# Sadhna Kumari v. State of U.P. & Ors

- **Citation:** (2021) 5 ILRA 94
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-15
- **Case number:** Habeas Corpus Writ Petition No. 9996 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sadhna-kumari-v-state-of-u-p-ors-46993
- **Pages:** 7

## Headnote

(A) Contract Law - Indian Contract Act,
1872: Sections 10, 11 - Indian Majority
Act, 1875 - Section 3 - Child Marriage
Restraint Act, 1929 - Juvenile Justice
(Care and Protection of Children) Act,
2015 - The Hindu Marriage Act, 1955:
Section 5(iii)

The detenue petitioner and her next friend
alleged to have solemnized their marriage
through an agreement dated 31.07.2020.
However, the said agreement executed by
the petitioner (Sadhna Kumari) when she
was 17 years and 4 months old, meaning
thereby she could not have given valid
consent at the relevant date despite the
alleged agreement of her consent to cohabit
with Shekhar Pandey. (Para 14)

The detenue petitioner's urge from the
Court to issue a notice to produce the
alleged detenue on the basis of said
"agreement" will amount to giving effect to
the agreement. The agreement is not
enforceable in law for want of capacities of
the parties to the agreement. Undoubtedly,
both the parties was minor i.e., not of
marriageable age when entered into the
agreement to marry on 31.07.2020. (Para
16-19)
The minors agreement is void in law. The
marriage is not solemnized under the Hindu
Marriage Act or otherwise entered by the parties
thereto according to the law, but is being
claimed as an agreement to cohabit as husband
and wife by virtue of agreement dated
31.07.2020. The option to ratify the agreement
executed at the age of minority is allowed only
when a contract is entered on behalf of a lawful
authority of a minor. (Para 21, 22)

Writ Petition Rejected. (E-8)

List of Cases cited:-

## Text

94 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)05ILR A94
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.04.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Habeas Corpus Writ Petition No. 9996 of 2021

Sadhna Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Janardan Singh

Counsel for the Respondents:
G.A.

(A) Contract Law - Indian Contract Act,
1872: Sections 10, 11 - Indian Majority
Act, 1875 - Section 3 - Child Marriage
Restraint Act, 1929 - Juvenile Justice
(Care and Protection of Children) Act,
2015 - The Hindu Marriage Act, 1955:
Section 5(iii)

The detenue petitioner and her next friend
alleged to have solemnized their marriage
through an agreement dated 31.07.2020.
However, the said agreement executed by
the petitioner (Sadhna Kumari) when she
was 17 years and 4 months old, meaning
thereby she could not have given valid
consent at the relevant date despite the
alleged agreement of her consent to cohabit
with Shekhar Pandey. (Para 14)

The detenue petitioner's urge from the
Court to issue a notice to produce the
alleged detenue on the basis of said
"agreement" will amount to giving effect to
the agreement. The agreement is not
enforceable in law for want of capacities of
the parties to the agreement. Undoubtedly,
both the parties was minor i.e., not of
marriageable age when entered into the
agreement to marry on 31.07.2020. (Para
16-19)
The minors agreement is void in law. The
marriage is not solemnized under the Hindu
Marriage Act or otherwise entered by the parties
thereto according to the law, but is being
claimed as an agreement to cohabit as husband
and wife by virtue of agreement dated
31.07.2020. The option to ratify the agreement
executed at the age of minority is allowed only
when a contract is entered on behalf of a lawful
authority of a minor. (Para 21, 22)

Writ Petition Rejected. (E-8)

List of Cases cited:-

1. Mohori Bibee Vs Dharmoda Ghose (1903) ILR
30 Cal. 539 (P.C.)

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case called out for virtual
hearing as fresh petition.

2. Learned counsel for the petitioner,
Sri Janardan Singh, Advocate and learned
A.G.A for the State are connected through
video conferencing.

3. The instant writ petition is filed
seeking issuance of direction in the nature
of habeas corpus. Allegedly, the petition is
moved on behalf of 'Sadhna Kumari', aged
about 18 years, through her next friend on
15.4.2021. The next friend, allegedly the
husband namely Shekhar @ Shekhar
Pandey aged about 19 years, is resident of
District-Gonda. The opposite parties no.4
and 5 (parents of petitioner Sadhna
Kumari) are resident of village Mau, with
whom
her
unlawful
detention
is
complained of.

