Patna High Court
Nitish Kumar @ Nitish Ram @ Nitish Kumar ... vs The State Of Bihar Through Its ... on 16 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.880 of 2023
Arising Out of PS. Case No.-7 Year-2022 Thana- SALIMPUR District- Patna
======================================================
NITISH KUMAR @ NITISH RAM @ NITISH KUMAR RAM, aged about
23 years, Male, Son of Late Ram Pravesh Ram, Resident of Village - Rupas
Mahaji, Police Station - Salimpur, District - Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through its Additional Chief Secretary, Home
Department, Government of Bihar, Patna, Bihar.
2. The Director General of Police, Bihar, Patna. Bihar
3. The Inspector General of Police, Patna.
4. The Senior Superintendent of Police, Patna.
5. The District Magistrate, Patna.
6. The Deputy Superintendent of Police, Patna.
7. The Station House Officer (S.H.O.) Police Station - Salimpur, District -
Patna.
8. The Director - Incharge the State Girls Care Home, Gaighat, Patna.
9. The Child Welfare Committee through Director/ Chairman, District - Patna,
Bihar.
10. Arjun Ram, aged about 45 years, Male, Son of Ram Prasad Ram, Resident
of Village - Rupas Mahaji, Police Station - Salimpur, District - Patna.
11. Shivani Kumari, aged about 20 years, Female, Daughter of Arjun Ram,
Wife of Nitish Kumar @ Nitish Ram, Resident of Village - Rupas Maaji,
Police Station - Salimpur, District - Patna, presently - The State Girls Care
Home, Gaighat, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Lakshmindra Kumar Yadav, Advocate
For the Respondent/s : Mr. P.K. Shahi, AG
: Mr. Prabhu Narayan Sharma, AC to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date : 16-01-2024
Heard learned counsel for the
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
petitioner and learned counsel for the State.
2. The present criminal writ application
has been filed on behalf of the petitioner by way of
Habeas Corpus seeking a direction from the
respondents for release of the respondent no. 11
namely, Shivani Kumari from the respondent no. 8,
namely The State Girls Care Home, Gaighat, Patna,
on the ground that the respondent no. 11 was
examined by the doctor and her age was assessed
to be under 18 years. Her statement under Section
164 Cr.P.C. was also recorded where she has
admitted that she moved out of her own will to the
petitioner and in course of time, she has given
birth to a child out of the relationship. Respondent
No. 11 has also stated that she is major and the
marriage is out of will. Hence, the present Habeas
Corpus application has been preferred for her
release in favour of the petitioner. There is a
criminal case also instituted by the father of the
respondent no. 11 against the petitioner i.e.,
Salimpur P.S Case No. 07 of 2022, wherein the
petitioner has been granted bail.
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
3. Learned counsel for the petitioner has
submitted that it was a case of love marriage
between Nitish Kumar and Shivani Kumari and they
had married voluntarily and without any force or
coercion. He submitted that notwithstanding that
girl was minor, she still had a legal right to live
with her husband and therefore, she cannot be
compelled to stay at State Girls Care Home,
Gaighat, Patna. The learned counsel further
submitted that the present petition has been filed
by Nitish Kumar. He further submitted that since
the present petition is filed seeking a writ in the
nature of Habeas Corpus and the same would be
maintainable in law. He has further submitted that
there is no bar for releasing Shivani Kumari from
State Girls Care Home, Gaighat, Patna, in view of
the stand taken by Shivani Kumari herself that she
had voluntarily married Nitish Kumar and she
wanted to stay with him and not with her parents
and therefore, no useful purpose would be served
in case Shivani Kumari continues to remain in State
Girls Care Home, till the age of majority.
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
4. Per contra, Learned counsel for the
respondent nos. 5 & 9, while referring to the reply
by way of affidavit filed by the District Magistrate,
Patna, has submitted that as per the application of
father of Shivani Kumari (respondent no. 11), the
age of the child is 14 years. The letter no 412
dated 26.07.2023, issued by the Chairman, Child
Welfare Committee, Patna stated that Shivani is a
minor. The leaned State counsel has further
submitted that since girl is even less than 17 years
of age, it was a case of child marriage and
prohibited under law and therefore, even if she has
consented to marriage, the same would not be of
any significance as child marriage is prohibited
under the law and therefore, it will be in the
interest of Shivani and her child continues to
remain in the State Girls Care Home, Gaighat,
Patna, till she attains the age of majority.
