dowry was demanded and she was beaten on 27th July, 2007 when she rang her father informing that she will be killed then the father of the appellant came with the police and took away her from the in-laws house. She in her cross examination has stated that she has sent complaints to the administrative authorities of Uttrakhand as she was fearing for her life from Vivek, the respondent. 

From the materials and evidence including the oral evidence brought on the record, the respondent has successfully proved that he was treated with cruelty within the meaning of Hindu Marriage Act, 1955. The findings recorded by the Principal Judge, Family Court that husband was treated with cruelty suffer from no error and are fully supported by the evidence on the record. 

It is relevant to note that efforts for reconciliation between the parties were made which failed. The Principal Judge, Family Court also made effort on 6th April, 2009 which conciliation failed. On 23rd April, 2012 in this appeal also the Court has directed the parties to appear on 11th May, 2012 before the Mediation and Conciliation Centre, High Court. The Mediation and Conciliation Centre has submitted a report on 11th May, 2012 that although both the parties have appeared but not willing to reconciliation. After 27th July, 2007 both the parties are living separately. In the case of K. Srinivas Rao vs. D.A. Deepa (supra) the Apex Court has held that the fact that marriage has irretrievably broken is a relevant consideration for deciding matrimonial cases. We are satisfied that marriage having irretrievable broken between the parties and husband having dealt with cruelty, the decree for grant of divorce as well as the order of the Principal Judge, Family Court rejecting the application of the wife under Section 9 of the Act are to be maintained. 

One of the submissions, which is pressed by the learned counsel for the appellant is that the Principal Judge, Family Court has not adverted to the question of grant of any permanent alimony and maintenance to the wife. The wife has been granted maintenance in proceeding under Section 125 of Cr.P.C. The maintenance amount was also enhanced by this Court in this appeal to Rs.5,000/- per month. Learned counsel for the respondent has submitted that after the marriage, the respondent has invested certain amount in the name of his wife including investing of Rs.70,000/- in Public Provident Fund, depositing of Rs.48,000/- in the Union Bank of India and also depositing of Rs.25,000/- in the ICICI Bank. The respondent is working as Senior Treasury Officer. The parties could live as married couple only from 12th February, 2007 to 27th July, 2007 for a brief period only. Although it is stated before us that appellant has been registered as an Advocate but the learned counsel for the appellant submitted that wife has no income and she is not able to maintain herself. 

In facts of the present case, we are of the view that ends of justice be served in directing the respondent to make payment of Rs.7.5 lacs to the appellant by a demand draft in the name of the appellant towards permanent alimony which can be invested by the appellant in a interest earning deposit in a nationalised bank to sustain herself. 

We direct the respondent-husband to make payment of Rs.7.5 lacs by demand draft to the appellant within two months from today or to deposit the amount of Rs.7.5 lacs in the bank account of the appellant within two months. 

In result, the appeal is partly allowed to the extent of grant of permanent alimony of Rs.7.5 lacs. Rest of the prayers made in the appeal are refused. The order of the Principal Judge, Family Court dated 30th March, 2010 decreeing the divorce petition filed by the respondent under Section 13 of the Hindu Marriage Act, 1955 and rejecting the application of the appellant filed under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights is affirmed. 

Parties shall bear their own costs. 

Order Date :- 31.05.2013 

Rakesh