4. Briefly stating the grounds for
issuance of direction in the nature of habeas
Corpus through the next friend Shekhar @
Shekhar Pandey, as pleaded in the petition
5 All. Sadhna Kumari Vs. State of U.P. & Ors.
95
are the alleged detenue petitioner 'Sadhna
Kumari' and the next friend 'Shekhar @
Shekhar Pandey' were legally wedded and
living as husband and wife since after an
agreement purported to be of marriage
covenanted by them on a notary affidavit
dated 31.7.2020 which shall hereinafter be
referred
as
"agreement'
only.
The
photocopy of the said agreement is made
Annexure No.2 to the petition.

5. Para 13 of the writ petition pleads,
"the detenue petitioner and Shekhar @
Shekhar Pandey solemnized their marriage
and the detenue petitioner being major, she
is competent to take decision about her
future life". It is further pleaded that they
were cohabiting in their matrimonial house
situated at Village Bakhtawarpurwa, Tehsil
Paraspur, District Gonda uninterruptedly,
when the opposite party no.5 (father of
detenue Sadhna Kumari) some time in the
second week of January, 2021 requested for
her "vidai" assuring her return after one
week. On his assurance, the detenue
petitioner was allowed to depart the
matrimonial home with her father. Since
then,
she
is
detained
illegally
and
improperly against her wish and will by the
opposite parties no. 4 and 5 (parents) in
their home situated at Village Bhaatkol,
Post Dharauhara, Mohammadabad Gohana,
District Mau. Consequently, having no
option the instant writ petition under
Article 226 of the Constitution of India is
filed by the next friend on behalf of the
detenue, to issue a writ, order or direction
in the nature of habeas corpus commanding
and directing the opposite parties (State of
U.P, Superintendent of Police, Mau,
S.H.O., P.S- Kotwali Mohammadabad
Gohana, District Mau and parents of the
detenue petitioner) to produce the detenue
petitioner before the court so that statement
as to her willingness may be recorded by
the court and to set her free at her liberty.

6. Heard, the learned counsel Shri
Janardan Singh Advocate for the petitioner,
who emphatically argued to issue notice
instantly to the opposite parties, directing
them for production of the detenue before
the court. Learned A.G.A. is also present
on behalf of the State to protest the prayer
made by the petitioner. Learned A.G.A.
argued, a writ of habeas corpus when
presented before the Court, if the court is
prima facie satisfied that the prayer
deserves to be granted, it may issue rule
nisi and call upon the person or authority
against whom such writ is sought, on the
returnable date to show cause as to why
rule should not be made absolute and the
detenue should not be released from
detention or confinement.

7. Before accepting the prayer made
by the learned counsel to issue notice for
production of the alleged detenue Sadhna
Kumari in the court from the custody of the
parents first of all it is to be considered by
the court, whether the prima facie case is
made up from the facts pleaded in the
petition.

8. It is established by law that any
detenue or a person acting on his/her behalf
can move petition before the court for a
writ of habeas corpus, one reason for the
writ to be sought by the person other than
the detenue is that he/she might be held
incommunicado.

9. In the instant case the custody of
parents is claimed to be illegal on the
ground, the petitioner Sadhna Kumari and
her next friend both though legally wedded
through the 'solemnization of marriage' and
96 INDIAN LAW REPORTS ALLAHABAD SERIES
were cohabiting in their 'matrimonial
house' since the date of agreement dated
31.7.2020, the petition is taken away by her
father and confined in parents home against
her wishes.

10. On the basis of agreement dated
31.7.2020, the aforesaid next friend is
alleged to be husband of petitioner
Sadhana Kumari and as such the learned
counsel for the petitioner emphatically
requested to issue notice to the opposite
parties no. 4 and 5 and other Stateopposite parties too, to produce the
petitioner detenue in the court for
recording her desire and wishes as to her
future.

