T. Sivakumar v. The Inspector of Police, Thiruvallur Town Police Station, Thiruvallur District & Ors

of the judgments in Saraswathi Ammal V. Dhanakoti Ammal, (1924) 47MLJ 614 [Madras High Court], Seema Devi @ Simran Kaur v. State ofHimachal Pradesh, (1928) 2 Crimes 68 (Himachal Pradesh High Court),Neetu Singh v. The State, (1999) II AD Delhi 37 [Delhi High Court],Ravikumar v. State , 124 (2005) DLT 1 [Delhi High Court], ManishSingh v. State, AIR 2006 DELHI 37 [Delhi High Court], Associationfor Social Justice and Research v. Union of India, [decided on13.05.2010 by Delhi High Court], Latori Chamar v. State of MadhyaPradesh, [decided on 10.01.2007 by Madhya Pradesh High Court],Avinash v. State of Karnataka, CDJ 2011 KAR HC 373 [Karnataka HighCourt] and Jitendar Kumar Sharma v. State [decided on 11.10.2010 byDelhi High Court]. In Association for Social Justice and ResearchCase cited supra , a Division Bench of Delhi High Court observed thatthe issue relating to custody of a minor girl who has been marriedhas been referred to a Full Bench for decision in Lajja Devi's case.We are informed that the said reference has not been so far decidedby a larger Bench of the Delhi High Court. But, without noticing thesame, a Division Bench of the Delhi High Court in Jitendar KumarSharma v. State and another reported in 2010 INDLAW DEL 1904,allowed the minor girl to go with the husband. In this background theDivision Bench presided over by Mr.Justice C.Nagappan has referredthis matter for answering the following questions:-(1) Whether a marriage contracted by a personwith a female of less than 18 years could be said tobe valid marriage and the custody of the said girlbe given to the husband [if he is not in custody]?(2) Whether a minor can be said to have reachedthe age of discretion and thereby walk away from thelawful guardianship of her parents and refuse to goin their custody?(3) If yes, can she be kept in the protectivecustody of the State?(4) Whether in view of the provisions ofJuvenile Justice [Care and Protection of Children]Act, 2000, a minor girl, who claims to havesolemnized her marriage with another person wouldnot be a juvenile in conflict with law and whetherin violation of the procedure mandated by theJuvenile Justice [Care and Protection of Children]Act, 2000, the Court dealing with a Writ of HabeasCorpus , has the power to entrust the custody of theminor girl to a person, who contracted the marriagewith the minor girl and thereby committed an officepunishable under Section 18 of the Hindu MarriageAct and Section 9 of the Prohibition of ChildMarriage Act, 2006 ? and https://hcservices.ecourts.gov.in/hcservices/ (5) Whether the principles of Sections 17 and19(a) of the Guardians and Wards Act, 1890, could beimported to a case arising out of the allegedmarriage of a minor girl, admittedly incontravention of the provisions of the HinduMarriage Act? Having considered the above, the Hon'ble The Chief Justice hasconstituted this Full Bench and that is how, the matter is before us.5. When this matter came up for hearing before this Bench on19.08.2011, the respondents 2 and 3 in the HCP filed a miscellaneouspetition in M.P.No.1 of 2011 seeking an interim order to take thedetenue to P.B. College of Engineering, Irrungattukottai, foradmission in B.Tch course. Accordingly, this court passed an interimorder and permitted her to be taken to PB College of Engineering foradmission. The minor detenue was thus admitted in the College. Thedetenue was also produced before this Court. On enquiries, sheinformed the court that she was not willing to go with her parentsand she was ready to attend the college from the college hostel.Having considered the submissions made and having regard to theinterest of the minor detenue, this court directed the minor detenueto be kept in the Government Kellys Home for Children, Chennai and toallow her to go to the college every day, however, with the help of awomen police constable. Accordingly, she was attending the college. 6. Again on 07.09.2011 when the matter was listed , the learnedcounsel appearing for the respondents 2 and 3 submitted that thedetenue found it very difficult to stay in Government Home forChildren, Kellys, Chennai as she was facing lot of difficulties.Thus, she wanted the detenue to be allowed to stay in the hostel ofthe college. Mr.P.N.Prakash, learned counsel representing P.B.College of Engineering submitted that the college management washaving an apprehension to allow her to stay in the hostel in view ofcertain untoward incidents taken place at the time of remitting thefees in the college. Ms.Geetha Ramaseshan the learned counselappearing for a Non-Governmental Organization known as "TULIR" avoluntary organisation came forward to keep the detenue in the homeknown as "Mariyala" situated at Pidariyar Koil Street, George Town,Chennai. In the larger interest of the detenue and on considering thesubmissions made by the learned counsel on either side, the detenuewas ordered to be accommodated in the said home namely Mariyala untilfurther orders and the detenue was permitted to attend the collegefrom there. The Assistant Commissioner of Police was directed tonominate a woman police constable to accompany the detenue to thecollege everyday in order to ensure her safety. Accordingly, now sheis staying in the home. https://hcservices.ecourts.gov.in/hcservices/

7. In this background, this habeas corpus petition was heard atlength. Mr.R.John Sathyan , learned counsel for the petitioner,Mrs.Sudha Ramalingam, learned counsel for the respondents 2 and 3 andMr.M.Maharaja, learned Additional Public Prosecutor advancedelaborate arguments. Taking note of the importance of the questionsreferred to this Full Bench , we requested Mr.P.N.Prakash , thelearned counsel to assist this court as Amicus Curiae andaccordingly, he rendered assistance.8. Since the parties to the marriage in this case are admittedlyHindus, we confine our discussion in the context of the lawsapplicable to Hindus alone. Now let us commence our task to answerthe questions under reference. 9. To trace the history of the child marriages, we have to statethat until the introduction of the "Child Marriage Restraint Act,1929" child marriages were prevalent in India among Hindus inabundance and there was no mechanism even to discourage the same.Such marriages were all recognized as valid. But, the ill-effects ofthe child marriage was taken note of even during the colonial periodwhich prompted the law being brought into force to restrain the childmarriages by enacting the "Child Marriage Restraint Act, 1929". Areference to the said Act would go to show that the said Act, wasenacted to carry forward the reformists movement of prohibitingchild marriages. While it made a marriage in contravention of theprovisions of the Act punishable, simultaneously it did not renderthe marriage void. It needs to be emphasized that voidness ofmarriages is statutorily provided and the same is not to be readilyinferred. Thus even after the advent of the Child MarriageRestraint Act such marriages were recognized as valid marriages. 