# Sanjay Chaudhary v. Guddan @ Usha

- **Citation:** (2024) 10 ILRA 828
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Case number:** First Appeal No. 213 of 2018
- **Bench:** Saumitra Dayal Singh, Donadi Ramesh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-chaudhary-v-guddan-usha-51130
- **Pages:** 32

## Headnote

Civil Law- Family Courts Act, 1989-
Section 19 - Declareation sought by the
appellant-marriage was void- declined-
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
829
Prohibition of Child Marriage Act, 2006 -
Sections 2(a), 3(1), 3(3), and 9
-
Declaration of child marriage as voidable
- Limitation - Held, under Section 3(3),
limitation of two years for filing a petition
to annul child marriage begins from the
date of attaining "majority" - For male
child, 'majority' means attaining age of 21
years as per Section 2(a) of the Act -
Consequently,
petition
filed
by
male
within two years from his 21st birthday is
within limitation - Word "majority" under
PCMA must be read in harmony with
definition of "child" in Section 2(a), and
not with Majority Act, 1875 - Literal
interpretation that links majority to age
18 for males leads to anomaly and defeats
legislative
purpose
-
Liberal
and
purposive construction adopted to further
object of statute.

Family Law - Child marriage - Validity
and election - Child marriage is not void
but voidable - Unless expressly annulled
under
Section
3
within
limitation,
marriage continues as valid - Mere filing
of earlier divorce petition does not amount
to election or confirmation of marriage -
Such election must be clear and voluntary
- Appeal allowed, decree of Family Court
set aside.

Interpretation of Statutes - Harmonious
construction
- When two provisions
appear inconsistent, interpretation that
furthers legislative intent and avoids
anomaly should prevail - Statute must be
read as a whole - Rule of contextual and
purposive interpretation applied - Courts
must avoid interpretation that renders
statute unworkable or defeats legislative
object.

Held - Appeal allowed - Suit filed under
Section 3 PCMA within limitation -
Judgment of Family Court reversed. (Paras
36 to 39, 42, 45, 46, 47, 48, 50, 51, 52, 56,
60 to 62, 65, 66, 69, 70, 71, 73 and 75)

HELD:
Having heard learned counsel for the parties
and having perused the record, we may first
note that the HMA does not contain any
provision to declare a "child marriage" void,
though it contemplates criminal prosecution of
male parties to such transactions. Earlier, HMA
prescribed the age of marriage. It is consistent
to PCMA, i.e. 18 years for females and 21 years
for males. Yet, it stopped short of making any
provision as to the legality of "child marriage"
performed by underage male or female, or both.
(Para 36)

The term "child marriage" is defined under
Section 2 (b) of the PCMA. It clearly means a
marriage where either of the contracting party is
a "child". The word "child" has been defined
under Section 2(a) of the PCMA. Clearly, a male
below 21 years of age is deemed to be a "child"
for the purpose of PCMA. Similarly, a female
below 18 years of age is deemed to be a "child".
It is admitted to the parties to the dispute that
the appellant was about 12 years of age,
whereas, the respond

## Text

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828 INDIAN LAW REPORTS ALLAHABAD SERIES
ameliorated the plight of child victims by
acknowledging the responsibilities of the
courts and making the CWC, Legal
Services Authorities and police officials
accountable to courts in bail applications.
These recognizable principles of law can be
clearly distilled from Reena Jha (supra),
Miss G (supra), Arjun Kishanrao Malge
(supra)."

13. The reports depicting compliance of
the above parameters and details of the
facilities and support systems provided to the
child victims as per law shall be submitted by
the Child Welfare Committee (CWC) and the
police respectively before the court at the
hearing of the bail applications. The learned
trial courts shall examine the aforesaid
reports at the time of hearing of the bail
applications and if required shall issue
appropriate directions.

14. The above mandate of POCSO Act
has
to
be
rigorously
followed
and
meticulously implemented. Currently the
implementation of the POCSO Act in the
above stated manner is deficient, which
frustrates the legislative intent. Legislation
cannot be reduced to a dead letter by apathy
of the statutory authorities.

