# Manish Kumar & Anr v. State of U.P. & Ors

- **Citation:** (2021) 6 ILRA 450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-31
- **Case number:** Habeas Corpus Writ Petition No. 451 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-kumar-anr-v-state-of-u-p-ors-47120
- **Pages:** 33

## Headnote

G.A., Sri Ashutosh Yadav, Sri Sudhanshu Kumar,
Sri Rajeev Lochan Shukla A.C.

Corpus minor -married out of his free willto a major girl-Petition filed by his
mother-illegal detention by wife-marriage
voidable-major wife cannot be entrusted
with the custody of minor husband-Corpus
send to Safe Home until he attains the age
of 18 years-thereafter be set free to go
wherever he wants.

W.P. allowed. (E-8)

List of Cases cited:

## Text

_Characters 0–39,972 of 115,995. This is a partial read: ask again with offset=39972 for what follows._

450 INDIAN LAW REPORTS ALLAHABAD SERIES
power under section 311 Cr.P.C. may be
exercised for the recall of a witness. But
simultaneously, on the other hand, it has to
be mentioned that the application has to be
moved expeditiously, so that the trial
proceedings do not get procrastinated to the
disadvantage
of
the
accused,
who
undoubtly has a right of speedy trial. We
would hasten to add that in case the said
application has been filed with delay, the
same is not liable to be rejected on this
score alone, but it would be imperative to
explain the delay to the satisfaction of the
Court. In the present case, neither has the
delay been explained, and also this Court is
of considered opinion that the same has not
been filed in a bona fide manner and
therefore no ground for interference is
made out with the impugned rejection
order.

31. In light of the above I do not find
any infirmity with the order of the trial
court, and even otherwise considering the
facts of the case there is no ground to
interfere with the impugned order.

32. The revision lacks merit and
accordingly rejected.

33. The trial Court is directed to
conclude the trial expeditiously. Let a copy
of this order be sent to the Court concerned.
----------
(2021)06ILR A450
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 451 of 2020

Manish Kumar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satyawan Yadav, Sri Ranjeet Yadav, Sri
Anand Kumar Srivastava

Counsel for the Respondents:
G.A., Sri Ashutosh Yadav, Sri Sudhanshu Kumar,
Sri Rajeev Lochan Shukla A.C.

Corpus minor -married out of his free willto a major girl-Petition filed by his
mother-illegal detention by wife-marriage
voidable-major wife cannot be entrusted
with the custody of minor husband-Corpus
send to Safe Home until he attains the age
of 18 years-thereafter be set free to go
wherever he wants.

W.P. allowed. (E-8)

List of Cases cited:

1. T. Sivakumar Vs Inspector of Police of
Theravallur, AIR 2012 Mad. 62

2. Court on its own motion (Lajja Devi) & ors.
Vs St.& ors., 2013 CrLJ 3458

3. Independent Thought Vs U.O.I. & anr., (2017)
10 SCC 800

4.Akbar & anr. Vs St. of U.P.& ors., 2008 (2) ADJ 98

5. Special Leave to Appeal (Crl.) No.2664 of
2008

6. Shahnaz Begum Vs St. of U.P. & ors., decided
on 23.02.2016.

7. Gaurav Nagpal Vs Sumedha Nagpal, (2009) 1
SCC 42

8. Albert G. Smith Vs Walter W. Seibly, 72 Wn.2d
16 (1967) 431 P.2d 719

9. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

10. Ramesh Tukaram Gadhwe & ors. Vs
Sumanbai Wamanrao Gondkar & anr., 2007 SCC
OnLine Bom 975
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
451
11. Githa Hariharan (Ms.) & anr. Vs R.B.I. &
anr., (1999) 2 SCC 228

(Delivered by Hon'ble J.J. Munir, J.)

The facts giving rise to this Habeas
Corpus
Writ
Petition
are
rather
unconventional and not commonplace; or so
it seems.

