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Licensed to :- Srikanth
LAWS(DLH)-2012-7-493
HIGH COURT OF DELHI
Coram : SANJIV KHANNA,V.K.SHALI JJ.
Decided On : July 27, 2012
Appeal Type : W.P. (Crl.) No.338/2008, Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011
Final Verdict :
Appellants :
PRADIP KUMAR DAS
Vs.
Respondents :
UNION OF INDIA
Advocates :
A.S.CHANDHIOK,BALDEV MALIK,PAWAN SHARMA,HARSH PRABHAKAR,SAHIL
MONGIA,APARNA BHATT,KULDEEP SINGH
Equivalent Citation :
ILRDLH-2012-22-3253, LAWS(DLH)-2012-7-493, DRJ-2012-131-225, DLT-2012-193-619, CCR-
2012-4-72, DMC-2012-3-52, CRLJ-2013-0-3458, ICC-2013-2-409, AD(DEL)-2012-6-465,
RCR(CIVIL)-2012-4-821, JCC-2012-3-2148, CIVCC-2013-1-217, KHC-2012-0-2782, HINDULR-
2013-1-90
Referred Judgement :
PHOOLA DEVI VS. THE STATE AND ORS., [2005 8 AD 256] [REFERRED TO]
MANISH SINGH VS. STATE GOVT. OF NCT AND ORS., [2006 1 CCC 208] [REFERRED TO]
ROSY JACOB VS. JACOB A CHAKRAMAKKAL, [AIR 1973 SC 2090] [REFERRED TO]
NEETU SINGH VS. STATE, [1999 1 JCC 170] [REFERRED TO]
SUNIL KUMAR VS. STATE NCT OF DELHI, [2007 2 LRC 56] [REFERRED TO]
KALYANI CHAUDHARI VS. STATE OF U P, [1978 0 CRLJ 1003] [REFERRED TO]
Seema Devi alias Simaran Kaur VS. State of H P, [1998 2 CRIMES 168] [REFERRED TO]
Cited Judgement :
RAJ KAUSHAL VS. STATE & ANR, [LAWS(DLH)-2015-7-579] [REFERRED]
RAJ KAUSHAL VS. STATE & ANR, [LAWS(DLH)-2015-7-579] [REFERRED]
YOGESH HANDA VS. STATE OF PUNJAB, [LAWS(P&H)-2013-9-237] [REFERRED TO]
YOGESH HANDA VS. STATE OF PUNJAB, [LAWS(P&H)-2013-9-237] [REFERRED TO]
POOJA SHARMA VS. STATE (NCT OF DELHI) & ANR, [LAWS(DLH)-2015-2-631]
[REFERRED]
POOJA SHARMA VS. STATE (NCT OF DELHI) & ANR, [LAWS(DLH)-2015-2-631]
Page 1 of 30 Copyright © 2023 by Regent Computronics Private Limited - (www.the-laws.com)

[REFERRED]
JASWINDER KAUR VS. STATE OF PUNJAB AND ORS., [LAWS(P&H)-2015-3-105]
[REFERRED TO]
JASWINDER KAUR VS. STATE OF PUNJAB AND ORS., [LAWS(P&H)-2015-3-105]
[REFERRED TO]
PREETI VS. STATE OF HARYANA, [LAWS(P&H)-2020-10-92] [REFERRED TO]
PREETI VS. STATE OF HARYANA, [LAWS(P&H)-2020-10-92] [REFERRED TO]
PRAWIN PRAKAHAR VS. STATE GOVT. OF NCT OF DELHI , [LAWS(DLH)-2013-3-52]
[REFERRED TO]
PRAWIN PRAKAHAR VS. STATE GOVT. OF NCT OF DELHI , [LAWS(DLH)-2013-3-52]
[REFERRED TO]
RAMU MANDAL & ANR VS. THE STATE (GNCT OF DELHI) & ORS, [LAWS(DLH)-2016-2-
362] [REFERRED TO]
RAMU MANDAL & ANR VS. THE STATE (GNCT OF DELHI) & ORS, [LAWS(DLH)-2016-2-
362] [REFERRED TO]
AMITABH KUMAR SHAHI VS. STATE GOVT OF NCT DELHI, [LAWS(DLH)-2016-5-93]
[REFERRED TO]
AMITABH KUMAR SHAHI VS. STATE GOVT OF NCT DELHI, [LAWS(DLH)-2016-5-93]
[REFERRED TO]
POOJA KUMARI AND ANOTHER VS. STATE OF HARYANA AND ANOTHER, [LAWS(P&H)-
2017-1-231] [REFERRED TO]
POOJA KUMARI AND ANOTHER VS. STATE OF HARYANA AND ANOTHER, [LAWS(P&H)-
2017-1-231] [REFERRED TO]
DHEERAJ KUMAR @ KANNU VS. STATE OF PUNJAB, [LAWS(P&H)-2015-4-425]
[REFERRED TO]
DHEERAJ KUMAR @ KANNU VS. STATE OF PUNJAB, [LAWS(P&H)-2015-4-425]
[REFERRED TO]
ANKIT TYAGI VS. STATE (NCT OF DELHI) AND ORS., [LAWS(DLH)-2015-7-329]
[REFERRED TO]
ANKIT TYAGI VS. STATE (NCT OF DELHI) AND ORS., [LAWS(DLH)-2015-7-329]
[REFERRED TO]
SUNIL SINGH VS. STATE ( NCT OF DELHI) & ORS, [LAWS(DLH)-2015-7-529] [REFERRED]
SUNIL SINGH VS. STATE ( NCT OF DELHI) & ORS, [LAWS(DLH)-2015-7-529] [REFERRED]
YOGESH KUMAR VS. PRIYA, [LAWS(P&H)-2021-8-149] [REFERRED TO]
YOGESH KUMAR VS. PRIYA, [LAWS(P&H)-2021-8-149] [REFERRED TO]
ASHOK DHONDIBA KALE VS. STATE OF MAHARASHTRA THROUGH INVESTIGATION
OFFICER, POLICE STATION SAILU, TQ SAILU, DIST PARBHANI, [LAWS(BOM)-2018-7-128]
[REFERRED TO]
ASHOK DHONDIBA KALE VS. STATE OF MAHARASHTRA THROUGH INVESTIGATION

OFFICER, POLICE STATION SAILU, TQ SAILU, DIST PARBHANI, [LAWS(BOM)-2018-7-128]

[REFERRED TO]
SHIV MANGAL PASWAN &ANR VS. GOVT OF NCT OF DELHI & ANR, [LAWS(DLH)-
2015-12-337] [REFERRED]
SHIV MANGAL PASWAN &ANR VS. GOVT OF NCT OF DELHI & ANR, [LAWS(DLH)-
2015-12-337] [REFERRED]
YUNUSHBHAI USHMAN BHAI SHAIKH VS. STATE OF GUJARAT, [LAWS(GJH)-2015-9-74]
[REFERRED TO]
YUNUSHBHAI USHMAN BHAI SHAIKH VS. STATE OF GUJARAT, [LAWS(GJH)-2015-9-74]
[REFERRED TO]
BHOLU KHAN VS. STATE OF NCT OF DELHI, [LAWS(DLH)-2013-2-7] [REFERRED TO]
BHOLU KHAN VS. STATE OF NCT OF DELHI, [LAWS(DLH)-2013-2-7] [REFERRED TO]
FURQAN VS. STATE, [LAWS(DLH)-2013-1-403] [REFERRED TO]
FURQAN VS. STATE, [LAWS(DLH)-2013-1-403] [REFERRED TO]
MUKESH VS. STATE GOVT OF NCT OF DELHI & ANR, [LAWS(DLH)-2013-10-503]
[REFERRED]
MUKESH VS. STATE GOVT OF NCT OF DELHI & ANR, [LAWS(DLH)-2013-10-503]
[REFERRED]
AKSHIT SACHDEVA VS. THE STATE NCT OF DELHI AND ORS., [LAWS(DLH)-2016-8-132]
[REFERRED TO]
AKSHIT SACHDEVA VS. THE STATE NCT OF DELHI AND ORS., [LAWS(DLH)-2016-8-132]
[REFERRED TO]
AMAN VS. STATE (GOVT. OF NCT OF DELHI) AND ORS., [LAWS(DLH)-2015-10-216]
[REFERRED TO]
AMAN VS. STATE (GOVT. OF NCT OF DELHI) AND ORS., [LAWS(DLH)-2015-10-216]
[REFERRED TO]
RAVNEET KAUR VS. STATE OF PUNJAB, [LAWS(P&H)-2021-8-140] [REFERRED TO]
RAVNEET KAUR VS. STATE OF PUNJAB, [LAWS(P&H)-2021-8-140] [REFERRED TO]
MANISH KUMAR VS. STATE OF U. P., [LAWS(ALL)-2021-5-41] [REFERRED TO]
MANISH KUMAR VS. STATE OF U. P., [LAWS(ALL)-2021-5-41] [REFERRED TO]
Referred Act :
CHILD MARRIAGE RESTRAINT ACT, 1929
CODE OF CRIMINAL PROCEDURE, 1973, S.164, S.200, S.482
HINDU MARRIAGE ACT, 1955, S.11, S.12, S.18, S.5(III)
INDIAN PENAL CODE, 1860, S.465, S.467, S.494, S.497, S.506, S.363, S.366, S.376, S.120B
PROHIBITION OF CHILD MARRIAGE ACT, 2006, S.3(1), S.12, S.2(A)
Headnote :-