15. The Secretary, Department of
Women and Child Development, Uttar
Pradesh Government is directed to ensure
that proper formats of reports to be submitted
by the CWCs before the courts in bail
applications under the POCSO Act are
created in line with the observations in this
judgement and other requirements as per law.
Furthermore, proper training programmes to
build the capacity of the CWCs to draw up
such reports shall also be undertaken on a
regular routine basis. The State Government
shall regularly monitor the compliance of the
above said directions.

16. The victim is a minor who is 14
years of age. The applicant is the father of the
victim. The victim has identified the
applicant as the principal offender who
trafficked her for money. The victim is
vulnerable. The offence is grave. There is
likelihood that the applicant had committed
the offence. At this stage, no case for bail is
made out.

17. Without going into the merits of the
case, the bail application is dismissed.

18. A copy of this order be sent to learned
Government Advocate for service upon the
Director General of Police, Government of U.P.
and Additional Director General of Police
(Prosecution), Government of U.P., Lucknow
as well as Secretary, Department of Women
and
Child
Development,
Uttar
Pradesh
Government for compliance.
----------
(2024) 10 ILRA 828
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2024

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE DONADI RAMESH, J.

First Appeal No. 213 of 2018

Sanjay Chaudhary ...Appellant
Versus
Guddan @ Usha ...Respondent

Counsel for the Appellant:
Anil Kumar Mehrotra, Srijan Mehrotra

Counsel for the Respondents:
Anurag Vajpeyi, Bindu Kumari, Gaurav
Tripathi

Civil Law- Family Courts Act, 1989-
Section 19 - Declareation sought by the
appellant-marriage was void- declined-
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
829
Prohibition of Child Marriage Act, 2006 -
Sections 2(a), 3(1), 3(3), and 9
-
Declaration of child marriage as voidable
- Limitation - Held, under Section 3(3),
limitation of two years for filing a petition
to annul child marriage begins from the
date of attaining "majority" - For male
child, 'majority' means attaining age of 21
years as per Section 2(a) of the Act -
Consequently,
petition
filed
by
male
within two years from his 21st birthday is
within limitation - Word "majority" under
PCMA must be read in harmony with
definition of "child" in Section 2(a), and
not with Majority Act, 1875 - Literal
interpretation that links majority to age
18 for males leads to anomaly and defeats
legislative
purpose
-
Liberal
and
purposive construction adopted to further
object of statute.

Family Law - Child marriage - Validity
and election - Child marriage is not void
but voidable - Unless expressly annulled
under
Section
3
within
limitation,
marriage continues as valid - Mere filing
of earlier divorce petition does not amount
to election or confirmation of marriage -
Such election must be clear and voluntary
- Appeal allowed, decree of Family Court
set aside.

Interpretation of Statutes - Harmonious
construction
- When two provisions
appear inconsistent, interpretation that
furthers legislative intent and avoids
anomaly should prevail - Statute must be
read as a whole - Rule of contextual and
purposive interpretation applied - Courts
must avoid interpretation that renders
statute unworkable or defeats legislative
object.

Held - Appeal allowed - Suit filed under
Section 3 PCMA within limitation -
Judgment of Family Court reversed. (Paras
36 to 39, 42, 45, 46, 47, 48, 50, 51, 52, 56,
60 to 62, 65, 66, 69, 70, 71, 73 and 75)

HELD:
Having heard learned counsel for the parties
and having perused the record, we may first
note that the HMA does not contain any
provision to declare a "child marriage" void,
though it contemplates criminal prosecution of
male parties to such transactions. Earlier, HMA
prescribed the age of marriage. It is consistent
to PCMA, i.e. 18 years for females and 21 years
for males. Yet, it stopped short of making any
provision as to the legality of "child marriage"
performed by underage male or female, or both.
(Para 36)