2. Manish Kumar is a youth, aged about
16 years and a half. He has married Jyoti, as
he says, of his freewill. Jyoti is a major and
an adult in the cognizance of law, just above
the age of 18 years. Pramila Devi is Jyoti's
mother and Manish Kumar's mother-in-law.
Arjun and Bheem are Jyoti's brothers and
Pramila Devi's sons. Manish Kumar, after his
marriage to Jyoti, was staying with his wife,
his mother-in-law and his two brothers-inlaw, Arjun and Bheem. Haushila Devi is
Manish Kumar's mother. She appears to have
thought that Jyoti, her mother Pramila Devi
and her brothers, Arjun and Bheem have
enticed away her minor son and forced him
into a marriage of sorts, which is illegal for
want of the minor's competence under the
law. She has gone on to say that Manish
Kumar, her minor son, is illegally detained by
Pramila Devi, Arjun, Bheem and Jyoti,
arrayed as respondent nos. 5, 6, 7 and 8 in
that order. In keeping with her thought and
word, Haushila Devi has effectively instituted
the present Habeas Corpus Writ Petition,
arraying Manish Kumar as the first petitioner
and herself as the second, asking this Court to
order Manish Kumar, her minor son, to be
produced on a Rule Nisi before this Court
and upon production, set at liberty in the
manner that Manish Kumar be entrusted to
her care and custody.

3. Upon the petition coming up before
this Court on 18.09.2020, it was admitted
to hearing, and a Rule Nisi was issued,
ordering the production of Manish Kumar,
said to be in the illegal confinement of
respondent nos. 5 to 8. The Rule was made
returnable on 23.09.2020. On the date of
return, Manish Kumar was produced before
this Court, and what he said before us about
the nature and character of his association
with respondent nos. 5, 6, 7 and 8 spares no
doubt that Manish Kumar was never under
any kind of coercion to stay with Jyoti or
the other respondents, who are claimed to
be illegally detaining him. He also does not
appear to have been enticed away. This
conclusion on facts can best be fathomed
by what he stated before the Court in
answer to questions that were put to him.
His stand recorded in the Court's order on
23.09.2020 is extracted below:

Q.1. Aapka naam kya hai?

Ans. Manish Kumar

Q.2. Aapke pitaji ka kya naam hai?

Ans. Paras Nath

Q.3. Aapki aayu kya hai?

Ans. 16 Saal

Q.4. Aap kaha se aaye hain?

Ans. Chauki Narshinghpur

Q.5. Aap waha kiske pas rahte hain?

Ans. Apni Sas ke pas

Q.6. Aapki sas ka kya naam hai?

Ans. Pramila

Q.7. Jyoti kaun hai?

Ans. Hamari Aurat

Q.8. Aap apni marji se rahte hain
Pramila aur Jyoti ke pas?

Ans. Ji Sir

Q.9. Haushila Devi kaun hai?
452 INDIAN LAW REPORTS ALLAHABAD SERIES

Ans. Hamari maa hai

Q.10. Aap apni maa ke pas jana chahte
hain?

Ans. Nahi

Q.11. Kaha jana chahte hain?

Ans. Sas aur Aurat ke pas

4. Upon the Court asking Mr. Anand
Kumar Srivastava, learned Counsel for the
petitioners, about Haushila Devi's stand in
the matter, he insisted that Manish was a
minor and did not have the legal
competence to marry Jyoti. He said that
their marriage is void, in view of the
provisions of The Hindu Marriage Act,
19551 and The Prohibition of Child
Marriage Act, 20062. It was contended by
Mr. Srivastava that Manish being a minor,
cannot exercise his choice to stay with
strangers like respondent nos. 5 and 8, and
that Haushila Devi, being his mother and
natural guardian, is entitled to ask this
Court, in the interest of the minor's welfare,
to restore him to her custody.

5. In view of the stand of parties, and
the way the law would tentatively bear
upon their conflicting rights and claims,
this
Court
formulated
the
following
questions for consideration, again vide
order dated 23.09.2020 :

"1. Whether the marriage of a
minor in contravention of the Hindu
Marriage Act and Section 14 of the
Prohibition of Child Marriage Act, 2006 is
void ab initio?

