S.NAGAMUTHU.J., Selvi. Sujatha, the detenue, is aged 17 years. She is the daughter of the petitioner. Previously, she was studying in a Higher Secondary School at Tiruvallur and was staying at the house of the petitioner's sister. On 08.06.2011 at about 4.30 p.m. She had gone to a local temple, but she did not return thereafter. The petitioner learnt that the 2nd respondent along with others had kidnapped her. He preferred a complaint in this regard before the 1st respondent on 20.06.2011 on which a case in Crime No.309 of 2011 for offence under Section 366(A) of IPC has been registered. Alleging that the minor detenue was kept illegally by the kidnappers, the petitioner filed the present habeas corpus petition.

2. The 3rd respondent is the father of the 2nd respondent. When this habeas corpus petition came up for hearing before a Division Bench, on 28.07.2011, the Division Bench ordered notice to the respondents. In pursuance of the same, the minor detenue appeared before the Division Bench on 01.08.2011 and filed an affidavit to the effect that she had fallen in love with the 2nd respondent for quite some time and that on knowing the same, her parents started arranging for her marriage with her maternal uncle much against her wish. Therefore, according to her, on 08.06.2011, she left the parental home on her own accord and on 12.07.2011, she married the 2nd respondent. The said marriage has been accepted by the 2nd respondent and his other family members and she is not illegally detained by anybody, she had stated.

3. Based on the above affidavit of the minor detenue, the learned counsel appearing for the respondents 2 and 3 contended before the Division Bench that since the detenue was in a position to make intelligent preference to go with the 2nd respondent and since after the said marriage, the 2nd respondent is the legal guardian, the detenue should be set at liberty to go along with the 2nd respondent.

4. But, the learned counsel appearing for the petitioner opposed the same on several grounds projecting the welfare of the minor detenue. Having considered the rival submissions, the Division Bench presided over by Mr.Justice C.Nagappan directed the minor detenue to be kept in a Government Children's Home. The learned counsel heavily placed reliance on the judgment of another Division Bench of this Court in G.Saravanan v. The Commissioner of Police, Trichy City and others , 2011 - 2 - L.W. (Crl.) 114 wherein the Division Bench has held that a child marriage is neither void nor voidable and the same is valid and so, the husband of the child in marriage is entitled for custody of the child / wife . The Division Bench had doubt about the correctness of the said conclusion. The Division Bench also took note of the judgments in Saraswathi Ammal V. Dhanakoti Ammal , (1924) 47 MLJ 614 [Madras High Court], Seema Devi @ Simran Kaur v. State of Himachal Pradesh, (1928) 2 Crimes 68 (Himachal Pradesh High Court), Neetu Singh v. The State, (1999) II AD Delhi 37 [Delhi High Court], Ravikumar v. State , 124 (2005) DLT 1 [Delhi High Court], Manish Singh v. State , AIR 2006 DELHI 37 [Delhi High Court], Association for Social Justice and Research v. Union of India , [decided on 13.05.2010 by Delhi High Court], Latori Chamar v. State of Madhya Pradesh , [decided on 10.01.2007 by Madhya Pradesh High Court], Avinash v. State of Karnataka, CDJ 2011 KAR HC 373 [Karnataka High Court] and Jitendar Kumar Sharma v. State [decided on 11.10.2010 by Delhi High Court]. In Association for Social Justice and Research Case cited supra , a Division Bench of Delhi High Court observed that the issue relating to custody of a minor girl who has been married has been referred to a Full Bench for decision in Lajja Devi's case. We are informed that the said reference has not been so far decided by a larger Bench of the Delhi High Court. But, without noticing the same, a Division Bench of the Delhi High Court in Jitendar Kumar Sharma v. State and another reported in 2010 INDLAW DEL 1904, allowed the minor girl to go with the husband. In this background the Division Bench presided over by Mr.Justice C.Nagappan has referred this matter for answering the following questions:-

Having considered the above, the Hon'ble The Chief Justice has constituted this Full Bench and that is how, the matter is before us.

5. When this matter came up for hearing before this Bench on 19.08.2011, the respondents 2 and 3 in the HCP filed a miscellaneous petition in M.P.No.1 of 2011 seeking an interim order to take the detenue to P.B. College of Engineering, Irrungattukottai, for admission in B.Tch course. Accordingly, this court passed an interim order and permitted her to be taken to PB College of Engineering for admission. The minor detenue was thus admitted in the College. The detenue was also produced before this Court. On enquiries, she informed the court that she was not willing to go with her parents and she was ready to attend the college from the college hostel. Having considered the submissions made and having regard to the interest of the minor detenue, this court directed the minor detenue to be kept in the Government Kellys Home for Children, Chennai and to allow her to go to the college every day, however, with the help of a women police constable. Accordingly, she was attending the college.

