Delhi High Court

Association For Social Justice & ... vs Union Of India & Others on 13 May, 2010

Author: A.K.Sikri

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                             W.P.(CRL) 535 of 2010

%                                          Date of Decision: 13th May, 2010.


ASSOCIATION FOR SOCIAL JUSTICE & RESEARCH
                                                            ..... Petitioner

                             Through:   Mr. Divya Jyoti Jaipuria, Advocate

                       VERSUS


UNION OF INDIA & OTHERS                                   ..... Respondents

                             Through:   Mr.   Pawan      Sharma,    Standing
                                        Counsel for the State
                                        Mr. Rajan Chaudhary, Advocate for
                                        R-13
                                        Mr. Sunil Kumar, Inspector with Mr.
                                        Baljeet, Sub-Inspector, Crime Branch

CORAM :-
    THE HON'BLE MR. JUSTICE A.K. SIKRI
    THE HON'BLE MR. JUSTICE AJIT BHARIHOKE

       1.      Whether Reporters of Local newspapers may be allowed
               to see the Judgment?
       2.      To be referred to the Reporter or not?
       3.      Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J. (ORAL)

1. The Association for Social Justice and Research, the petitioner

herein has filed this petition for a direction in the nature of habeas

corpus to trace minor child Chandni @ Chandrawati, daughter of

Mr. Vijay Pal. It is stated that the said girl is only 11-12 years of

age and at this tender age, her parents have married her for

consideration to one Mr. Yashpal, resident of Viallage and Post -

Baliana who is stated to be 40 years of age. It is further stated

that on coming to know about this incident, several civil society

groups came up to rescue the child, but failed to trace the girl.

The petitioner-Association has, in fact, constituted a fact-finding

inquiry. The said team as well as Mahila Panchayat working for

the cause of gender justice and equality for women came to know

from the residents of locality that the father of Chandni has

married his minor daughter for consideration to one Mr. Yashpal,

respondent No.13. It is also alleged in the petition that the

respondent No.13 has kept her in hiding.

2. Directions were given to the concerned Police Station to trace and

produce the girl. Matter was adjourned from time to time, as in

the beginning police authorities were unsuccessful in tracing out

the girl, her father, Vijay Pal and her husband, Yashpal. In these

circumstances on 04.05.2010, it was direct that the matter be

referred to the Crime Branch. Crime Branch succeeded in its

effort to trace the girl, who was produced on 11.05.2010. Here we

put on record the exemplary efforts made by Mr. Sunil Kumar,

Inspector and Mr. Baljeet, Sub-Inspector, Crime Branch. Father of

the girl as well as Yashpal, husband of the girl were arrested and

produced before the concerned Magistrate who remanded them to

judicial custody. They are still in judicial custody.

3. The girl, Chandni was sent to a Children Home, i.e., „Nirmal

Chhaya‟ from where she was produced in this Court on

11.05.2010. We took up the matter in Chamber and conversed

with Chandni. She stated that she was 17 years of age and that

she consented to the marriage with Yashpal without any pressure.

She denied that she was sold by her father to Yashpal or any

money was taken by her father in this behalf. Learned counsel for

the State informed us that Chandni was got medically examined

and as per the medical report, the age of Chandni was fixed

between 16 to 18 years.

4. Since the father of child, Vijay Pal as well as husband of the child

were in judicial custody, in order to find a proper and just solution

to the entire problem, we directed their presence today.

5. Yashpal has denied having given any money to Vijay Pal and Vijay

Pal also denied having received any money from Yashpal. We

may point out at this stage that Vijay Pal has six children, viz., five

daughters and one son. Chandni, the eldest daughter, as

mentioned above, is 17 years of age. On the other hand, Yashpal

states that he is 35 years of age and a widower. From his first

marriage, he has two daughters, who are 7 and 3 years of age

respectively. It was mentioned by Yashpal that having regard to

the fact that he has two daughters of adolescent age, in order to

ensure that they be brought up in a proper manner, he decided to

marry again. Marriage was fixed with Chandni with the

intervention of some common friends and relatives. Chandni did

not have any education at all. Vijay Pal is a labourer, who states

that his earning is about Rs.150 per day. He further stated that

because of large family and meager income, he was not in a

position to give any education to his children. In these

circumstances, he decided to marry his eldest daughter, Chandni

to Yashpal.

6. Sociologists even argue that for variety of reasons, child

marriages are prevalent in many parts of this country and the

reality is more complex than what it seems to be. The surprising

thing is that almost all communities where this practice is

prevalent are well aware of the fact that marrying child is illegal,

nay, it is even punishable under the law. NGOs as well as the

Government agencies have been working for decades to root out

this evil. Yet, the reality is that the evil continues to survive.

Again, sociologists attribute these phenomenon of child marriage

to a variety of reasons. The foremost amongst these reasons are

poverty, culture, tradition and values based on patriarchal norms.

Other reasons are: low-level of education of girls, lower status

given to the girls and considering them as financial burden and

social customs and traditions. In many cases, the mixture of

these causes results in the imprisonment of children in marriage

without their consent.