2. Whether a minor who does not
want to stay with his parents, is entitled to
stay with a person of his choice,
particularly, where he is on the verge of
attaining majority and in the age group of
expressing his intelligent choice?

3. Whether a minor who decides
to stay away from his parents or natural
guardian with a stranger of his/her choice
can be compelled by the natural guardian to
be restored to his custody, particularly,
through a writ of habeas corpus?

4. Whether a minor can be
permitted to live with an utter stranger
other than a natural guardian, if the welfare
of the minor is better ensured to the Court's
satisfaction in the hands of the utter
stranger?"

6. This Court being mindful of the
fact that the minor was not inclined to go
along with his mother, Haushila Devi, on
the one hand, and on the other, she
seriously objected to her minor child being
in the custody of utter strangers, as she has
chosen to characterize it, this Court
directed that in the meanwhile, Manish
Kumar and Jyoti, both be housed in a State
facility, other than a Child Reform Home
or Nari Niketan. The matter was directed to
come up again on 24.09.2020. On 24th
September, the Court found that Manish's
wife and mother-in-law wanted to stiffly
contest the proceedings, but did not have
legal counsel to represent them. On an
inquiry being made by the Court, both
Pramila Devi and Jyoti disclosed their
inability to secure the services of a legal
counsel. In those circumstances, the Court
appointed
Mr.
Sudhanshu
Kumar,
Advocate, from the Panel of learned
Counsel maintained by the High Court
Legal Services Committee, High Court,
Allahabad to represent each of the
respondent nos. 5 and 8, in the cause. At
the same time, this Court felt the need for
assistance of an amicus curiae, looking to
complexities
of
the
issues
involved.
Accordingly, Mr. Rajeev Lochan Shukla,
Advocate was requested to assist the Court
as amicus curiae.
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
453

7. It must also be placed on record that
Manish Kumar, during hearing and pending
judgment, continues to be housed in a State
facility, looking to the stand of parties,
including his own stand. Respondent no. 5,
who too was initially required to be housed in
a State facility, has gone back home, as the
Court did not pass any further orders
requiring her to be housed after 24.09.2020.
The order requiring respondent no. 5 to stay
in a State facility was made on 23.09.2020, as
she was reported to be in the family way. On
the following day, as it was clarified that she
would be looked after well by her mother,
respondent no. 8, no further orders regarding
housing her were made and she went back
home.

8. On 30.09.2020, when the matter was
again taken up, at the intervention of Mr.
Shukla, the learned Amicus Curiae and by
agreement of all parties, Question No. 1,
formulated on 23.09.2020, was modified and
rephrased in the following terms :

"Whether the marriage of a minor in
contravention of Section 5 of the Hindu
Marriage Act, 1955 and Sections 3(1) and 12
of the Prohibition of Child Marriage Act,
2006 is void ab initio?"

9. A further question was framed at the
instance of Mr. Sudhanshu Kumar, learned
Counsel appearing for respondent nos. 5 and
8, by consent of all parties, including the
learned Amicus Curiae, which reads :

"Whether a wife who is a major can be
entrusted with the custody of a husband who
is a minor, where the marriage is voidable?"

10.

Hearing
commenced
on
07.10.2020, with Mr. Anand Kumar
Srivastava,
learned
Counsel
for
the
petitioners, Mr. Sudhanshu Kumar, learned
Counsel appearing on behalf of respondent
nos. 5 and 8, Mr. Indrajeet Singh, learned
Additional
Government
Advocate
appearing on behalf of the State and Mr.
Rajeev Lochan Shukla, Advocate appearing
as the Amicus Curiae addressing the Court.
Mr. Ashutosh Yadav, Advocate, was also
requested to act as amicus curiae in the
matter, and he too, addressed the Court.

11. The Court proposes to examine
and answer the questions formulated as
pure propositions of law and then examine
the way answers to those questions bear on
the facts of the case.