6. Again on 07.09.2011 when the matter was listed , the learned counsel appearing for the respondents 2 and 3 submitted that the detenue found it very difficult to stay in Government Home for Children, Kellys, Chennai as she was facing lot of difficulties. Thus, she wanted the detenue to be allowed to stay in the hostel of the college. Mr.P.N.Prakash, learned counsel representing P.B. College of Engineering submitted that the college management was having an apprehension to allow her to stay in the hostel in view of certain untoward incidents taken place at the time of remitting the fees in the college. Ms.Geetha Ramaseshan the learned counsel appearing for a Non-Governmental Organization known as "TULIR" a voluntary organisation came forward to keep the detenue in the home known as "Mariyala" situated at Pidariyar Koil Street, George Town, Chennai. In the larger interest of the detenue and on considering the submissions made by the learned counsel on either side, the detenue was ordered to be accommodated in the said home namely Mariyala until further orders and the detenue was permitted to attend the college from there. The Assistant Commissioner of Police was directed to nominate a woman police constable to accompany the detenue to the college everyday in order to ensure her safety. Accordingly, now she is staying in the home.

7. In this background, this habeas corpus petition was heard at length. Mr.R.John Sathyan , learned counsel for the petitioner, Mrs.Sudha Ramalingam, learned counsel for the respondents 2 and 3 and Mr.M.Maharaja, learned Additional Public Prosecutor advanced elaborate arguments. Taking note of the importance of the questions referred to this Full Bench , we requested Mr.P.N.Prakash , the learned counsel to assist this court as Amicus Curiae and accordingly, he rendered assistance.

8. Since the parties to the marriage in this case are admittedly Hindus, we confine our discussion in the context of the laws applicable to Hindus alone. Now let us commence our task to answer the questions under reference.

9. To trace the history of the child marriages, we have to state that until the introduction of the " Child Marriage Restraint Act, 1929 " child marriages were prevalent in India among Hindus in abundance and there was no mechanism even to discourage the same. Such marriages were all recognized as valid. But, the ill-effects of the child marriage was taken note of even during the colonial period which prompted the law being brought into force to restrain the child marriages by enacting the " Child Marriage Restraint Act, 1929 ". A reference to the said Act would go to show that the said Act, was enacted to carry forward the reformists movement of prohibiting child marriages. While it made a marriage in contravention of the provisions of the Act punishable, simultaneously it did not render the marriage void. It needs to be emphasized that voidness of marriages is statutorily provided and the same is not to be readily inferred. Thus even after the advent of the Child Marriage Restraint Act such marriages were recognized as valid marriages.

10. Subsequently, the Hindu Marriage Act, 1955 came into being with effect from 18.05.1955. Section 4 of the said Act states that save as otherwise expressly provided in this Act, any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. But, no inconsistency could be noticed between the provisions of the Hindu Marriage Act, 1955 and that of the Child Marriage Restraint Act, 1929 . Both the Acts coexist.

11. Section 5 of the Hindu Marriage Act, as it was originally brought into force , contained six clauses as follows:-

[emphasis supplied]

(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.

(vi) Where the bride has not completed the age of eighteen years, the consent of the guardian in the marriage if any has been obtained for the marriage. [The sub clause (vi) was repealed by the Child Marriage Restraint Act, 1978 w.e.f. 01.10.1978]

12. The effect of violation of the conditions enumerated in Section 5 of the Hindu Marriage Act are dealt with in Sections 11 and 12 of the Act. According to Section 11 , any marriage solemnized after the commencement of the 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 or more of the conditions specified in clauses (i), (iv) and (v) of section 5 .

13. Similarly, Section 12 of the Hindu Marriage Act speaks of a voidable marriage which reads as follows:-

14. A close reading of these two provisions would go to show that a marriage solemnized in violation of sub section (iii) of Section 5 of the Hindu Marriage Act has not been declared either as void or voidable. The marriage which falls within the ambit of Section 11 has been held to be void from its very inception [vide Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, A.I.R. 1988 S.C. 644]. So far as a voidable marriage as provided in Section 12 of the Act is concerned , the said marriage may be annulled by a decree of nullity on any one or more of the grounds enumerated thereunder. Since the Hindu Marriage Act as well as the Child Marriage Restraint Act do not declare a marriage of a minor either as void or voidable, such a child marriage was treated all along as valid . There were number of judicial pronouncements to this effect. In this legal scenario, The Hindu Minority and Guardianship Act also provided that the husband of a minor wife is her natural guardian.