7. The present case is a telling example, which proves the

sociologists correct.

8. It cannot be disputed that the aforesaid marriage is in violation of

provisions of the Prohibition of Child Marriage Act, 2006 inasmuch

as Chandni is minor and in below the age of 18 years. At the

same time, marriage is not void under civil law. The

circumstances under which Chandni is married to Yashpal are

narrated above and presumably under these forced

circumstances, economic or otherwise, Vijay Pal decided to marry

Chandni to Yashpal even when she was less than 18 years. Be as

it may, since Vijay Pal and Yashpal are already arrested and FIR is

also registered against them, insofar as that aspect is concerned,

law will take its own course.

9. The purpose and rationale behind the Prohibition of Child Marriage

Act, 2006 is that there should not be a marriage of a child at a

tender age as he/she is neither psychologically nor physically fit to

get married. There could be various psychological and other

implications of such marriage, particularly if the child happens to

be a girl. In actuality, child marriage is a violation of human

rights, compromising the development of girls and often resulting

in early pregnancy and social isolation, with little education and

poor vocational training reinforcing the gendered nature of

poverty. Young married girls are a unique, though often invisible,

group. Required to perform heavy amounts of domestic work,

under pressure to demonstrate fertility, and responsible for raising

children while still children themselves, married girls and child

mothers face constrained decision making and reduced life

choices. Boys are also affected by child marriage but the issue

impacts girls in far larger numbers and with more intensity.

Where a girl lives with a man and takes on the role of caregiver

for him, the assumption is often that she has become an adult

woman, even if she has not yet reached the age of 18. Some of

the ill-effects of child marriage can be summarized as under:

(i) Girls who get married at an early age are often more

susceptible to the health risks associated with early

sexual initiation and childbearing, including HIV and

obstetric fistula.

(ii) Young girls who lack status, power and maturity are

often subjected to domestic violence, sexual abuse

and social isolation.

(iii) Early marriage almost always deprives girls of their

education or meaningful work, which contributes to

persistent poverty.

(iv) Child Marriage perpetuates an unrelenting cycle of

gender inequality, sickness and poverty.

(v) Getting the girls married at an early age when they

are not physically mature, leads to highest rates of

maternal and child mortality.

Young mothers face higher risks during pregnancies including

complications such as heavy bleeding, fistula, infection, anaemia,

and eclampsia which contribute to higher mortality rates of both

mother and child. At a young age a girl has not developed fully

and her body may strain under the effort of child birth, which can

result in obstructed labour and obstetric fistula. Obstetric fistula

can also be caused by the early sexual relations associated with

child marriage, which take place sometimes even before

menarche. Child marriage also has considerable implications for

the social development of child bridges, in terms of low levels of

education, poor health and lack of agency and personal

autonomy. The Forum on Marriage and the Rights of Women and

Girls explains that „where these elements are linked with gender

inequities and biases for the majority of young girls... their

socialization which grooms them to be mothers and submissive

wives, limits their development to only reproductive roles. A lack

of education also means that young brides often lack knowledge

about sexual relations, their bodies and reproduction, exacerbated

by the cultural silence surrounding these subjects. This denies the

girl the ability to make informed decisions about sexual relations,

planning a family, and her health, yet another example of their

lives in which they have no control. Women who marry early are

more likely to suffer abuse and violence, with inevitable

psychological as well as physical consequences. Studies indicate

that women who marry at young ages are more likely to believe

that it is sometimes acceptable for a husband to beat his wife, and

are therefore more likely to experience domestic violence

themselves. Violent behaviour can take the form of physical

harm, physical harm, psychological attacks, threatening behaviour

and forced sexual acts including rape. Abuse is sometimes

perpetrated by the husband‟s family as well as the husband

himself, and girls that enter families as a bride often become

domestic slaves for the in-laws. Early marriage has also been

linked to wife abandonment and increased levels of divorce or

separation and child brides also face the risk of being widowed by

their husbands who are often considerably older. In these

instances, the wife is likely to suffer additional discrimination as in

many cultures divorced, abandoned or widowed women suffer a

loss of status, and may be ostracized by society and denied

property rights.

10. The Prohibition of Child Marriage Act has been enacted keeping in

view the aforesaid considerations in mind.

11. In this backdrop, the dilemma of the Court is as to whom custody

of Chandni be entrusted. There have been judgments of this

Court handing over the custody of minor girl to the husband to

whom with whom she is married. Some of these cases are: (i)

Ravi Kumar Vs. The State & Anr. [2005 (124) DLT], (ii) Phoola

Devi Vs. The State & Ors. [2005 VIII AD Delhi 256], (iii) Manish

Singh Vs. State Govt. of NCT & Ors. [2006 (1) CCC (HC) 208]

and (iv) Sunil Kumar Vs. State NCT of Delhi & Anr. [2007 (2)

LRC 56 (Del) (DB)]. The sum and substance of these authorities is

that marriage solemnized in contravention of the age prescribed

under Section 5(iii) of the Hindu Marriage Act, i.e., 21 years for

male and 18 years for female are neither void nor voidable under

Sections 11 and 12 of the Hindu Marriage Act. The only sanction

prescribed against such marriages was noticed to be a

punishment prescribed under Section 18 of the said Act, which

was to the extent of 15 days and a find of Rs.1,000/-.