CHILD MARRIAGE RESTRAINT ACT, 1929 - , CODE OF CRIMINAL PROCEDURE, 1973 -

S.164 - Recording of confessions and statements, S.200 - Examination of complainant, S.482 -
Saving of inherent powers of High Court, HINDU MARRIAGE ACT, 1955 - S.11 - Void
marriages, S.12 - Voidable marriages, S.18 - Punishment for contravention of certain other
conditions for Hindu marriage, S.5(III) - Conditions for a Hindu marriage, INDIAN PENAL
CODE, 1860 - S.465 - Punishment for forgery, S.467 - Forgery of valuable security, will, etc,
S.494 - Marrying again during lifetime of husband or wife, S.497 - Adultery, S.506 - Punishment
for criminal ,intimidation, S.363 - Punishment for kidnapping, S.366 - Kidnapping, abducting or
inducing woman to compel her marriage, etc., S.376 - Punishment for rape, S.120B - Punishment
of criminal conspiracy, PROHIBITION OF CHILD MARRIAGE ACT, 2006 - S.3(1) - Child
marriages to be voidable at the option of contracting party being a child, S.12 - Marrage of a
minor child to be void in certain circumstances, S.2(A) - Definition - Though we shall take note
of these questions at a later and more appropriate stage, we would like to point out at the outset
that the issues raised can be put in two compartments, viz., (i) what is the status of marriage
under Hindu Law when one of the parties to the marriage is below the age of 18 years
prescribed under Section 5(iii) of the Hindu Marriage Act, 1955 and Section 2 (a) of Prohibition
of Child Marriage Act, 2006 (hereinafter referred as the 'PCM Act') and (ii) when the girl is
minor (but the boy has attained the age of marriage as prescribed) whether the husband he can
be regarded as the lawful guardian of the minor wife and claim her custody in spite of contest
and claim by the parents of the girl. - The Division bench made it clear in para 9 that the
position regarding Muslim Law was different as the said law recognizes marriage of minor, who
has attained puberty as valid and therefore, the status of marriage under Muslim Law is
specifically excluded from reference.Question 1:Whether a marriage contracted by a boy with a
female of less than 18 years and a female of less than 21 year could be said to be valid marriage
and the custody of the said girl be given to the husband (if he is not in custody)?Statutory
provisions of various enactments which have bearing on this issue may be taken note of in the
first instance.Prohibition of Child Marriage Act 2006"Section 2 - DefinitionIn this Act, unless
the context otherwise requires,--(a) "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;(b) "child
marriage" means a marriage to which either of the contracting parties is a child;xxxxx xxxxx
xxxxxx(f) "minor" means a person who, under the provisions of the Majority Act, 1875 (9 of
1875) is to be deemed ot to have attained his majority.xxxxx xxxxx xxxxxx3. - (1) Every child
marriage, whether solemnised before or after the commencement of this Act, shall be voidable at
the option of the contracting party who was a child at the time of the marriage:Provided that a
petition for annulling a child marriage by a decree of nullity may be filed in the district court
only by a contracting party to the marriage who was a child at the time of the marriage.(2) If at
the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her
guardian or next friend along with the Child Marriage Prohibition Officer.(3) The petition

under this section may be filed at any time but before the child filing the petition completes two
years of attaining majority.(4) While granting a decree of nullity under this section, the district
court shall make an order directing both the parties to the marriage and their parents or their
guardians to return to the other party, his or her parents or guardian, as the case may be, the
money, valuables, ornaments and other gifts received on the occasion of the marriage by them
from the other side, or an amount equal to the value of such valuables, ornaments, other gifts
and money:Provided that no order under this section shall be passed unless the concerned
parties have been given notices to appear before the district court and show cause why such
order should not be passed.xxxxx xxxxx xxxxx xxxxx"9.
In that case also five questions were referred for answer by the Division Bench as under:-"(1)
Whether a marriage contracted by a person with a female of less than 18 years could be said to
be valid marriage and the custody of the said girl be given to the husband (if he is not in
custody)?(2) 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?(3) If
yes, can she be kept in the protective custody of the State?(4) Whether in view of the provisions
of Juvenile Justice (Care and Protection of Children) Act, 2000, a minor girl, who claims to have
solemnized her marriage with another person would not be a juvenile in conflict with law and
whether in violation of the procedure mandated by the Juvenile Justice (Care and Protection of
Children) Act, 2000, the Court dealing with a Writ of Habeas Corpus, has the power to entrust
the custody of the minor girl to a person, who contracted the marriage with the minor girl and
thereby committed an offence punishable - The salient features of the Bill, which culminated in
the enactment of the PCM Act, 2006 are as follows:-"(i) To make a provision to declare child
marriage as voidable at the option of the contracting party to the marriage, who was a child.(ii)
To provide a provision requiring the husband or, if he is a minor at the material time, his
guardian to pay maintenance to the minor girl until her remarriage.(iii) To make a provision for
the custody and maintenance of children born of child marriages.(iv) To provide that
notwithstanding a child marriage has been annulled by a decree of nullity under the proposed
section 3, every child born of such marriage, whether before or after the commencement of the
proposed legislation, shall be legitimate for all purposes.(v) To empower the district Court to
add to, modify or revoke any order relating to maintenance of the female petitioner and her
residence and custody or maintenance of children, etc.(vi) To make a provision for declaring the
child marriage as void in certain circumstances.(vii) To empower the Courts to issue injunction
prohibiting solemnsation of marriages in contravention of the provisions of the proposed
legislation.(viii)To make the offences under the proposed legislation to be cognizable for the
purposes of investigation and for other purposes.(ix) To provide for appointment of Child
Marriage Prevention Officers by the State Governments.(x) To empower the State Governments
to make rules for effective administration of the legislation." - Some of the ill effects of the child
marriage were taken note of in the case of Association for Social Justice & Research v.Union of

India & others , some of which are reproduced again:-(i) Girls who get married at an early age
are often more susceptible to the health risks associated with early sexual initiation and
childbearing, including HIV and obstetric fistula.(ii)Young girls who lack status, power and
maturity are often subjected to domestic violence, sexual abuse and social isolation.(iii) Early
marriage almost always deprives girls of their education or meaningful work, which contributes
to persistent poverty.(iv) Child Marriage perpetuates an unrelenting cycle of gender inequality,
sickness and poverty.(v)Getting the girls married at an early age when they are not physically
mature, leads to highest rates of maternal and child mortality.Young mothers face higher risks
during pregnancies including complications such as heavy bleeding, fistula, infection, anaemia,
and eclampsia which contribute to higher mortality rates of both mother and child.
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' strict sensu as per the classification referred
to above." - As held above, PCM Act, 2006 does not render such a marriage as void but only
declares it as voidable, though it leads to an anomalous situation where on the one hand child
marriage is treated as offence which is punishable under law and on the other hand, it still treats
this marriage as valid, i.e., voidable till it is declared as void. - Welfare of minor to be paramount
consideration.-(1) In the appointment of declaration of any person as guardian of a Hindu minor
by a court, the welfare of the minor shall be the paramount consideration.(2) No person shall be
entitled to the guardianship by virtue of the provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship
will not be for the welfare of the minor."The said section has been interpreted and it has been
repeatedly held that while deciding the question of custody of a minor child, it is the interest of
the child, which is paramount and important.
As per the facts noted in para 10 above, Shivani @ Deepika at the time of her marriage was less
than 16 years of age, her date of birth being 3.6.1994. - With these directions, this petition
stands disposed of.
JUDGMENT :
(1.) Five questions are formulated by the Division Bench in its order dated 31.7.2008 passed in
WP(Crl.) No.338/2008 for reference to the larger Bench. Though we shall take note of these questions
at a later and more appropriate stage, we would like to point out at the outset that the issues raised
can be put in two compartments, viz., (i) what is the status of marriage under Hindu Law when one of
the parties to the marriage is below the age of 18 years prescribed under Section 5(iii) of the Hindu
Marriage Act, 1955 and Section 2 (a) of Prohibition of Child Marriage Act, 2006 (hereinafter referred
as the 'PCM Act') and (ii) when the girl is minor (but the boy has attained the age of marriage as
prescribed) whether the husband he can be regarded as the lawful guardian of the minor wife and
claim her custody in spite of contest and claim by the parents of the girl. What is the effect of the
Prohibition of Child Marriage Act, 2006?
(2.) After the aforesaid reference was made, as some other petitions involving same questions came
up for adjudication, they were also directed to be listed along with Writ Petition (Crl.) No.338/2008.
That is the raison d'etre that all these petitions were heard together. We would be in a better position
to appreciate the issues involved if facts in each of these cases are taken note of in the first instance.
Writ Petition (Crl.) No.338/2008
(3.) A letter was addressed by Smt. Lajja Devi wife of Sh.Het Ram, R/o Village Mohra, P.L. Jagat,
P.S. Musa Jhag, District Badayun, Uttar Pradesh to the Hon'ble the Chief Justice of this Court. In the
letter, it was alleged by Smt. Lajja Devi that her daughter named Ms.Meera, who was around 14
years of age (date of birth being 6.7.1995) was kidnapped by Promod, Vinod, Satish, Manoj S/o Shri
Raj Mal. This kidnapping is purported to have taken place when Ms. Meera had visited Delhi to meet
the brother-inlaw of the Complainant at A- 113, Rajiv Nagar Extension, Near Village Begumpur,
Delhi-110086. On the basis of the said information, an FIR bearing No.113/2008 under Section 363
IPC had been registered at P.S. Sultanpuri on 21st February, 2008 against the aforesaid accused
persons.
(4.) This letter was treated as a Writ Petition and was placed before the appropriate Bench on 14th
March, 2008 whereupon notice was issued to the State directing it to file the Status Report. Four
Status Reports have been filed by the Police from time to time. These Reports are dated 02.4.2008,
12.5.2008, 11.5.2008 and 11.7.2008. The local Police, as a consequence of registration of this FIR,
had arrested Shri Charan Singh from Village Sakatpur District Badayun, U.P. wherefrom the minor
girl Ms.Meera was also recovered, as both of them were living together. The girl had made a
statement under Section 164 of Cr.P.C. before the learned Metropolitan Magistrate, Rohini Courts
Delhi that she had gone along with the accused Charan Singh of her own free will as her Uncle and
Aunt were marrying her against her wishes. Charan Singh was taken in Judicial Custody on 8.6.
2008. Admittedly, Ms. Meera was a minor, and in all probabilities is aged around 13 years and a
month as on that date.
(5.) Initially, Ms. Meera refused to go along with her parents, her natural guardians, on the ground
that they intended were intending to marry her off with some other person. She was, thus, sent to
Nirmal Chhaya in judicial custody. However, when the matter came up for hearing on 31.7.2008, she
desired to reside with her parents on the assurance given by the parents that they would not marry her
to someone else.
(6.) When the matter was taken up for arguments on 31.7.2008, the aforesaid facts were taken note of
which points out that Ms. Meera was not abducted by Shri Charan Singh. On the contrary, she went
with him on her own accord and they got married. However, she was not only minor but even less
than 15 years of age. She had initially expressed her apprehension in joining her parental home. On
the other hand, her husband's family wanted to have the custody of Ms. Meera as her husband was in