15. While so, it was felt that the Child Marriage Restraint Act , did not achieve the desired result. Despite the punishment provided for child marriages, and despite making the punishment more stringent, the menace of child marriage could not be completely eradicated. There were demands from various quarters for making an effective law for this purpose. The Law Commission also recommended for such a law. Responding to the same, at last, with effect from 10.01.2007, " The Prohibition of Child Marriage Act, 2006 " was brought into force thereby repealing The Child Marriage Restraint Act, 1929 . As envisaged in Section 1 of the said Act, it extends to the whole of India except the State of Jammu and Kashmir; and it applies also to all citizens of India; provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry. It is manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws. Thus, irrespective of the personal laws, under this Act, child marriages are prohibited.

16. The term "child" has been defined in Section 2 (a) of the said Act which states that "child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. This provision is in pari materia with sub section (iii) of section 5 of the Hindu Marriage Act. One of the important and salient features of the Prohibition of Child Marriage Act, 2006 is that Section 3 of the Act declares that every child marriage, whether solemnized before or after the commencement of the said Act shall be voidable at the option of the contracting party who was a child at the time of the marriage; provided that petition for annulling the child marriage by a decree of nullity may be filed in the District Court only by the contracting party to the marriage who was a child at the time of the marriage. Section 3 of the Prohibition of Child Marriage Act reads as follows:-

17. This is a great departure made by this Act from the Hindu Marriage Act . When the Prohibition of the Child Marriage Act , 2006 was enacted, the parliament was aware of the provisions of Sections 5 , 11 , 12 and 18 of the Hindu Marriage Act. By declaring that the Prohibition of Child Marriage Act shall apply to all citizens , the parliament has intended to allow the Prohibition of Child Marriage Act to override the provisions of the Hindu Marriage Act to the extent of inconsistencies between these two enactments. This is manifest from the statement of Objects and Reasons of the Prohibition of Child Marriage Act, 2006 which read as follows:-

18. A close reading of the above objects and reasons of the Prohibition of Child Marriage Act ,would keep things beyond any pale of doubt that the Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and also to enhance the health of the child and the status of women, whereas , the Hindu Marriage Act is a general law regulating the Hindu marriages. Therefore, the Prohibition of Child Marriage Act, being a special law, will have overriding effect over the Hindu Marriage Act to the extent of any inconsistency between these two enactments. In view of the said settled position, undoubtedly, Section 3 of the Prohibition of Child Marriage Act will have overriding effect over the Hindu Marriage Act .

19. But, the Division Bench which decided the case in G.Saravanan v. The Commissioner of Police, Trichy City and others , 2011 - 2 - L.W. (Crl.) 114 held that such a child marriage solemnised between two Hindus is neither void nor voidable, but valid. After having referred to Section 5 , 11 , 12 and 18 of the Hindu Marriage Act, the Division Bench in Saravanan's case has held as follows:-

[Emphasis supplied]

20. We find it hard to agree with the above above observation of the Division Bench for, the marriage of a child [minor girl] shall certainly be affected by Section 3 of the Prohibition of Child Marriage Act and thus the said child marriage is voidable. After extracting Section 3 of the Prohibition of Child Marriage Act , the Division Bench, in paragraph 18 & 19 has held as follows:-

[Emphasis supplied]

21. From a reading of the above, we infer that probably the Division Bench was of the view that if only a petition is filed under Section 3 of the Prohibition of Child Marriage Act , the said marriage will be voidable. We are unable to agree with the said conclusion arrived at by the Division Bench. In our considered opinion, the marriage shall remain voidable [vide Section 3 ] and the said marriage shall be subsisting until it is avoided by filing a petition for a decree of nullity by the child within the time prescribed in Section 3 (3) of the Prohibition of Child Marriage Act. If, within two years from the date of attaining eighteen years in the case of a female and twenty-one years in the case of a male, a petition is not filed before the District Court under Section 3 (1) of the Prohibition of Child Marriage Act for annulling the marriage, the marriage shall become a full-fledged valid marriage. Similarly, after attaining eighteen years of age in the case of female, or twenty-one years of age in the case of a male, if she or he elects to accept the marriage, the marriage shall become a full-fledged valid marriage. Until such an event of acceptance of the marriage or lapse of limitation period as provided in Section 12 (3) occurs, the marriage shall continue to remain as a voidable marriage. If the marriage is annulled as per Section 3 (1) of the Prohibition of Child Marriage Act, the same shall take effect from the date of marriage and, in such an event, in the eye of law there shall be no marriage at all between the parties at any point of time.