The term "child marriage" is defined under
Section 2 (b) of the PCMA. It clearly means a
marriage where either of the contracting party is
a "child". The word "child" has been defined
under Section 2(a) of the PCMA. Clearly, a male
below 21 years of age is deemed to be a "child"
for the purpose of PCMA. Similarly, a female
below 18 years of age is deemed to be a "child".
It is admitted to the parties to the dispute that
the appellant was about 12 years of age,
whereas, the respondent was 9 years of age, at
the time of their marriage solemnized on
28.11.2004. That transaction was a "child
marriage", admittedly voidable at the option of
either party. (Para 37)

What therefore falls for our consideration is
whether
the
remedy
available
for
that
declaration was applied for within limitation
prescribed by the law. In the first place, PCMA is
a complete code. It provides for all - the
prescription of age for a valid marriage; the
consequences and remedies in the event of an
underage marriage and the limitation to seek
the remedy against an underage marriage. (Para
38)

The remedy available to both parties to a "child
marriage" is to seek a declaration from a
competent Court that their marriage was void.
However, that effect and remedy is optional i.e.
to be availed upon the volition of either party to
that marriage, but by no other. Thus, a "child
marriage" is voidable but not void. Any party to
such transaction must elect to confirm or void it.
(Para 39)

Then Section 3(3) of the PCMA provides that a
suit may be filed "at any time" but before the
"child" filing the suit completes two years of
"attaining majority". Thus, the start point of
limitation has been prescribed- "at any time".
Clearly, that would refer to any time after
830 INDIAN LAW REPORTS ALLAHABAD SERIES
solemnization of a "child marriage" and not
before. On the other hand, the end of limitation
has been prescribed with reference to date of
"attaining majority". It has been fixed at the
completion of two years therefrom. Therefore, it
becomes material to ascertain - what would be
the age when a "child" (either male or female),
may attain "majority". (Para 42)

The term "majority" and the phrase "attaining
majority" have not been defined under the
PCMA. At the same time, the word "minor" has
been defined under Section 2(f) of the PCMA to
mean a person "deemed not to have attained
his majority" under the Majority Act. Therefore,
the legislature has defined the word "minor" as
the opposite of a "major" under the Majority
Act. Section 3 of the Majority Act provides for
the "age of majority of persons domiciled in
India, at 18 years and not before". (Para 43)

In our view, the PCMA uses two concepts. First,
to deal with the menace of "child marriage", the
legislature devices a concept of "child". In that it
creates an artificial distinction between the male
and female population in the country. Consistent
to the provisions of the Majority Act, it assumes
that in our society a female would cease to be a
"child" at age 18 years, purely by work of
unexplained legal fiction, it artificially assumes
that a male would remain a "child" up to the
age of 21 years. (Para 45)

We recognize that that legislative prescription
also involving legislatively drawn artificial
distinction (on the strength of a legal fiction
incorporated), may have arisen for two
completely
different
and
largely
distinct
considerations. First, the legislature sought to
protect the female population from the vice of
"child marriage", inherently involving risks to
their life and health upon premature and
therefore wholly unhealthy and undesirable
exposure
sexual
intercourse
and
early
childbirth - both leading to serious risks to
their health (both physical and physiological),
and longevity. It thus prohibits performance
of any marriage involving a female below 18
years of age. At the same time, it uses that
legislative opportunity to confirm a preexisting societal concern to allow the male
population, three more years to equip itselfeducationally and financially, before the
responsibilities of a married life may arise.
(Para 46)

Therefore, the explicit legislative intent is - to
treat a male more than 18 years of age i.e.
beginning 18 year and one day, as an "adult".
He is prohibited from solemnising a "child
marriage".
Violation
of
that
prohibition
enforced by the law may visit him with
penalty of rigorous imprisonment that may
extend up to two years, and fine. Therefore,
for that reason also we have no doubt that
the Parliament clearly intended and provided
by way of law, that the male of the society
also attain the age of "majority" i.e. the age
of discretion and decision making at 18 years
of age. There exists no evidence of any other
legislative intent -to extend the limitation to
institute a proceeding under section 3 of
PCMA (by such offenders), by three extra
years. (Para 56)