judicial custody. In this backdrop, the question arose as to what would be the status of such a
marriage. Can it be treated as a valid marriage' Or was it the voidable by law' Or it was simply an
illegal marriage not recognized. The question of entitlement of husband to have the custody of a
minor person with whom he married could depend upon the answer to the aforesaid question.
Crl.M.C. No.1001/2011
(7.) This petition is filed under Section 482 of the Code of Criminal Procedure seeking quashing of
FIR registered against the petitioner No.2 under Sections 363/366/376/465/467/494/497/120B and
506 of the Indian Penal Code. It is stated that the petitioner No.1 had of her own will joined the
company of the petitioner No.2 and got married with him according to Hindu rites and ceremonies on
4.3.2010. However, the respondent No.2, father of the petitioner No.1, lodged a missing report on
5.3.2010 in the Police Station. It is alleged that in the said missing report he had stated that the
petitioner No.1 aged 20 years was missing. Thereafter, in April, 2010 he filed habeas corpus petition
taking the stand that the petitioner No.1 was minor and she had been married by the respondent no.2
to someone else at Rajasthan when she returned from her in laws from Rajasthan to Delhi. She was
enticed away by the petitioner No.2. The notice was issued in the said writ petition and production of
the petitioner No.1 was ordered. The Police recovered her and produced before the Court on
19.4.2010. She stated that she had married the petitioner No.2 on her own accord and without any
pressure and wanted to live with the petitioner No.2, who was her husband.
In view of the conflicting claims about her age, direction was given to the I.O. to verify her
age. The Court sent the petitioner No.1 to Nirmal Chhaya Nari Niketan for protective custody.
Ossification test was conducted and the age of the petitioner No.1 was found between 17-19 years.
The respondent No.2, father of the petitioner No.1, had produced the school leaving certificate which
showed her date of birth as 3.3.1993 and on this basis, she was 17 years of age on the date when the
parties allegedly solemnised marriage.
The father of the petitioner No.1 wanted her custody. However, she gave the statement that
she would like to stay at Nari Niketan rather than joining her parents. In view of this statement, the
Court sent the petitioner No.1 to Nari Niketan till the time she attained the age of majority vide orders
dated 31.5.2010. However, at the same time the petitioner No.2 was allowed to meet her twice a week
at least for two hours on each occasion vide orders dated 29.10.2011. As per the school leaving
certificate she completed the age of 18 years on 3.3.2011. She was, thus, released from Nari Niketan
and she decided to join the company of the petitioner No.2 and has been living with him. However,
on 25.2.2011 the petitioner No.2 was arrested in the FIR No.31/2011, PS Dabri under Sections
363/366/376/465/467/494/ 497/120-B/506 IPC. This FIR was registered on the basis of the directions
given by the learned MM upon the complaint filed by the respondent No.2 on 3.4.2010. It is, in these
circumstances, both the petitioners filed the aforesaid petition seeking quashing of the FIR.
WP (Crl.) No.821/2008
(8.) The petitioner in this case is the father of a minor girl Kiran Devi, who according to him was 15
years of age at that time. As per the averments made in the writ petition, Kiran Devi was found
missing from her house on 27.10.2006 on which date a boy named Jagat Pal was also found missing
with his parents who were residing in the neighbourhood of the petitioner. The petitioner lodged
missing report with Police Station Samaypur Badli (now new Police Station Swaroop Nagar) on
30.10.2006. Thereafter, FIR No.968/2006 was lodged at that Police Station on 12.11.2006. Pursuant
to this FIR the police became active and after search nabbed the boy Jagat Pal and also took Kiran

Devi into custody on 5.12.2006. According to the petitioner, though he made various complaints to
the police and even filed complaint under Section 200 Cr.P.C. seeking direction to register the case
and also passed orders of arrest of the accused persons. As nothing happened, he filed the instant
petition for taking action against the person involved in the forcible custody of his minor daughter
with the direction to produce the girl before the Court.
(9.) After recovery Kiran Devi had been sent to Nirmal Chhaya on 5.9.2008 and she made a statement
that she wanted to continue to reside at Nirmal Chhaya as her parents were not accepting her
marriage. Earlier she had made the statement that she had gone with Jagat Pal of her own accord and
willingly married him without any pressure or coercion. It is, in these circumstances, question of
validity of marriage and guardianship has arisen for consideration in this case.
Crl.M. No.566/2010
(10.) This petition is filed by one sh. Devender Kumar who states that he married Shivani @ Deepika
according to Hindu rites and ceremonies in a temple at Delhi on 7.8.2009. According to him, Shivani
was a major at that time. However, at the instance of father of Shivani, FIR No.97/2009 at Police
Station Lahori Gate, Delhi was registered under Section 363 IPC on 10.8.2009 to which later on
Section 366 and 376 were added. The petitioner stated in the petition that when he learnt about
registration of that FIR he and Shivani appeared before the learned MM where Shivani gave her
statement under Section 164 of the Cr.P.C. that she had married the petitioner of her own accord.
After recording her statement and after her medical examination, since she was prima facie found to
be minor, Shivani was sent to Nirmal Chhaya till 5.4.2010 when the aforesaid petition was filed by
the petitioner for issuance of writ of habeas corpus and giving him the custody of Shivani. The
events, which took place in the meantime that after the arrest of the petitioner in the aforesaid FIR, he
was released on bail on 26.10.2009. He moved application for custody of Shivani with the learned
MM, which was dismissed on 11.11.2009 and the matter of her release was referred to the Child
Welfare Committee (CWC). However, the CWC was not passing the order because of which the
petitioner filed the petition for habeas corpus.
(11.) It would be clear from the facts of all the aforesaid cases that in all these cases the girls have
given the statement that they were not kidnapped but eloped with the respective persons of their own
and got married with them. All the four girls maintained that the marriage was solemnized with their
free consent. However, all the four girls were below 18 years when they got married, whereas there is
no dispute about the ages of the boys with whom they got married as they were above 21 years of age
at the time of marriage.
(12.) In some cases, the girls were even less than 15 years. It is under these circumstances questions
that have arisen in all these cases are common. Now, we proceed to reproduce the questions
formulated by the Division Bench in its order dated 31.7.2008 in W.P. (Crl.) No.338/2008, which are
as follows:
1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of
less than 21 year could be said to be valid marriage and the custody of the said girl be given to the
husband (if he is not in custody)?
2) 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?
3) If yes, can she be kept in the protective custody of the State?
4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of
the statement of such a minor that she has contracted the marriage of her own?
5) Whether there may be other presumptions also which may arise?"
(13.) We would like to mention here that the reason for referring the aforesaid questions for
consideration by Larger Bench arose on account of three Division Bench judgments of this Court
wherein view was taken that marriage of a minor girl would neither be void nor voidable under the
Hindu Marriage Act, 1955 (hereinafter referred to as the HM Act).
(14.) The Division Bench, however, was not willing to accept the decision of the aforesaid three
judgments as, according to it, in these cases there was no consideration of all extent statutes.
(15.) The three judgments of the Division Bench, on the one hand and the views expressed by the
Division Bench in its orders dated 31.7.2008 reflect the conflicting views on the issues involved.
However, much detailed submissions were made before us at the time of arguments and we would
point out these submissions while giving our opinion on the questions referred. The Division bench
made it clear in para 9 that the position regarding Muslim Law was different as the said law
recognizes marriage of minor, who has attained puberty as valid and therefore, the status of marriage
under Muslim Law is specifically excluded from reference.
Question 1:
Whether a marriage contracted by a boy with a female of less than 18 years and a female of
less than 21 year could be said to be valid marriage and the custody of the said girl be given to the
husband (if he is not in custody)?
Statutory provisions of various enactments which have bearing on this issue may be taken
note of in the first instance.
Prohibition of Child Marriage Act 2006
"Section 2 - Definition
In this Act, unless the context otherwise requires,--
(a) "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;
(b) "child marriage" means a marriage to which either of the contracting parties is a child;
xxxxx xxxxx xxxxxx
(f) "minor" means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is
to be deemed ot to have attained his majority.
xxxxx xxxxx xxxxxx
3. Child marriages to be voidable at the option of contracting party being a child. (1) Every
child marriage, whether solemnised before or after the commencement of this Act, shall be voidable
at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in
the district court only by a contracting party to the marriage who was a child at the time of the
marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through
his or her guardian or next friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the
petition completes two years of attaining majority.

(4) While granting a decree of nullity under this section, the district court shall make an order
directing both the parties to the marriage and their parents or their guardians to return to the other
party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other
gifts received on the occasion of the marriage by them from the other side, or an amount equal to the
value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have
been given notices to appear before the district court and show cause why such order should not be
passed.
xxxxx xxxxx xxxxx xxxxx
"9. Punishment for male adult marrying a child.
Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be
punishable with rigorous imprisonment which may extend to two years or with fine which may
extend to one lakh rupees or with both."
xxxxx xxxxx xxxxx xxxxx
"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.
xxxxx xxxxx xxxxx
"15. Offences to be cognizable and nonbailable Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 od 1974), an offence punishable under this Act shall be
cognizable and nonbailable." Hindu Marriage Act
"5. Conditions for a Hindu marriage. A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely-
xxxxx xxxxx xxxxx
(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;"
xxxxx xxxxx xxxxx
"11. Void marriages. Any marriage solemnised after the commencement of this Act shall be
null and void and may, on a petition presented by either party thereto 1 [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."
xxxxx xxxxx xxxxx
12. Voidable marriages. (1) Any marriage solemnised, whether before or after the
commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of
the following grounds, namely:-
1 [(a) that the marriage has not been consummated owing to the impotence of the respondent;
or]
(b) that the marriage is in contravention of the condition specified in clause (ii) of section 5;
or
(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the