22. As per Section 11 of the Hindu Marriage Act, any marriage solemnized in violation of Clause (i) (iv) and (v) of section 5 of the Hindu Marriage Act is void and the same may be declared by a decree of nullity, whereas under Section 12 of the Hindu Marriage Act, a voidable marriage may be annulled by a decree of nullity. The different expressions used in these two provisions cannot go unnoticed. So far as Section 11 of the Hindu Marriage Act is concerned, the marriage is not annulled and is only declared as void by a decree of nullity. Thus, what is done by the court is only a declaration and not annulment of marriage. But, under Section 12 of the Hindu Marriage Act, since the marriage is not void ab initio, the same requires to be annulled by a decree of nullity. Here, it is not declaration but a positive act of annulment of the marriage by a decree of nullity. Similarly, under Section 3 of the Prohibition of Child Marriage Act also, the court annuls the marriage by a decree of nullity. Thus, Section 12 (1) of the Hindu Marriage Act and Section 3(1) of the Prohibition of Child Marriage Act are in pari materia. Therefore, unless there is a positive decree passed by the competent court annulling the child marriage, the marriage shall be subsisting.

23. At this juncture, we may usefully refer to Mulla on principles of Hindu Law [14th Edition]. While discussing about voidable marriages he has observed as follows:-

24. Hindu Law on marriages classifies the marriages into three categories namely, valid marriage, void marriage and voidable marriage. Though it is observed in Mulla that a voidable marriage remains valid and binding and continues to subsist for all purposes, unless a decree is passed by the competent court annulling the same, surely, we believe , he has not meant that a voidable marriage is a valid marriage in its stricto sensu as the expression denotes. Here, the term "valid" denotes the converse of the term "invalid". In other words, a voidable marriage is not invalid. But, at the same time, it cannot be construed stricto sensu that it is a valid marriage as per the classification referred to above. In our considered opinion , so far as the victim of the voidable marriage at whose option the marriage can be annulled is concerned, all rights emanating from a valid marriage will enure in favour of her / him. But, so far as the other spouse is concerned, the said marriage shall confer only limited rights upon him/her. But at the same time, it would impose all legal liabilities upon him/her towards the other spouse who is the victim of the voidable marriage. For example, if a minor girl is married to a boy aged more than 21 years, as per the Prohibition of Child Marriage Act , undoubtedly, the marriage is a child marriage and, therefore, the same is voidable. From out of the said voidable marriage, the minor girl will acquire all the rights against the male contracting party which are otherwise available to a wife of a valid marriage. But, the male contracting party who has contracted the minor's marriage will not acquire all the rights which would otherwise emanate from a valid marriage as against the wife except certain limited rights. However, it will impose all liabilities upon the male contracting party such as liability to maintain the victim of the child marriage, liability to provide shelter and liability to afford protection , etc. For instance, if the female child contracting the marriage declines to live in the matrimonial home and prefers to live elsewhere either with parents or with somebody else , the male contracting party will not have right to obtain a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Similarly, until the female [child] attains the age of 18 years, the male cannot file a petition for divorce on any ground. If the marriage is construed to be valid stricto sensu as per the classification referred to above such rights under Sections 9 and 13 of the Hindu Marriage Act will very much be available to the male. Because the marriage remains to be voidable and the same is not valid stricto sensu, though out of the said marriage the male [major] burdens himself with liabilities towards his minor wife [child], he does not acquire all the rights against his wife like any husband of a valid marriage. This is the basic difference between a valid marriage stricto sensu and a voidable marriage. Therefore, the observation by Mulla that a voidable marriage remains valid and binding and continues to subsist shall not be understood that the marriage is a valid marriage stricto sensu as per the classification referred to above. In other words, a voidable marriage will not fall within the classification of valid marriages. The expression 'valid' used therein is a lose language and not in its strict legal sense.