5. On 12.12.2023, when the matter was
heard, the aforesaid girl Shivani (respondent no.
11) who is residing at Nishant Girih Balika, Gaighat,
Patna, was produced and this Court had the
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
occasion to interact with her. She apprised the
Court that she is duly married with Nitish Kumar
(petitioner) and her age is about 18-19 years and
she is a major. On being pointedly asked as to
where she wants to reside, she stated that she
wishes to go with her husband. When she was
asked as to whether she was ready and willing to
go with her father or not, she flatly refused to go
along with her father.
6. This Court, vide order dated 12.12.2023
also directed the Registry to issue notice to In-
Charge Principal, Primary School, Rupas Mahaji,
Bakhtiyarpur, Patna to furnish the admission
register wherein the details of Shivani Kumari has
been written. The admission register mentions that
her date of birth is of 17.03.2008, also the birth
certificate of respondent no. 11 produced by the
father is 17.03.2008, and the date of registration of
said birth certificate which is same as date of birth
of respondent no. 11.
7. We have heard the learned counsel for
the parties at length.
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
8. The question which is to be considered
in the present petition is as to whether a girl who is
less than 18 years of age gets married to a boy
with her consent can be compelled to stay at State
Girls Care Home, Gaighat, Patna while she refuses
to accompany her parents or not?
9.In a Full Bench judgment passed by the
Hon'ble Delhi High Court i.e. Court on its own
motion Lajja Devi v. State, 2012 SCC OnLine
Del 3937, two issues were considered. Firstly,
what is the status of marriage under Hindu
Marriage Act when one of the parties to the
marriage is below the age of 18 years in
contravention to Section 5 (iii) of the Hindu
Marriage Act 1955 and Section 2 (a) of the
Prohibition of Child Marriage Act, 2006 and
Secondly, when the girl is minor but the boy has
attained the age of marriage as prescribed,
whether the husband can be regarded as lawful
guardian of the minor wife and claim her custody
in-spite of differences by the parents of the girl and
what is the effect of the Prohibition of Child
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
Marriage Act, 2006. It was held that so far as first
issue is concerned, a marriage contracted with a
female of less than 18 years of age or a male of
less than 21 years of age would not be a void
marriage but voidable one which could become
valid if no steps are taken by such "child" within
the meaning of Section 2 (a) of the Prohibition of
Child Marriage Act, not be a marriage of a child at
a tender age as he or she is not psychologically or
medically fit to get married. Such marriage is
voidable and the girl child still has right to
approach the Court seeking to exercise her option
to get the marriage declared as void till she attains
the age of 20 years and how she would be able to
exercise her right if in the meantime because the
marriage is consummated when she is not even in
a position to give consent which also could lead to
pregnancy and child bearing and no final answer to
the second issue can be made and it will depend
upon the circumstances which the Court will have
to decide in an appropriate manner. The relevant
portion of the aforesaid judgment reads as under:-
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
2006 under Section 3 of the Act, seeking
declaration of the marriage as void. So far as
second issue is concerned, it was held that
allowing the husband to consummate marriage
may not be appropriate more so when 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 or she is
not psychologically or medically fit to get married.
Such marriage is voidable and the girl child still
has right to approach the Court seeking to exercise
her option to get the marriage declared as void till
she attains the age of 20 years and how she would
be able to exercise her right if in the meantime
because the marriage is consummated when she is
not even in a position to give consent which also
could lead to pregnancy and child bearing and no
final answer to the second issue can be made and
it will depend upon the circumstances which the
Court will have to decide in an appropriate manner.
The relevant portion of the aforesaid judgment
reads as under:-
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
"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.