10. Subsequently, the Hindu Marriage Act, 1955 came into beingwith effect from 18.05.1955. Section 4 of the said Act states thatsave as otherwise expressly provided in this Act, any other law inforce immediately before the commencement of this Act shall cease tohave effect in so far as it is inconsistent with any of theprovisions contained in this Act. But, no inconsistency could benoticed between the provisions of the Hindu Marriage Act, 1955 andthat of the Child Marriage Restraint Act, 1929. Both the Actscoexist. 11. Section 5 of the Hindu Marriage Act, as it was originallybrought into force , contained six clauses as follows:-A marriage may be solemnized between any twoHindus, if the following conditions are fulfilled,namely :— https://hcservices.ecourts.gov.in/hcservices/ (i) neither party has a spouse living atthe time of the marriage;(ii) at the time of the marriage, neitherparty—(a) is incapable of giving a validconsent to it in consequence of unsoundness ofmind; or(b) though capable of giving a validconsent, has been suffering from mental disorder ofsuch a kind or to such an extent as to be unfit formarriage and the procreation of children; or(c) has been subject to recurrent attacksof insanity;(iii) the bridegroom has completed theage of [twenty-one years] and the bride the age of[eighteen years] at the time of the marriage; [emphasis supplied](iv) the parties are not within thedegrees of prohibited relationship, unless thecustom or usage governing each of them permits of amarriage between the two;(v) the parties are not sapindas of eachother, unless the custom or usage governing each ofthem permits of a marriage between the two.(vi) Where the bride has not completedthe age of eighteen years, the consent of theguardian in the marriage if any has been obtainedfor the marriage.”[The sub clause (vi) was repealed by the ChildMarriage Restraint Act, 1978 w.e.f. 01.10.1978]12. The effect of violation of the conditions enumerated inSection 5 of the Hindu Marriage Act are dealt with in Sections 11 and12 of the Act. According to Section 11 , any marriage solemnizedafter the commencement of the Act shall be null and void and may, ona petition presented by either party thereto, against the otherparty, be so declared by a decree of nullity if it contravenes anyone or more of the conditions specified in clauses (i), (iv) and (v)of section 5. 13. Similarly, Section 12 of the Hindu Marriage Act speaks of avoidable marriage which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ (1) Any marriage solemnized, whether beforeor after the commencement of this Act, shall bevoidable and may be annulled by a decree ofnullity on any of the following grounds, namely :—(a) that the marriage has not beenconsummated owing to the impotence of therespondent; or(b) that the marriage is incontravention of the condition specified inclause (ii) of Section 5; or(c) that the consent of the petitioner,or where the consent of the guardian in marriageof the petitioner [was required under Section 5as it stood immediately before the commencementof the Child Marriage Restraint (Amendment) Act,1978 (2 of 1978)] the consent of such guardianwas obtained by force [or by fraud as to thenature of the ceremony or as to any material factor circumstance concerning the respondent]; or(d) that the respondent was at the timeof the marriage pregnant by some person otherthan the petitioner.(2) Notwithstanding anything contained insub-section (1), no petition for annulling amarriage—(a) on the ground specified in clause (c) ofsub-section (1), shall be entertained if—(i) the petition presented more than oneyear after the force had ceased to operate or, asthe case may be, the fraud had been discovered; or(ii) the petitioner has, with his or herfull consent, lived with the other party to themarriage as husband or wife after the force hadceased to operate or, as the case may be, thefraud had been discovered;(b) on the ground specified in clause (d) ofsub-section (1) shall be entertained unless thecourt is satisfied— https://hcservices.ecourts.gov.in/hcservices/ (i) that the petitioner was at the timeof the marriage ignorant of the facts alleged;(ii) that proceedings have beeninstituted in the case of a marriage solemnizedbefore the commencement of this Act within oneyear of such commencement and in the case ofmarriages solemnized after such commencementwithin one year from the date of the marriage; and(iii) that marital intercourse with theconsent of the petitioner has not taken placesince the discovery by the petitioner of theexistence of [the said ground]" 14. A close reading of these two provisions would go to showthat a marriage solemnized in violation of sub section (iii) ofSection 5 of the Hindu Marriage Act has not been declared either asvoid or voidable. The marriage which falls within the ambit ofSection 11 has been held to be void from its very inception [videYamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav, A.I.R. 1988S.C. 644]. So far as a voidable marriage as provided in Section 12 ofthe Act is concerned , the said marriage may be annulled by a decreeof nullity on any one or more of the grounds enumerated thereunder.Since the Hindu Marriage Act as well as the Child Marriage RestraintAct do not declare a marriage of a minor either as void or voidable,such a child marriage was treated all along as valid . There werenumber of judicial pronouncements to this effect. In this legalscenario, The Hindu Minority and Guardianship Act also provided thatthe husband of a minor wife is her natural guardian. 15. While so, it was felt that the Child Marriage Restraint Act,did not achieve the desired result. Despite the punishment providedfor child marriages, and despite making the punishment morestringent, the menace of child marriage could not be completelyeradicated. There were demands from various quarters for making aneffective law for this purpose. The Law Commission also recommendedfor such a law. Responding to the same, at last, with effect from10.01.2007, "The Prohibition of Child Marriage Act, 2006" wasbrought into force thereby repealing The Child Marriage RestraintAct, 1929. As envisaged in Section 1 of the said Act, it extends tothe whole of India except the State of Jammu and Kashmir; and itapplies also to all citizens of India; provided that nothingcontained in this Act shall apply to the Renoncants of the Unionterritory of Pondicherry. It is manifestly clear that this Act issecular in nature which has crossed all barriers of personal laws.Thus, irrespective of the personal laws, under this Act, childmarriages are prohibited. https://hcservices.ecourts.gov.in/hcservices/