11. The entire pleading is gone
through by the court and read over by the
learned counsel for the petitioner also,
but he failed to show material avernment
as to the 'solemnization of marriage', it's
date, place and time so as to establish
wedding of the petitioner and her next
friend the alleged husband, however, the
words "solemnization of marriage" is
pleaded in the para 12 and 13 vaguely.
Both the paras are lacking specific
pleading as to the solemnization of
marriage with day, date and place of
solemnization. Learned counsel when
failed to establish by means of pleading
and other materials placed by him on
record of the petition the solemnization
of marriage, he emphatically pressed in
alternative on the "agreement" dated
31.7.2020 (Annexure No.2). The said
agreement is on notary affidavit. It is
purporting to be "Vivah Anubandh Patra"
(Rajinama)
means
"Agreement
of
Marriage" (Deed of Consent). Obviously
on
31.7.2020
the
parties
to
the
'agreement' namely, Sadhna Kumari and
Shekhar
Pandey
consented
to
live
together as husband and wife, claiming
they were already cohabiting as such for
last 6 months.

12. The 'agreement' dated 31.7.2020
is pleaded as the basis of legal authority of
the next friend to seek habeas corpus of
petitioner Sadhna Kumari. The purpose of
writ is to facilitate the next friend to
cohabit with petitioner without interruption
of anyone else, even the parents of Sadhna
Kumari (opposite parties no.4 and 5) with
whom she is presently residing. The
pleading on the one hand asserts in para-7
of the petition that since the date of
'agreement' the detenue petitioner and
Shekhar @ Shekhar Pandey used to live in
common room as husband and wife
enjoying their married life, the annexure
no.2 (the agreement) on the other hand, to
the contrary, claims on 31.7.2020 that they
remained in cohabitation with each other as
husband and wife for last 6 months. This
contradiction is relevant to appreciate the
vagueness of assertion of cohabitation.
Further, in para 11 of the petition, it is
pleaded that in second week of January
2021, Sadhna Kumari, on the request of her
father permitted to depart for parental
house. No specific date, as to when she
went to her parental house, is pleaded in the
petition. As such neither the date of
solemnization of marriage when they were
wedded and started cohabition nor the date
when she departed the alleged matrimonial
house for going to parental house is
pleaded. Keeping aside this vagueness, it
can be said with all certainity that the only
basis of alleging marital relation as well as
the matrimonial cohabitation with the next
friend Shekhar Pandey is the 'agreement'
(Annexure no. 2) dated 31.7.2020.

13. One other material placed before
this Court, the Annexure no.3, is an First
5 All. Sadhna Kumari Vs. State of U.P. & Ors.
97
Information Report in Case Crime No.524
of 2020 dated 6.9.2020 lodged in Police
Station Gautambuddh Nagar, Phase-II at
22.01 p.m. by Smt. Gudiya w/o Mahendra,
(opposite party no.4 in the petition). The
said F.I.R., lodged by the police under
Sections 363, 366 I.P.C. on the complaint
of opposite party no.4 discloses that, her
daughter Sadhna Kumari left house about
15 days ago with Shekhar @ Shekhar
Pandey. Complainant suspected the said
Shekhar @ Shekhar Pandey as he was
living in rented house in the same locality
having
telephone
no.8588019930
and
7703956814 was also missing at the same
time and the said mobile phone numbers
were kept switched off. She further
apprehended danger to the life of her
daughter. In the para-8 of the petition the
details of the said incident under F.I.R. is
pleaded but no further progress of the case
is disclosed.

Legality of agreement dated
31.7.2020.

14. The material information as to the
age of the petitioner Sadhna Kumari is
given in para-5 of the petition. As per the
High School Examination Result-2020, the
date of birth of detenue petitioner is
17.3.2003. In view of the aforesaid material
fact, the 'agreement' purported to be of
marriage when allegedly executed by the
petitioner Sadhna Kumari on 31.7.2020 she
was a minor of aged about 17 years and 4
months, therefore, at the relevant date of
agreement despite the alleged agreement of
her consent to cohabit with Shekhar
Pandey, the next friend as husband and
wife, she could not be supposed to give a
valid consent in law. This is pertinent to
note that a criminal case under Sections
363, 366 of Indian Penal Code, 1860 is
registered pursuant to the complaint of
petitioner's mother against the act of the
next friend Shekhar @ Shekhar Pandey. He
may be criminally liable on trial in due
course of procedure. As such the object and
considerable
for
the
agreement
is
undoubtedly unlawful.

15. The learned counsel for the
petitioner further vehemently argued that at
present when the petition is filed by the
petitioner she is major therefore, in law she
is competent to take decision on her own in
respect of her future life and if the court
calls her to record her wishes, she may
ratify the agreement. When the learned
counsel is asked about the position of law
with regard to the agreement executed by
minor itself and the capacity of minor to
ratify the said agreement on attaining
majority, he could not answer.

