Minor’s marriage considered valid if not declared void till the age of 18: High Court of Punjab and Haryana

 on 09 09 FAO 855 2021 1 HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARHFAO 855 2021Date of decision:26.08.2021Yogesh Kumar....AppellantV s.Priya.....RespondentCORAM: HON BLE MS. JUSTICE RITU BAHRIHON BLE MR. JUSTICE ARUN MONGAPresent:Ms. Gitanjali Chhabra Advocate for the appellant.Mr. Raman B.Garg Advocate for the respondent. Ritu Bahri J.was major being of the age of 23 years 5 months and 10 daysbecause his date of birth was 17.09.1985 as per Aadhar Cardwas of the age of 17 years 6 months and 8days on the date of marriage i.e. on 27.02.2009 because her date of birthwas 19.08.1991 as per Aadhar Cardsince 31.08.2017. WWW.LIVELAW.IN on 09 09 FAO 855 2021 2 The grievance of the parties is that they had filed a jointpetition under Section 13 B of the Hindu Marriage Act 1955 for dissolutionof marriage by way of decree of divorce by mutual consent before thelearned Family Court on 22.06.2020. However the learned Family Courtdismissed their joint petition vide judgment and decree dated 12.01.2021 byobserving that the marriage of the parties was not a valid marriage as therespondenthad not completed the age of 18 years as per the mandateof Section 5(iii) of the Hindu Marriage Act 1955 vide which the partieswere required to fulfill the basic condition of the said Section. The Family Court had referred to a judgment passed by theMadras High Court in Prema Kumari Vs. M. Palani 2013RCRof the Hindu Marriage Act. Heard learned counsel for the parties and perused the case file.The above said judgment is not applicable to the facts of thepresent case. Section 13(2)(iv) is reproduced as under: 13A wife may also present a petition for the dissolution ofher marriage by a decree of divorce on the groundthat her marriagewassolemnised before she attained the age of fifteen years and shehas repudiated the marriage after attaining that age but beforeattaining the age of eighteen years.The girl who has attained 15 years of age and has got marriedcan seek dissolution of marriage before she attains the age of 18 years byfiling a petition under Section 13(2)(iv) of the Hindu Marriage Act.In the facts of the present case the marriage of Yogesh Kumarwas solemnized on 27.02.2009 and the appellantwas major beingthe age of 23 years 5 months and 10 days being his date of birth as WWW.LIVELAW.IN on 09 09 FAO 855 2021 3 17.09.1985 as per Aadhar Cardand the respondentwas ofthe age of 17 years 6 months and 8 days being her date of birth as19.08.1991 as per Aadhar Cardof the HinduMarriage Act. Had she been 15 years of age she could have invoked theprovisions only before she attains the age of 18. In the present case aftermarriage both the parties continued to live together till 31.08.2017. Therespondenthad crossed the age of 18 years in the year 2010 itself.Hence the Family Court has wrongly dismissed the petition by relying onPrema Kumari s caseVs. State 2012R.C.R.821 where the girl eloped with the boy and marriedhim. A case under Sections 363 and 376 IPC was registered against theaccused husband and the issue was whether FIR can be quashed on the basisof the statement of such a minor that she had contracted the marriage on herown. While referring to Sections 5(iii) 11 and 12 of Hindu Marriage Act 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act 2006 the Delhi High Court observed that if a marriage contracted with a female ofless than 18 years or a male of less than 21 years would not be a voidmarriage but voidable one which would become valid if no steps are takenby such “child” within the meaning of Section 2(a) of the Prohibition ofChild Marriage Act 2006 seeking declaration of this marriage as void.Section 5of the Hindu Marriage Act 1955 is reproduced as under: 5. Conditions for a Hindu marriage. A marriage may besolemnized between any two Hindus if the following conditions are fulfilled namely: WWW.LIVELAW.IN on 09 09 FAO 855 2021 4and the bride the age of 18at the timeof the marriage The Full Bench of Delhi High Court had examined a case of aminor girl who ran away with a boy and as per the Prohibition of ChildMarriage Act 2006 she could seek declaration of the marriage as voidunder Sections 2 and 3 of the said Act and Section 13(2)(iv) of the HinduMarriage Act 1955. In the facts of the present case the respondent wife was of theage of 17 years 6 months and 8 days at the time of marriage and she couldfile a petition for declaration of this marriage as void before she attains theage of 18 as per Section 11 of Hindu Marriage Act 1955 which reads asunder: 11. Void marriages . Any marriage solemnised after thecommencement of this Act shall be null and void and may on apetition presented by either party thereto 1be so declared by a decree of nullity if it contravenesany