In one of its judhgement delivered last week, the Punjab and Haryana High Court has allowed a minor girl (age about 17) to live with mother of boy she allegedly married.

The Single-Judge bench of Justice Sanjay Kumar observed that "it is an acknowledged fact that children these days attain both physiological as well as psychological maturity long before they complete the aforestated ages of majority fixed for them by the statute long ago."

He further stated that it is also a scientifically recognized fact that girls tend to be more mature than boys of the same age. That is the reason why there is a discrepancy even with regard to the age of majority stipulated by the statute in relation to the sexes. 

He was of the opinion that as per this a girl who has completed the age of 16 years and 10 months can be said to be of the age of discretion to the extent of at least knowing her own mind and as to what would be in her interest. In any event, even if such a girl is treated as a minor, the parens patriae jurisdiction vesting in this Court under Clause 12 of the Letters Patent, referred to supra, requires this Court to consider as to what would be in the best interest of the minor while dealing with her case, be it in terms of her custody or otherwise.

CASE BACKGROUND

A girl aged nearly 17 years had approached High Court to seek protection of her and her partner from her parents which she claimed are against the marriage and presenting threats to the couple. The single-Judge bench however allowed her to reside with the mother of the boy she married to until she attains maturity age after making observations.

COURT OBSERVATIONS

The Court noted that the statutory scheme on the subject of Child Marriages lacks clarity and various laws deal with or touch upon aspects pertinent to child marriages but there is no consistency as to the consequences that flow therefrom.

It further noted that as per The Hindu Marriage Act marriage between persons who are not major, would be neither void nor voidable. However, the Child Marriage Act makes child marriages void. Protection of Children from Sexual Offences Act, 2012, makes any sexual act or intercourse by the husband with a girl below 18 years of age would constitute an offence, though she is his wife.

However, Exception 2 to Section 375 IPC states to the effect that sexual intercourse and sexual acts with a wife of over 15 years of age would not amount to rape.

Citing Supreme Court observation in Independent Thought vs. Union of India in which it was held that Exception 2 to Section 375 IPC must be construed and applied by substituting 'eighteen' for 'fifteen' in the context of the age of the wife, the Court observed:

"It may be noted that the age of majority was altered once, but as on date it stands frozen at 21 years for boys and 18 years for girls. However. it is an acknowledged fact that children these days attain both physiological as well as psychological maturity long before they complete the aforestated ages of majority fixed for them by the statute long ago"

'In any event, science recognizes the fact that children these days mature much faster than they did even a few decades ago. Taking note of this fact, the Parliament itself provided in the Juvenile Justice (Care and Protection of Children) Act, 2015, that it would be within the domain of a Juvenile Justice Board to determine as to whether a child in conflict with the law, who has completed or is over the age of 16 years, should face trial as an adult for the alleged offence. Therefore, a criminal act by a child of or over 16 years of age is now being treated on par with that of an adult, but a similar analogy has not been extended to a civil act of a child of the same age."

The Court also cited some scientific studies conducted in this direction. 

It said that the photographs produced by them show them walking around the ceremonial fire and it is stated that they solemnized their marriage in a temple. On this, the Court observed:

"No certificate seems to have been issued in proof of the marriage but law does not require any such certification. Registration of the marriage, which is yet to be made compulsory, can be effected any time post facto. In any event, it is not for this Court to deny the factum of the marriage performed or affirm the validity thereof. Prima facie, the photographs indicate that there was a marriage ceremony with Saptapadi and the parties thereto."

The Court highlighted that she is just 10 months short of the age of maturity and it is not as if she would magically assume the mental maturity and wisdom to claim the status of adult on her birthday.

The Court in backdrop this, thus observed:

"The age of majority as prescribed must therefore be construed and interpreted in the context of the law for which it is being considered and in a case of this nature, where the minor is certain and unshaken in her opinion and desire, it would not be right and proper for this Court to brush aside her views on the ground that she is not 18 years of age as on date and is only 17 +."

The court said that it cannot direct that custody should be forcibly entrusted to her parents against her wishes or that she should be kept in a Protection Home till she attains the age of 18 years. 

Therefore, observing all above, the court granted her police protection and allowed her to reside with the boy's mother, and remain with her till she attains the age of 18 years. Child Welfare Committee has also been directed to 'monitor' her well-being till she attains the age of 18 years.

Case: Preeti vs. State of Haryana [CRWP-4181-2020]

The judgement has been delivered by single-Judge bench of Justice Sanjay Kumar on 16-10-2020.

Read Judgement Here:

 

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