QUESTION NO. 1

12. Section 5 of the HMA stipulates
conditions that ought to be fulfilled in order
to solemnize a marriage between two
Hindus. Section 11 of the HMA spells out
what kind of marriages would be void,
whereas Section 12 details those marriages
that would be voidable, and also limitations
on the right of a party to seek annulment of
a marriage, claimed to be voidable. Much
of those statutory provisions are not
relevant to the issue in hand, for those deal
with many a different contingency, besides
the one of concern here. A reading of
Section 5 (iii) of the HMA would show that
one of the conditions to be fulfilled for a
marriage to be solemnized between two
Hindus is that the bridegroom should have
completed the age of 21 years, and the
bride, the age of 18 years at the time of
marriage. Section 11 of the HMA makes
marriages held in contravention of clauses
(i), (iv) and (v) of Section 5 void, but not
marriages held in violation of clause (iii) of
Section 5. Sub-section (1) of Section 12,
spells out contingencies, where a Hindu
marriage may be annulled by a decree of
nullity. Clauses (a) to (d) of sub-section (1)
454 INDIAN LAW REPORTS ALLAHABAD SERIES
of Section 12 enumerate those grounds that
afford a cause of action to the party
aggrieved to seek annulment. Clause (b) of
sub-section (1) of Section 12 specifies
clause (ii) of Section 5 as one carrying a
condition, the contravention whereof would
render a marriage voidable on a petition for
a decree of nullity. A plain reading of
Sections 5, 11 and 12 of the HMA do not
indicate the consequences that would attach
to a marriage solemnized in breach of
Section 5 (iii). However, Section 18 (a) of
the HMA provides that a person who
"procures a marriage for himself or herself
to be solemnized under this Act in
contravention of the conditions specified in
clause (iii), ..... of Section 5" becomes
liable to rigorous imprisonment that may
extend to two years, with or without fine,
the fine imposable being a maximum of Rs.
One lakh. It is on the terms of these
statutory provisions that Mr. Srivastava,
learned Counsel for the petitioners and Mr.
Shukla and Mr. Yadav, the two learned
Amicus Curiae appearing in the matter,
have urged that the marriage would not be
void under Section 5 (iii) of the HMA,
though all of them say that it would be
either void or voidable, depending on the
circumstances
attending
the
marriage,
under Sections 3(1) and 12 of the PCMA.

13. Broadly in agreement with the
learned Counsel for the petitioners vis-à-vis
the effect of a breach of Section 5 (iii) of
the HMA and the validity of the Hindu
marriage, Mr. Sudhanshu Kumar, learned
Counsel appearing on behalf of respondent
nos. 5 and 8, submits that the legislature
has not provided for any consequence
about a marriage solemnized in breach of
Section 5 (iii) regarding its validity; the
marriage would neither be void nor
voidable. It would be valid, albeit inviting
punishment for the party, who is a major.
He says that if both be minors, their
guardians, with whose consent the marriage
has been solemnized, would be liable for
the offence. He goes on to say that if the
two minors are runaways from home and
have married of their own, the liability
would be upon those who could have
prevented the marriage, but did not take
reasonable steps to do so. Nevertheless, Mr.
Sudhanshu Kumar submits that whatever
be the penal consequences of a marriage
solemnized in breach of Section 5 (iii) of
the HMA under Section 18, the scheme of
the Act considered wholesomely, cannot
lead one to the conclusion that a breach of
the clause under reference would render the
marriage either void or voidable; the
marriage would be valid. However, Mr.
Kumar submits that in order to render a
marriage void under Section 12 of the
PCMA, the conditions stipulated under
clauses (a), (b) and (c) of Section 12 would
have to be strictly established by the person
who impugns the marriage; else the
marriage would be voidable at the option of
the party, who was a child at the time of
marriage. He submits that if they happen to
be children, the marriage would be
voidable at the instance of either of them.
The right to action, the limitation for the
purpose would all be governed by the
special rules in sub-section (2) and (3) of
Section 12.