one of the conditions specified in clauses(iv) andofsection 5. Both the parties continued to live together and cohabited ashusband and wife since 2009 till 2017 and the respondent wife had notchosen to file a petition for getting her marriage void. Hence for all intentsand purposes when they made a petition under Section 13 B of HinduMarriage Act 1955 the respondent wife was major and the marriage wasvalid as per the observation made by the Delhi High Court Full Bench inpara 40 which is reproduced as under: 40. Be as it may having regard to the legal statutory positionthat stands as of now leaves us to answer first part of questionNo.1 by concluding that the marriage contracted with a female WWW.LIVELAW.IN on 09 09 FAO 855 2021 5 of less than 18 years or a male of less than 21 years would notbe a void marriage but voidable one which would becomevalid if no steps are taken by such “child” within the meaningof Section 2(a) of the PCM Act 2002 under Section 3 of thesaid Act seeking declaration of this marriage as void.The Division Bench of Delhi High Court in Jitender KumarSharma Vs. State and another 2010(4) R.C.R.20 wasconsidering a case where a boy aged 18 years and a girl aged 16 years fledaway from their homes and married as per Hindu Rites. The DivisionBench was examining the provisions of Guardians and Wards Act 1890 andheld that minor was competent to act as guardian of his wife as the soleconsideration is the welfare of the minor. In para nos. 22 and 23 theDivision Bench observed as under: 22. A reading of the 1890 Act and the 1956 Act together reveals the guiding principles which ought to be kept in mindwhen considering the question of custody of a minor hindu. Wehave seen that the natural guardian of a minor hindu girl whoseis married is her husband. We have also seen that no minor canbe the guardian of the person of another minor except his ownwife or child. Furthermore that no guardian of the person of aminor married female can be appointed where her husband isnot in the opinion of the court unfit to be the guardian of herperson. The preferences of a minor who is old enough to makean intelligent preference ought to be considered by the court.Most importantly the welfare of the minor is to be theparamount consideration. In fact insofar as the custody of aminor is concerned the courts have consistently emphasizedthat the prime and often the sole consideration or guidingprinciple is the welfare of the minor7 SCC 322 at 326]. 23. In the present case Poonam is a minor Hindu girl who ismarried. Her natural guardian is no longer her father but her WWW.LIVELAW.IN on 09 09 FAO 855 2021 6 husband. A husband who is a minor can be the guardian of hisminor wife. No other person can be appointed as the guardianof Poonam unless we find that Jitender is unfit to act as herguardian for reasons other than his minority. We also have togive due weight and consideration to the preference indicatedby Poonam. She has refused to live with her parents and hascategorically expressed her desire and wish to live with herhusband Jitender. Coming to Poonam‘s welfare which is ofparamount importance we are of the view that her welfarewould be best served if she were to live with her husband. Shewould get the love and affection of her husband. She wouldhave the support of her in laws who as we have mentionedearlier welcomed her. She cannot be forced or compelled tocontinue to reside at Nirmal Chhaya or some other suchinstitution as that would amount to her detention against herwill and would be violative of her rights guaranteed underarticle 21 of the Constitution. Neetu Singh’s caseis aprecedent for this. Sending her to live with her parents is not anoption as she fears for her life and liberty.The Full Bench of Madras High Court in T.Sivakumar Vs. TheInspector of Police Thiruvallur Town Police Station Thiruvallur Districtand others 2012 AIR62 was examining provisions of Section 5of Hindu Marriage Act 1955 and Section 3(3) of Prohibition of ChildMarriage Act 2006 and held that if no petition is filed for annulment of themarriage it will become a full fledged valid marriage. The relevant portionof this judgment is reproduced as under: 21. From a reading of the above we infer that probably theDivision Bench was of the view that if only a petition is filedunder Section 3 of the Prohibition of Child Marriage Act thesaid marriage will be voidable. We are unable to agree with thesaid conclusion arrived at by the Division Bench. In ourconsidered opinion the marriage shall remain voidableand the said marriage shall be subsisting until it is WWW.LIVELAW.IN on 09 09 FAO 855 2021 7 avoided by filing a petition for a decree of nullity by the childwithin the time prescribed in Section 3of the Prohibition ofChild Marriage Act. If within two years from the date ofattaining eighteen years in the case