Furthermore, while permitting the minor girls to reside with their

husbands, the Courts also noticed that these girls had come of

age of discretion. In all these judgments, Prohibition of Child

Marriage Act were not taken note of, which makes the contracting

of a marriage by a boy above the age of 18 with a girl less than 18

as a cognizable and non-bailable offence. This aspect was taken

note of by a Division Bench of this Court in Lajja Devi Vs. State

(WP (Crl.) No.338 of 2008) and vide orders date 31.07.2008, the

matter is referred to Full Bench. Operative part of that order

reads as under:

"... We are of the view that a question of public importance is involved in the matter which needs consideration by a Full Bench on account of the absence of consideration of all extant statutes:-

(a) The first reason why prima facie, we hesitate to agree with the observations passed by the Division Bench of this Court is on account of the fact that although there may be different definitions of the word "child" with regard to the age of the minor girl given in different enactments by the purpose of each enactment is to be seen. The enactment which is of utmost importance with regard to the child marriage or for that matter the marriage with a minor girl would be the Prohibition of Child Marriage Act, 2006.

(b) According to Section 2(a) of the Prohibition of Child Marriage Act, 2006, a "child" means a person who, if a male, has not completed twenty-one years of age, and if female, has not completed eighteen years of age.

(c) Section 12(a) of the said Act makes the marriage of a minor girl who has been taken or enticed out of the keeping of the lawful guardian shall be null and void. The language of Section 12(a) of the said Act is mandatory in nature and does not admit of any reservation. Further it makes the marriage of a child, or a minor girl as null and void. That means the marriage itself is non-existent and the law does not recognize the same. Section 9 of the said Act provides for punishment for a male adult above 18 years of age contracting a child marriage punishable with rigorous imprisonment which may extend to two years or with fine which may extend to Rs. 1 lac or with both.

(d) The offence caries a punishable which may extend upto 2 years and, therefore, clearly the offence would be bailable and non-cognizable. Despite this, by virtue of the non-obstante clause f the Section 15 of the Act, such offence is a cognizable and non bailable offence under Cr.P.C. This aspect of the matter has not been previously considered by the Court and accordingly quashing of FIR under Section 363 or in the instant case under Section 363 and 376 would not only be in contravention of law but also against the letter and spirit of the Act by observing that the girl has attained the age of discretion with the reference to Sections 5(iii), 11, 12 and 18 of the Hindu Marriage Act.

11. Accordingly, we are of the opinion that the following questions require to be considered by Larger Bench:

(1) Whether a marriage contracted by a boy with a female of less than 18 years and a male of less than 21 years could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?

(2) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody?

(3) If yes, can she be kept in the protective custody of the State?

(4) Whether the FIR under Section 363 IPC or even 376 IPC can be quashed on the basis of the statement of such a minor that she has contracted the marriage of her own?

(5) Whether there may be other presumptions also which may arise?"

12. The Full Bench has yet to answer the questions referred for

consideration. In integerrum, the issue is as to what course of

action to be adopted in the instant case. It hardly needs to

emphasize that we are concerned with the welfare of girl,

Chandni, who is minor. Having taken note of the provisions of the

Prohibition of Child Marriage Act, 2006, the adverse effects of

child marriage and also to the fact that the earlier judgments of

this Court where custody of such minor girl was given to the

husband are pending reconsideration before the Full Bench, we

are of the view that custody of Chandni cannot be given to her

husband at this stage.

13. Keeping in view the aforesaid considerations in mind, we had

asked the learned counsel for the petitioner as well as learned

Standing Counsel for the State to suggest a just solution to the

problem to ensure that the girl Chandni, at this age is not

subjected to any such pressure. After hearing the counsel for the

parties on these aspects, we are of the opinion that in order to

ensure that the interest of Chandni shall be duly protected, the

following directions are needed to be passed:

a) Till Chandni attains the age of 18, she shall stay with her

parents and not with Yashpal, her husband.

b) Yashpal shall not consummate the marriage. It would be

responsibility of not only Yashpal, but the parents of

Chandni shall also ensure this.

c) Gauna ceremony of Chandni shall be performed only

after she attains the age of 18 years, i.e., not before

30.06.2011. Neither the parents of Chandni nor the

husband, Yashpal will be allowed to perform the

aforesaid Gauna ceremony without taking the option and

consent of Chandni at that time. To put it otherwise, we

may make it clear that it is the option of Chandni to

accept this marriage or not. In case she does not accept

this marriage, it shall be treated as null and void. This

choice is given to Chandni under Section 3 of Prohibition

of Child Marriage Act.