Agreement of which either
party to it is a minor- Legal Status.

16. In the instant case, the prima facie
case to issue a notice with regard to the
production of petitioner Sadhna Kumari as
prayed from the court in the writ of habeas
corpus, through her next friend the alleged
husband is absolutely based on the
agreement (consent deed) dated 31.7.2020.
Issuing a notice to produce the alleged
detenue on the basis of said 'agreement'
will amount to give the effect to the
agreement. The agreement must have
enforceability in law for the said purpose.
The
agreements
which
are
made
enforceable in law are provided under the
Indian Contract Act, 1872. Section 11 of
the Indian Contract Act states "every
person is competent to contract who is of
the age of majority according to the law to
which he is subject, and who is of sound
98 INDIAN LAW REPORTS ALLAHABAD SERIES
mind
and
is
not
disqualified
from
contracting by any law to which he is
subject.

17. In view of the aforesaid
provisions of Contract Act, three points are
to be kept in mind when enforceability of
an agreement is considered-

(i) the person needs to be a major;

(ii) the person needs to be of
sound mind; and

(iii) the person is not prohibited
by law to enter into a contract.

18. What would be the age of
majority which capacitates a person to
contract is important to be kept in mind.
The petitioner being a citizen of India,
his/her
age
of
majority
would
be
considered under the Indian Majority Act,
1875, Section 3 of the said Act provides as
below:

"3. Age of majority of persons
domiciled in India.-

(1) Every person domiciled in
India shall attain the age of majority on his
completing the age of eighteen years and
not before.

(2) In computing the age of any
person, the day on which he was born is to
be included as a whole day and he shall be
deemed to have attained majority at the
beginning of the eighteenth anniversary of
that day."

19. The petitioner's date of birth is
admittedly 17.3.2003, as such on the date
of
'agreement'
dated
31.7.2020,
she
undoubtedly was a minor. The definitions
given in Child Marriage Restraint Act,
1929 and Juvenile Justice (Care and
Protection of Children) Act, 2015 such
person is termed as child. Admittedly, the
petitioner was minor as well as a child also
when she allegedly entered into the
agreement to marry on 31.7.2020. Further,
she is party to an agreement of marriage.
An agreement must not be opposed to law.
The law applicable to her being a Hindu, is
"The Hindu Marriage Act, 1955". Section 5
(iii)
of
the
said
Act
provides
the
marriageable age, according to which the
marriage may be solemnized between any
two Hindus, if the following conditions are
fulfilled:-

"(iii)
the
bride
groom
has
completed the age of twenty one years and
the bride, the age of eighteen years at the
time of the marriage."

20. Under both the Acts viz. The
Hindu Marriage Act, 1955 and The Indian
Contract Act, 1872 the petitioner had no
legal capacity and competence to enter into
the agreement to marry with Shekhar @
Shekhar Pandey. Even Shekhar @ Shekhar
Pandey was not of marriageable age under
the law.

21. The minors agreement is declared
in law void, child marriage was outlawed in
1929. According to the Indian law, in
marriage where either the woman is below
the age of 18 years or the man is below the
age of 21 years, such marriages, if
solemnized by the guardians becomes
voidable under Section 5 of the Hindu
Marriage Act at the instance of minor. He
has option to ratify the marriage also.

22. Here in the present case, the
marriage is not solemnized under the Hindu
Marriage Act or otherwise entered by the
5 All. Sadhna Kumari Vs. State of U.P. & Ors.
99
parties thereto according to the law, but is
being claimed as an agreement to cohabit
as husband and wife by virtue of agreement
dated 31.7.2020. Therefore, the question is
whether on attaining the age of majority a
minor is competent to ratify his/her
agreement executed in the age of minority.
The legal position with this regard is that:

(i) contract with minor is void and no
legal obligation can ever arise on him/her
therein,

(ii) the minor party cannot ratify the
contract upon attaining majority unless the law
specifically allows this, and

(iii) no court can allow specific
permission of a contract with minor because it
is void altogether.

When a contract is entered on behalf
of a lawful authority of a minor then only the
option is available attaining majority to the
minor either to ratify or to rescind the contract
entered by the person having lawful authority
on his behalf. On the basis of aforesaid reasons,
the argument of learned counsel that the
petitioner has now become a major and she is
willing to enforce her contract is not tenable.