Once such a "male adult" i.e. a male more
than 18 years of age would have elected to
do so, it would always be recognised in law
(on a deemed basis) that he had waived his
right to void the transaction of "child
marriage"
performed
by
him.
A
"child
marriage" being voidable and not void, we
see no difficulty in law, in not recognising any
right to a "male adult" i.e. a male more than
18 years of age, to seek relief in a civil
proceeding that his marriage was void. (Para
60)

Therefore, no incongruity exists. In all such
cases, once a "male adult" i.e. a male who may
attain age more than 18 years on the date of
occurrence of a "child marriage" may have no
limitation to void his such "child marriage", he
having elected to perform that prohibited
transaction. Also, a male one who may have
been a "minor" on the date of occurrence of his
"child marriage" and may attain "majority" later,
would lose his right to void his marriage if he
elects to confirm his "child marriage", after
"attaining majority". (Para 62)

In any case, the incongruity if any is seen to be
extraneous considering the above discussion.
The Parliament has criminalised a "child
marriage" performed by a "male adult" i.e. a
person more than 18 years of age. PCMA
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
831
prescribes punishment - up to two years
rigorous imprisonment and fine that may extend
to INR one lakh. The transaction entered is an
offence. It entails a heavy punishment. In its
face, to thereafter give an option to such an
offender to void his marriage, would be to give
him
an
unfair
bargain
against
criminal
prosecution, if not in all at least in some cases
where the offender male may be 18 years of
age on the date of occurrence of "child
marriage" involving females who may also be 18
years of age or more. In that light, the
reasoning of the Madras High Court in T.
Shivakumar (Supra) and of the Delhi High Court
in Lajja Devi (Supra) may not persuade us to
reach that conclusion. Therefore, we remain in
respectful disagreement with the reasoning
offered by the Madras High Court and the Delhi
High Court. (Para 65)

The above observations made by the Supreme
Court as emphasized by us leave us with no
choice. In spirit, those observations may run
parallel to the observation made by the
Supreme Court in Independent Thought (supra).
Once, the highest Court of the land has ruled
that the male may have a right to seek
annulment of a "child marriage", up to the age
23, constitutionally, it is not for us to lay another
law. Hardev Singh (supra) was noticed in
Society for Enlightenment and Voluntary Action
(supra). Yet, no different expression of the law
is contained in that three-judge bench decision
of the Supreme Court. Thus, the present comes
across as a case where our judicial conscience
may only conform to judicial discipline. We leave
the issue at that. (Para 70)

In view of the above, we are unable to sustain
the reasoning offered by the learned Court
below insofar as it has referred to and related to
the conduct of the appellant of filing a divorce
suit under section 13 HMA, prior to the
institution of the suit under Section 3 of PCMA.
No explicit or implicit act of election was proven
performed by the appellant, after "attaining
majority" as may be read to his having
confirmed/legalised
the
"child
marriage"
between the parties. Having instituted the later
suit within limitation, he had not waived the
option to void that transaction. Similarly, it is a
fact that the present suit was filed without
specific reference to Section 3(3) of PCMA. Yet,
upon amendment made and allowed, it must be
acknowledged that the amendment relates back
to the date of institution of the suit. (Para 71)

No other fact is required to be established or
gone into before declaring the transaction of
"child marriage", void. First, material fact, that
on the date of their marriage both parties to the
marriage were "child" within the meaning of
that term defined under Section 2(a) of the
PCMA, is admitted. Therefore, their marriage
was a "child marriage" as defined under Section
2(b) of PCMA. (Para 73)

Then, it not disputed that the suit had been filed
by a party to the transaction of "child marriage".
It is wholly maintainable. As to the competence
and capacity of the appellant to institute the suit
proceeding, there is no doubt. The appellant
was more than 18 years of age. He alone could
have filed that suit in his individual capacity.
Last, as to limitation, we have already reached a
conclusion considering the decision of the
Supreme
Court
primarily
in
Independent
Thought (supra) read with Hardev Singh
(supra), that the appellant had limitation
available up to 23 years of age, to institute that
suit. Undoubtedly, on the date of institution of
the suit by the appellant he was less than 23
years of age. Therefore, the suit was instituted
within limitation, it having been instituted before
expiry of 2 years from the date the appellant
ceased to be a "child" i.e. attained 21 years of
age. (Para 74)