14. Mr. Indrajeet Singh, learned
A.G.A. appearing for the State, however,
submits that the marriage would be void. He
says that Section 5 (iii) of the HMA is clear
in that, that it stipulates as a condition
precedent to the solemnization of a Hindu
marriage, the statutory minimum age for
prospective
spouses,
differentially
prescribed according to their sex. He urges
that the legislative prescription about a valid
Hindu marriage vis-à-vis age of the parties
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
455
postulated under Section 5 (iii) cannot be
construed in a manner that it becomes a
source of its own nullification. It is Mr.
Singh's submission that the prohibition visà-vis age of the parties to a Hindu marriage
is cast in clear and absolute terms, under
Section 5 (iii). The fact that Section 18 (a) of
the PCMA makes a contravention of clause
(iii) of Section 5 an offence that invites
rigorous imprisonment and fine, makes the
legislative intent clear that a marriage in
violation thereof would be void. He has
drawn the Court's attention to Section 4 of
the Act, which gives it overriding effect over
any text, rule or interpretation of the Hindu
law, or any custom or usage to the contrary,
as also any other law in force, immediately
before the commencement of the HMA. It is
the learned A.G.A.'s emphatic submission
that even if marriages by any custom or
usage, earlier prevalent amongst Hindus be
valid, notwithstanding the age of the spouses
at the time of solemnization, the Act
unequivocally renders a marriage void
between two Hindus, who do not fulfill the
statutory minimum requirement of age on
the date of marriage. He elucidates his
submission by a reference to Section 5 (v) of
the HMA to point out that the prohibition
there about a marriage between Sapinda is
qualified by a custom or usage governing
each of them, if that permits a marriage
between the two. Likewise, he submits that
the prohibition in clause (iv) of Section 5 is
also qualified by the existence of a custom
or usage to the contrary, permitting a
marriage within degrees of prohibited
relationship. The learned A.G.A. submits
that by contrast, the prohibition under clause
(iii) of Section 5 is absolute and admits of no
qualification. Therefore, in the submission
of
Mr.
Indrajeet
Singh,
a
marriage
solemnized in contravention of Section 5
(iii) is no marriage under the law and has to
be ignored; in short, it is void.

15. As regards differential treatment
to the validity of a marriage between
minors, if the conditions mentioned under
Section 12 of the PCMA exist and if they
do not, according to the learned A.G.A.,
would make little difference for an answer
to the question involved here. He urges that
the PCMA is a Statute of universal
application to all persons within the
territory of India and to the citizens of India
beyond the Indian shores, irrespective of
religion, whereas the HMA is applicable to
a Hindu, as defined under Section 2,
whether resident in India or domiciled in
territories to which the HMA extends, but
are outside those territories. He submits
that if a marriage is void under Section 5 of
the HMA for the violation of clause (iii)
thereof, Sections 12 and 3 (1) of the PCMA
would not, at all, come into play. He further
says that since a marriage in contravention
of Section 5 (iii) of the HMA is void in the
case of two Hindus, Sections 12 and 3 (1)
of the PCMA would not, at all, be attracted.

16. This Court has considered the
submissions advanced by learned Counsel
for parties, as well as the learned Amicus
Curiae appearing in the matter. No doubt,
the provisions of Section 5 of the HMA
spell out conditions, subject to which, a
marriage may be solemnized between two
Hindus, but the provisions under Sections
4, 5, 11, 12 and 18 have to be read as an
integrated whole, in order to find out the
conditions, subject to which, marriage
between two Hindus may be solemnized,
and if solemnized in breach of one or the
other or more than one of the conditions
laid down by the Statute, the consequences
that would attach to the validity of that
marriage. So far as the HMA is concerned,
the scheme of the Statute across Sections 4,
5, 11, 12 and 18 is unambiguous in that,
that while it requires the age of 18 years for
456 INDIAN LAW REPORTS ALLAHABAD SERIES
a woman and 21 years for a man to be a
condition precedent for a valid marriage
between two Hindus, the consequences of
violation of one or the other clauses of
Section 5 of the HMA stipulated under
Sections 11 and 12 do not provide for the
violation of Clause (iii), that is to say, the
condition regarding minimum age for a
valid Hindu marriage. This conscious
omission about consequence of a violation
of the minimum age clause on the validity
of a Hindu marriage is no casus omissus.
The legislature, after providing for the
consequences
of
a violation of
the
conditions specified in Clauses (i), (iv) and
(v) of Section 5 under Section 11, is
conspicuously silent about the contingency
of a breach of Clause (iii). The legislature
has provided for penal consequences under
Section 18 (a) of the HMA, where a term
imprisonment or fine or both are provided;
but the validity of a Hindu marriage
solemnized in breach of Section 5(iii) has
been left intact by the HMA. So far as
Section 5(iii) of the HMA is concerned,
read in the context of that statute, there is
good authority and for good reason to hold
that a Hindu marriage, solemnized in
violation of Section 5(iii) is neither void
nor voidable. There are pertinent remarks
to that effect, to be found in the decision of
a Full Bench of Madras High Court in T.
Sivakumar v. Inspector of Police of
Theravallur3 where it has been held :

