The Allahabad High Court on 27.01.2021(Wednesday) comprising of a bench of Justice JJ Munir has ruled that despite marrying a man willingly after being lured out of the custody of her legal guardian, a minor girl cannot live with her husband. [Pradeep Tomar And Another v. State of U.P. and Another]
However last week a bench of Justice JJ Munir held that once the girl turns major, she would attain the freedom of either accepting the marriage or seek its annulment and live with anyone she likes.
The bench delivered the verdict on January 27 th of January in a plea by the girl's father challenging a Hapur magisterial court's judgement of November 24, 2020, permitting the girl to live with her husband.\
Facts of the case
The Judicial Magistrate at Hapur directed that the prosecutrix/minor girl can be permitted to go along with her husband, who was the accused(Pintoo).
This order was challenged before the High Court stating that the Magistrate has erred in permitting the prosecutrix to accompany her husband, who is an accused in the crime.
The contention of the parties
The learned counsel appearing on behalf of the petitioners(Mr. Sudhir Mehrotra), briefly said, is to the effect that the date of birth of the prosecutrix, according to her High School Examination Certificate issued by the U.P. Board of High School and Intermediate Education, is 04.11.2004. She is, thus, a minor, aged 16 years and 2 months approximately. She would attain majority on 05.11.2022.
Mr. Mehrotra further submitted that the Magistrate has erred in permitting the prosecutrix to accompany her husband, an accused in the crime, going by the marriage acknowledged by the parties to be solemnized on 21.09.2020 at the Pandav Kalin Neeli Chhatri Mandir Sanatan Dharam Vivah Padti Trust, Yamuna Bazar, Delhi. Mr. Mehrotra submitted that the prosecutrix, being a minor, cannot be permitted to stay in a matrimonial relationship, where the marriage would be void under Section 12 of the Prohibition of Child Marriage Act, 2006 (for short, 'the Act of 2006'). He further submitted that in any case the prosecutrix, who is not a major, cannot be permitted to stay with her husband and ought not to be allowed to accompany him. Doing so, would be permitting statutory rape and also an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.
On the other hand, the counsel on behalf of the respondent (Mr. Rama Shankar Mishra), submitted that the prosecutrix in her stand before the Magistrate has made it clear that she has married the accused Pintoo of her free will and wishes to stay with him. He emphasized that the parties' marriage has been registered under the U.P. Marriage Registration Rules, 2017 by the Marriage Registration Officer, Ghaziabad on 21.09.2020. He has drawn the attention of this Court towards a certificate of the registration of marriage, dated 21.09.2020.
Courts Observation & Judgment
The Court observed that Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 makes it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into.
The Court in this backdrop, while noting that Minor Girl's High School Certificate "clearly indicates that she is a minor", said,
" There is no cavil that evidence about her being a major, which is her stand, cannot be accepted. She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available."
The Court in order to determine whether the prosecutrix was enticed away from her guardian's lawful custody, or she went away of her own, ascertained the prosecutrix's stand and found that she left her home of her own accord and married him.
In this view of the matter, the Court said,
"The marriage would not be void under Section 12 of the Prohibition of Child Marriage Act, 2006, but would be voidable under Section 3 of the said Act."
The Court further said,
"It would, therefore, be open to the prosecutrix to acknowledge the marriage or claim it to be void, once she attains the age of majority. It would also be open to her, once she attains the age of majority, to go wherever she likes and stay with whomsoever she wants."
Lastly, the Court issued the following directions:
- State asked to place her in a suitable State facility other than a Nari Niketan, may be a Safe Home/Shelter Home.
- The District Magistrate, Hapur and the Superintendent of Police, Hapur are ordered to ensure that the prosecutrix is immediately housed in a suitable Safe Home/Shelter Home, or other State facility where she would be safe and taken care of.
- The learned District Judge, Hapur is also directed to ensure that a Lady Judicial Officer, posted in his Judgeship, will visit the prosecutrix once a month and inquire about her welfare. In case there is anything objectionable, she will immediately report the matter to the District Judge, who will take appropriate steps to ensure the prosecutrix's welfare during her stay in the State facility/Safe Home/ Shelter Home, wherever she is housed.
- Shivani would be permitted to live in State facility/Safe Home/Shelter Home till 04.11.2022, and thereafter, she may go wherever she wants and stay with whomsoever she likes, including Pintoo, whom she claims to be her husband.
- The Court Officer shall convey Shivani to the Registrar General, who shall make immediate arrangement to take her into his immediate care and ensure compliance of this order.
Read Judgment @Latestlaws.com
Share this Document :Picture Source :