46. In such circumstances, allowing the
husband to consummate a marriage may
not be appropriate more so when the
purpose and rationale behind the PCM
Act, 2006 is that there should be a
marriage of a child at a tender age as e or
she is not psychologically or medically fit
to get married. There is another
important aspect which is to be borne in
mind. Such a marriage, after all, is
voidable and the girl child still has right to
approach the Court seeking to exercise
her option to get the marriage declared
as void till she attains the age of 20
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
years. How she would be able to exercise
her right if in the meantime because the
marriage is consummated when she is
not even in a position to give consent
which also could lead to pregnancy and
child bearing. Such marriages, if they are
made legally enforceable will have
deleterious effect and shall not prevent
anyone from entering into such
marriages. Consent of a girl or boy below
the age of 16 years in most cases a
figment of imagination is an anomaly and
a mirage and, and will act as a cover up
by those who are economically and/or
socially powerful to pulverize the muted
meek into submission. These are the
considerations which are to be kept in
mind while deciding as to whether
custody is to be given to the husband or
not. There would be many other factors
which the Court will have to keep in mind,
particularly in those cases where the girl,
though minor, eloped with the boy
(whether below or above 21 years of age)
and she does not want to go back to her
parents. Question may arise as to
whether in such circumstances, the
custody can be given to the parents of
the husband with certain conditions,
including the condition that husband
would not be allowed to consummate the
marriage. Thus, we are of the opinion that
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
there cannot be a straight forward answer
to the second part of this question and
depending upon the circumstances the
Court will have to decide in an
appropriate manner as to whom the
custody of the said girl child is to be
given."
10. Dealing with the issue in hand of
exception 2 to Section 375 IPC, Exception (2)
to Section 375 of the IPC reads as follows:-
"Sexual intercourse or sexual acts by a
man with his own wife, the wife not being
under fifteen years of age, is not rape."
11. While elaborately discussing the 'best
interests' of a girl child and impact of an early
marriage in her mental, physical and psychological
health, the Supreme Court in Independent
Thought Vs. Union of India, 2017 (10) SCC
800 dealt with the child marriage and also referred
to the Full Bench judgments of the Hon'ble Delhi
and Madras High Courts. It was observed that a girl
child below 18 years of age and who is sought to
be married is a child in need of care and protection
and therefore, she is required to be produced
before the Child Welfare Committee constituted
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
under Section 27 of the Juvenile Justice (Care and
Protection of Children) Act, so that she should be
cared for, protected and appropriately rehabilitated
or restored to society. A child remains a child
whether she is intercourse is definitively 18 years
and there is no dispute about this and therefore,
under no circumstance can a child below 18 years
of age give consent, express or implied, for sexual
intercourse. It was further observed that the age of
consent has not been specifically reduced by any
statute and unless there is such a specific
reduction, it must proceed on the basis that the
age of consent and willingness to sexual
intercourse remains at 18 years of age.
Furthermore, such child marriages certainly cannot
be in the best interest of the girl child and the
solemnization of a child marriage violates the
provisions of the Prohibition of Child Marriage Act,
2006. The relevant portions of the judgment are
reproduced as under:-a married child or an
unmarried child or a divorced child or a separated
child or a widowed child. The age of consent for
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
sexual intercourse is definitively 18 years and
there is no dispute about this and therefore, under
no circumstance can a child below 18 years of age
give consent, express or implied, for sexual
intercourse. It was further observed that the age of
consent has not been specifically reduced by any
statute and unless there is such a specific
reduction, it must proceed on the basis that the
age of consent and willingness to sexual
intercourse remains at 18 years of age.
Furthermore, Such child marriages certainly cannot
be in the best interest of the girl child and the
solemnization of a child marriage violates the
provisions of the Prohibition of Child Marriage Act,
2006. The relevant portions of the judgment are
reproduced as under:-
"51. The Juvenile Justice (Care and
Protection of Children) Act, 2015 (the JJ
Act) is also relatable to Article 15 (3) of
the Constitution. Section 2(12) of the JJ
Act defines a child as a person who has
not completed 18 years of age. A child in
need of care and protection is defined in
Section 2(14) of the JJ Act, inter alia, as a
child "who is at imminent risk of marriage
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
before attaining the age of marriage and
whose parents, family members, guardian
and any other persons are likely to be
responsible for solemnization of such
marriage". Clearly a girl child below 18
years of age and who is sought to be
married is a child in need of care and
protection. She is therefore, required to
be produced before a Child Welfare
Committee constituted under Section 27
of the JJ Act so that she could be cared
for, protected and appropriately
rehabilitated or restored to society.
77. There is no doubt that pro-child
statutes are intended to and do consider
the best interest of the child. These
statutes have been enacted in the recent
past though not effectively implemented.
Given this situation, we are of opinion
that a few facts need to be acknowledged
and accepted. Firstly, a child is and
remains a child regardless of the
description or nomenclature given to the
child. It is universally accepted in almost
all relevant statutes in our country that a
child is a person below 18 years of age.
