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2019 DIGILAW 146 (KER)

Punarjani Charitable Trust v. State of Kerala

2019-02-12

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

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JUDGMENT : Hrishrikesh Roy, J. This bunch of Writ Petitions raise common concern and since they were heard analogously, all the cases are disposed by the following judgment: Heard Sri.C.S.Dias, the learned counsel appearing for the petitioner in W.P(C). No.16181 of 2013. The petitioners in the W.P.(C).Nos.17088 of 2013 and 16663 of 2013 are represented by the learned counsel Sri. B.S.Syamanthak. The State authorities are represented by the learned Senior Government Pleader Sri. Surin George Ipe. The Central Government authorities are represented by the learned counsel Sri.Jaishankar V. Nair. 2. For the sake of convenience, the reference to the facts in this judgment are from the pleadings in W.P(C). No.16181 of 2013. The petitioner in this case is a charitable trust and is concerned with the negative impact of child marriages in the State of Kerala and in particular, in Kozhikode and Malappuram Districts. They seek direction on the State Authorities to initiate appropriate legal action against the offenders, who have acted in defiance of the provisions of the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as ‘the Prohibition Act, 2006’). Further direction is sought on the Registering Authorities to not to register the marriages of any person, who has not completed the mandatory minimum age, as provided under S.2(a) of the Marriage Prohibition Act, 2006. Analogously, they seek quashing of the circular dated 6.4.2013 (Ext.P9), whereby the Local Self Government Authorities of Kerala Government had clarified that there is no legal impediment in registering the Muslim marriages, where the male has not attained 21 years and the female has not attained 18 years, on the basis of the certificate of the religious authority, as per R.9(3) of the Kerala Registration of Marriage (Common) Rules, 2008 (hereinafter referred to as ‘the Registration Rules’). 3. Leading the arguments for the petitioners, the learned counsel Sri.C.S.Dias would refer to the statistical data (Ext.P3) secured under the Right to Information Act to point out that large number of child marriages are conducted in the State of Kerala but the problem is more acute in the Malappuram District. According to the counsel the Prohibition of Child Marriage Act, 2006, which was notified for its application in the State of Kerala, was intended to prohibit, solemnization of child marriage and punish those, who have acted in violation of the statutory enactments. 4. According to the counsel the Prohibition of Child Marriage Act, 2006, which was notified for its application in the State of Kerala, was intended to prohibit, solemnization of child marriage and punish those, who have acted in violation of the statutory enactments. 4. The Prohibition Act, 2006 defines ‘child’ as a person, if a male, who is yet to complete 21 years of age and if a female, who has not completed the age of 18 years of age. The ‘child marriage’ under S.2(b) means a marriage in which, either of the contracting parties, is a child. A Child Marriage Prohibition Officer is contemplated, whose role is enumerated in S.16 but jurisdiction of such Officers are required to be notified by the State. It is the duty of the Marriage Prohibition Officer, to prevent solemnisation of child marriage by taking such action as he may deem fit. It is also his responsibility to advise or counsel the residents of the locality generally, not to indulge in promoting, helping, aiding or allowing the solemnisation of child marriages and to create awareness of the evils of child marriages. Therefore, the thrust of this Act is to prevent the child marriages as can be also noticed from the provisions of Ss.12, 13 and 14 of the Prohibition Act, 2006. In particular, S.14 declares that if any child marriage is solemnised in contravention of an injunction order issued under S.13 by the Magistrate, whether interim or final, such marriages shall be void ab initio. Similarly, marriages which happened under circumstances enumerated under S.12, such marriages shall be treated as null and void. The Scheme of the Act suggest that punishment for violation of the Act, is intended to further the objective of Act which is, to prevent child marriage and supplementary thereto. But the Act is not intended as a measure to declare all child marriages as void ab initio, except under the circumstances enumerated in Ss.12 and 14 of the Act. 5. But the Act is not intended as a measure to declare all child marriages as void ab initio, except under the circumstances enumerated in Ss.12 and 14 of the Act. 5. The genesis of the Registration Rules is the judgment in Seema v. Ashwani Kumar (2006) 2 SCC 578 ), where the Supreme Court after noticing that except in the States of Maharastra, Gujarath, Karnataka, Himachal Pradesh and Andhra Pradesh, the registration of marriages is not compulsory in any of the other States had opined that, if a record of marriage is kept, to a large extent, the dispute concerning solemnisation of marriages between two persons is avoided. Referring to the stand taken by the National Commission, the Court observed that in most cases non-registration of marriages largely affects the women. If the marriage is registered, it however provides evidence of the marriage having taken place and would provide a rebuttable presumption of the marriage. While Registration itself cannot be a proof of valid marriage, per se, and would not be the determinative factor regarding validity of a marriage, yet it has a great evidentiary value in the matters of custody of children, right of children born from the wed lock of two persons whose marriage is registered and the age of parties to the marriage. Considering these circumstances, the Supreme Court held that in the interest of society, marriages be made compulsorily registrable in their respective States. 6. Consequent upon the decision in Seema v. Ashwani Kumar (supra), the Kerala Registration of Marriages (Common) Rules, 2008 was notified mandating under R.6, compulsory registration of all marriages solemnized in the State except those, which were required to be registered under separate enactments. The procedure and time limit for registration is also provided under the Rules. 7. In the above context, when we examine the purport of the impugned circulars dated 6.4.2018, 14.6.2013 and 27.6.2013, which are impugned in this bunch of cases, those were intended to make all marriages compulsorily registrable and clarification was issued even for those marriages, which may be solemnized in contravention of the Prohibition of Child Marriage Act. 8. The petitioners argue that by issuing such circulars, the Government of Kerala has encouraged solemnisation of child marriages, in contravention of the mandate of the Prohibition of Child Marriage Act. 8. The petitioners argue that by issuing such circulars, the Government of Kerala has encouraged solemnisation of child marriages, in contravention of the mandate of the Prohibition of Child Marriage Act. However, we are unable to see the circulars in such light as, in our understanding, the circulars are intended to achieve the objective pointed out by the Supreme Court in Seema v. Ashwani Kumar (supra). At any rate, the role of the Marriage Registration Officer occurs only at the stage of solemnization of marriage and he has no role in preventing marriage, between under-aged couples. 9. Therefore, we are unable to accept the argument advanced by the learned counsel that the circulars would fail the objectives of the Prohibition of Child Marriage Act. As a matter of fact, the registration of even the child marriages, in our perception, would ensure that there is better transparency and adequate proof to penalise the offenders under the Prohibition of Child Marriage Act. 10. Coming now to the prayer made for the direction for effective implementation of the Prohibition of Child Marriage Act, the State must take adequate measures to mobilise the Child Marriage Prohibition Officer to effectively carryout the functions, mandated under S.16 of the Prohibition Act, 2006, to create awareness and sensitize the community on the evils of child marriage. The Prohibition Officer must take pro-active measures to detect proposed child marriage and intervene in such proposed marriages and bring it to the notice of the Judicial Magistrates so that appropriate orders can be passed for the purposes of Ss.13 and 14 of the Prohibition Act, 2006. Over and above these provisions of the Statute, it would also be desirable for the State Government to instruct the Marriage Registration Officers to intimate the Child Marriage Prohibition Officers, the registration of any marriage which might involve a child, as defined under S.2(a) of the Prohibition Act, 2006, so that, appropriate steps can then be taken by the Child Marriage Prohibition Officer to prosecute the offenders. Accordingly necessary directions are issued towards these ends. 11. The Writ Petitions are ordered to be closed accordingly with the expectation that the State would take effective steps to further the above directions.