25. For better understanding of the legal position, at this juncture, we may have a look into the scheme of the Hindu Marriage Act . The expressions 'husband' and 'wife' have not been defined anywhere in this Act. But, in Sections 9 and 13 of the Act these two expressions have been used. Incidentally, we may notice that , reliefs under sections 9 and 13 of the Act are available only to parties to a valid marriage. It is by virtue of such valid marriage, the parties to the marriage acquire the status of husband and wife. Obviously, this is the reason why, in sections 9 and 13 of the Act, the legislature used the expressions 'husband' and 'wife'. But, the legislature has intentionally omitted to use these expressions viz., husband and wife in sections 11 and 12 of the Act. In section 11 , the expression used is 'either party thereto against the other party'. In section 12 , the expressions used are 'petitioner' and 'respondent'. There can be no doubt that parties to a void marriage do not acquire the status of husband and wife at all since the marriage is ipso jure void. It is because of this reason, in section 11 of the Act, the legislature has consciously omitted the expressions 'husband' and 'wife' and instead has used the expressions either party thereto against the other party. Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions 'husband' and wife'. The omission to use these two expressions in section 12 perhaps, would only reflect the intention of the legislature not to give the full status of the husband and wife to the parties to a voidable marriage, like the spouses of a valid marriage. Sections 9 and 13 are in pari materia in so far as the expressions referable to the parties to the marriage are concerned, whereas sections 11 and 12 are in pari materia in terms of the expressions referable to the parties to a voidable marriage. If we look into the provisions of the Prohibition of the Child Marriage Act , it is obvious that here also, the legislature has consciously omitted the expressions 'husband' and 'wife'. In particular, in section 3 of the Act, the expression 'contracting party' has been used. The term 'contracting party' is defined in section 2 (c) of the Act which states that a contracting party, in relation to a marriage means either of the parties whose marriage is or about to be thereby solemnized. Thus, to some extent, Section 3 of the Prohibition of Child Marriage Act is in pari materia with Sections 11 and 12 of the Hindu Marriage Act insofar as the expressions referable to the parties to the marriage are concerned. This would again go to strengthen our conclusion that the male who contracts a child marriage of a female child cannot attain the full status of a husband like a husband of a full fledged valid marriage. To repeat, by the said marriage , though he burdens himself with legal liabilities arising there from , he acquires only limited rights as we have illustrated above.

26. But, in Saravanan's case cited supra, the Division Bench has held that such a marriage between a boy aged more than 21 years and a girl aged less than 18 years is not voidable. In other words, according to the Division Bench such a child marriage celebrated in contravention of the Prohibition of Child Marriage Act is a valid marriage. With respect, we are of the opinion that it is not a correct interpretation. A plain reading of Section 3 of the Prohibition of Child Marriage Act would make it clear that such child marriage is only voidable. Therefore, we hold that though such a voidable marriage subsists and though some rights and liabilities emanate out of the same, until it is either accepted expressly or impliedly by the child after attaining the eligible age or annulled by a court of law, such voidable marriage, cannot be either stated to be or equated to a valid marriage stricto sensu as per the classification referred to above. Accordingly, we answer the first part of the 1st question referred to above.

27. Let us now take up for consideration the later part of the 1st question referred to us which states as to whether the custody of the said girl be given to the husband [if he is not in custody]. This question is inter-linked with the 2nd question which states as to whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody. Therefore, we deal with these two together.

28. As per the Hindu Minority and Guardianship Act, 1956 , in the case of an unmarried girl the father shall be the natural guardian 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. As per sub- section 6(c) of the Hindu Minority and Guardianship Act, in the case of a married minor girl, the husband shall be the natural guardian.

29. Undoubtedly, in the case of a void marriage under the Hindu Marriage Act , since the same is void ab initio, the parties never attain the status of the husband and wife. Similarly, under section 12 of the Prohibition of Child Marriage Act, a child marriage in certain circumstances has been declared as void. Therefore, a child marriage which falls within the ambit of Section 12 of the Act also shall not give the status of husband and wife to the parties to the child marriage. The male who contracts a marriage with a female child falling within the ambit of Section 12 is not a husband of the minor in the legal sense and, therefore, as per The Hindu Minority and Guardianship Act , he will not acquire the status of the natural guardian of such child at all.

30. But, in the case of a voidable marriage, whether the male contracting party to the marriage will attain the status of husband for the purposes of Section 6 of the Hindu Minority and Guardianship Act needs to be carefully analyzed.

31. This requires a great deal of discussion on the legislative history of the Hindu Minority and Guardianship Act . As we have already seen, a child marriage was recognized as a valid marriage in Hindu Law despite the implementation of the Child marriage Restraint Act, 1929 . Even in the Hindu Marriage Act, 1955 as it was originally brought into force as per clause (vi) of section 5 of the Act, the child marriage was recognized as a valid marriage by the said express provision. Thus, between 1955 to 1978 by virtue of the express provision relating to the child marriage such marriage was recognized as a valid marriage. With effect from 01.10.1978, since section 5(vi) and section 6 of the Hindu Marriage Act were repealed , there was no other express provision declaring the child marriages as valid. However, Courts have held that such child marriages are valid because section 5(iii) was not brought within the ambit of either section 11 or section 12 of the Hindu Marriage Act. For the first time, as a reformists measure, child marriages have been declared as voidable marriages only under the Prohibition of Child Marriage Act . It is noticeable that though the National Commission for Women recommended for making a provision to declare such child marriages as void marriages, the Parliament in its wisdom made it only a voidable marriage. Thus, it is crystal clear that child marriages were recognized as valid marriages till 10.01.2007 and thereafter, they have been declared as voidable whether solemnised before or after the commencement of the Act. As we have seen, the scenario prior to the advent of the Hindu Marriage Act, 1955 , was that the child marriages were all recognized as valid in law.