16. The term "child" has been defined in Section 2 (a) of thesaid Act which states that "child" means a person who, if a male, hasnot completed twenty-one years of age, and if a female, has notcompleted eighteen years of age. This provision is in pari materiawith sub section (iii) of section 5 of the Hindu Marriage Act. Oneof the important and salient features of the Prohibition of ChildMarriage Act, 2006 is that Section 3 of the Act declares that everychild marriage, whether solemnized before or after the commencementof the said Act shall be voidable at the option of the contractingparty who was a child at the time of the marriage; provided thatpetition for annulling the child marriage by a decree of nullity maybe filed in the District Court only by the contracting party to themarriage who was a child at the time of the marriage. Section 3 ofthe Prohibition of Child Marriage Act reads as follows:-"3. Child marriages to be voidable at theoption of contracting party being a child:- (1)Every child marriage, whether solemnised before orafter the commencement of this Act, shall bevoidable at the option of the contracting party whowas a child at the time of the marriage :Provided that a petition for annulling a childmarriage by a decree of nullity may be filed in thedistrict court only by a contracting party to themarriage who was a child at the time of themarriage. (2) If at the time of filing a petition, thepetitioner is a minor, the petition may be filedthrough his or her guardian or next friend alongwith the Child Marriage Prohibition Officer.(3) The petition under this section may befiled at any time but before the child filing thepetition completes two years of attaining majority.(4) While granting a decree of nullity underthis section, the district court shall make an orderdirecting both the parties to the marriage and theirparents or their guardians to return to the otherparty, his or her parents or guardian, as the casemay be, the money, valuables, ornaments and othergifts received on the occasion of the marriage bythem from the other side, or an amount equal to thevalue of such valuables, ornaments, other gifts andmoney : https://hcservices.ecourts.gov.in/hcservices/ Provided that no order under this section shallbe passed unless the concerned parties have beengiven notices to appear before the district courtand show cause why such order should not be passed."17. This is a great departure made by this Act from the HinduMarriage Act. When the Prohibition of the Child Marriage Act , 2006was enacted, the parliament was aware of the provisions of Sections5, 11, 12 and 18 of the Hindu Marriage Act. By declaring that theProhibition of Child Marriage Act shall apply to all citizens , theparliament has intended to allow the Prohibition of Child MarriageAct to override the provisions of the Hindu Marriage Act to theextent of inconsistencies between these two enactments. This ismanifest from the statement of Objects and Reasons of theProhibition of Child Marriage Act, 2006 which read as follows:- " The Child Marriage Restraint Act, 1929was enacted with a view to restrainingsolemnisation of child marriages. The Act wassubsequently amended in 1949 and 1978 in order,inter alia, to raise the age limit of the maleand female persons for the purpose of marriage.The Act, though restrains solemnisation ofchild marriages yet it does not declare them tobe void or invalid. The solemnisation of childmarriages is punishable under the Act.2. There has been a growing demandfor making the provisions of Act more effectiveand the punishment thereunder more stringent soas to eradicate or effectively prevent the evilpractice of solemnisation of child marriages inthe country. This will enhance the health ofchildren and the status of women. The NationalCommission for women in its Annual Report forthe year 1995-96 recommended that theGovernment should appoint Child MarriagePrevention Officers immediately. It furtherrecommend that (i) the punishment providedunder the Act should be made more stringent;(ii) marriages performed in contravention ofthe Act should be made void; and (iii) theoffences under the Act should be madecongnizable.3. The National Human RightsCommission undertook a comprehensive review ofthe existing Act and made recommendations forcomprehensive amendments therein vide itsAnnual Report 2001-2002. The Central https://hcservices.ecourts.gov.in/hcservices/ Government, after consulting the StateGovernments and Union Territory Administrationson the recommendations of the NationalCommission for Women and the National HumanRights Commission, had decided to accept almostall the recommendations and give effect to themby repealing and re-enacting the Child MarriageRestraint Act, 1929.18. A close reading of the above objects and reasons of theProhibition of Child Marriage Act,would keep things beyond any paleof doubt that the Prohibition of Child Marriage Act is a specialenactment for the purpose of effectively preventing the evil practiceof solemnisation of child marriages and also to enhance the health ofthe child and the status of women, whereas , the Hindu Marriage Actis a general law regulating the Hindu marriages. Therefore, theProhibition of Child Marriage Act, being a special law, will haveoverriding effect over the Hindu Marriage Act to the extent of anyinconsistency between these two enactments. In view of the saidsettled position, undoubtedly, Section 3 of the Prohibition of ChildMarriage Act will have overriding effect over the Hindu Marriage Act. 19. But, the Division Bench which decided the case inG.Saravanan v. The Commissioner of Police, Trichy City and others ,2011 - 2 - L.W. (Crl.) 114 held that such a child marriagesolemnised between two Hindus is neither void nor voidable, butvalid. After having referred to Section 5, 11, 12 and 18 of theHindu Marriage Act, the Division Bench in Saravanan's case has heldas follows:- "15. A Hindu marriage which is not a voidmarriage under HMA would continue to be such,provided the provisions of Section 12 of theProhibition of Child Marriage Act, 2006 are notattracted. In the case in hand, none of thecircumstances specified in Section 12 arises.16. Therefore, the marriage between these twois not void or voidable or invalid and it would alsobe unaffected by the provisions of the Prohibitionof Child Marriage Act, 2006" [Emphasis supplied]20. We find it hard to agree with the above above observation ofthe Division Bench for, the marriage of a child [minor girl] shallcertainly be affected by Section 3 of the Prohibition of ChildMarriage Act and thus the said child marriage is voidable. Afterextracting Section 3 of the Prohibition of Child Marriage Act , theDivision Bench, in paragraph 18 & 19 has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "18. The above provision makes it very clearthat irrespective of whether the child marriage isvoidable or not under Personal Law, makes everychild marriage voidable at the option of a party tothe marriage, who was a child at the time ofmarriage. The important aspect of this provision isthat a petition for annulling a child marriage by adecree of nullity can be filed only by a party tothe marriage, who was a child at the time ofmarriage. Nobody other than a party to the marriagecan petition for annulment of the marriage.19. In the instant case, the marriage of thedetenue with the petitioner is neither void norvoidable nor invalid under both Act, HMA and theProhibition of Child Marriage Act, 2006 as nopetition was filed under Section 3 of Prohibition ofChild Marriage Act, 2006 by the detenue who is stilla minor......"