petitioner 2 [was required under section 5 as it stood immediately before the commencement of the
Child Marriage Restraint (Amendment) Act, the 1978 (2 of 1978)], the consent of such guardian was
obtained by force 3 [or by fraud as to the nature of the ceremony or as to any material fact or
circumstance concerning the respondent]; or
(d) that the respondent was at the time of the marriage pregnant by some person other than the
petitioner.
(2) Notwithstanding anything contained in subsection (1), no petition for annulling a marriage-
(a) on the ground specified in clause (c) of subsection (1) shall be entertained if-
(i) the petition is presented more than one year after the force had ceased to operate or, as the
case may be, the fraud had been discovered; or
(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage
as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been
discovered;
(b) on the ground specified in clause (d) of subsection (1) shall be entertained unless the court
is satisfied-
(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;
(ii) that proceedings have been instituted in the case of a marriage solemnised before the
commencement of this Act within one year of such commencement and in the case of marriages
solemnised after such commencement within one year from the date of the marriage; and
(iii) that marital intercourse with the consent of the petitioner has not taken place since the
discovery by the petitioner of the existence of 4 [the said ground]."
xxxx xxxxx xxxxx
13. Divorce. -
xxxxx xxxxx xxxxx
(2) A wife may also present a petition for dissolution of her marriage by a decree of divorce
on the ground,-
xxxxx xxxxx xxxxxx
(iv) that her marriage (whether consummated or not) was solemnised before she attained the
age of fifteen years and she has repudiated the marriage after attaining that age but before attaining
the age of eighteen years.
Explanation. This clause applies whether the marriage was solemnised before or after the
commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
xxxxx xxxxx xxxxxx
"18. Punishment for contravention of certain other conditions for a Hindu marriage. Every
person who procures a marriage of himself or herself to be solemnized under this Act in
contravention of the conditions specified in clauses (iii), (iv), 1 [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;"
Special Marriage Act

"4. Conditions relating to solemnization of special marriages. Notwithstanding anything

contained in any other law for the time being in force relating to the solemnization of marriages, a
marriage between any two persons may be solemnized under this Act, if at the time of the marriage
the following conditions are fulfilled, namely:--
(a) neither party has a spouse living;
[(b) neither party--
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) 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
(iii) has been subject to recurrent attacks of insanity;]
(c) the male has completed the age of twentyone years and the female the age of eighteen
years;
[(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage
between them, such marriage may be solemnized, notwithstanding that they are within the degrees of
prohibited relationship; and]
(e) where the marriage is solemnized in the State of Jammu and Kashmir, both parties are
citizens of India domiciled in the territories to which this Act extends].
[Explanation.--In this section, "custom", in relation to a person belonging to any tribe,
community, group or family, means any rule which the State Government may, by notification in the
Official Gazette, specify in this behalf as applicable to members of that tribe, community, group or
family:
Provided that no such notification shall be issued in relation to the members of any tribe,
community, group or family, unless the State Government is satisfied--
(i) that such rule has been continuously and uniformly observed for a long time among those
members;
(ii) that such rule is certain and not unreasonable or opposed to public policy; and
(iii) that such rule, if applicable only to a family, has not been discontinued by the family.]"
xxxxx xxxxx xxxxx
24. Void marriages. (1) Any marriage solemnized under this Act shall be null and void 1 [and
may, on a petition presented by either party thereto against the other party, be so declared] by a
decree of nullity if--
(i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been
fulfilled; or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution
of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized
under this Act within the meaning of section 18, but the registration of any such marriage under
Chapter III may be declared to be of no effect if the registration was in contravention of any of the
conditions specified in clauses (a) to (e) of section 15:
Provided that no such declaration shall be made in any case where an appeal -has been
preferred under section 17 and the decision of the district court has become final.
(16.) Interpreting the provisions of HM Act, the three Division Benches of this Court, as pointed out

earlier, held the view that the marriage of a minor under the HM Act was valid. The genesis of
arriving at such a conclusion is discussed in brief by the Division Bench in its order dated 31.7.2008
in paras 4 to 8, which are as under:-
"4. It may be pertinent here to mention that there are three judgments of the Division Bench
of this Court which are having bearing so far as the questions arising in the instant case are
concerned. In the first case titled as Neetu Singh vs. State and Ors.,1999 1 JCC(Del) 170, the Division
Bench was called upon to test the validity of an order passed by the Additional Metropolitan
Magistrate remanding the minor to Nari Niketan for the purpose of custody, against her own wishes.
The Division Bench of the High Court quashed the order of remanding the minor girl to Nari Niketan
by observing that a marriage of a minor girl in contravention of Section 5(iii) of the Hindu Marriage
Act is neither void nor voidable and the only sanction which is provided under Section 18 of the Act
is a sentence of 15 days and a fine of Rs.1,000/-. The girl was released to the husband. Reference was
made to the judgments of other High Courts namely Mrs. Kalyani Chaudhary vs. The State of U.P.
and Ors., 1978 CrLJ 1003 and Seema Devi alias Simaran Kaur vs. State of H.P., 1998 2 Crimes 168,
which however did not consider the Child Marriage Restraint Act, 1929 which now stands repealed
by Prohibition of Child Marriage Act, 2006.
5. In the recent years, there have been two judgments of a Division Bench both headed by
Hon'ble Mr. Justice Manmohan Sarin. In the first judgment titled as Manish Singh Vs. State Govt. of
NCT and Ors.,2006 1 CCC 208 and Sunil Kumar Vs. State NCT of Delhi and Anr.,2007 2 LRC 56,
wherein the Division Bench has affirmed its earlier view approving Neetu Singh's case.
6. The Division Bench also referred to its own judgments in Ravi Kumar Vs. The State and
Anr., 2005 124 DLT 1 and Phoola Devi vs. The State and Ors., 2005 8 AD(Del) 256. The sum and
substance of these authorities is that marriage solemnized in contravention of the age prescribed
under Section 5(iii) of the Hindu Marriage Act i.e. 21 years for male and 18 years for female are
neither void nor voidable under Sections 11 and 12 of the Hindu Marriage Act. The only sanction
prescribed against such marriages was noticed to be a punishment prescribed under Section 18 of the
said Act which was to the extent of 15 days and a fine of Rs.1,000/-.
7. The Hon'ble Division Bench was at pains to explain that by making such pronouncement,
the Court was only interpreting the provisions of law and it could not have been perceived as
reducing the age of marriage, reducing the age of consent or declining to nullify marriages of minors.
It was observed that this was neither the intent of the Court nor was any such prayer made in these
petitions and it was primarily for the legislature to consider as to whether the present provisions under
the Hindu Marriage Act and the Child Marriage Restraint Act are insufficient or being failed to
discourage child marriages and take such remedial actions as may deemed appropriate in their
wisdom.
8. In Manish Singh's and Ram Ladle Chaturvedi's case, the Division Bench directed quashing
of FIR under Section 363 against Ram Ladle Chaturvedi while as in Sunil Kumar's case the Division
Bench permitted the girl who was aged 16 years to reside with her husband-the alleged kidnapper on
the ground that the girl had come of age of discretion. We are of the opinion of these judgments have
not taken into consideration of the prohibition of Child Marriage Act, 2006 which makes the
contracting of a marriage by a boy above the age of 18 with a girl who is less than 18 as a cognizable
and nonbailable offence."
(17.) However, in the reference order the Division Bench has recorded a discordant note and the

reason given in the reference order is that the provisions of the PCM Act were not taken into
consideration, which would materially change the legal position. Discussion in this behalf is
contained in para-10, which is as under:-
"10. The easiest course for us would have been to follow the Division Bench judgments of
our own High Court on this question with regard to legality of marriage as well as custody of the
minor spouse. However, we are of the view that a question of public importance is involved in the
matter which needs consideration by a Full Bench on account of the absence of consideration of all
extant statutes:-
(a) The first reason why prima facie, we hesitate to agree with the observations passed by the
Division Bench of this Court is on account of the fact that although there may be different definitions
of the word 'child' with regard to the age of the minor girl given in different enactments but the
purpose of each enactment is to be seen. The enactment which is of utmost importance with regard to
the child marriage or for that matter the marriage with a minor girl would be the Prohibition of Child
Marriage Act, 2006.
(b) According to Section 2 (a) of the Prohibition of Child Marriage Act, 2006, a 'child' means
a person who, if a male, has not completed twenty-one years of age, and if female, has not completed
eighteen years of age.
(c) Section 12(a) of the said Act makes the marriage of a minor girl who has been taken or
enticed out of the keeping of the lawful guardian shall be null and void. The language of Section 12(a)
of the said Act is mandatory in nature and does not admit of any reservation. Further it makes the
marriage of a child, or a minor girl as null and void. That means the marriage itself is non-existent and
the law does not recognize the same. Section 9 of the said Act provides for punishment for a male
adult above 18 years of age contracting a child marriage punishable with rigorous imprisonment
which may extend to two years or with fine which may extend to Rs. 1 lac or with both.
(d) The offence carries a punishment which may extend up to 2 years and, therefore, clearly
the offence would be bailable and non-cognizable. Despite this, by virtue of the non-obstante clause
of the Section 15 of the Act, such offence is a cognizable and non-bailable offence under Cr.P.C. This
aspect of the matter has not been previously considered by the Court and accordingly quashing of FIR
under Section 363 or in the instant case under Section 363 and 376 would not only be in
contravention of law but also against the letter and spirit of the Act by observing that the girl has
attained the age of discretion with the reference to Sections 5(iii), 11, 12 and 18 of the Hindu
Marriage Act."
(18.) We would also like to point out in the interregnum, this very issue is discussed by other Courts
as well and the judgments to that effect were placed before us by the learned counsel for the parties.
In Amnider Kaur and Anr. v. State of Punjab and Ors., 2010 CrLJ 1154 decided by Punjab and
Haryana High Court, the Single Judge of the said Court has taken a view that having regard to the
provisions of Section 12 of the PCM Act, marriage with a minor girl would be void. A perusal of this
judgment would show that the learned Judge has proceeded almost on same lines as taken by the
Division Bench in the present reference order, which is clear from the following passages of this
judgment:-
"14. In this case the facts are not in dispute. Petitioner No. 1 was a minor girl being 16 years
and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act,
1875 every person domiciled in India shall attain the age of majority on his completing the age of