32. The Hindu Minority and Guardianship Act came into effect from 25.08.1956. The scenario as on the date of coming into force of the said Act was that as per the express provisions contained in section 5(vi) and section 6 of the Hindu Marriage Act , the marriage of a child was valid and thus the male spouse of the said marriage undoubtedly acquired the status of the husband. Therefore, while enacting the Hindu Minority and Guardianship Act, 1956 , the Parliament rightly thought it fit to make the husband of the minor wife as the natural guardian. Section 6(c) of the said Act states that the natural guardian of a married minor girl shall be the husband. Thus, on such marriage, the husband would replace the father and the mother from the natural guardianship. Now the entire scenario has changed after the advent of The Prohibition of Child Marriage Act,2006 . As we have already noticed, as per Section 3 of the Prohibition of Child Marriage Act, since the marriage is voidable, the bridegroom of the female child who had procured the marriage will not attain the status of the husband like that of any other husband of a valid marriage and, therefore, under Section 6(c) of the The Hindu Minority and Guardianship Act, he cannot be the natural guardian. However, when the Parliament took note of the provisions of the Hindu Marriage Act and amended even Section 18 of the Act by Act 6 of 2007 it did not think it fit to amend Section 6(c) of The Hindu Minority and Guardianship Act. Though Section 6 (c) has not been repealed and though the same is in the statute book, still, the same is to be re-looked in the present scenario, more particularly, in the context of the Prohibition of Child Marriage Act . There have been several studies conducted and papers submitted on the ill-effects of child marriages. In one such study paper let by one Dr.Anitha Raj , a Doctor at Boston University School Public Health in Massachusetts she says :-

33. Almost it is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place. In this totally changed scenario since we are called upon to interpret the law , we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child.

34. We may also state that since a child marriage as defined in the Prohibition of Child Marriage Act itself is an offence and the same is cognizable , it does not require any complaint to the police to register a case and to investigate. On any information regarding such a child marriage, the Police has got a legal duty to register a case and to prosecute the offender by filing an appropriate final report. If the contracting party to the marriage of a female child is a male who is not a child undoubtedly, he is an offender punishable under section 9 of the Act. The scheme of the Act would go to show that punishment has been provided only against an adult male marrying a female child but an adult female marrying a male child is not an offender as she does not fall within the ambit of section 9 of the Act. Sections 10 and 11 provide for punishment for solemnising a child marriage and promoting or permitting solemnisation of child marriages. So, it needs to be underscored that only the male namely the husband is liable to be punished and not the girl whether child or an adult. This scheme of the Act would also go to support the view that an adult male who marries a female child cannot be allowed to enjoy the fruits of such marriage because the solemnisation of the marriage itself is an offence insofar as the male is concerned. If we have to accept the contention that as per section 6(c) of the Hindu Minority and Guardianship Act, the husband of a female child shall be the natural guardian , it will only amount to giving premium for the offence committed by the male. When the law aims at eradicating the evil menace of child marriages, declaring the adult male who marries a female child, as her natural guardian would only defeat the very object of the Act. A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act. Thus, by committing an offence punishable under Section 9 of the Act, the adult male cannot acquire the legal status of the natural guardian of the female child. In view of these discussions, we hold that Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act . Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child.

35. With the aforesaid conclusion, let us now move on to the question of custody of a female child whose marriage has been procured in violation of the provisions of the Prohibition of Child Marriage Act . As per section 2 of the The Hindu Minority and Guardianship Act, the provisions of the same shall be in addition to and not in derogation of The Guardians and Wards Act, 1890 . There is no specific provision made in The Hindu Minority and Guardianship Act in respect of custody of a wife, who is a child. But, under section 12(3) of the Guardians and Wards Act, the court namely, the District Court shall not place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband , unless she is already in his custody with consent of her parents, if any. This provision makes it abundantly clear that even assuming that as per section 6(c) of The Hindu Minority and Guardianship Act, the husband is the natural guardian, even then, temporary custody of the minor wife cannot be given to him unless she is already in his custody with the consent of her parents. Thus, unless these twin conditions namely, the consent of her parents and being in the custody already are satisfied, even the temporary custody of a female child cannot be entrusted to her husband. After the advent of the Prohibition of Child Marriage Act , the vigor of Section 12(3) is more. When the competent court namely , the District Court itself has not been authorised to entrust the custody of a minor wife to her husband, unless the twin conditions are satisfied, it is needless to point out that after the advent of the Prohibition of Child Marriage Act , until the female child of such child marriage elects to accept the marriage on attaining the age of 18 years , her custody cannot be entrusted to the male party to the marriage more so because he is not the natural guardian of the female child.