[Emphasis supplied]21. From a reading of the above, we infer that probably theDivision Bench was of the view that if only a petition is filed underSection 3 of the Prohibition of Child Marriage Act , the saidmarriage will be voidable. We are unable to agree with the saidconclusion arrived at by the Division Bench. In our consideredopinion, the marriage shall remain voidable [vide Section 3] and thesaid marriage shall be subsisting until it is avoided by filing apetition for a decree of nullity by the child within the timeprescribed in Section 3 (3) of the Prohibition of Child Marriage Act.If, within two years from the date of attaining eighteen years inthe case of a female and twenty-one years in the case of a male, apetition is not filed before the District Court under Section 3 (1)of the Prohibition of Child Marriage Act for annulling the marriage,the marriage shall become a full-fledged valid marriage. Similarly,after attaining eighteen years of age in the case of female, ortwenty-one years of age in the case of a male, if she or he electsto accept the marriage, the marriage shall become a full-fledgedvalid marriage. Until such an event of acceptance of the marriage orlapse of limitation period as provided in Section 12 (3) occurs, themarriage shall continue to remain as a voidable marriage. If themarriage is annulled as per Section 3 (1) of the Prohibition of ChildMarriage Act, the same shall take effect from the date of marriageand, in such an event, in the eye of law there shall be no marriageat all between the parties at any point of time. 22. As per Section 11 of the Hindu Marriage Act, any marriagesolemnized in violation of Clause (i) (iv) and (v) of section 5 ofthe Hindu Marriage Act is void and the same may be declared by adecree of nullity, whereas under Section 12 of the Hindu Marriage https://hcservices.ecourts.gov.in/hcservices/ Act, a voidable marriage may be annulled by a decree of nullity. Thedifferent expressions used in these two provisions cannot gounnoticed. So far as Section 11 of the Hindu Marriage Act isconcerned, the marriage is not annulled and is only declared as voidby a decree of nullity. Thus, what is done by the court is only adeclaration and not annulment of marriage. But, under Section 12 ofthe Hindu Marriage Act, since the marriage is not void ab initio,the same requires to be annulled by a decree of nullity. Here, it isnot declaration but a positive act of annulment of the marriage by adecree of nullity. Similarly, under Section 3 of the Prohibition ofChild Marriage Act also, the court annuls the marriage by a decree ofnullity. Thus, Section 12 (1) of the Hindu Marriage Act and Section 3(1) of the Prohibition of Child Marriage Act are in pari materia.Therefore, unless there is a positive decree passed by the competentcourt annulling the child marriage, the marriage shall be subsisting.23. At this juncture, we may usefully refer to “Mulla onprinciples of Hindu Law” [14th Edition]. While discussing aboutvoidable marriages he has observed as follows:-"The scheme of the Act is to treat the marriage asvalid, void and voidable. Attention has been drawn forthe interlocutory note to the distinction between amarriage void ipso jure and a marriage which is voidableat the instance of one of the parties to the same. Avoidable marriage remains valid and binding and continuesto subsist for all purposes, unless a decree is passed bythe court annulling the same on any of the groundsmentioned in the Section. The grounds it will be noticedinvolve the elements of incapacity of either spouse toconsummate the marriage, want of mental capacity of thespouses, absence of free consent of the parties or of aguardian in marriage in case of a bride who had notcompleted the age of eighteen years at the time ofmarriage and suppressio veri by a woman, who was pregnantat the time of marriage."24. Hindu Law on marriages classifies the marriages into threecategories namely, “valid marriage”, “void marriage” and “voidablemarriage”. Though it is observed in Mulla that a voidable marriageremains valid and binding and continues to subsist for all purposes,unless a decree is passed by the competent court annulling the same,surely, we believe , he has not meant that a “voidable marriage” isa “valid marriage” in its stricto sensu as the expression denotes.Here, the term "valid" denotes the converse of the term "invalid".In other words, a voidable marriage is not invalid. But, at the sametime, it cannot be construed stricto sensu that it is a “validmarriage” as per the classification referred to above. In ourconsidered opinion , so far as the victim of the voidable marriage at https://hcservices.ecourts.gov.in/hcservices/ whose option the marriage can be annulled is concerned, all rightsemanating from a valid marriage will enure in favour of her / him.But, so far as the other spouse is concerned, the said marriage shallconfer only limited rights upon him/her. But at the same time, itwould impose all legal liabilities upon him/her towards the otherspouse who is the victim of the voidable marriage. For example, if aminor girl is married to a boy aged more than 21 years, as per theProhibition of Child Marriage Act, undoubtedly, the marriage is achild marriage and, therefore, the same is voidable. From out of thesaid voidable marriage, the minor girl will acquire all the rightsagainst the male contracting party which are otherwise available to awife of a valid marriage. But, the male contracting party who hascontracted the minor's marriage will not acquire all the rights whichwould otherwise emanate from a valid marriage as against the wifeexcept certain limited rights. However, it will impose allliabilities upon the male contracting party such as liability tomaintain the victim of the child marriage, liability to provideshelter and liability to afford protection , etc. For instance, ifthe female child contracting the marriage declines to live in thematrimonial home and prefers to live elsewhere either with parents orwith somebody else , the male contracting party will not have rightto obtain a decree under Section 9 of the Hindu Marriage Act forrestitution of conjugal rights. Similarly, until the female [child]attains the age of 18 years, the male cannot file a petition fordivorce on any ground. If the marriage is construed to be validstricto sensu as per the classification referred to above such rightsunder Sections 9 and 13 of the Hindu Marriage Act will very much beavailable to the male. Because the marriage remains to be voidableand the same is not valid stricto sensu, though out of the saidmarriage the male [major] burdens himself with liabilities towardshis minor wife [child], he does not acquire all the rights againsthis wife like any husband of a valid marriage. This is the basicdifference between a valid marriage stricto sensu and a voidablemarriage. Therefore, the observation by Mulla that a voidablemarriage remains valid and binding and continues to subsist shall notbe understood that the marriage is a valid marriage stricto sensu asper the classification referred to above. In other words, a voidablemarriage will not fall within the classification of valid marriages.The expression 'valid' used therein is a lose language and not in itsstrict legal sense. 