eighteen years and not before. According to Section 2(f) of the Act "minor" means a person who,
under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his
majority. According to Section 2(a) of the Act, "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 and
according to Section 2(b) of the Act, "child marriage" means a marriage to which either of the
contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No. 1 which
falls within the definition of child and within the definition of minor being the age of 16 years and 2
months who has been enticed away out of the keeping of the lawful guardian cannot contract the
marriage and her marriage shall be null and void.
15. In view of those provisions, I have no other choice but to hold that marriage of petitioners
No. 1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate
(Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the
learned Counsel for the petitioners in support of their case, is applicable to the facts and
circumstances of the present case because in the case of Ravi Kumar , the Division Bench had
considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of
violation of Section 5(iii) of the Act of 1955, the punishment is only 15 days simple imprisonment
with fine of Rs. 1000/- or both but the marriage is not illegal or void. However, much water has
flown thereafter and now for the contravention of Section 5(iii) of the Act of 1955, the punishment
under Section 18 (a) has been enhanced to 2 years, rigorous imprisonment and/or with fine up to of
lac or with both. Moreover, the case of Ravi Kumar was decided on 5.10.2005. At that time, the Act
was not in force as it did not receive the assent of President of India and has been notified w.e.f
1.11.2007. Therefore, the learned Counsel for the petitioners cannot take the advantage of the
observations made in the case of Ravi Kumar . Insofar as the case of Ridhwana and another is
concerned, in that case also this Court had prima-facie found that there is evidence collected by the
police that girl was more than 18 years of age but still while parting with the judgment for the sake of
argument, it was decided that even if girl is 16 years and 2 months age and has married with her own
sweet will, no offence is said to have been committed. This Court had no occasion to refer to the
provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable.
The case of Lata Singh, 2006 CrLJ 3309 itself talks about the persons who were major at that time
when they got married and on that premise, it was held that if the persons are major and have got
married on their own, their life and liberty should not be threatened by the persons who are against
their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of
Pardeep Kumar Singh this Court had laid down as many as nine directions but in none of the
directions it has been provided that if the girl is minor and has been enticed away for the purpose of
marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of
Section 12 of the Act would apply with full rigour in the present case and the marriage which has
been solemnised by petitioner No. 2 with petitioner No. l, who is child and a minor, is unsustainable
in the eyes of law and is thus, declared as void.
16. The second question involved in this case is that whether the persons, who have
performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act
provides for punishment for such persons and Section 15 of the Act provides that notwithstanding
anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-
bailable. Therefore, I hold that the person who has performed or abetted the child marriage of
petitioner No. 1, is also equally liable and for that purpose, I direct the State to take appropriate

action by lodging the case against the persons who are responsible for the performance of the child
marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take
the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their
void marriage. The life and liberty of petitioners No. 1 and 2 is only endangered and is being
threatened by respondent No. 4 so long their marriage legally subsists but once their marriage is
declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the
allegation against the husband is of enticing away minor girl from the lawful keeping of
guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under
Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to
be granted to a fugitive of law."
(19.) Then, we have T. Sivakumar v. The Inspector of Police, (HCP No.907/11 decided on
3.10.2011), which is a judgment by the Full Bench of the Madras High Court. In that case also five
questions were referred for answer by the Division Bench as under:-
"(1) Whether a marriage contracted by a person with a female of less than 18 years could be
said to be valid marriage and the custody of the said girl be given to the husband (if he is not in
custody)?
(2) Whether a minor can be said to have reached the age of discretion and thereby walk away
(3) If yes, can she be kept in the protective custody of the State?
(4) Whether in view of the provisions of Juvenile Justice (Care and Protection of Children)
Act, 2000, a minor girl, who claims to have solemnized her marriage with another person would not
be a juvenile in conflict with law and whether in violation of the procedure mandated by the Juvenile
Justice (Care and Protection of Children) Act, 2000, the Court dealing with a Writ of Habeas Corpus,
has the power to entrust the custody of the minor girl to a person, who contracted the marriage with
the minor girl and thereby committed an offence punishable under Section 18 of the Hindu Marriage
Act and Section 9 of the Prohibition of Child Marriage Act, 2006? And
(5) Whether the principles of Section 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?"
(20.) The Full Bench of the Madras High Court referred to the provisions of HM Act as well as PCM
Act. It observed that the position, which was under the HM Act as well as Child Marriage Restraint
Act (hereinafter referred to as the 'CMRA'), was that these Acts do not declare marriage of a minor
either as void or voidable and such marriage of a child was treated all along as valid. There were
number of judicial pronouncements to this effect. In this legal scenario, Hindu Minority and
Guardianship Act also provided that the husband of a wife is her natural guardian. After taking note of
this position, which prevailed on the reading of HM Act and CMRA the Court discussed the reason
for enacting the PCM Act, namely, which replaced the CMRA and it has been pointed out that "it is
manifestly clear that this Act is secular in nature which has crossed all barriers of personal laws."
Thus, irrespective of personal laws, under this Act child marriages are prohibited. Section 3 of this
Act makes the child marriage to be voidable at the option of contracting party being a child. The Full
Bench noted that this is a great departure from the position in HM Act. When the PCM Act, 2006 was
enacted, the Parliament was aware of the provisions of Sections 5, 11, 12 and 18 of the HM Act. By
declaring that the PCM Act shall apply to all citizens, the Parliament has intended to allow the PCM

Act to override the provisions of HM Act to the extent of inconsistencies between these two
enactments. Similarly, PCM Act will override the personal law. This is manifest from the statement
of Objects and Reasons of the PCM Act, 2006, which reads as follows:-
"1) The Child Marriage Restraint Act, 1929 was enacted with a view to restraining
solemnisation of child marriages. The Act was subsequently amended in 1949 and 1978 in order,
inter alia, to raise the age limit of the male and female persons for the purpose of marriage. The Act,
though restrains solemnisation of child marriages yet it does not declare them to be void or invalid.
The solemnisation of child marriage is punishable under the Act.
2) There has been a growing demand for making the provisions of the Act more effective and
the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of
solemnisation of child marriages in the country. This will enhance the health of children and the
status of women. The National Commission for women in its Annual Report for the year 1995-96
recommended that the Government should appoint Child Marriage Prevention Officers immediately.
It further recommended that (i) the punishment provided under the Act should be made more
stringent;
(ii) marriages performed in contravention of the Act should be made void; and (iii) the
offences under the Act should be made cognizable.
3) The National Human Rights Commission undertook a comprehensive review of the
existing Act and made recommendations for comprehensive amendments therein vide its Annual
Report 2001-2002. The Central Government, after consulting the State Governments and Union
Territory Administrations on the recommendations of the National Commission for Women and the
National Human Rights Commission, had decided to accept almost all the recommendations and give
effect to them by repealing and re-enacting the Child Marriage Restraint Act, 1929."
(21.) On that basis, view of the Full Bench of Madras High Court was that the law was enacted for the
purpose of effectually preventing evil practice of solemnisation of child marriages and also to enhance
the health of the children and the status of the marriage and therefore, it was a special enactment in
contrast with the HM Act, which is a general law regulating Hindu marriages. Thus, the PCM Act,
being a special law, will have overriding effect over the HM Act to the extent of any inconsistency
between the two enactments. For this reason, the Court took the view that Section 3 of this Act would
have overriding effect over the HM Act and the marriage with a minor child would not be valid but
voidable and would become valid if within two years from the date of attaining 18 years in the case of
female and 21 years in the case of male, a petition is not filed before the District Court under Section
3(1) of the PCM Act for annulling the 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, the marriage shall continue to remain as a voidable
marriage.
(22.) The circumstances under which this voidable marriage will become valid or would be treated as
annulled as per Section 3 of the Act, is stated by the Full Bench in para 21 of the said judgment in the
following manner:
"21. ..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.
xxxxx xxxxx xxxxx
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'
strict sensu as per the classification referred to above."
(23.) We would be failing in our duty if we do not refer to another Division Bench judgment of this
Court delivered on 11.08.2010 in W.P. (Crl.) No.1003/2010 in the case entitled Sh. Jitender Kumar
Sharma v. State and Another. That was a case where both the boy and the girl were minors, who had
fallen in love; eloped together and got married as per the Hindu rites and ceremonies. The Division
Bench specifically considered the issue of validity of marriage. The Court took note of the earlier
Division Bench judgments as well as the provisions of PCM Act, 2006. The Division Bench was,
however, of the view that the validity of marriage is primarily to be judged from the standpoint of
personal law applicable to the parties to the marriage. The Court was of the opinion that a Hindu
marriage, which is not a void marriage under the HM Act, would continue to be such provided the
provisions of Section 12 of the PCM Act, 2006 are not attracted. A marriage in contravention of
Clause (3) of Section 5 of the HM Act was neither void nor voidable. However, Section 3 of the PCM
Act had introduced the concept of a voidable marriage. This was a secular law. In view of Section 3
thereof, which made child marriages to be voidable at the option of the contracting party being a
child, the Division Bench observed that the position contained in Clause (3) of Section 5 of the HM
Act holding that such a marriage was neither void nor voidable was the legal position prior to the
enactment and enforcement of PCM Act, 2006 and after this enactment the marriage in contravention
of Clause (3) of Section 5 of the HM Act would not be ipso facto void but could be void if any of the
circumstances enumerated in Section 12 of the PCM Act, 2006 is triggered and the effect of Section 3
of PCM Act and the interplay of Section 3 of the PCM Act and Clause (3) of Section 5 of the HM
Act is summarised in the following manner:-
"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 marriage 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."
(24.) Detailed submissions were made before us in the light of the provisions of various enactments
and the views expressed by the Court in various judgments taken note of above. Instead of
reproducing arguments in detail, it would be suffice to point out that whereas Mr. Arvind Jain
primarily argued on the lines of the Full Bench judgment rendered by Madras High Court in T.
Sivakumar v. The Inspector of Police , Mr. Chandhiok, learned ASG, argued that view taken by the
Division Bench of this Court in Sh. Jitender Kumar Sharma v. State and Another was in tune with
law. Since we have already given the gist of these two judgments and what they decide, to avoid
duplicity we are not reproducing in detail, arguments of the learned counsel for the parties on this
aspect.
(25.) At the outset we would like to point out that the object behind enacting PCM Act was to curb the
menace of child marriages, which is still prevalent in this country and is most common in rural areas.
The Full Bench of Madras High Court has undertaken indepth discussion of this evil of child marriage
in India. A Division Bench of this Court in Association for Social Justice & Research v.Union of
India & others, [W.P. (Crl.) No.535/2010] decided on 13.5.2010 also took note of this menace, inter
alia, pointing out as under:-
"6. Sociologists even argue that for variety of reasons, child marriages are prevalent in many
parts of this country and the reality is more complex than what it seems to be. The surprising thing is
that almost all communities where this practice is prevalent are well aware of the fact that marrying
child is illegal, nay, it is even punishable under the law. NGOs as well as the Government agencies
have been working for decades to root out this evil. Yet, the reality is that the evil continues to
survive. Again, sociologists attribute these phenomenon of child marriage to a variety of reasons. The
foremost amongst these reasons are poverty, culture, tradition and values based on patriarchal norms.
Other reasons are: low-level of education of girls, lower status given to the girls and considering
them as financial burden and social customs and traditions. In many cases, the mixture of these
causes results in the imprisonment of children in marriage without their consent.
7. The present case is a telling example, which proves the sociologists correct.
8. It cannot be disputed that the aforesaid marriage is in violation of provisions of the
Prohibition of Child Marriage Act, 2006 inasmuch as Chandni is minor and in below the age of 18
years. At the same time, marriage is not void under civil law. The circumstances under which
Chandni is married to Yashpal are narrated above and presumably under these forced circumstances,

