Criminal Misc.No.M-5647 of 2011(O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No. M-5647 of 2011 (O&M) Date of Decision: July 19, 2011 Anchal Sagar and another ...Petitioners Versus State of Punjab and others ...Respondents CORAM:- HON'BLE MR.JUSTICE NAWAB SINGH Present: Mr.A.S.Cheema, Advocate for petitioner No.2. Mr.J.S.Bhullar, Assistant Advocate General, Punjab for respondent No.1 to 3 – State. Mr.Y.P.Khullar, Advocate for respondents No.4 and 5. Ms.Ashima Mor, Advocate for Union Territory Chandigarh. NAWAB SINGH J.(ORAL) By filing this petition, petitioners seek Police protection, because they married on February 18th, 2011 against the wishes of parents of petitioner No.1. By order dated February 22nd, 2011, Nirmaljit Kaur, J. directed that Anchal Sagar – petitioner No.1 be kept in Nari Niketan, Chandigarh, primarily on the ground that she was 17 years old. 2. This petition is listed for 5.9.2011. It has been taken up today on the application (Crl.Misc.No.28742 of 2011) filed by petitioner No.2 Harbhajan Singh, husband of petitioner No.1 Anchal Sagar. During the previous hearing, this Court directed the Authorities concerned to produce Anchal Sagar before this Court. Pursuant thereto, she has been brought. 3. Anchal Sagar has made a statement at bar supported by an affidavit that she does not want to stay in Nari Niketan and intends Criminal Misc.No.M-5647 of 2011(O&M) [ 2 ] to settle in life with Harbhajan Singh. She was a student of 10+2 standard. It has also been stated that she does not want Police protection at present. Similar is the statement of learned counsel representing Harbhajan Singh. 4. Shri Y.P.Khullar, learned counsel representing respondents No.4 and 5, that is, parents of Anchal Sagar, has stated that she should be kept in Nari Niketan, till she attains the age of eighteen years. In support of the contention, he relies upon the judgment in case Association for Social Justice & Research vs. Union of India and others, 2010(4) RCR(Civil) 833, wherein, the age of the girl was 11-12 years, who was married by her parents for consideration to a person, stated to be 40 years of age. Taking into consideration that aspect of the matter, a Division Bench of Delhi High Court disposed of the petition with further direction to the husband and the parents that the marriage should not be allowed to be consummated before `gauna' ceremony to be performed after the girl attains the age of majority and does not repudiate the marriage. Learned counsel has also referred to another judgment of a Single Bench of this Court in case Amnider Kaur and another vs. State of Punjab and others, 2010(1) RCR(Criminal) 261, wherein, a run away couple filed petition seeking Police protection. The couple was held not entitled to the Police protection, because the age of the girl was 16 years and 2 months. 5. The facts are not in dispute. The date of birth of Anchal Sagar is January 01st, 1994 as mentioned in Details Marks Certificate of Matriculation Examination (Annexure P1). However, the question in the case in hand is, as to whether petitioner No.1 can be kept in Nari Niketan against her wishes? To find answer of this question, first of all, the validity of the marriage is to be ascertained in the eyes of law. 6. The petitioners have solemnized marriage according to Hindu Vedic Rights, hence, the validity of the same has to be examined keeping in view the provisions of Hindu Marriage Act, 1955 (herein for short `HMA'). Sections 5, 11 and 18 of HMA, which are Criminal Misc.No.M-5647 of 2011(O&M) [ 3 ] relevant to determine the status of such marriage, are reproduced as under:- “5. Conditions for a Hindu marriage – A marriage may be solemnized 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;” “11. Void marriages – Any marriage solemnized 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.” "18. Punishment for contravention of certain other conditions for a Hindu marriage.