No other issue is to be dealt with. The findings
recorded by the learned court below to the
effect that earlier the appellant had instituted
proceedings under Section 13 of the Hindu
Marriage Act, that failed or that the present
proceedings were originally instituted under
Section 12(2) of the Hindu Marriage Act or that
the amendment was made later to set-up
ground of Section 3 PCMA and the other fact
finding with respect to conduct of the parties up
to the time the appellant sought a declaration
under
Section
3
of
PCMA
fade
into
insignificance,
in
view
of
the
foregoing
discussion. In any case, it was not proven by
the respondent that the appellant had ever
elected to confirm his "child marriage" after
"attaining majority" or that he ever waived his
right to void that transaction. The learned court
832 INDIAN LAW REPORTS ALLAHABAD SERIES
below ought to have granted the relief prayed.
(Para 75)

Appeal allowed. (E-14)

List of Cases cited:

1. T. Sivakumar Vs Inspector of Police, (2011)
SCC Online Mad 1722

2. Court On its Own Motion (Lajja Devi) Vs St.
2012 SCC OnLine Del 3937

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

4. Secundrabad Club Etc. Vs C.I.T.-V & ors.,
2023 SCC OnLine SC 1004

5. Association for Social Justice & Research Vs
U.O.I.& ors., (2010) 95 AIC 422

6. Girdhari Lal & Sons Vs Balbir Nath Mathur &
ors., (1986) 2 SCC 237

7. Kanai Lal Sur Vs Paramnidhi Sadhukhan, AIR
1957 SC 907

8. Osmania University Teachers' Assoc. Vs
St. of Andhra Pradesh & anr., (1987) 4 SCC
671

9. Captain Subash Kumar Vs Principal Officer,
Mercantile Marine Department, Madras, (1991)
2 SCC 449

10. Philips India Limited Vs Labour Court,
Madras & ors., (1985) 3 SCC 103

11. M. Pentiah & ors. Vs Muddala Veeramallappa
& ors., AIR 1961 SC 1107

12. Padma Sundara Rao (dead) & ors. Vs St. of
T.N. & ors., (2002) 3 SCC 533

13. Harbajan Singh Vs Press Council of India &
ors., (2002) 3 SCC 722

14. Dr. Jaishri Laxmanrao Patil Vs Chief Minister
(2021) 8 SCC 1

15. Maulavi Hussein Haji Abraham Umarji Vs St.
of Gujarat & anr., (2004) 6 SCC 672
16. U.O.I. Vs Elphinstone Spinning & Weaving
Company Limited & ors., (2001) 4 SCC 139

17. Komal Vs Mayatran, 2024 SCC Online MP
5315

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Donadi Ramesh, J.)

1. Heard Shri Anil Kumar Mehrotra,
assisted by Shri Srijan Mehrotra and Shri
Ashwani Kumar Patel, learned counsel for
the appellant and Shri Gaurav Tripathi,
learned counsel for the respondent.

2. Present appeal has been filed under
Section 19 of the Family Courts Act, 1984,
arising from the judgement and order dated
23.02.2018 passed by learned Principal
Judge, Family Court, Gautam Buddha
Nagar, in Suit No. 794 of 2013 (Sanjay
Chudhary v. Guddan @ Usha), whereby
declaration sought by the appellant, that his
marriage with respondent, solemnised on
28.11.2004, was void, has been declined.
The suit has been dismissed.

