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Allahabad High Court · body

2012 DIGILAW 1312 (ALL)

Sonu Paswan v. State of U. P. and Another

2012-05-30

AJAI LAMBA

body2012
Ajai Lamba, J.;— Sonu Paswan has filed this petition under Section 482 of the Code of Criminal Procedure with the prayer that order dated 28.4.2012 (Annexure-1) be quashed. Perusal of impugned order indicates that In-charge, Chief Judicial Magistrate, Balrampur, vide the impugned order, has sent Rekha Devi, the wife of the petitioner to Nari Niketan, Utraula, District Balrampur, while noticing that according to school certificates Rekha Devi is a minor. It has further been noticed that Rekha Devi did not want to go to her parents' house, because she had apprehension that her life would be in danger in their company, because father of Rekha Devi, namely, respondent no.2 wanted Rekha Devi to be married to a person of advanced age. Vide order dated 24.5.2012 Rekha Devi was directed to be produced in court from Nari Niketan, Utraula, District Balrampur. Rekha Devi is present in court, as identified by constable, Mina Devi of Police Line, Faizabad. Rekha Devi states that she got married to Sonu Paswan, the petitioner, and wants to live in her matrimonial home. Learned counsel appearing for the respondent/complainant states that Rekha Devi is a minor and, therefore, cannot be sent in the custody/company of her husband. I have considered the contention of learned counsel. Although, the radiological age of Rekha Devi has been found to be more than 18 years, however, an issue has been raised on behalf of respondent that Rekha Devi is a minor and, therefore, sanctity cannot be attached to her marriage. For considering the issue raised, provisions of Sections 5,11 and 13(2)(iv) of the Hindu Marriage Act, 1955 (for short 'Hindu Marriage Act'), are required to be noticed, which are extracted here below for ready reference: "Section 5. Conditions for a Hindu Marriage.- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:- i). neither party has a spouse living at the time of the marriage; ii). at the time of the marriage, neither party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) 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 (c) has been subject to recurrent attacks of insanity. (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; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v)the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; Sections 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 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 of Hindu Marriage Act. Section 13(2)(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." Bare perusal of provisions of Section 5 of the Hindu Marriage Act indicates the conditions for a Hindu Marriage. Section 5(iii) provides that a bridegroom should have completed 21 years and bride should have completed 18 years at the time of marriage. Section 11 of the said Act stipulates void marriages. It is required to be noticed that only the marriages, contracted in contravention of clauses (i), (iv) and (v) of Section 5 are void. Clause (iii) of Section 5 of the Hindu Marriage Act is conspicuous by its absence in Section 11. It, thus, transpires that a marriage contracted by a bridegroom under the age of 21 years and a bride under the age of 18 years would not be void. Provisions of Section 12 of the Hindu Marriage Act stipulate the conditions under which marriage would be voidable. Marriage of a minor has not been included there-under. Provisions of Section 13(2)(iv) of the Hindu Marriage Act extracted above indicate that a wife may present a petition for dissolution of her marriage by a decree of divorce on the ground that her marriage was solemnised before she attained the age of 15 years and she has repudiated her marriage, after attaining that age but before attaining the age of 18 years. The provision, therefore, per se indicates that marriage of a minor is neither void nor voidable. The marriage can be dissolved at the instance of the wife under conditions stipulated under the provisions contained in Section 13(2)(iv) of the Hindu Marriage Act. Provisions of Sections 3 and 12 of Prohibition of Child Marriage Act, 2006 ( in short 'Act of 2006') are also required to be noticed, in the same context. Provisions of Sections 3 and 12 of the Act of 2006 are extracted here-below: "Sections 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. Section 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). Section 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." Provisions of Section 3 of the Act of 2006 make it evident that the marriage would be voidable, if marriage of a child is solemnised. It can be declared void only at the instance of a contracting party viz. child spouse. Section 12 of the Act of 2006 provides the conditions under which the marriage of a child can be declared void. None of the conditions exists in the present case. Rekha Devi accepts the marriage and wants to live in her matrimonial home, therefore, conditions provided under Section 3 of the Act of 2006 are also not invited. Under the Guardian and Wards Act, 1890, there is no prohibition for a minor to be the guardian of his wife or child. In this regard, reference needs to be made under Section 21 of the Guardian and Wards Act, 1890, which is extracted here-in-below: "Section 21: Capacity of minors to act as guardians. A minor is incompetent to act as a guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child of another minor member of that family" Under Hindu Minority and Guardianship Act, 1956 ( in short 'Act of 1956'), in case of a married girl the husband would be a guardian. For the said purpose exact reference needs to be made to Section 6. For the said purpose exact reference needs to be made to Section 6. "Section 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 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; (b) in case of illegitimate boy or an illegitimate unmarried girl- the mother, and after her, the father; (c) in the case of married girl -the husband: PROVIDED that no persons 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 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." Perusal of clause (c) of Section 6 extracted above shows that natural guardian of a Hindu minor in respect of minor's person as well as in respect of minor's property, in case of a married girl, would be her husband. For the consideration of limited issue raised under the facts and circumstances of this case, reference is not required to be made to the other provisions of the statutes referred to above. Even if it is considered that Rekha Devi is a minor, her marriage is not void ab initio under the provisions of Hindu Marriage Act. The marriage would be voidable under the Act of 2006, only if Rekha Devi files a petition for that purpose. In the case in hand, however, Rekha Devi states that she got married to Sonu Paswan, i.e. the petitioner, and wants to live with him in her matrimonial home. The marriage is not void under Section 12 of the Act of 2006 in so much as the conditions stipulated in the said provision are not existence in this case. Under Section 21 of the Guardian and Wards Act, 1890, a minor can act as a guardian of his own wife or child. The marriage is not void under Section 12 of the Act of 2006 in so much as the conditions stipulated in the said provision are not existence in this case. Under Section 21 of the Guardian and Wards Act, 1890, a minor can act as a guardian of his own wife or child. Under the Hindu Minority and Guardianship Act, 1956, Clause ?C' of Section 6, in the case of married girl, the husband would be the guardian. Considering the facts and circumstances of this case, in context of legal provisions referred to above, there is no legal impediment in releasing Rekha Devi under the guardianship of her husband, Sonu Paswan, the petitioner. In view of the above, the contention of learned counsel for the respondent, who is father of Rekha Devi, has to be rejected. This Court further records that it is not in the welfare of a female to keep her in Nari Niketan for prolonged period, particularly when she wants to join the company or remain in the custody of her husband, who would be the natural guardian, in context of law. In such circumstances, order passed by the In-charge, Chief Judicial Magistrate, Balrampur, is rendered illegal and not warranted under Law. The petition is accordingly allowed. Order dated 28.4.2012 is hereby quashed. It is directed that custody of Rekha Devi be released by the concerned Nari Niketan authorities in favour of her husband, Sonu Paswan, the petitioner, forthwith. _____________