A bench of Justice Shantanagoudar and Justice Bose in the case titled HARDEV SINGH vs HARPREET KAUR & ORS. on 07.11.2019 has held that a male between 18 to 21 years though is a child and his marriage with a female adult will be treated as a child marriage, he cannot be subjected to punishment for contracting child marriage.
While dealing with the issue of marriage and protection to a couple, the Supreme Court observed and held as under:
"Section 2(a) of the 2006 Act defines child as a person who, if a male, has not completed twentyone years of age, and if a female, has not completed eighteen years of age. Under Section 2(b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Thus, even if the husband is between eighteen and twentyone years of age, it can be treated as a child marriage.It is not in dispute that Respondent No.1 (wife of the Appellant) was a major at the time of marriage. The 2006 Act does not make any provision for punishing a female adult who marries a male child. Hence, a literal interpretation of the above provisions of the 2006 Act would mean that if a male aged between the years of eighteen and twentyone contracts marriage with a female above eighteen years of age, the female adult would not be punished, but it is the male who would be punished for contracting a child marriage, though he himself is a child. We are of the view that such an interpretation goes against the object of the Act as borne out in its legislative history......
Section 9 of the 2006 Act must be viewed in the backdrop of this gender dimension to the practice of child marriage. Thus, it can be inferred that the intention behind punishing only male adults contracting child marriages is to protect minor young girls from the negative consequences thereof by creating a deterrent effect for prospective grooms who, by virtue of being above eighteen years of age are deemed to have the capacity to opt out of such marriages.
Nowhere from the discussion above can it be gleaned that the legislators sought to punish a male between the age of eighteen and twentyone years who contracts into a marriage with a female adult. Instead, the 2006 Act affords such a male, who is a child for the purposes of the Act, the remedy of getting the marriage annulled by proceeding under Section 3 of the 2006 Act.
Hence, male adults between the age of eighteen and twentyone years of age, who marry female adults cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy.
Our views are supported by the marginal note of Section 9, which reads “Punishment for male adult marrying a child”. It is well settled that where any ambiguity exists with regard to the interpretation of a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischief it seeks to remedy......
Having regard to the above discussion, Section 9 of the 2006 Act does not apply to the present case at all. By way of abundant caution, we wish to clarify that we are not commenting on the validity of marriages entered into by a man aged between eighteen and twentyone years and an adult woman. In such cases, the man may have the option to get his marriage annulled under Section 3 of the 2006 Act, subject to the conditions prescribed therein".
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