3. According to the facts proven
before the learned trial court, the appellant
was born on 07.08.1992 whereas the
respondent was born on 01.01.1995. On
28.11.2004, the date of their marriage, the
appellant was about 12 years of age
whereas the respondent was about 9 years
of age. They would have attained the age of
18 years in the year 2010 and 2013,
respectively. On 05.07.2013, claiming
benefit of Section 3 of Prohibition of Child
Marriage Act, 2006 (hereinafter referred to
as the 'PCMA'), the appellant filed the
above-described suit at age 20 years 10
months and 28 days. Initially, the suit was
instituted under Section 12 (2) of the HMA.
Later, upon amendment being allowed,
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
833
direct relief was claimed under Section 3 of
the PCMA. Relying on Section 2(a) of
PCMA- that defines "child" and thus
prescribes the age requirement for a valid
marriage (like that provided under Section
5(3) of the Hindu Marriage Act, 1955-
hereinafter referred to as the 'HMA'), the
appellant claimed that his suit, thus filed,
was within the limitation prescribed under
Section 3(3) of PCMA. Other fact grounds
were also pleaded to allege that the
respondent never cohabited, etc.

4. In the objections (filed by the
respondent) to that suit, amongst others, it
was objected that the appellant had attained
the age of majority i.e. 18 years in the year
2010 and therefore, the suit presented after
expiry of two years therefrom i.e. beyond
07.08.2012, was barred by limitation
prescribed under Section 3(3) of PCMA.
Other objections were also raised for
reason of earlier divorce suit filed and
dismissed, as also for other facts and
reasons describing the conduct of the
appellant indicating cohabitation as also
election to the marriage, after attaining
majority etc.

5. The learned Court below has
categorically found that the marriage
solemnised between the parties was a
"child marriage" under PCMA. Yet, it has
sustained the objections raised and has
dismissed the suit filed by the appellant,
primarily on the reasoning that prior to
institution of the present proceeding, the
appellant had instituted a divorce suit
proceeding being Matrimonial Case No.
1110 of 2011, under Section 13 of HMA,
on 17.09.2011. Though it was dismissed
under Order 9 Rule 8 on 19.05.2012 the
learned Court below has reasoned - by
filing the divorce suit, the appellant had
elected to confirm his "child marriage".
Further, no second suit may have been filed
thereafter for the declaration sought. Then,
conditions prescribed under section 12(2)
of HMA have been found, not fulfilled.
Also, the suit has been found instituted
outside limitation. As to Section 3 PCMA,
it has been held on his own showing the
appellant had earlier pleaded, he wanted to
live in matrimony with the respondent and
that the parties cohabited for some time.
Hence, their marriage is valid.

6. Shri Anil Mehrotra, learned counsel
for the appellant would submit that word
"major" and "majority" are not defined
under PCMA. The concept of "majority"
contained in the Majority Act, 1875
(hereinafter referred to as the Majority Act)
has also not been borrowed in PCMA.
Referring to Section 2(a) of the PCMA it
has been shown that it borrows the age
requirement as prescribed under Section
5(iii) of H.M.A. Reference has been made
to the phrase "child marriage" and the word
"minor" defined under the PCMA. For
ready reference provisions of Section 2(a),
(b) and (f), read as below:-

"2. Definitions. 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

(c) ..........

(d) ..........

(e) ..........

(f) "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;"
834 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Then, heavy reliance has been
placed on the legislative mandate contained
in Section 3 of PCMA that prohibits "child
marriage", absolutely. Hence, we consider
it appropriate to extract those provisions as
below: -

"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."

8. On the other hand, learned counsel
for the respondent has relied on the
language of Section 9 of PCMA. For ready
reference that provision is noted as below:

"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."

Pari materia provision exists
under Section 18 HMA.

9. Since the definition of the word
"minor" under the PCMA refers to the
Majority Act, we consider it appropriate to
extract of Section 3(1) of the Majority Act.
It reads 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."

10. Then, reliance has been placed on
a Full Bench decision of the Madras High
Court in T. Sivakumar Vs. Inspector of
Police, (2011) SCC Online Mad 1722,
wherein it has been observed as below: -

"18. A close reading of the above
objects and reasons of the Prohibition of
Child Marriage Act, would keep things
beyond any pale of doubt that the
Prohibition of Child Marriage Act is a
special enactment for the purpose of
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
835
effectively preventing the evil practice of
solemnisation of child marriages and also
to enhance the health of the child and the
status of women, whereas, the Hindu
Marriage Act is a general law regulating
the Hindu marriages. Therefore, the
Prohibition of Child Marriage Act, being a
special law, will have overriding effect over
the Hindu Marriage Act to the extent of any
inconsistency
between
these
two
enactments. In view of the said settled
position, undoubtedly, Section 3 of the
Prohibition of Child Marriage Act will
have overriding effect over the Hindu
Marriage Act.