25. For better understanding of the legal position, at thisjuncture, we may have a look into the scheme of the Hindu MarriageAct. The expressions 'husband' and 'wife' have not been definedanywhere in this Act. But, in Sections 9 and 13 of the Act these twoexpressions have been used. Incidentally, we may notice that ,reliefs under sections 9 and 13 of the Act are available only toparties to a valid marriage. It is by virtue of such valid marriage,the parties to the marriage acquire the status of husband and wife. https://hcservices.ecourts.gov.in/hcservices/ Obviously, this is the reason why, in sections 9 and 13 of the Act,the legislature used the expressions 'husband' and 'wife'. But, thelegislature has intentionally omitted to use these expressions viz.,husband and wife in sections 11 and 12 of the Act. In section 11 ,the expression used is 'either party thereto against the otherparty'. In section 12, the expressions used are 'petitioner' and'respondent'. There can be no doubt that parties to a void marriagedo not acquire the status of husband and wife at all since themarriage is ipso jure void. It is because of this reason, in section11 of the Act, the legislature has consciously omitted theexpressions 'husband' and 'wife' and instead has used the expressions“either party thereto against the other party”. Similarly, in section12 of the Act, had it been the intention of the legislature to givethe parties to a voidable marriage, the full status of husband andwife, the legislature would have used the expressions 'husband' andwife'. The omission to use these two expressions in section 12perhaps, would only reflect the intention of the legislature not togive the full status of the husband and wife to the parties to avoidable marriage, like the spouses of a valid marriage. Sections 9and 13 are in pari materia in so far as the expressions referable tothe parties to the marriage are concerned, whereas sections 11 and 12are in pari materia in terms of the expressions referable to theparties to a voidable marriage. If we look into the provisions of theProhibition of the Child Marriage Act, it is obvious that here also,the legislature has consciously omitted the expressions 'husband' and'wife'. In particular, in section 3 of the Act, the expression'contracting party' has been used. The term 'contracting party' isdefined in section 2 (c) of the Act which states that a contractingparty, in relation to a marriage means either of the parties whosemarriage is or about to be thereby solemnized. Thus, to some extent,Section 3 of the Prohibition of Child Marriage Act is in pari materiawith Sections 11 and 12 of the Hindu Marriage Act insofar as theexpressions referable to the parties to the marriage are concerned.This would again go to strengthen our conclusion that the male whocontracts a child marriage of a female child cannot attain the fullstatus of a husband like a husband of a full fledged valid marriage.To repeat, by the said marriage , though he burdens himself withlegal liabilities arising there from , he acquires only limitedrights as we have illustrated above. 26. But, in Saravanan's case cited supra, the Division Bench hasheld that such a marriage between a boy aged more than 21 years and agirl aged less than 18 years is not voidable. In other words,according to the Division Bench such a child marriage celebrated incontravention of the Prohibition of Child Marriage Act is a validmarriage. With respect, we are of the opinion that it is not acorrect interpretation. A plain reading of Section 3 of theProhibition of Child Marriage Act would make it clear that such childmarriage is only voidable. Therefore, we hold that though such a https://hcservices.ecourts.gov.in/hcservices/ voidable marriage subsists and though some rights and liabilitiesemanate out of the same, until it is either accepted expressly orimpliedly by the child after attaining the eligible age or annulledby a court of law, such voidable marriage, cannot be either stated tobe or equated to a “valid marriage” stricto sensu as per theclassification referred to above. Accordingly, we answer the firstpart of the 1st question referred to above. 27. Let us now take up for consideration the later part of the1st question referred to us which states as to whether the custody ofthe said girl be given to the husband [if he is not in custody]. Thisquestion is inter-linked with the 2nd question which states as towhether a minor can be said to have reached the age of discretion andthereby walk away from the lawful guardianship of her parents andrefuse to go in their custody. Therefore, we deal with these twotogether.28. As per the Hindu Minority and Guardianship Act, 1956, in thecase of an unmarried girl the father shall be the natural guardianand after him the mother, provided that the custody of a minor whohas not completed the age of five years shall ordinarily be with themother. As per sub-section 6(c) of the Hindu Minority andGuardianship Act, in the case of a married minor girl, the husbandshall be the natural guardian. 29. Undoubtedly, in the case of a void marriage under the HinduMarriage Act, since the same is void ab initio, the parties neverattain the status of the husband and wife. Similarly, under section12 of the Prohibition of Child Marriage Act, a child marriage incertain circumstances has been declared as void. Therefore, a childmarriage which falls within the ambit of Section 12 of the Act alsoshall not give the status of husband and wife to the parties to thechild marriage. The male who contracts a marriage with a femalechild falling within the ambit of Section 12 is not a husband of theminor in the legal sense and, therefore, as per The Hindu Minorityand Guardianship Act, he will not acquire the status of the naturalguardian of such child at all. 30. But, in the case of a voidable marriage, whether the malecontracting party to the marriage will attain the status of husbandfor the purposes of Section 6 of the Hindu Minority and GuardianshipAct needs to be carefully analyzed. 31. This requires a great deal of discussion on the legislativehistory of the Hindu Minority and Guardianship Act. As we havealready seen, a child marriage was recognized as a valid marriage inHindu Law despite the implementation of the Child marriage RestraintAct, 1929. Even in the Hindu Marriage Act, 1955 as it was originallybrought into force as per clause (vi) of section 5 of the Act, the https://hcservices.ecourts.gov.in/hcservices/ child marriage was recognized as a valid marriage by the said expressprovision. Thus, between 1955 to 1978 by virtue of the expressprovision relating to the child marriage such marriage wasrecognized as a valid marriage. With effect from 01.10.1978, sincesection 5(vi) and section 6 of the Hindu Marriage Act were repealed ,there was no other express provision declaring the child marriages asvalid. However, Courts have held that such child marriages are validbecause section 5(iii) was not brought within the ambit of eithersection 11 or section 12 of the Hindu Marriage Act. For the firsttime, as a reformists measure, child marriages have been declared asvoidable marriages only under the Prohibition of Child Marriage Act.It is noticeable that though the National Commission for Womenrecommended for making a provision to declare