Delhi High Court
Shiv Mangal Paswan & Anr. vs Govt. Of Nct Of Delhi & Anr. on 2 December, 2015
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9954/2015
SHIV MANGAL PASWAN &ANR. ..... Petitioners
Through: Mr. Bishwajit Singh, Adv.
Versus
GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Devendra Dedha, Adv. for R-
1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 02.12.2015
1. On 19th October, 2015, when this petition first came up for hearing,
the following order was passed:
"1. The petitioners seek mandamus to the respondent No.1 Govt. of NCT
of Delhi (GNCTD) to register their marriage and which has been refused on the
ground of the petitioner No.2 wife at the time of marriage on 21st May, 1971
being below the marriageable age.
2. The ground on which registration of marriage has been refused does not
make sense when the petitioners, out of the said wedlock have given birth to
children and are still married.
3. The counsel for the respondents appearing on advance notice has no
instructions.
4. The counsels to ensure that when appearing on advance notice appear
with instructions so that the matters such as the present one which are capable
of being disposed of on the very first day can be so disposed of.
5. A copy of this order be sent to the Chief Secretary, GNCTD to ensure
that in future all counsels representing GNCTD when appearing on advance
notice appear property instructed and if not instructed, at least the concerned
officers are sent to the Court on the day when the matter is listed.
6. Issue notice.
7. Notice is accepted by the counsel for the respondents.
8. Counter affidavit be filed within two weeks.
9. Rejoinder thereto, if any be filed before the next date of hearing.
10. List on 2nd December, 2015."
2. The counsel for the respondents has handed over in the Court a status
report dated 30th November, 2015 which is taken on record. It is inter alia
stated therein that registration of marriage is computerized and since Section
5 of the Hindu Marriage Act, 1955 provides a condition that the bridegroom
should have completed the age of 21 years and the bride should have
completed the age of 18 years at the time of marriage, the computer software
refuses to accept any application for registration of marriage if the age of
either of the parties to the marriage at the time of marriage is shown to be
below what is prescribed. It is further stated in the said status report that
since the rejection of the application for registration of marriage was on the
said technical ground, provision is being made either to correct the computer
software or to physically verify the said application.
3. Though in the light of the above, it appears that there is now no
impediment at the end of the respondents to register the marriage of the
petitioners, if otherwise eligible therefor, but the counsel for the respondents
has rightly stated that since the said problem may be or is being faced by
others also, a general direction from this Court would help in improving the
software.
4. I may in this regard notice that though Section 5 of the Act lays down
the aforesaid besides others as conditions of Hindu marriage but Sections 11
of the Act makes the marriage void only if the conditions of, (i) neither party
to marriage having a spouse living at the time of marriage, or (ii) the parties
to the marriage being not within the degree of prohibited relationship, or of
(iii) the parties to the marriage being not sapindas of each other, are violated.
The same does not make the marriage void if the parties to the marriage or
any of them have/has not completed the age prescribed in Section 5.
Similarly, Section 12 of the Act while prescribing the grounds on which the
marriage is voidable also does not prescribe the ground of the parties to
marriage or any of them being underage.
5. Need for any further discussion is not felt as the Full Bench of this
Court in Court on its own Motion (Lajja Devi) Vs. State 193 (2012) DLT
619 has on a conspectus of law including the Prohibition of Child Marriage
Act, 2006 held that a marriage contracted with a female of less than 18 years
or a male less than 21 years would not be a void marriage but voidable one
which would become valid if no steps are taken by either party thereto,
before attaining the age prescribed or within two years of attaining such age
to have the marriage declared as void.
6. The petition is accordingly allowed by directing the respondents to
not refuse registration of marriage under the Hindu Marriage Act on the
ground of the parties or any party thereto at the time of marriage being of
age below the minimum prescribed and to make the requisite amendments in
their computer software or procedures to enable registration of such
marriage in accordance with law.
No costs.
RAJIV SAHAI ENDLAW, J.
DECEMBER 02, 2015
„gsr‟