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

17. This position of law has not been
in doubt. So long as the Child Marriage
Restraint Act, 19294 was in force, a
repealed statute that applied to all citizens
and a fortiori to Hindu marriages too, it did
not make much difference to the validity of
a Hindu marriage solemnized in breach of
Section 5(iii), or so to speak, the
corresponding provision about minimum
age under the CMRA. This was so because
the CMRA did not take the legislative
effort to abolish child marriages beyond
making
the
transgression
about
the
statutory minimum age a punishable
offence. It did not make the marriage void
or voidable. The position, however, has
changed much after enactment of the
PCMA, by making the marriage voidable at
the option of the party who was a child at
the time of the marriage and also void
under the three specified contingencies
postulated under Section 12. Here, the
provision of Sections 3 and 12 of the
PCMA may be quoted with profit :

"3. Child marriages to be voidable
at the option of contracting party being a
child.--(1) Every child marriage, whether
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
457
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.

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."

18. The Full Bench of the Madras
High Court in T. Sivakumar (supra)
considered a very pertinent question, which
shares its substance with Question No. 1
here (as reformulated) and somewhat with
the content of Question Nos. 3 and 4 (apart
from the substance of Question Nos. 3 and
4 here being subject matter of consideration
vide Question No. 4 in T. Sivakumar). For
the
present,
however,
the
Court
is
concerned with the holding of their
Lordships of the Full Bench in T.
Sivakumar on the first part of Question
No. 1 formulated there. Question No. 1 in
T. Sivakumar reads :

"(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]?"

19. In answering the first part of the
question before the Full Bench, their
Lordships, after a searching comparison
and examination of the provisions of
CMRA, PCMA and HMA held :

"26. But, in Saravanand'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
458 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage is only voidable. Therefore, we
hold that though such a voidable marriage
subsists and though some rights and
liabilities emanate out of the same, until it
is either accepted expressly or impliedly by
the child after attaining the eligible age or
annulled by a Court of law, such voidable
marriage, cannot be either stated to be or
equated to a "valid marriage" stricto sensu
as per the classification referred to above.
Accordingly, we answer the first part of the
1st question referred to above."

20. This issue again came up before a
Full Bench of the Delhi High Court in Court
on its own motion (Lajja Devi) and others
v. State and others5. In the aforesaid case, the
Full Bench took up some four matters arising
through varied kind of legal proceedings, but
involving one common fact that in each case,
the woman was below 18 years and had
married a man above 21 years of age of her
free consent. The Division Bench referred
some five questions, disagreeing with three
earlier Division Bench decisions that had
taken the view that the marriage of a minor
girl was neither void nor voidable under the
HMA. All the various questions referred to the
Full Bench may be relevant to one or the other
question under consideration here, as is the
case with the Madras High Court Full Bench
in T. Sivakumar. Now, so far as the present
question is concerned, it is the first part of the
first question referred to the Full Bench of the
Delhi High Court that is relevant. It must also
be said that the question referred here bears
remarkable resemblance in substance to
Question No. 1 that was the subject matter of
reference before the Full Bench of the Madras
High Court in T. Sivakumar. The first question
referred to the Full Bench of the Delhi High
Court in Lajja Devi (supra) reads :

"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)?"