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

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

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

"2(f) "minor" means a person
who, under the provisions of the Majority
836 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1875 (9 of 1875) is to be deemed not to
have attained his majority."

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

11. Reliance has also been placed on
similar reasoning offered by the Delhi High
Court, in Court On its Own Motion
(Lajja Devi) Vs. State 2012 SCC OnLine
Del 3937, wherein it has been observed as
under: -

"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 fullfledged 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.
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
837
...

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."
(emphasis supplied)

12. Next, heavy reliance has been
placed on the decision of the Supreme
Court in Independent Thought Vs. Union
of India and another, (2017) 10 SCC 800,
wherein it has been observed as below: -

"136. If
one
analyses
the
provisions of all the laws which have been
referred to above, it is apparent that the
legislature, in its wisdom, has universally
enacted that a person below the age of 18
years is deemed to be a child unable to look
after his or her own interests. It would be
very important to note that, in 2013 IPC
was
amended,
post
the
unfortunate
"Nirbhaya" incident and the age of
consent under clause Sixthly of Section 375
IPC was increased to 18 years. The
position as on date is that under the
Protection
of
Children
from
Sexual
Offences Act, 2012; the Juvenile Justice
(Care and Protection of Children) Act; the
Child Marriage Restraint Act, 1929; the
Protection of Women from Domestic
Violence Act, 2005; the Majority Act, 1875;
the Guardians and Wards Act, 1890; the
Contract Act, 1872 and many other
legislations, a person below the age of 18
years is considered to be a child unable to
look after his or her own interests.

137. As far as marriage laws are
concerned, as far back as 1978, the
minimum age of marriage of a girl child
was increased to 18 years. The Restraint
Act, was replaced by the PCMA wherein
also marriage of a girl child aged below 18
years is prohibited. However, Section 3 of
the PCMA makes a child marriage
voidable at the option of that party, who
was a child at the time of marriage. The
petition for annulling the child marriage
must be filed within 2 years of the child
attaining majority. Therefore, a girl who
was married before she attained the age of
18 years, can get her marriage annulled
before she attains the age of 20 years.
Similarly, a male child can get the
marriage annulled before attaining the age
838 INDIAN LAW REPORTS ALLAHABAD SERIES
of 23 years. Even when the child is minor, a
petition for annulment can be filed by the
guardian or next friend of the child along
with the Child Marriage Prohibition
Officer. Unfortunately, both the number of
prosecutions and the number of cases for
annulment of marriage filed under PCMA
are abysmally low."
(emphasis supplied)

13. To enforce that reasoning on this
Court, the sound principle in favour of
observance of judicial discipline has been
invoked. Thus, reliance has been placed on
the ratio in Secundrabad Club Etc. Vs.
C.I.T.-V and ors., 2023 SCC OnLine SC
1004, wherein the Supreme Court made the
following observation: -

"... 20. As against the ratio
decidendi of a judgment, an obiter dictum
is an observation by a court on a legal
question which may not be necessary for
the decision pronounced by the court.
However, the obiter dictum of the Supreme
Court is binding under Article 141 to the
extent of the observations on points raised
and decided by the Court in a case.
Although the obiter dictum of the Supreme
Court is binding on all courts, it has only
persuasive authority as far as the Supreme
Court itself is concerned.

 (emphasis supplied)

14. As to the purpose and spirit of
PCMA, reliance has been placed on
decision
of
Delhi
High
Court
in
Association
for
Social
Justice
&
Research Vs. Union of India and Others,
(2010) 95 AIC 422, wherein it has been
observed as below: -

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.
10 All. Sanjay Chaudhary Vs. Guddan @ Usha
839

(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.