such child marriages asvoid marriages, the Parliament in its wisdom made it only a voidablemarriage. Thus, it is crystal clear that child marriages wererecognized as valid marriages till 10.01.2007 and thereafter, theyhave been declared as voidable whether solemnised before or after thecommencement of the Act. As we have seen, the scenario prior to theadvent of the Hindu Marriage Act, 1955, was that the child marriageswere all recognized as valid in law. 32. The Hindu Minority and Guardianship Act came into effectfrom 25.08.1956. The scenario as on the date of coming into force ofthe said Act was that as per the express provisions contained insection 5(vi) and section 6 of the Hindu Marriage Act , the marriageof a child was valid and thus the male spouse of the said marriageundoubtedly acquired the status of the husband. Therefore, whileenacting the Hindu Minority and Guardianship Act, 1956, theParliament rightly thought it fit to make the husband of the minorwife as the natural guardian. Section 6(c) of the said Act statesthat the natural guardian of a married minor girl shall be thehusband. Thus, on such marriage, the husband would replace the fatherand the mother from the natural guardianship. Now the entirescenario has changed after the advent of The Prohibition of ChildMarriage Act,2006. As we have already noticed, as per Section 3 ofthe Prohibition of Child Marriage Act, since the marriage isvoidable, the bridegroom of the female child who had procured themarriage will not attain the status of the husband like that of anyother husband of a valid marriage and, therefore, under Section 6(c)of the The Hindu Minority and Guardianship Act, he cannot be thenatural guardian. However, when the Parliament took note of theprovisions of the Hindu Marriage Act and amended even Section 18 ofthe Act by Act 6 of 2007 it did not think it fit to amend Section 6(c) of The Hindu Minority and Guardianship Act. Though Section 6 (c)has not been repealed and though the same is in the statute book,still, the same is to be re-looked in the present scenario, moreparticularly, in the context of the Prohibition of Child MarriageAct. There have been several studies conducted and papers submittedon the ill-effects of child marriages. In one such study paper let by https://hcservices.ecourts.gov.in/hcservices/ one Dr.Anitha Raj , a Doctor at Boston University School PublicHealth in Massachusetts she says :-"Child marriage has serious consequences fornational development, stunning education andvocational opportunities for a large sector of thepopulation. Furthermore, marriage at a very youngage has grave health consequences for both the youngwomen and their children."33. Almost it is widely accepted world over that child marriageis a human rights violation. Consummation at the young age affectsthe health of the girl as well as the children born out of the saidchild marriages. It is because of these reasons, more stringent lawby way of the Prohibition of Child Marriage Act was put in place. Inthis totally changed scenario since we are called upon to interpretthe law , we have no hesitation to hold that section 6(c) of theHindu Minority and Guardianship Act, impliedly stands repealed by theprovisions of the Prohibition of Child Marriage Act and so, it cannotbe held any more that the bridegroom of a marriage with a femalechild is the natural guardian of such minor female child. 34. We may also state that since a child marriage as defined inthe Prohibition of Child Marriage Act itself is an offence and thesame is cognizable , it does not require any complaint to the policeto register a case and to investigate. On any information regardingsuch a child marriage, the Police has got a legal duty to register acase and to prosecute the offender by filing an appropriate finalreport. If the contracting party to the marriage of a female child isa male who is not a child undoubtedly, he is an offender punishableunder section 9 of the Act. The scheme of the Act would go to showthat punishment has been provided only against an adult male marryinga female child but an adult female marrying a male child is not anoffender as she does not fall within the ambit of section 9 of theAct. Sections 10 and 11 provide for punishment for solemnising achild marriage and promoting or permitting solemnisation of childmarriages. So, it needs to be underscored that only the male namelythe husband is liable to be punished and not the girl whether childor an adult. This scheme of the Act would also go to support the viewthat an adult male who marries a female child cannot be allowed toenjoy the fruits of such marriage because the solemnisation of themarriage itself is an offence insofar as the male is concerned. If wehave to accept the contention that as per section 6(c)of the HinduMinority and Guardianship Act, the husband of a female child shall bethe natural guardian , it will only amount to giving premium for theoffence committed by the male. When the law aims at eradicating theevil menace of child marriages, declaring the adult male who marriesa female child, as her natural guardian would only defeat the veryobject of the Act. A law cannot be interpreted so as to make iteither redundant or unworkable or to defeat the very object of the https://hcservices.ecourts.gov.in/hcservices/ Act. Thus, by committing an offence punishable under Section 9 of theAct, the adult male cannot acquire the legal status of the naturalguardian of the female child. In view of these discussions, we holdthat Section 6(c) of the Hindu Minority and Guardianship Act standsimpliedly repealed by the Prohibition of Child Marriage Act.Therefore, we conclude that an adult male who marries a female childin violation of section 3 of the Prohibition of Child Marriage Actshall not become the natural guardian of the female child. 35. With the aforesaid conclusion, let us now move on to thequestion of custody of a female child whose marriage has beenprocured in violation of the provisions of the Prohibition of ChildMarriage Act. As per section 2 of the The Hindu Minority andGuardianship Act, the provisions of the same shall be in addition toand not in derogation of The Guardians and Wards Act, 1890. Thereis no specific provision made in The Hindu Minority and GuardianshipAct in respect of custody of a wife, who is a child. But, undersection 12(3) of the Guardians and Wards Act, the court namely, theDistrict Court shall not place a female minor in the temporarycustody of a person claiming to be her guardian on the ground of hisbeing her husband , unless she is already in his custody withconsent of her parents, if any. This provision makes it abundantlyclear that even assuming that as per section 6(c) of The HinduMinority and Guardianship Act, the husband is the natural guardian,even then, temporary custody of the minor wife cannot be given tohim unless she is already in his custody with the consent of herparents. Thus, unless these twin conditions namely, the consent ofher parents and being in the custody already are satisfied, eventhe temporary custody of a female child cannot be entrusted to herhusband. After the advent of the Prohibition of Child Marriage Act,the