21. In answering the question, the
Full Bench of the Delhi High Court,
speaking through A.K. Sikri, A.C.J. (as His
Lordship then was of the High Court) held :

"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
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
459
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 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 1516 years. This provision in the 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 Penal
Code, 1860 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
460 INDIAN LAW REPORTS ALLAHABAD SERIES
be said that though the practice of child
marriage has been discouraged by the
legislations but it has not been completely
banned.

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."

22. It must be remarked here that the
submission of Mr. Indrajeet Singh, learned
A.G.A., that once Section 5 (iii) mandates a
minimum age for the marriage of a man or
a woman as an essential requirement of a
valid Hindu marriage, its violation not
being held to render the marriage void,
would be an abnegation of the Statute, may
not be the correct statement of the law on
the terms of the HMA, but does point to an
anomaly that may be described by the
words 'intended to be forbidden, but
permitted'. It is this anomaly about the
legislature disapproving of child marriages
and yet permitting them, that has led their
Lordships of the Full Bench in Lajja Devi
to discern across provisions of different
statutes a kind of "legislative endorsement
of child marriage". It is gratifying to note
that one facet of this anomalous statutory
approval to a child marriage carried in the
Penal Code, which has been noticed with
distress by their Lordships of the Full
Bench in Lajja Devi about sex being
legitimized with a minor wife for the
husband, provided the woman is above the
age of 15 years, has been undone in
Independent Thought v. Union of India
and Another6. In the said decision,
exception 2 to Section 375 of the Indian
Penal Code, 18607 has been harmonised
with the provisions of the Protection of
Children from Sexual Offences Act, 20128
and held to be violative of Articles 14, 15
and
21
of
the
Constitution.
And
accordingly, Exception 2 to Section 375
IPC has been read down as under :

"Exception 2-- Sexual intercourse or
sexual acts by a man with his own wife, the
wife not being 18 years, is not rape."

23. In the aforesaid perspective of the
law, it must be held in terms of the question
framed that marriage of a minor in
contravention of Section 5(iii) of the HMA
and Section 3(1) of the PCMA is not void
ab initio for a rule, but voidable at the
6 All. Manish Kumar & Anr. Vs. State of U.P. & Ors.
461
option of the minor. But, if any of the
contingencies contemplated under Section
12 of the PCMA exist and can be proved,
the marriage would be void.

24. Now, with reference to this
conclusion about the legal position of the
minor's marriage, it has to be examined
whether the marriage of Manish Kumar and
Jyoti is valid, void or voidable. It must be
remarked here that there is one feature of the
case here that makes it quite different, if not
unique, from those that have received judicial
consideration and that is, that the husband is a
minor, whereas the wife is a major. The
husband was 16 years old at the time of
marriage and is now 17 years of age, whereas
the wife is a major. This fact would further
not make any difference, so far as the present
question is concerned. What is worthy of note
is Manish's stand before the Court on
23.09.2020, which clearly indicates that he
has married Jyoti of his freewill and wishes to
stay with his wife and mother-in-law. This
stand clearly takes the case out of the
mischief of Section 12 of the PCMA, so that
the marriage in this case cannot be termed
"void". No doubt, this marriage would be
voidable at Manish's option, that he may
exercise in accordance with the provision of
Section 3 of the PCMA.

25. Thus, Question No. 1 (as
reformulated) is answered in the negative, in
the terms indicated hereinabove.

QUESTION NOS. 2, 3 & 4

26. Question Nos. 2, 3 and 4 carry
different facets of the same issue, if not
precisely, substantially, and are, therefore,
being dealt with together.

27. Mr. Anand Kumar Srivastava,
learned Counsel for the petitioners submits,
particularly with reference to question
nos.2 and 4, that a minor, who does not
want to stay with his parents, is entitled to
stay with a person of his choice,
particularly, where he is on the verge of
attaining majority and in the age group of
expressing his intelligent choice. He says
that the paramount consideration is the
minor's welfare.