economic or otherwise, Vijay Pal decided to marry Chandni to Yashpal even when she was less than
18 years. Be as it may, since Vijay Pal and Yashpal are already arrested and FIR is also registered
against them, insofar as that aspect is concerned, law will take its own course.
9. The purpose and rationale behind the Prohibition of Child Marriage Act, 2006 is that there
should not be a marriage of a child at a tender age as he/she is neither psychologically nor physically
fit to get married. There could be various psychological and other implications of such marriage,
particularly if the child happens to be a girl. In actuality, child marriage is a violation of human
rights, compromising the development of girls and often resulting in early pregnancy and social
isolation, with little education and poor vocational training reinforcing the gendered nature of
poverty. Young married girls are a unique, though often invisible, group. Required to perform heavy
amounts of domestic work, under pressure to demonstrate fertility, and responsible for raising
children while still children themselves, married girls and child mothers face constrained decision
making and reduced life choices. Boys are also affected by child marriage but the issue impacts girls
in far larger numbers and with more intensity. Where a girl lives with a man and takes on the role of
caregiver for him, the assumption is often that she has become an adult woman, even if she has not
yet reached the age of 18. Some of the ill-effects of child marriage can be summarized as under:
(i) Girls who get married at an early age are often more susceptible to the health risks
associated with early sexual initiation and childbearing, including HIV and obstetric fistula.
(ii) Young girls who lack status, power and maturity are often subjected to domestic
violence, sexual abuse and social isolation.
(iii) Early marriage almost always deprives girls of their education or meaningful work,
which contributes to persistent poverty.
(iv) Child Marriage perpetuates an unrelenting cycle of gender inequality, sickness and
poverty.
(v) Getting the girls married at an early age when they are not physically mature, leads to
highest rates of maternal and child mortality.
Young mothers face higher risks during pregnancies including complications such as heavy
bleeding, fistula, infection, anaemia, and eclampsia which contribute to higher mortality rates of both
mother and child. At a young age a girl has not developed fully and her body may strain under the
effort of child birth, which can result in obstructed labour and obstetric fistula. Obstetric fistula can
also be caused by the early sexual relations associated with child marriage, which take place
sometimes even before menarche. Child marriage also has considerable implications for the social
development of child bridges, in terms of low levels of education, poor health and lack of agency and
personal autonomy. The Forum on Marriage and the Rights of Women and Girls explains that 'where
these elements are linked with gender inequities and biases for the majority of young girls their
socialization which grooms them to be mothers and submissive wives, limits their development to
only reproductive roles. A lack of education also means that young brides often lack knowledge about
sexual relations, their bodies and reproduction, exacerbated by the cultural silence surrounding these
subjects. This denies the girl the ability to make informed decisions about sexual relations, planning a
family, and her health, yet another example of their lives in which they have no control. Women who
marry early are more likely to suffer abuse and violence, with inevitable psychological as well as
physical consequences. Studies indicate that women who marry at young ages are more likely to
believe that it is sometimes acceptable for a husband to beat his wife, and are therefore more likely to
experience domestic violence themselves. Violent behaviour can take the form of physical harm,

physical harm, psychological attacks, threatening behaviour and forced sexual acts including rape.
Abuse is sometimes perpetrated by the husband's family as well as the husband himself, and girls that
enter families as a bride often become domestic slaves for the in-laws. Early marriage has also been
linked to wife abandonment and increased levels of divorce or separation and child brides also face
the risk of being widowed by their husbands who are often considerably older. In these instances, the
wife is likely to suffer additional discrimination as in many cultures divorced, abandoned or widowed
women suffer a loss of status, and may be ostracized by society and denied property rights.
10. The Prohibition of Child Marriage Act has been enacted keeping in view the aforesaid
considerations in mind."
(26.) Thus, child marriage is such a social evil which has the potentialities of dangers to the life and
health of a female child and plays havoc in their lives, who cannot withstand the stress and strains of
married life and it leads to early deaths of such minor mothers. It also reflects the chauvinistic
attribute of the Indian society. This menace is depicted in the following lines from a song sung during
marriages in Rajasthan:-
"Choti si umariya main parnanaya o babosa, kain main tharoo kario kusoor"
"Oh father why had you given me off in the marriage at such a tender age, for what sin did I
commit."
(27.) These lines itself symbolize the mixed pain of leaving the father's house and at the same time the
anguish as to why was she being married off at such a tender age. Such situation is unprecedented and
the inner pain unimaginable. The word 'Child Marriage' is itself contradictory in itself as one would
wonder how marriage and child could go together.
(28.) When we look into the matter, keeping in view the aforesaid disastrous consequences of the
child marriage, which is even treated as violation of human rights, including right to lead a life of
freedom and dignity, the very first thing which comes in mind is that the menace of child marriage
needs to be curbed. Even the legislative thinking is in the same direction. However, as would be seen
hereafter, the legislature has still not made adequate and effective provisions in the laws to make such
a marriage as void.
(29.) We would like to mention that child marriage existed historically in India and over a period of
time it was perceived to be a wrongful practice. The legislature stepped in more than 80 years ago
when the CMRA (popularly known as the Sarda Act) was enacted with the objective of eliminating
the practice of child marriage. It forbade the marriage of a male with less than 21 years and female
with less than 18 years of age. However, the penal provisions of the Sarda Act did not invalidate the
effect of marriage. It laid down punishment for male adult below twenty one years of age and for
male adult above twenty one years of age who contracted a child marriage and also for the person,
who performed, conducted or directed a child marriage. Some amendments were carried out in this
Act but it was felt that it was not serving any purpose. It is for this reason that in 2006, the Prohibition
of Child Marriage Act was passed by the Parliament which is before us in the present form. The
Statement of Objects and Reasons of the PCM Act, 2006 have been quoted above. The salient features
of the Bill, which culminated in the enactment of the PCM Act, 2006 are as follows:-
"(i) To make a provision to declare child marriage as voidable at the option of the contracting
party to the marriage, who was a child.
(ii) To provide a provision requiring the husband or, if he is a minor at the material time, his
guardian to pay maintenance to the minor girl until her remarriage.

(iii) To make a provision for the custody and maintenance of children born of child marriages.
(iv) To provide that notwithstanding a child marriage has been annulled by a decree of nullity
under the proposed section 3, every child born of such marriage, whether before or after the
commencement of the proposed legislation, shall be legitimate for all purposes.
(v) To empower the district Court to add to, modify or revoke any order relating to
maintenance of the female petitioner and her residence and custody or maintenance of children, etc.
(vi) To make a provision for declaring the child marriage as void in certain circumstances.
(vii) To empower the Courts to issue injunction prohibiting solemnsation of marriages in
contravention of the provisions of the proposed legislation.
(viii)To make the offences under the proposed legislation to be cognizable for the purposes of
investigation and for other purposes.
(ix) To provide for appointment of Child Marriage Prevention Officers by the State
Governments.
(x) To empower the State Governments to make rules for effective administration of the
legislation."
(30.) A glance through the main provisions of the PCM Act, 2006 brings out the following scheme of
the Act:-
Section 2 (a) of PCM Act defines "child" and Section 2 (b) defines "child marriage". The
legislature has, however, taken care to define "minor" separately in Section 2(f), as a person who
under the provisions of the Majority Act, 1875 is deemed to have not attained the age of majority.
Section 3 of the PCM Act relates to child marriages. It specifically states that a child marriage shall be
voidable at the option of the contracting party to the marriage, who was a child at the time of
marriage. The term "child" in Section 2(a) 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. A voidable marriage does
not become void on its own or immediately when the option is exercised. It requires a decree on
adjudication issued by the district court. The said decree can be only passed on a petition by a
contracting party to the marriage who was a child at the time of the marriage. The petition has to be
filed before or within two years of attaining "majority" (i.e. majority as defined in the Majority Act,
1875). Sub-section (2) to Section 3 states that the petition can be moved through a guardian or next
friend along with the Child Marriage Prohibition Officer. The use of the term "guardian" in Section 3
(2) does cause confusion and is ambiguous. A husband under the Hindu Minority and Guardianship
Act, 1956 is the guardian of the minor wife (see Section 6(c)). Obviously, the husband, in such a
situation, will not and cannot act as a guardian and move a petition on behalf of his minor wife.
"Guardian" in this case will mean the natural father or the mother of the girl. Fortunately, the
legislature has permitted the next friend to also move an application for annulment of marriage. Sub-
section (4) to Section 3 of the PCM Act states that before passing such an order notices are required to
be issued by the District Judge to the parties concerned. Sub-section (4) protects a female child, who
was married, and stipulates that the district court can pass an interim or final order directing payment
of maintenance to her. In case the male contracting party is a minor, his parent or guardian is liable to
pay maintenance. Section 3 of the PCM Act has to contrasted with "void" marriages mentioned in
Section 12 of the same Act. Void marriages are null and void ab initio and accordingly are treated as
different and not similar to voidable child marriages. As per Section 12, in three circumstances, a