vigor of Section 12(3) is more. When the competent court namely, the District Court itself has not been authorised to entrust thecustody of a minor wife to her husband, unless the twin conditionsare satisfied, it is needless to point out that after the advent ofthe Prohibition of Child Marriage Act, until the female child ofsuch child marriage elects to accept the marriage on attaining theage of 18 years , her custody cannot be entrusted to the male partyto the marriage more so because he is not the natural guardian of thefemale child.36. In this regard, let us now have a look into various judicialpronouncements. In Muthuswami Chiettiar v. K.M.Chinna MuthuswamiMoopanar, AIR 1935 Madras 195, a Division Bench of this Court whileconsidering the question of custody of a minor child which wasclaimed by the father under Section 25 of the Guardians and WardsAct, 1890 , among other things, this Court held as follows:-“.........It was also held that both accordingto the Hindu law and English law a father is thenatural guardian of his children during their https://hcservices.ecourts.gov.in/hcservices/ minority and has therefore a paramount right to thecustody of his children of which he cannot bedeprived unless it is clearly shown that he is unfitto be their guardian Each case must depend upon itsown circumstances, and however paramount the right ofa father may be, that right in our opinion is liableto be defeated where it is shown that it is better inthe interests of the minor and for its welfarethat it should remain where it is. ........”37. A close reading of the above judgment in its entirety wouldmake one to understand that simply because an individual happens tobe a natural guardian or guardian of any other category, he does nothave indefeasible right to have the custody of the minor. Being anatural guardian is only one of the factors which needs to be takenwhile considering the question of custody. All the circumstancesprevailing put together should be weighed and the court should decideas to how the interests of the minor and his welfare could be wellprotected by granting custody. 38. The above judgment of the Madras High Court was approved bythe Hon'ble Supreme Court in Anjali Kapoor v. Rajiv Baijal, 2009(7) SCC 322. In paragraph 18 of the said judgment the Hon'ble SupremeCourt while making a reference to the judgment of the Madras HighCourt in Muthuswami Chiettiar v. K.M.Chinna Muthuswami Moopanar, hasobserved as follows:-“18. At this stage, it may be useful torefer to the decision of Madras High Court, to whichreference is made by the High Court in the case ofMuthuswami Moopanar (AIR 1935 Madras 195), wherein theCourt has observed, that, if a minor has for manyyears from a tender age lived with grand parents ornear relatives and has been well cared for and duringthat time the minor's father has shown a lack ofinterest in the minor, these are circumstances of verygreat importance, having bearing upon the question ofthe interest and welfare of the minor and on the bonafides of the petition by the father for their custody.In our view, the observations made by the Madras HighCourt cannot be taken exception to by us. In factthose observations are tailor-made to 7 the factspleaded by the appellant in this case. We respectfullyagree with the view expressed by the learned Judges inthe aforesaid decision.”In paragraph 15 of the said judgment, the Hon'ble SupremeCourt hasheld as follows:- https://hcservices.ecourts.gov.in/hcservices/ “15. Under the Guardians and Wards Act, 1890,the father is the guardian of the minor child until heis found unfit to be the guardian of the minor femalechild. In deciding such questions, the welfare of theminor child is the paramount consideration and such aquestion cannot be decided merely based upon therights of the parties under the law (See SumedhaNagpal v. State of Delhi, (2000) 9 SCC 745)”39. In Elizabeth Dinshaw v. Arvand M.Dinshaw, (1987) 1 SCC 42,the Hon'ble Supreme Court in para 8 has held as follows:-“Whenever a question arises before Courtpertaining to the custody of a minor child, the matteris to be decided not on considerations of the legalrights of parties but on the sold and predominantcriterion of what would best serve the interest andwelfare of the minor. We have twice interviewed Dustanin our Chambers and talked with him. We found him tobe too tender in age and totally immature to be ableto form any independent opinion of his own as to whichparent he should stay with. The child is an Americancitizen. Excepting for the last few months that haveelapsed since his being brought to India by theprocess of illegal abduction by the father, he hasspent the rest of his life in the United States ofAmerica and he was doing well in school there. In ourconsidered opinion, it will be in the best interestsand welfare of Dustan that he should go back to theUnited States of America and continue his educationthere under the custody and guardianship of the motherto whom such custody and guardianship havebeen entrusted by a competent court in that country."40. In these judgments, the Hon'ble Supreme Court has clearlylaid down that irrespective of the legal rights of an individual,such as guardianship, when the question of custody of a minor childcomes up for consideration before a court of law, the court isconcerned with the paramount interest and welfare of the minor ratherthan considering the legal right of the parties fighting before thecourt for custody.41. Very recently, in Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC479, the Hon'ble Supreme Court in para 58 has held as follows:-“Proceedings in the nature of habeas corpus aresummary in nature, where the legality of the detentionof the alleged detenu is examined on the basis ofaffidavits placed by the parties. Even so, nothingprevents the High Court from embarking upon a detailed https://hcservices.ecourts.gov.in/hcservices/ enquiry in cases where the welfare of a minor is inquestion, which is the paramount consideration for theCourt while exercising its parens patriae jurisdiction.A High Court may , therefore, invoke its extraordinaryjurisdiction to determine the validity of the detention,in cases that fall within its jurisdiction and may alsoissue orders as to custody of the minor depending uponhow the Court views that rival claims, if any, to suchcustody.”42. In the aforesaid judgment, the Hon'ble Supreme Court hasfollowed Elizabeth Dinshaw's case with approval. Thus, the Hon'bleSupreme Court has categorically laid down that even while exercisingits writ jurisdiction, the High Courts using its extraordinaryjurisdiction may determine the validity of the detention and pass anappropriate custody of the minor having regard to paramount interestsand welfare of the minor child. 