of a female and twenty oneyears in the case of a male a petition is not filed before theDistrict Court under Section 3of the Prohibition of ChildMarriage Act for annulling the marriage the marriage shallbecome a full fledged valid marriage. Similarly after attainingeighteen years of age in the case of female or twenty one yearsof age in the case of a male if she or he elects to accept themarriage the marriage shall become a full fledged validmarriage. Until such an event of acceptance of the marriage orlapse of limitation period as provided in Section 12occurs the marriage shall continue to remain as a voidable marriage. Ifthe marriage is annulled as per Section 3of the Prohibitionof Child Marriage Act the same shall take effect from the dateof marriage and in such an event in the eye of law there shallbe no marriage at all between the parties at any point of time. 22. As per Section 11 of the Hindu Marriage Act any marriagesolemnized in violation of Clause(iv) andof section 5 ofthe Hindu Marriage Act is void and the same may be declaredby a decree of nullity whereas under Section 12 of the HinduMarriage Act a voidable marriage may be annulled by a decreeof nullity. The different expressions used in these twoprovisions cannot go unnoticed. So far as Section 11 of theHindu Marriage Act is concerned the marriage is not annulledand is only declared as void by a decree of nullity. Thus whatis done by the court is only a declaration and not annulment ofmarriage. But under Section 12 of the Hindu Marriage Act since the marriage is not void ab initio the same requires to beannulled by a decree of nullity. Here it is not declaration but apositive act of annulment of the marriage by a decree of nullity.Similarly under Section 3 of the Prohibition of Child MarriageAct also the court annuls the marriage by a decree of nullity.Thus Section 12of the Hindu Marriage Act and Section WWW.LIVELAW.IN on 09 09 FAO 855 2021 8 3(1) of the Prohibition of Child Marriage Act are in parimateria. Therefore unless there is a positive decree passed bythe competent court annulling the child marriage the marriageshall be subsisting. In the present case the marriage between the parties wassolemnized on 27.02.2009 and they got separated on 31.08.2017. Everypossible effort made by the parties and friends for reconciliation was failedand the parties decided to dissolve their marriage by way of mutual consent.There was a minor child from this marriage namely Manas and as per thesettlement the custody of the son was given to the husband and heundertook to bear all the expenses for the upbringing of the child and willnot claim any kind of expenses from the respondent wife. The parties agreethat they will withdraw all the cases police complaint filed against eachother. A joint petition under Section 13 B of the Hindu Marriage Act 1955(Annexure A 1) for dissolution of marriage by mutual consent was filedbefore the Family Court alongwith the affidavits Ex.PW1 A and Ex.PW2 A which are also appended herewith as Annexures A 4 and A 5 respectively.Aadhar card of petitioner No.1 wife was annexed as Mark A and Aadharcard of petitioner No. 2 husband was annexed as Mark B. The statementsof both the parties were recorded on 23.06.2020. The Family Court haswrongly dismissed the petition filed under Section 13 B of Hindu MarriageAct 1955 by referring to the Madras High Court judgment that the partieswere required to get their marriage nullified as per Section 13(2)(iv) of theHindu Marriage Act 1955. A petition for nullity under Section 13(2)(iv) could be filed ifshe wife had got married at the age of 15 and she could file petition fordissolution of marriage before she attains the age of 18 as per the WWW.LIVELAW.IN on 09 09 FAO 855 2021 9 judgments of Madras High Court and Delhi High Court. Since therespondent wife was 17 years 6 months and 8 days at the time of marriage hence for all intents and purposes no petition was filed for declaration ofher marriage as void by the wife and the petition under Section 13 B of theHindu Marriage Act 1955 should have been allowed. The appellant husband has placed on record petition under Section 13 B of the HinduMarriage Act 1955 as Annexure A 1 alongwith affidavit of the respondent wife as Annexure A 2 and his affidavit as Annexure A 3 and theirstatements and affidavits as Annexures A 4 to A 7 placed before the FamilyCourt. The Family Court had recorded the statements of the parties and hadtaken on record their affidavits alongwith their Aadhar Cardsand copy of birth certificate of the minor sonthis appeal is allowed and order dated 12.01.2021 is set asideand the decree of divorce under Section 13 B of the Hindu Marriage Act 1955 is granted to the parties. Decree sheet be drawn accordingly. JUDGE26.08.2021(ARUNG MONGA)Divyanshi JUDGEWhether speaking reasoned:Yes NoWhether reportable:Yes No 