marriage of a minor child is to be treated as void. We record that sub-section 2 to Section 3 will not
apply in case of a "child" after he has attained majority, for he or she thereafter do not have any
lawful guardian. Section 13 (2) (iv) of HMA gives the right to a wife to file a petition for dissolution
of her marriage by a decree of divorce under the said Act. The said provision was introduced with
effect from 27 th May, 1976. It stipulates that a Hindu wife can file a petition for divorce if the
marriage is solemnized before she had attained the age of 15 years and she repudiates the marriage
before she attains the age of 18 years. The said right of the Hindu females to ask for divorce, does not
mean that a petition before the district court cannot be filed under Section 3 of the PCM Act. PCM
Act as noticed above is a secular law and is a latter enactment, which specifically deals with the
problem of child marriages. Religion of the contracting party does not matter. PCM Act being a
"special Act" and being a subsequent legislation, to this extent and in case there is any conflict, will
override the provisions of HMA Act or for that matter any personal law. However, this should not be
interpreted that we have held that a petition for dissolution of marriage under Section 13(2)(iv) is not
maintainable. Both provisions i.e. Section 13(2)(iv) and Section 3 operate, apply and have their own
consequences. These are two concurrent provisions, which can be invoked by the "parties" satisfying
the conditions stipulated in the two sections. As noticed below, a Division Bench of this Court in
W.P.(Crl.) 1003/2010 decided on 11.08.2010 Jitender Kumar Sharma Vs. State and Another, has
been held that PCM Act is a secular law. On this aspect we respectfully agree with the view that PCM
Act is a secular law. Decision of the Full Bench of Madras High Court in T. Sivakumar Vs. The
Inspector of Police also accepts the said position.
(31.) We have already reproduced Sections 2(a), 9, 12 and 15 of this Act. It is clear therefrom that
marriage of a minor child is treated as void only under the circumstances mentioned in Section 12.
Otherwise, this Act does not make the marriage of the child void but voidable at the option of the
parties to an underage marriage which option can be exercised within the stipulated time. It is
intriguing that the legislature accepted the menace of child marriage. It even accepted that the child
marriage is violation of human rights. The legislature even made the child marriage a punishable
offence by incorporating provision for prosecution and imprisonment of certain persons. At the same
time, except in certain circumstances contemplating under Section 12 of the Act, the marriage is
treated as voidable. The interplay of this Act with other enactments compounds this anomaly and
comments on such anomalies are stated in detail at the appropriate stage. At present we confine
ourselves to the issue at hand as the status of the child marriage needs to be determined on the basis of
statutory provisions, which exists as of now. As pointed out above, under the Hindu Marriage Act,
child marriage is still treated as valid and not a void marriage. It is personal law, in codified form,
governing Hindus. On the other hand, PCM Act, which is a secular law, treats this marriage as
voidable except those events which are covered by Section 12 of the PCM Act. In neither of the
aforesaid statutes the child marriage is treated as void ab initio or nullity. Therefore, we cannot hold
child marriage as a nullity or void. The next question that follows is as to whether the provisions of
personal law, i.e., Hindu Marriage Act should be applied to declare such a marriage as valid or the
provisions of PCM Act would prevail over the HM Act.
(32.) It is distressing to note that the Indian Penal Code, 1860 acquiesces child marriage. The
exception to Section 375 specifically lays down that sexual intercourse of man with his own wife, the
wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape
when the age of wife is above fifteen years. On the other hand, if the girl is not the wife of the man,

but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape' It is
rather shocking to note the specific relaxation is given to a husband who rapes his wife, when she
happens to be between 15-16 years. This provision in the Indian Penal Code, 1860 is a specific
illustration of legislative endorsement and sanction to child marriages. Thus by keeping a lower age of
consent for marital intercourse, it seems that the legislature has legitimized the concept of child
marriage. The Indian Majority Act, 1875 lays down eighteen years as the age of majority but the non
obstante clause (notwithstanding anything contrary) excludes marriage, divorce, dower and adoption
from the operation of the Act with the result that the age of majority of an individual in these matters
is governed by the personal law to which he is a subject. This saving clause silently approves of the
child marriage which is in accordance with the personal law and customs of the religion. It is to be
specifically noted that the other legislations like the Indian Penal Code and Indian Majority Act are
pre independence legislations whereas the Hindu Minority and Guardianship Act is one enacted in the
post independent era. Another post independent social welfare legislation, the Dowry Prohibition Act,
1961 also contains provisions which give implied validity to minor's marriages. The words 'when the
woman was minor' used in section 6(1)(c) reflects the implied legislative acceptance of the child
marriage. Criminal Procedure Code, 1973 also contains a provision which incorporates the legislative
endorsement of Child Marriage. The Code makes it obligatory for the father of the minor married
female child to provide maintenance to her in case her husband lacks sufficient means to maintain her.
(33.) The insertion of option of dissolution of marriage by a female under Section 13(2)(iv) to the
Hindu Marriage Act through an amendment in 1976 indicates the silent acceptance of child marriages.
The option of puberty provides a special ground for divorce for a girl who gets married before
attaining fifteen years of age and who repudiates the marriage between 15- 18 years.
(34.) Legislative endorsement and acceptance which confers validity to minor's marriage in other
statutes definitely destroys the very purpose and object of the PCM Act to restrain and to prevent the
solemnization of Child Marriage.
These provisions containing legal validity provide an assurance to the parents and guardians
that the legal rights of the married minors are secured.
The acceptance and acknowledgement of such legal rights itself and providing a validity of
Child Marriage defeats the legislative intention to curb the social evil of Child Marriage.
(35.) Thus, even after the passing of the new Act i.e. the Prohibition of Child Marriage Act 2006,
certain loopholes still remain, the legislations are weak as they do not actually prohibit child marriage.
It can be said that though the practice of child marriage has been discouraged by the legislations but it
has not been completely banned.
(36.) Mr. Deep Ray of NALSAR University of Law, Hyderabad has pointed out the following three
loopholes in his article "Child Marriage and the Law".
Firstly, Child Marriages are made voidable at the option at the parties but not completely
void. That means Child Marriages are still lawful. Making such marriages voidable doesn't really help
matter in most cases as girls on attaining majority don't have the agency or adequate support from
their families to approach the court and go for annulment of the marriage. The reason behind not
making such marriages void probably is that child marriages, once solemnized and consummated
makes it very difficult, if not impossible for girls to deny and step out of those marriages. Therefore, it
is in keeping with the social reality that such marriages are not declared void.
If the social reality largely remains the same, the likelihood that young girls will now choose
to nullify their marriages, which would probably be consummated by the time she attains maturity and
decides to approach the courts, seems very unlikely.
(37.) Secondly, the applicability of Prohibition of Child Marriage Act, on various marriages of
different communities and religion is unclear. Social customs and personal laws of different religious
groups in India allows marriage of minor girls and the Prohibition Child Marriage Act,2006 does not
mention whether it prohibit all the underage marriages that are sanctioned by religious laws.
(38.) Thirdly, registration of marriages has still not been made compulsory. Compulsory registration
mandates that the age of the girl and the boy getting married have to be mentioned. If implemented
properly, it would discourage parents from marrying off their minor children since a written document
of their ages would prove the illegality of such marriages. This would probably be able to tackle the
sensitive issue of minor marriages upheld by personal laws.
(39.) As held above, PCM Act, 2006 does not render such a marriage as void but only declares it as
voidable, though it leads to an anomalous situation where on the one hand child marriage is treated as
offence which is punishable under law and on the other hand, it still treats this marriage as valid, i.e.,
voidable till it is declared as void. We would also hasten to add that there is no challenge to the
validity of the provisions and therefore, declaration by the legislature of such a marriage as voidable
even when it is treated as violation of human rights and also punishable as criminal offence as proper
or not, cannot be gone into in these proceedings. The remedy lies with the legislature which should
take adequate steps by not only incorporating changes under the PCM Act, 2006 but also
corresponding amendments in various other laws noted above. In this behalf, we would like to point
out that the Law Commission has made certain recommendations to improve the laws related to child
marriage.
(40.) Be as it may, having regard to the legal/statutory position that stands as of now leaves us to
answer first part of question No.1 by concluding that the marriage contracted with a female of less
than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which
would become valid if no steps are taken by such "child" within the meaning of Section 2(a) of the
PCM Act, 2002 under Section 3 of the said Act seeking declaration of this marriage as void.
(41.) With this we come to the second part of the question relating to custody of the female of less
than 18 years to the husband. This would be taken up along with Question Nos.2 and 3 hereinbelow.
Question No.2 and 3
Whether a minor can be said to have reached the age of discretion and thereby walk away
If yes, can she be kept in the protective custody of the State?
(42.) We are of the opinion that simply because the marriage is not void, it should automatically
follow that the husband is entitled to the custody of the minor girl. We have already noted in detail the
serious repercussions of child marriage. Some of the ill effects of the child marriage were taken note
of in the case of Association for Social Justice & Research v.Union of India & others , some of which
are reproduced again:-
(i) Girls who get married at an early age are often more susceptible to the health risks