36. In this regard, let us now have a look into various judicial pronouncements. In Muthuswami Chiettiar v. K.M.Chinna Muthuswami Moopanar , AIR 1935 Madras 195, a Division Bench of this Court while considering the question of custody of a minor child which was claimed by the father under Section 25 of the Guardians and Wards Act, 1890 , among other things, this Court held as follows:-

37. A close reading of the above judgment in its entirety would make one to understand that simply because an individual happens to be a natural guardian or guardian of any other category, he does not have indefeasible right to have the custody of the minor. Being a natural guardian is only one of the factors which needs to be taken while considering the question of custody. All the circumstances prevailing put together should be weighed and the court should decide as to how the interests of the minor and his welfare could be well protected by granting custody.

38. The above judgment of the Madras High Court was approved by the Hon'ble Supreme Court in Anjali Kapoor v. Rajiv Baijal , 2009 (7) SCC 322. In paragraph 18 of the said judgment the Hon'ble Supreme Court while making a reference to the judgment of the Madras High Court in Muthuswami Chiettiar v. K.M.Chinna Muthuswami Moopanar , has observed as follows:-

39. In Elizabeth Dinshaw v. Arvand M.Dinshaw , (1987) 1 SCC 42, the Hon'ble Supreme Court in para 8 has held as follows:-

40. In these judgments, the Hon'ble Supreme Court has clearly laid down that irrespective of the legal rights of an individual, such as guardianship, when the question of custody of a minor child comes up for consideration before a court of law, the court is concerned with the paramount interest and welfare of the minor rather than considering the legal right of the parties fighting before the court for custody.

41. Very recently, in Ruchi Majoo v. Sanjeev Majoo , (2011) 6 SCC 479, the Hon'ble Supreme Court in para 58 has held as follows:-

42. In the aforesaid judgment, the Hon'ble Supreme Court has followed Elizabeth Dinshaw 's case with approval. Thus, the Hon'ble Supreme Court has categorically laid down that even while exercising its writ jurisdiction, the High Courts using its extraordinary jurisdiction may determine the validity of the detention and pass an appropriate custody of the minor having regard to paramount interests and welfare of the minor child.

43. In Gaurav Nagpal v. Sumedha Nagpal , AIR 2009 SC 557, after making a thorough survey of various provisions of The Hindu Minority and Guardianship Act, Guardians and Wards Act and various judgments , the Hon'ble Supreme Court in paragraph 35 has held as follows:-

(ii) No child shall be sent back to family against the wishes of the child who shall have an evolving capacity to determine the concept.

51. The aforesaid rule is almost in pari materia with Section 17 of the Guardians and Wards Act, 1890. Therefore, if the child, who has capacity to determine, expresses her wish not to go with her parents, it may not be appropriate for the court to compel her to go to the custody of her parents . The court may keep her in appropriate custody like, custody in a welfare home for children in need of care and protection set up under the Juvenile Justice [Care and Protection] Act. Here, it should not be misunderstood that the child could be sent either to a special home or an observation home which are meant for juveniles in conflict with law under the Juvenile Justice [Care and Protection of Children] Act. We make it clear that a female child who is a victim of child marriage, if expresses her wish not to go with her parents, the court may direct such female child be kept in a separate home for children in need of care and protection established under the Juvenile Justice [Care and Protection Act] and not in a special home or observation home meant for juveniles in conflict with law. Accordingly, we answer the 2nd question referred to us.

52. The next question is, Whether the minor child can be kept in protective custody of the State? In our considered opinion, if the welfare of the minor child will be well protected if she is kept in the protective custody of the State, the court can resort to such course also as dealt with in the previous paragraph.

53. The next question is Whether the minor girl who claims to have solemnized her marriage with another person would not be a juvenile in conflict with law? In our considered opinion, a juvenile in conflict with law is the one who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Here, the minor, who enters into a marriage is not an offender under any of the provisions of the Prohibition of Child Marriage Act, 2006 . Neither the minor girl is an offender under section 18 of the Hindu Marriage Act. The said provision states that every person who procures a marriage of himself or herself ...... is punishable. Here, the minor girl does not procure the marriage and instead her marriage is procured by the others. Thus, , such a minor girl is not a juvenile in conflict with law. Accordingly, we answer the 4th question referred to us.