Therefore, a child remains a child whether
she is described as a street child or a
surrendered child or an abandoned child
or an adopted child. Similarly, a child
remains a child whether she is a married
child or an unmarried child or a divorced
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
child or a separated child or a widowed
child. At this stage we are reminded of
Shakespeare's eternal view that a rose by
any other name would smell as sweet - so
also with the status of a child, despite any
prefix. Secondly, the age of consent for
sexual intercourse is definitively 18 years
and there is no dispute about this.
Therefore, under no circumstance can a
child below 18 years of age give consent,
express or implied, for sexual intercourse.
The age of consent has not been
specifically reduced by any statute and
unless there is such a specific reduction,
we must proceed on the basis that the
age of consent and willingness to sexual
intercourse remains at 18 years of age.
Thirdly, Exception 2 to Section 375 of the
IPC creates an artificial distinction
between a married girl child and an
unmarried girl child with no real rationale
and thereby does away with consent for
sexual intercourse by a husband with his
wife who is a girl child between 15 and 18
years of age. Such an unnecessary and
artificial distinction if accepted can again
be introduced for other occasions for
divorced children or separated children or
widowed children.
78. What is sought to be achieved by this
artificial distinction is not at all clear
except perhaps to acknowledge that child
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
marriages are taking place in the country.
Such child marriages certainly cannot be
in the best interest of the girl child. That
the solemnization of a child marriage
violates the provisions of the PCMA is
well- known. Therefore, it is for the State
to effectively implement and enforce the
law rather than dilute it by creating
artificial distinctions. Can it not be said, in
a sense, that through the artificial
distinction, Exception 2 to Section 375 of
the IPC encourages violation of the PCMA?
Perhaps 'yes' and looked at from another
point of view, perhaps 'no' for it cannot
reasonably be argued that one statute
(the IPC) condones an offence under
another statute (the PCMA).
80. Besides, The Union of India
completely side track the issue and
overlook the provisions of the PCMA, the
provisions of the JJ Act as well as the
provisions of the POCSO Act. Surely, the
Union of India cannot be oblivious to the
existence of the trauma faced by a girl
child who is married between 15 and 18
years of age or to the three pro-child
statutes and other human rights
obligations. That these facts and statutes
have been overlooked confirms that the
distinction is artificial and makes
Exception 2 to Section 375 of the IPC all
the more arbitrary and discriminatory
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
87. We have adverted to the wealth of
documentary material which goes to
show that an early marriage and sexual
intercourse at an early age could have
detrimental effects on the girl child not
only in terms of her physical and mental
health but also in terms of her nutrition,
her education, her employability and her
general well-being. To make matters
worse, the detrimental impact could pass
on to the children of the girl child who
may be malnourished and may be
required to live in an impoverished state
due to a variety of factors. An early
marriage therefore could have an inter-
generational adverse impact. In effect
therefore the practice of early marriage
or child marriage even if sanctified by
tradition and custom may yet be an
undesirable practice today with
increasing awareness and knowledge of
its detrimental effects and the
detrimental effects of an early pregnancy.
Should this traditional practice still
continue? We do not think so and the
sooner it is given up, it would be in the
best interest of the girl child and for
society as a whole.
88. We must not and cannot forget the
existence of Article 21 of the Constitution
which gives a fundamental right to a girl
child to live a life of dignity. The
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
documentary material placed before us
clearly suggests that an early marriage
takes away the self esteem and
confidence of a girl child and subjects her,
in a sense, to sexual abuse. Under no
circumstances can it be said that such a
girl child lives a life of dignity. The right of
a girl child to maintain her bodily integrity
is effectively destroyed by a traditional
practice sanctified by the IPC. Her
husband, for the purposes of Section 375
of the IPC, effectively has full control over
her body and can subject her to sexual
intercourse without her consent or
without her willingness since such an
activity would not be rape. Anomalously,
although her husband can rape her but
he cannot molest her for if he does so he
could be punished under the provisions of
the IPC. This was recognized by the LCI in
its 172nd report but was not commented
upon. It appears therefore that different
and irrational standards have been laid
down for the treatment of the girl child by
her husband and it is necessary to
harmonize the provisions of various
statutes and also harmonize different
provisions of the IPC inter-se.