associated with early sexual initiation and childbearing, including HIV and obstetric fistula.
(ii)Young girls who lack status, power and maturity are often subjected to domestic violence,
sexual abuse and social isolation.
(iii) Early marriage almost always deprives girls of their education or meaningful work,
which contributes to persistent poverty.
(iv) Child Marriage perpetuates an unrelenting cycle of gender inequality, sickness and
poverty.
(v)Getting the girls married at an early age when they are not physically mature, leads to
highest rates of maternal and child mortality.
Young mothers face higher risks during pregnancies including complications such as heavy
bleeding, fistula, infection, anaemia, and eclampsia which contribute to higher mortality rates of both
mother and child. At a young age a girl has not developed fully and her body may strain under the
effort of child birth, which can result in obstructed labour and obstetric fistula. Obstetric fistula can
also be caused by the early sexual relations associated with child marriage, which take place
sometimes even before menarche. Child marriage also has considerable implications for the social
development of child bridges, in terms of low levels of education, poor health and lack of agency and
personal autonomy. The Forum on Marriage and the Rights of Women and Girls explains that 'where
these elements are linked with gender inequities and biases for the majority of young girls their
socialization which grooms them to be mothers and submissive wives, limits their development to
only reproductive roles. A lack of education also means that young brides often lack knowledge about
sexual relations, their bodies and reproduction, exacerbated by the cultural silence surrounding these
subjects. This denies the girl the ability to make informed decisions about sexual relations, planning a
family, and her health, yet another example of their lives in which they have no control.
(43.) Section 6 of the Hindu Minority and Guardianship Act, 1956, reads:-
"6. Natural guardians of a Hindu minor.- The natural guardian of a Hindu minor, in respect of
the minor s person as well as in respect of the minor s property (excluding his or her undivided
interest in joint family property), are-
(a) In the case of a boy or an unmarried girl-the father, 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;
(b) In case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her,
the father;
(c) In the case of a married girl-the husband: Provided that no person shall be entitled to act as
the natural guardian of a minor under the provisions of this section-
(a)If he has ceased to be a Hindu, or
(b)If he has completely and finally renounced the world by becoming a hermit (vanaprastha)
or an ascetic (yati or sanyasi).
Explanation.- in this section, the expression "father" and "mother" do not include a step-
father and a step-mother."
(44.) It was stated that in the case of a minor married girl, the husband is the guardian and in case of
an unmarried minor girl father or the mother, is her guardian. It was accordingly submitted that the
husband, even if a minor, would be the guardian of his wife. Fortunately, this argument has to be
rejected. The overriding and compelling consideration governing custody of guardianship of the child

is the child's welfare and claim to the status as a guardian under the said section is not a right. This
was declared long back in 1973 in Rosy Jacob Vs. Jacob Chakramakkal, 1973 AIR(SC) 2090.
(45.) We may also refer Section 13 of the Minority and Guardianship Act, 1956, which reads:-
"13 . Welfare of minor to be paramount consideration.-
(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court,
the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of
any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her
guardianship will not be for the welfare of the minor."
The said section has been interpreted and it has been repeatedly held that while deciding the
question of custody of a minor child, it is the interest of the child, which is paramount and important.
(See Kumar V. Jahgirdar Vs. Chetana K. Ramatheertha, 2001 AIR(SC) 2179).
(46.) In such circumstances, allowing the husband to consummate a marriage may not be appropriate
more so when the purpose and rationale behind the PCM Act, 2006 is that there should be a marriage
of a child at a tender age as he or she is not psychologically or medically fit to get married. There is
another important aspect which is to be borne in mind. Such a marriage, after all, is voidable and the
girl child still has right to approach the Court seeking to exercise her option to get the marriage
declared as void till she attains the age of 20 years. How she would be able to exercise her right if in
the meantime because the marriage is consummated when she is not even in a position to give consent
which also could lead to pregnancy and child bearing. Such marriages, if they are made legally
enforceable will have deleterious effect and shall not prevent anyone from entering into such
marriages. Consent of a girl or boy below the age of 16 years in most cases a figment of imagination
is an anomaly and a mirage and, and will act as a cover up by those who are economically and/or
socially powerful to pulverize the muted meek into submission. These are the considerations which
are to be kept in mind while deciding as to whether custody is to be given to the husband or not. There
would be many other factors which the Court will have to keep in mind, particularly in those cases
where the girl, though minor, eloped with the boy (whether below or above 21 years of age) and she
does not want to go back to her parents. Question may arise as to whether in such circumstances, the
custody can be given to the parents of the husband with certain conditions, including the condition
that husband would not be allowed to consummate the marriage. Thus, we are of the opinion that
there cannot be a straight forward answer to the second part of this question and depending upon the
circumstances the Court will have to decide in an appropriate manner as to whom the custody of the
said girl child is to be given.
Question No.4
Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the
statement of such a minor that she has contracted the marriage of her own?
(47.) This brings us to the anomaly with and in the Indian Penal Code. Consent below the age of 16
years is immaterial, except when the rape is committed by a male who is married to the girl. Section
376 IPC does not treat the rape committed by a husband on his wife above the age of 15 years as an
offence. This certainly requires a relook. This provision is not in consonance with the PCM Act.
Section 376 IPC is required to be rationalized and amended in consonance with the PCM Act, and it
may be difficult to implement and effectively enforce the PCM Act otherwise. The question of age of

consent for the purpose of Indian Penal Code is a larger issue, and not being a subject matter of the
reference, has not been examined by us.
(48.) We often come across cases where girl and boy elope and get married in spite of the opposition
from the family or parents. Very often these marriages are inter-religion, inter-caste and take place in
spite of formidable and fervid opposition due to deep- seated social and cultural prejudices. However,
both the boy and girl are in love and defy the society and their parents. In such cases, the courts face a
dilemma and a predicament as to what to do. This question is not easy to answer. We feel that no
straight jacket formula or answer can be given. It depends upon the facts and circumstances of each
case. The decision will largely depend upon the interest of the boy and the girl, their level of
understanding and maturity, whether they understand the consequences, etc. The attitude of the
families or parents has to be taken note of, either as an affirmative or a negative factor in determining
and deciding whether the girl and boy should be permitted to stay together or if the girl should be
directed to live with her parents. Probably the last direction may be legally justified, but for sound
and good reasons, the Court has option(s) to order otherwise. We may note that in many cases, such
girls severely oppose and object to their staying in special homes, where they are not allowed to meet
the boy or their parents. The stay in the said special homes cannot be unduly prolonged as it virtually
amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her
freedom and her wishes should not get negated as if she has no voice and her wishes are of no
consequence. The Court while deciding, should also keep in mind that such marriages are voidable
and the girl has the right to approach the Court under Section 3 of the PCM Act to get the marriage
declared void till she attains the age of 20 years. Consummation of marriage may have its own
consequences.
(49.) In case the girl is below 16 years, the answer is obvious that the consent does not matter.
Offence under Section 376 IPC is made out. The chargesheet cannot be quashed on the ground that
she was a consenting party. However, there can be special or exceptional circumstances which may
require consideration, in cases where the girl even after attaining majority affirms and reiterates her
consent.
(50.) Consummation, with the wife below the age of 15 years, is an offence under Section 375. No
exception can be made to the said constitutional mandate and the same has to be strictly and diligently
enforced. Consent in such cases is completely immaterial, for consent at such a young age is difficult
to conceive and accept. It makes no difference whether the girl is married or not. Personal law
applicable to the parties is also immaterial.
(51.) If the girl is more than 16 years, and the girl makes a statement that she went with her consent
and the statement and consent is without any force, coercion or undue influence, the statement could
be accepted and Court will be within its power to quash the proceedings under Section 363 or 376
IPC. Here again no straight jacket formula can be applied. The Court has to be cautious, for the girl
has right to get the marriage nullified under Section 3 of the PCM Act. Attending circumstances
including the maturity and understanding of the girl, social background of girl, age of the girl and boy
etc. have to be taken into consideration.
Question No.5
Whether there may be other presumptions also which may arise?

(52.) In view of our discussion on questions No.1 to 4, no further observations need to be made in so
far as this question is concerned.
(53.) Having answered the aforesaid questions we now take up each case as was agreed by the counsel
for the parties and it is not necessary to refer the case to the Division Bench.
WP (Crl.) No.388/2008
(54.) As per the facts noted in paras 3-6 above, Ms.Meera is the girl in question whose date of birth is
6.7.1995. When she married Charan Singh she was 13 years of age. She had made a statement under
Section 164 of the Cr.P.C. before the learned MM, Rohini that she had gone with Charan Singh of her
own free will. This petition was registered on the basis of letter written by her mother Smt. Lajja
Devi. During the pendency of this petition, order dated 31.7.2008 was passed permitting her to go
with her parents as she desired to live with them on assurance given by her parents that they would
not marry her to anyone else. She is still 17 years of age. This marriage, as per our discussion above,
is voidable. Since she has not attained majority and is residing with her parents, this arrangement
would continue. When she becomes major it would be for her to exercise her right under the PCM
Act if she so desires and future course of action would depend threon. With these directions, the
petition is disposed of.
Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/201
(55.) Facts of this case have already been noted above. As per the ossification test, the girl/petitioner
No.1 was found between 17-19 years of age. As per the school leaving certificate, she was 17 years of
age on the date when the parties solemnised marriage. Since she has given the statement that she
married of her own accord to the petitioner No.2 and was more than 16 years of age, FIR No.31 of
2011, P.S. Dabri under Sections 363/366/376/465/467/494/497/120-B/506 IPC registered against the
petitioner No.2 is hereby quashed.
W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008
(56.) In this Writ Petition, the question is only of validity of marriage and guardianship. Even if the
age of the girl is taken as 15 years at the time of incident, i.e., 27.10.2006, she would be 21 years of
age as of now. She has not filed any proceedings for declaring the marriage as void. Therefore, the
marriage becomes valid now. The question of guardianship does not arise at this stage as she is major
and during the period she was minor she resided at Nirmal Chhaya. Thus, the Writ Petition is
disposed of in the aforesaid terms.
WP (Crl.) No.566/2010
(57.) As per the facts noted in para 10 above, Shivani @ Deepika at the time of her marriage was less
than 16 years of age, her date of birth being 3.6.1994. It was directed that she would remain at Nirmal
Chhaya. However, as per the aforesaid date of birth, i.e., 3.6.1994 she has attained majority on
3.6.20012. The petition was filed by Sh. Devender Kumar who married her habeas corpus and was
claiming her custody. She has attained majority, she is free to go anywhere.
(58.) With these directions, this petition stands disposed of.

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OFFICER, POLICE STATION SAILU, TQ SAILU, DIST PARBHANI, [LAWS(BOM)-2018-7-128]

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CHILD MARRIAGE RESTRAINT ACT, 1929 - , CODE OF CRIMINAL PROCEDURE, 1973 -

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"4. Conditions relating to solemnization of special marriages. Notwithstanding anything

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guardian to pay maintenance to the minor girl until her remarriage.

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(58.) With these directions, this petition stands disposed of.

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