54. The last question is, Whether the principles of Sections 17 and 19(a) of the Guardians and Wards Act, 1890, could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the Hindu Marriage Act ? As held by the Hon'ble Supreme Court in the judgments cited supra, Sections 17 & 19 of the Guardians and Wards Act can also be taken for guidance while deciding the question of custody of a minor girl whose marriage has been celebrated. We answer this question accordingly.

55. During the course of analysis of the provisions of the Prohibition of Child Marriage Act , we have come across a serious anomaly in Section 3(3) of the Act which we would like to highlight to draw the attention of the legislature. Sub- section 3 of section 3 of the Act reads as follows:-

56. A plain reading of sub section (3) would reflect that a petition under the above Section may be filed at any time but before the child completes two years of attaining majority. When does a child attains the age of majority is not expressly defined in the Act. However, Section 2 (f) of the Prohibition of Child Marriage Act denies the term "minor" which reads as follows:-

As defined in Majority Act, 1875 , a minor, either male or female, attains the age of majority on completing eighteen years of age. Keeping in mind the same, if we again look into sub section (3) of section 3 of the Prohibition of Child Marriage Act, the anomaly in the Act will emerge to light. In the case of a female , as per sub section (3) since she attains the age of majority on completing the age of eighteen years, there can be no difficulty in understanding of the said provision to say that a petition for annulment should be filed within two years of attaining majority, i.e. before completing twenty years of age. But, in the case of a male, any marriage solemnised before he completes the age of twenty one years is a child marriage and the same is voidable. Therefore, he can be expected to file a petition for annulment within two years after attaining the age of twenty-one years. But, sub section (3) reads that such petition should be filed when he completes two years of attaining majority which means before completing twenty years of age. For example, if the child marriage of a male takes place on his completing twenty years of age and if a literal interpretation is given to sub section (3) of the Prohibition of Child Marriage Act , surely, he will not be in a position to file a petition to annul the marriage. Such literal interpretation in the case of a male would create anomalous situation. It is too well settled that no provision of any law shall be interpreted in such a way to make it either anomalous or unworkable. Therefore, in our considered opinion, sub section (3) of section 3 shall be read that in the case of a male, a petition for annulment of child marriage shall be filed before he completes two years of attaining twenty-one years of age. We are hopeful that the parliament will take note of the above anomaly and make necessary amendment to sub section (3) to avoid any more complication.

57. In conclusion, to sum up , our answers to the questions referred to by the Division Bench are as follows:-

58. We make it clear that the above answers have been arrived at by us only on discussions in respect of the laws relating to Hindus. Since the parties in this case are Hindus, we have confined our discussions only to the laws relating to Hindus and we have not examined the above questions referred to us in the context of laws relating to other religions.

59. Before concluding this judgment we would like to state that despite several legislations which we have referred to above , the evil menace of child marriages has not been eradicated in toto. Though the Central Government evolved "The National Plan of Action for Children 2005", aiming to eliminate child marriages entirely by the end of the year 2010, the same could not be achieved. Often, we see in news papers incidents of such child marriages including young children of less than ten years of age. There are also reports that there are widows of age group of less than 10 years. Undoubtedly, child marriage is a violation of human rights and it affects the health of the girls as well as the children born to them. We have also come across reports that minor girls and boys induced by infatuation elope resulting in number of habeas corpus petitions filed by the parents. We feel that adequate publicity has not been made to the Prohibition of Child Marriage Act , more particularly, about section 9 of the Act which provides for punishment up to two years and that the offence is also cognizable and non-bailable. We are hopeful that if police register criminal cases against the offenders and file final reports bringing them to book, the incidents of child marriage can be at least reduced, if not completely eradicated. Therefore, we direct the Government to give adequate publicity for the Act so that it could reach the people and also to sensitize them through Governmental and Non-Governmental Voluntary Organizations. The police may also be sensitized about their legal obligation to register criminal cases as and when there is information regarding commission of offence of child marriage in violation of the Act. We also direct the Government to ensure that the calendars and prospectus issued by Educational Institutions of and above Higher Secondary Courses including Colleges, both professional and non professional, to incorporate the salient features more particularly, the penal provisions of the Prohibition of Child Marriage Act so as to sensitize the students and parents. We feel, it is high time that the Government instructs the Educational Institutions to conduct counseling classes for the students in their teens and parents to sensitize them of the ill-effects of child marriages.

60. We direct the Registry to place the Habeas Corpus Petition before the Division Bench for disposal.

61. Before parting with this judgment, we would like to record our appreciation to the excellent assistance rendered by Mr.P.N.Prakash, the learned counsel who acted as amicus curiae.

1.The Inspector of Police,Thiruvallur Town Police Station, Thiruvallur District.

2.The Public Prosecutor, High Court, Madras.

Note:- The Registry is directed to mark a copy of this judgment to the following:-