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2020 DIGILAW 1317 (PNJ)

Ajay v. State Of Haryana

2020-06-22

ALKA SARIN

body2020
JUDGMENT Alka Sarin, J. - Heard through video conferencing. 2. The present criminal writ petition has been filed under Article 226 of the Constitution of India for enforcement of fundamental rights of the petitioners seeking protection of their life and liberty as enshrined in Article 21 of the constitution of India . 3. In brief the relevant facts are that petitioner No.1 is aged about 20 years and petitioner No.2 is aged 17 years and 6 months. It has been averred in the petition that the petitioners have known each other since the last two and a half years and decided to solemnize their marriage. On 16.06.2020, the petitioners solemnized their marriage at Yamuna Nagar against the wishes of their parents and relatives. It has been further averred that both the petitioners belong to different castes as petitioner No.1 is ScheduledCaste and petitioner No.2 belongsto Backward Class. The petitioner No.1 is doing agricultural labour work at village Sasouli and petitioner No.2 is doing the work of stitching and they both can bear the burden of matrimonial life. 4. It has further been contended by learned counsel for the petitioners that the parents of petitioner No.2 are against the marriage of the petitioners and are threatening the petitioners with dire consequences and have openly been stating that they would eliminate the petitioners whenever they will get a chance. 5. Apprehending danger to the lives, the petitioners approached the Superintendent of Police, Yamuna Nagar with their representation on 16.06.2020. However, no action has been taken on the same. Meanwhile, the petitioners filed the instant petition seeking protection of their life and liberty. 6. Notice of motion. 7. On the asking of the Court, Ms. Aditi Girdhar, AAG, Haryana has joined the session through Video Conferencing and accepts notice. 8. Heard learned counsel for the parties. 9. In the present petition this Court, without expressing any opinion on the validity of the marriage of the petitioners, needs to consider as to whether the apprehension of the petitioners needs to be addressed. 10. This Court has taken note of the fact that the girl in the instant case i.e. petitioner No.2 is aged 17 years and 6 months and petitioner No.1 is aged 20 years. Both are not of marriageable age as envisaged in Section 5 (iii) of the Hindu Marriage Act. 10. This Court has taken note of the fact that the girl in the instant case i.e. petitioner No.2 is aged 17 years and 6 months and petitioner No.1 is aged 20 years. Both are not of marriageable age as envisaged in Section 5 (iii) of the Hindu Marriage Act. In a case having similar facts, a Division Bench of the Delhi High Court in the case of Sh. Jatinder Kumar Sharma Vs. State and Anr,2010 SCConlineDelhi 2705 dealt with the complex issue regarding the marriage between two people ineligible to be married as envisaged in Section 5 (iii) of the Hindu Marriage Act. In para 15 it was held by the Division Bench :- "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 marriages are, at the option of both Poonam and 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." 11. Further, in the said case the Division Bench also considered the question of custody of the minor girl. After detailed discussion, the Division Bench held as under:- "23. In the present case, Poonam is a minor Hindu girl who is married. For, one cannot make something voidable which is already void or invalid." 11. Further, in the said case the Division Bench also considered the question of custody of the minor girl. After detailed discussion, the Division Bench held as under:- "23. In the present case, Poonam is a minor Hindu girl who is married. Her natural guardian is no longer her father but her husband. A husband who is a minor can be the guardian of his minor wife. No other person can be appointed as the guardian of Poonam, unless we find that Jitender is unfit to act as her guardian for reasons other than his minority. We also have to give due weight and consideration to the preference indicated by Poonam. She has refused to live with her parents and has categorically expressed her desire and wish to live with her husband, Jitender. Coming to Poonam's welfare which is of paramount importance, we are of the view that her welfare would be best served if she were to livewith her husband. She would get the love and affection of her husband. She would have the support of her in-laws who, as we have mentioned earlier, welcomed her. She cannot be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against her will and would be violative of her rights guaranteed under article 21 of the Constitution. Neetu Singh's case (supra) is a precedent for this. Sending her to live with her parents is not an option as she fears for her life and liberty. 12. In the present case, though the issue in hand is not the validity of the marriage but the fact is that the petitioners are seeking protection of life and liberty as envisaged under Article 21 of the Constitution of India. 13. Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his life and personal liberty except as per the procedure established by law. 14. In the present case no doubt petitioner No.2 is a minor and petitioner No.1 is not of marriageable age. However, the Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. 14. In the present case no doubt petitioner No.2 is a minor and petitioner No.1 is not of marriageable age. However, the Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because the petitioners are not of marriageable age they cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India. 15. In view of the above discussion and without expressing any opinion with regard to the veracity of the contents of the petition and the submission made by learned counsel for the petitioners, the present petition is disposed of with a direction to the Superintendent of Police, Yamuna Nagar (respondent No.2) to decide the representation of the petitioners dated 17.06.2020 (Annexure -3) and take necessary action as per law. 16. It is, however, made clear that this order shall not, in any manner, be construed as an expression of the opinion on the veracity of the statement made by the petitioners or the validity of the marriage and shall have no effect on any other civil or criminal proceedings, if any, instituted/pending against them.