95. A cursory reading of the JJ Act gives a
clear indication that a girl child who is in
imminent risk of marriage before
attaining the age of 18 years of age is a
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
child in need of care and protection
(Section 2 (14) (xii) of the JJ Act). In our
opinion, it cannot be said with any degree
of rationality that such a girl child loses
her status as a child in need of care and
protection soon after she gets married.
The JJ Act provides that efforts must be
made to ensure the care, protection,
appropriate rehabilitation or restoration of
a girl child who is at imminent risk of
marriage and therefore a child in need of
care and protection. If this provision is
ignored or given a go by, it would put the
girl child in a worse off situation because
after marriage she could be subjected to
aggravated penetrative sexual assault for
which she might not be physically,
mentally or psychologically ready.
The intention of the JJ Act is to benefit a
child rather than place her in difficult
circumstances. A contrary view would not
only destroy the purpose and spirit of the
JJ Act but would also take away the
importance of Article 15 (3) of the
Constitution. Surely, such an
interpretation and understanding cannot
be given to the provisions of the JJ Act.
105. On a complete assessment of the
law and the documentary material, it
appears that there are really five
options before us: (i) To let the
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
incongruity remain as it is - this does
not seem a viable option to us, given
that the lives of Exception 2 to Section
375 of the IPC - in the present case
this is also not a viable option since
this relief was given up and no such
issue was raised; (iii) To reduce the
age of consent from 18 years to 15
years - this too is not a viable option
and would ultimately be for Parliament
to decide; (iv) To bring the POCSO Act
in consonance with Exception 2 to
Section 375 of the IPC - this is also not
a viable option since it would require
not only a retrograde amendment to
the POCSO Act but also to several
other pro-child statutes; (v) To read
Exception 2 to Section 375 of the IPC
in a purposive manner to make it in
consonance with the POCSO Act, the
spirit of other pro-child legislations and
the human rights of a married girl
child. Being purposive and harmonious
constructionists, we are of opinion that
this is the only pragmatic option
available. Therefore, we are left with
absolutely no other option but to
harmonize the system of laws relating
to children and require Exception 2 to
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
Section 375 of the IPC to now be
meaningfully read as: "Sexual
intercourse or sexual acts by a man
with his own wife, the wife not being
under eighteen years of age, is not
rape." It is only through this reading
that the intent of social justice to the
married girl child and the
constitutional vision of the framers of
our Constitution can be preserved and
protected and perhaps given impetus."
thousands of young girls are at stake;
(ii) To strike down as unconstitutional
Exception 2 to Section 375 of the IPC -
in the present case this is also not a
viable option since this relief was
given up and no such issue was raised;
(iii) To reduce the age of consent from
18 years to 15 years - this too is not a
viable option and would ultimately be
for Parliament to decide; (iv) To bring
the POCSO Act in consonance with
Exception 2 to Section 375 of the IPC -
this is also not a viable option since it
would require not only a retrograde
amendment to the POCSO Act but also
to several other pro-child statutes; (v)
To read Exception 2 to Section 375 of
the IPC in a purposive manner to make
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
it in consonance with the POCSO Act,
the spirit of other pro-child legislations
and the human rights of a married girl
child. Being purposive and harmonious
constructionists, we are of opinion that
this is the only pragmatic option
available. Therefore, we are left with
absolutely no other option but to
harmonize the system of laws relating
to children and require Exception 2 to
Section 375 of the IPC to now be
meaningfully read as: "Sexual
intercourse or sexual acts by a man
with his own wife, the wife not being
under eighteen years of age, is not
rape." It is only through this reading
that the intent of social justice to the
married girl child and the
constitutional vision of the framers of
our Constitution can be preserved and
protected and perhaps given impetus."
12. The exercise of parens patriae
jurisdiction while considering the issue involved in
the present case. This doctrine of parens patriae
originated in the 13th Century. It implies that the
King is the guardian of the nation and was under a
duty to look after the interests of its subjects who
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
are in fact not able to look after themselves. This
doctrine was discussed in detail by the Hon'ble
Apex Court in Charan Lal Sahu Vs. Union of
India (1990) 1 SCC 613. Thereafter, lately the
Hon'ble Supreme Court in Shafin Jahan Vs.
Asokan K.M. and others, 2018 AIR (SC) 1933,
observed that the Constitutional Courts in this
country exercise parens patriae jurisdiction in
matters of child custody treating the welfare of the
child as a paramount concern although the same is
required to be invoked in exceptional situations.