- Every person who procures a marriage of himself or herself to be Criminal Misc.No.M-5647 of 2011(O&M) [ 4 ] solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv) 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 (c) [***]" 7. Condition (iii) of Section 5 (quoted above) of the HMA prescribes the minimum age of 18 years for the bride and 21 years for the bridegroom as a pre-condition of marriage, but contravention of such a condition, does not ipso facto, render the marriage as invalid or void. Further, Section 11 makes it clear that in case of contravention of any of the conditions specified in clauses (i), (iv) and (v) of Section 5, such a marriage can be declared null and void, but only on a petition presented by either party to marriage. By none of the above provisions of the HMA, the marriage can be said to have been invalidated. Section 11 of the HMA does not refer to Clause (iii) of Section 5. Had it been so intended by the Legislature to declare the marriage contravening Clause (iii) of Section 5 as `void', then it would certainly have included such a condition in Section 11. The Legislature was conscious of the fact that if such marriages, performed in contravention of the age restriction, are made void or voidable, it could lead to serious consequences and exploitation of the women, who are vulnerable on account of their social and economic circumstances. The result is that the Legislature knowing it well, left the said condition from inclusion in Section 11 of the HMA. Criminal Misc.No.M-5647 of 2011(O&M) [ 5 ] Thus, the marriage in contravention of Clause (iii) of Section 5 of the HMA is neither void nor voidable under the provisions of the Hindu Marriage Act. Similar was the view taken by a Division Bench in case Sh.Jitender Kumar Sharma vs. State & another, 2010(4) R.C.R.(Civil) 59. 8. Delving deeper into the controversy, Section 18 of the HMA provides for punishment for contravention of certain conditions of a Hindu marriage, but, yet it also does not declare marriage contravening Clause (iii) of Section 5 of the HMA as void or voidable. It provides for punishment for contravention of the conditions specified in Section 5, which, undoubtedly, includes Section 5(iii) also. The punishment will be imprisonment or/and fine. Thus, the only provision, which comes into play in the event of contravention of Clause (iii) of Section 5, is Section 18 of the HMA. The Act nowhere declares the marriage to be illegal or invalid or void. In Sh.Jitender Kumar Sharma's case (supra), while considering previous decisions on the point, the Division Bench held as under:- “9. This view is well supported by several division bench decisions of this Court. In Neetu Singh v. State, 1999(3) R.R.C.(Criminal) 26 : 77(1999) DLT 601 (DB), after considering two decisions, one of the Allahabad High Court [Mrs.Kalyani Chaudhary vs. The State of U.P., 1978 CrLJ 1003] and the other of the Himachal Pradesh High Court [Seema Devi alias Simaran Kaur v. State of H.P., 1998(1) R.C.R.(Criminal) 697 : 1998(2) Crime 168], it was held that a marriage in contravention of clause (iii) of Section 5 of the HMA is “neither void nor voidable” although it may be punishable under Section 18 of the HMA. This view has been reinforced in Ravi Kumar v. The State, 124 (2005 DLT 1 (DB) and Manish Singh v. State Govt. of NCT, 2006(1) R.C.R. (Criminal) 653: 2006(1) R.C.R.(Civil) 414 : AIR 2006 Del. 37 : 126 DLT 28 (DB). While the decisions in Neetu Singh (supra) and Ravi Kumar (supra) did not refer to the provisions of the Criminal Misc.No.M-5647 of 2011(O&M) [ 6 ] Child Marriage Restraint Act, 1929, the said provisions were specifically noticed in Manish Singh (supra). In that case, the division bench held that the “Act aims to restrain performances of child marriages” but the “Act does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act”. After referring to the penal provisions in the HMA and the Child Marriage Restraint Act, 1929, the division bench observed marriages solemnized in contravention of the age prescription in section 5(iii) of the HMA were neither void nor voidable but were “.. only punishable under Section 18 of the Hindu Marriage Act with imprisonment of 15 days and a fine of Rs.1000/- as also under the provisions of Child Marriage Restraint Act.” Special provisions are inducted in The Prohibition of Child Marriage Act, 2006 to deal with void and voidable marriage. Section 12 of the Act, which is reproduced below, deals as to in what circumstances, marriage of a `child' would be void:- “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.” A bare reading of the above-quoted provision also makes it clear that in the latest enactment as well, the