Summary: According to Section 13-B of the Hindu Marriage Act, 1955, “Divorce by mutual consent”. An order was passed by the family court dismissing a petition for divorce by mutual consent on the 22nd of July 2020 stating that it was not a valid marriage in the first place. As the girl had not completed 18 years with regard to the mandate under Section 5(iii) of the Hindu Marriage Act, 1955, “Conditions for a Hindu marriage the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage”. Therefore, this petition has been filed. In the High Court of Punjab and Haryana at Chandigarh, this judgement was given by Honorable Mr Justice Ritu Bahri and Honorable Mr Justice Arun Monga on the 26th of August 2021 in the case of Yogesh Kumar Versus Priya [FAO-855-2021] Ms Gitanjali Chhabra represented as the advocate for the petitioner, and Mr Raman B. Garg represented as the advocate for the respondent, the proceedings of the court were held via video conference. The brief facts of the case are that there was a marriage between the two parties on the 27th of February 2009 was conducted as per Hindu rituals and rites at the time of marriage the husband was 23 years old and the wife was 17years old according to their date of birth presented in the Aadhar card. After marriage, the parties resided together till the 31st of August 2017 and they also had a son out of wedlock. The counsel for both the parties held that the Family court who dismissed the petition relied upon the judgment, passed by the Madras High Court in Prema Kumari Vs. M. Palani, [2013 (6) RCR (Civil) 2953]. The counsel held that this judgment cannot be applicable as the age of the girl was only 15 years and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act but she could nullify the marriage as a void before attaining 18 years of age. whereas the age of the petitioner in the present case was 17 years and lived together with her major husband when she attained 18 years back in 2010 therefore the family Court relied upon a wrong judgment. The counsel relies upon the case Lajja Devi Vs. State, [2012 (4) R.C.R. (Civil) 821] where a girl eloped with the boy and married him and the boy was accused under section 363 and 376 IPC. However, the statement of the minor stated that she contracted the marriage on her own. With reference to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006. The Delhi High court held that “when a marriage is contracted with a female under 18 years would not be a void marriage but a voidable one”. With respect to this present case, the appellant could file for a petition declaring the marriage as void before she turns 18 as per Section 11 of the Hindu Marriage Act, 1955. The counsel further held that the parties resided together since 2009 and never once the appellant filed for any petition regarding declaring her marriage as void. Therefore, since she attained the age of 18 while living with her husband under Section 13-B of the Hindu Marriage Act, 1955, the appellant was a major and the marriage was valid. The counsel relies upon a Delhi High Court case in Jitender Kumar Sharma Vs. State and another, [2010(4) R.C.R. (Criminal)] where a boy 18 years and girl 16 years eloped from home the bench examined provisions of Guardians and Wards Act, 1890 and stated that “the minor was competent to act as guardian of his wife as the sole consideration is the welfare of the minor”. Another case relied upon is a full bench of Madras High Court in T.Sivakumar Vs. The Inspector of Police, Thiruvallur, [2012 AIR (Madras) 62] with regard to the provisions of section 5 of Hindu Marriage Act, 1955 and Section 3(3) of Prohibition of Child Marriage Act, 2006 stating that “if no petition is filed for an annulment of the marriage, it will become a full-fledged valid marriage”. The Honourable Court held that in the present scenario the marriage was held in 2009 and the parties separated in 2017, the parties decided to dissolve the marriage by mutual consent and there was also a child born out of the wedlock and according to the settlement the child will be in the custody of the husband who will bear all expenses for the upbringing of the child and not money will be claimed from the appellant.   The Honourable Court concluded that “The Family Court has wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 as per Section 13(2)(iv) of the Hindu Marriage Act, 1955, referring to the wrong judgement. Therefore, by referring to the Madras High Court and Delhi High Court, if there is no petition filed for an annulment of the marriage, it will become a valid marriage. Therefore, this appeal is allowed and order dated 12.01.2021 is set aside and the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 is granted to the parties.” Click here to read the judgment Judgment reviewed by – A. Beryl Sugirtham