This doctrine can be invoked and on certain other
occasions when a girl is not a major and has
eloped with a person and she is produced in a case
of habeas corpus filed by her parents and she
expresses fear of life if laced in the custody of her
parents, the Court should send her to appropriate
shelter home where her interest can be best taken
care of till she becomes a major.
13. While considering the statutory
provisions under various legislations as well as the
judgments passed by the Hon'ble Supreme Court
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
and various other High Courts, in the present
matter, the respondent no. 11 was directed to be
sent to State Girls Care Home by the Child Welfare
Committee while exercising powers under the
Juvenile Justice (Care and Protection of Children)
Act, 2015. Shivani being a minor and below the
age of 18 years has refused to go along with her
father and has insisted to go along with her
husband. The Hindu Marriage Act as well as the
Prohibition of Child Marriage Act provide for penal
provisions in case of a child marriage and
performance of child marriage is also an offence.
The plea taken by the learned counsel for the
petitioner that the marriage was performed with
consent of a minor girl would pale into
insignificance in view of the fact that child
marriage itself is an offence although it may not be
illegal under the Hindu Marriage Act, 1955 but
certainly it is a voidable marriage under the
Prohibition of Child Marriage Act, 2006.
14. Furthermore, the welfare of a girl is
always of paramount consideration. In several
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
cases where the girl does not marry with her
choice then there is an apprehension that she may
be forced to get married to any other person by
her parents, steps which are required to be taken
in that eventuality is to protect the girl by keeping
her in a safe custody rather than permitting her to
marry before she attains the age of majority. The
consequences of girl child marriage are much more
devastating. It exposes girls to increased health
problems and violence, denies them access to
social networks and support systems and
perpetuates a cycle of poverty and gender
inequality. The element of consent is always sub-
servient to overall welfare of a child. Furthermore,
the medical hazards in case of a child marriage
cannot be overlooked. Fixing the age of marriage
for females as 18 years by the Legislature is not
without any reason as it is also based upon the evil
effects of a child marriage in terms of medical,
social, psychological, economic and other like
factors. Considering the observations made by the
Hon'ble Supreme Court in Independent Thought
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
(supra) that a girl child below the age of 18 years
who is sought to be married is a child in need of
care and protection and is required to be produced
before the Child Welfare Committee under Section
27 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 so that she can be cared for,
protected and rehabilitated in a society and that
under no circumstances can a child below 18 years
of age gives consent express or implied for sexual
intercourse.
15. That when a girl is not a major and
expresses fear of life in the custody of her parents,
the Court may exercise the jurisdiction to send her
to an appropriate home meant to give shelter to
women till she becomes a major, this Court is of
considered view that there is no inherent right
vested in the husband to claim custody of minor
girl by filing writ of habeas corpus on illegal
detention, this observations was made by the
Hon'ble Supreme Court in Shafin Jahan (Supra).
16. In the present case, respondent no.
11, has specifically refused to go along with her
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
father, therefore, her stay at State Girls Care
Home, cannot be said to be detrimental to her well
being and her child, she cannot be directed to be
released till she attains the age of majority by
giving her custody to her husband (petitioner). It is
hereby directed that, Child Welfare Committee
constituted under the Juvenile Justice (Care and
Protection of Children) Act, 2015, shall monitor the
well being of Shivani Kumari by making periodical
inspections of State Girls Care Home and shall
comply with all the statutory obligations cast upon
the Child Welfare Committee under the Juvenile
Justice (Care and Protection of Children) Act, 2015.
It has been unarguably admitted that the
respondent no.11 gave birth to child out of the
relationship with the petitioner. The petitioner is
hereby directed to open a bank account in the
name of the newborn child and regularly deposit a
considerable amount of money for the newborn
child's welfare.
17. It is made clear that if at any time
Shivani (respondent no. 11), even before attaining
Patna High Court CR. WJC No.880 of 2023 dt.16-01-2024
the age of 18 years, expresses her desire to go to
her father/parents, then the Child Welfare
Committee shall permit her to do so in the
presence of her father/parents and by passing an
appropriate order in this regard.
18. In view of above, the present
petition is hereby disposed of.
( Ramesh Chand Malviya, J)
(P. B. Bajanthri, J)
Brajesh Kumar/-
AFR/NAFR A.F.R.
CAV DATE 05.01.2024
Uploading Date 16.01.2024
Transmission Date