Legislature has not included the condition of minority, in all circumstances, for declaring the marriage as void. Exceptions have been made and only in a few circumstances, where there is not free will of the child, the marriage Criminal Misc.No.M-5647 of 2011(O&M) [ 7 ] is declared to be null and void. The provision, in unambiguous terms, reflects that it has been so passed for the welfare of the child. The marriage of the minor by her parents for consideration in the case of Association for Social Justice & Research (supra), cited by learned counsel for respondents – parents, could be held void as it had contravened Clause (c) of Section 12 of the Prohibition of Child Marriage Act, 2006. Thus, the comprehensive review of the relevant provisions of the HMA makes it crystal clear that the solemnization of marriage in contravention of Clause (iii) of Section 5 of the HMA is not void. 9. Now, coming to the main controversy, regarding custody of Anchal Sagar, she is a minor but there is no provision of law, which requires a Court to give direction, even in case of minors, to send them in Protective Homes, against their will. Anchal Sagar is aged above 17 years and she has stated, in unequivocal words, at bar that she does not wish to go with her parents. She wants to go with Harbhajan Singh – petitioner No.2, her husband. In such cases, the paramount consideration of the Court should be the welfare of the minor. In Kalyani Chaudhari vs. The State of UP and others, 1978 CrLJ 1003, a Division Bench of Allahabad High Court held that no person can be kept in the protective home, unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or under some other law permitting her detention in such a home. It was also settled that question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her parents in a protective home. 10. In the instant case, the question of giving the custody of Anchal Sagar to her parents (respondents No.4 and 5) also does not arise as she has approached this Court apprehending threat to her life at their hands. It is already adjudged that contract of marriage between Anchal Sagar and Harbhajan Singh is valid in law. She also wants to go with him. Thus, Harbhajan Singh should be given the custody of Anchal Sagar. The law has to come into play on the factual premises that he is the husband and she has also expressed Criminal Misc.No.M-5647 of 2011(O&M) [ 8 ] her desirability to go with him. This view gets support from the decision of the Division Bench in case of Sh.Jitender Kumar Sharma's case ( supra). Para 20 of the judgment reads as under:- “20. Sections 19 and 21 of the Guardians and Wards Act, 1890 are also instructive. They are as follows :- "19. Guardian not to be appointed by the Court in certain cases. - Nothing in this Chapter shall authorise the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person- (a) of a minor who is a married female and whose husband is not, in the opinion of Court, unfit to be guardian of her person, or (b) of a minor whose father is living and is not, in the opinion of the Court, unfit to be guardian of the person of the minor, or (c) of a minor whose property is under superintendence of a Court of Wards competent to appoint a guardian of the person of the minor." "21. Capacity of minors to act as guardians. - A minor is incompetent to act as 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." Two things are apparent. First, a guardian is not to be appointed or declared of the person of a minor married female whose husband is not, in the opinion of the court, unfit to be guardian of her person. Second, a minor is incompetent to act as a guardian Criminal Misc.No.M-5647 of 2011(O&M) [ 9 ] of any minor except his own wife. Put differently, a minor husband is not incompetent, in law, to act as guardian of his minor wife.” 11. Indeed, Anchal Sagar has clearly stated that she does not want to be kept in Nari Niketan and wants to join the company of her husband, learned counsel for the petitioners has also stated that since they do not require Police protection, he does not press for the petition. 12. In view of the above, it is ordered that petitioner No.1 Anchal Sagar be released forthwith. 13. Petition stands disposed of accordingly. July 19, 2011 ( NAWAB SINGH ) gian JUDGE Whether refer to Reporter - Yes/No