23. Since legal capacity to enter into
contract is a creation of law, when the law
expressly declares a minor incompetent to
contract. The agreement dated 31.7.2020 of
which one of the party namely petitioner
Sadhna Kumari a minor, is void, as the same is
in violation of Sections 11 and 23 of the The
Indian Contract Act, 1872. Sections 11 and 23
of the Indian Contract Act are quoted hereunder
for easy reference:-

"11. Who are competent to
contract.--Every person is competent to
contract who is of the age of majority
according to the law to which he is subject,
and who is of sound mind and is not
disqualified from contracting by any law to
which he is subject. Every person is
competent to contract who is of the age of
majority according to the law to which he
is subject, and who is of sound mind and is
not disqualified from contracting by any
law to which he is subject.

23.
What
consideration
and
objects are lawful, and what not.--The
consideration or object of an agreement is
lawful, unless--The consideration or object
of an agreement is lawful, unless--" it is
forbidden by law; or is of such a nature
that, if permitted, it would defeat the
provisions of any law; or is fraudulent; or
involves or implies, injury to the person or
property of another; or the Court regards it
as immoral, or opposed to public policy. In
each of these cases, the consideration or
object of an agreement is said to be
unlawful. Every agreement of which the
object or consideration is unlawful is void."

It is further provided in Section
10 of the Indian Contract Act, 1872 as to
what agreement are enforceable to assume
the shape of a valid contract. Section 10 of
the Indian Contract Act, 1872 runs as
under:-

"10.
What
agreements
are
contracts.--All agreements are contracts if
they are made by the free consent of parties
competent to contract, for a lawful
consideration and with a lawful object, and
are not hereby expressly declared to be
void. --All agreements are contracts if they
are made by the free consent of parties
competent to contract, for a lawful
consideration and with a lawful object, and
100 INDIAN LAW REPORTS ALLAHABAD SERIES
are not hereby expressly declared to be
void." Nothing herein contained shall affect
any law in force in India, and not hereby
expressly repealed, by which any contract
is required to be made in writing or in the
presence of witnesses, or any law relating
to the registration of documents."

24. The law as applicable in India on
the issue of contract with minor can be
stated to have derived from the decision of
the Privi Council in Mohori Bibee Vs.
Dharmodas Ghose (1903) ILR 30 Cal. 539
(P.C.). In that case the Privi Council, on the
wording of The Indian Contract Act, 1872
held that all contracts of minors were void
and not merely voidable. The position of
law would be different when a contract is
made by a guardian of a minor so as to be
binding on a minor and is also for the
benefit of the minor, then is an enforceable
contract in law and the minor can enforce
it.

25. It is therefore held that the
agreement dated 31.7.2020 purporting to be
of marriage and consent to cohabit
together, cannot be given effect so as to
issue notice to opposite parties for
production of petitioner in court for the
purpose of recording her desire to ratify her
alleged agreement to marry/consent deed,
for the reason of the same being a void
agreement.

26. In view of the above discussions,
the petition at the very threshold is
dismissed.

27. However, this decision shall not
impede the petitioner to enter into marital
relations with person of her choice,
whosoever
may
be,
on
attaining
marriageable age through a lawfully
solemnized marriage or otherwise by any
mode prescribed by law relating to
marriage.
----------

(2021)05ILR A100
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.04.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal Defective No. 226 of 2021

Doli ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Kishun Misra, Sri Jal Singh Yadav

Counsel for the Respondents:
C.S.C.

(A) Service Law - Where a candidate is
put to notice that before uploading the data
she must cross check the data with her
testimonials and obtain a print-out thereof
before uploading and, once it is uploaded,
the question whether she should or should
not be allowed to correct a mistake
depends upon the existence of enabling
provisions found in a statute or rule or
executive instructions. A person seeking a
writ of mandamus must demonstrate that a
right inheres in him casts a corresponding
duty/obligation upon the public authority or
State or its instrumentality to perform, or
desist from performing, such act for which
a
writ
of
mandamus
is
sought.
The
petitioner has failed to demonstrate that
any such right inheres in her under a
Statute or rule or executive instructions.
(Para 8)

Special Appeal Rejected. (E-8)

List of Cases cited:-