43. In Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 557, aftermaking a thorough survey of various provisions of The Hindu Minorityand Guardianship Act, Guardians and Wards Act and various judgments ,the Hon'ble Supreme Court in paragraph 35 has held as follows:- “35. The principles in relation to the custodyof a minor child are well settled. In determiningthe question as to who should be given custody ofa minor child, the paramount consideration is the'welfare of the child' and not rights of theparents under a statute for the time being inforce. In paragraph 43 of the aforesaid judgment, the Hon'ble Supreme Courthas held as follows:-“43. The word 'welfare' used in Section 13 ofthe Act has to be construed literally and must betaken in its widest sense. The moral and ethicalwelfare of the child must also weight with theCourt as well as its physical well being. Thoughthe provisions of the special statutes which governthe rights of the parents or guardians maybe takeninto consideration, there is nothing which canstand in the way of the Court exercising its parenspatriae jurisdiction arising in such cases.”44. A Division Bench of Gujarat High Court in Patel VerabhaiKalidas v. State of Gujarat , I (2000) DMC 431, has extensivelyconsidered the behavior pattern of the children of age group 15 and18 while considering the welfare of such children and has held hasfollows:- https://hcservices.ecourts.gov.in/hcservices/ “It is well settled that in matter concerning thecustody of minor children, the paramount considerationis the welfare of the minor and not the legal right ofthis or that particular party. See D.Ramaswami v. Stateof Tamil Nadu, reported in AIR 1982 SC 792. And ' whatis truly the welfare of minor' has to be seen. SeeSurinder Kaur v. Harbax Singh reported in AIR 1984 SC1224.”Now in the present case we are clearly of theopinion that welfare and liberty of the minor girl areand will better be attended to and protected in theinstitution in which she has been staying under theorders passed by this court from time to time duringthe last more than a month.A minor girl between her 15 to 18 years of agefloats into a state of puberty, a state of innocenceand yet lacking in mature understanding more guidedby 'attractions'. The state of mind can hardly bedescribed as mature. If that be not so, she can hardlyleave her parents for a new entrant in her life,without being mindful of what the type of such newentrant in the life is. We cannot resist expressingour concern at the manner in which such girls arebeing cajoled and entrapped so as to see them out oftheir parental home at a premature point of time. Herethe third respondent is aged around 28 years. Thoughaccording to him he is a divorcee, the first wifehaving committed suicide, he has described himself tobe unmarried in the marriage registration form. Onecan hardly find any welfare of the minor girl in hisassociation.” 45. A Division Bench of this court in N.Babu v. Sub Inspector ofPolice, 2000 (3) MWN Crl 69, had occasion to consider the question ofcustody of a minor girl as between the husband and the parents.While exercising the jurisdiction under Article 226 of theConstitution of India, in a habeas corpus proceeding, the DivisionBench presided over by Hon'ble Mr.Justice V.S.Sirpurkar [as he thenwas] held as follows:-“Again the question of marriage and the plea ofmarriage at this stage has no meaning for the simplereason that it is not known under what circumstancesthe consent for the marriage has been given. Thereis no question of a consent by the minor. For allpractical purposes in law, the father and the motherwho are the natural parents of the minor would alonebe the natural guardian and at this stage when it is https://hcservices.ecourts.gov.in/hcservices/ not decided as to whether the second respondent wasjustified in taking the girl along with him. If thegirl is allowed to stay with the second respondentit would be giving an advantage to the secondrespondent of his own wrong which may not be possiblefor this court. The question as to who is the naturalguardian , as to whether the marriage is proper ornot, as to whether the second respondent wasjustified in taking the minor along with him, are notquestions in the purpose of this court present.Presently, it is to be seen as to whether the minorgirl should be allowed to stay with a person who isfacing a charge of her abduction or kidnapping as thecase may be. We are of the opinion that it may not bepossible for us to allow the minor girl to stay witha person who is facing the charge under Section 366-Aand or 363 of IPC for taking away of that veryperson. We therefore, direct the girl Amudha who issecured and is present in the court shall be put inthe custody of her parents, if necessary with the aidof the police. At this stage, the learned counsel forthe second respondent expresses, an apprehension thatthe parents may harm the minor and might act againsther own interests. The learned Additional PublicProsecutor assures us that a close monitoring will bemade by the police for the welfare of the girl. Theparents are specifically warned not to treat theminor girl in any manner prejudicial to her welfareincluding getting her married against her wishes.” 46. In Avinash Singh v. State of Karnataka, [CDJ 2011 KAR. HC373], a Division Bench of Karnataka High Court, after noticing theprovisions of section 5 of the Hindu Marriage Act, 1955 and theprovisions of Sections 361 and 363 of IPC while considering the caseof a minor girl married by an adult boy , the Bench dismissed thepetition filed by the husband on the ground that the boy hadcommitted an offence under section 361 of IPC and therefore, he wasnot entitled for the custody of the minor girl.47. But, a quite contrary view was taken by a Division Bench ofDelhi High Court in Jitender Kumar Sharma v. State and another, 2010INDLAW DEL 1904 wherein the Delhi High Court held as follows:-“A reading of the 1890 Act and 1956 Act togetherreveals the guiding principles which are to be kept inmind when considering the question of custody of aminor hind. We have seen that the natural guardian ofa minor hindu girl whose is married, is her husband.We have also seen that no minor can be the guardian ofthe person of another minor except his own wife or https://hcservices.ecourts.gov.in/hcservices/ child. Furthermore, that no guardian of the person ofa minor married female can be appointed where herhusband is not, in the opinion of the court, unfit tobe the guardian of her person. The preferences of aminor who is old enough to make an intelligentpreference ought to be considered by the court. Mostimportantly, the welfare of the minor is to be theparamount consideration. In fact, insofar as thecustody of a minor is concerned, the courts haveconsistently emphasized that the prime and often thesole consideration or guiding principle is the welfareof the minor. [See Anjali Kapoor v. Rajiv Baijal,(2009) 7 SCC 322 : 2009 Indlaw SC 479 at 326].”48. In our considered opinion, the judgment of the DivisionBench of Delhi High Court does not persuade us more so because theDivision Bench did not notice the reference pending in Lajja Devi v.State. Subsequently, another Division Bench of the Delhi High Courttook notice of Lajja Devi's case as well as Jitendar Kumar Sharma'scase and held in the case of Association for Social Justice andResearch v. Union of India [decided on 13.05.2010], having regard tothe provisions of the Prohibition of the Child Marriage Act, 2006 andafter having taken note of the Sociological and psychological as wellas physiological aspects of such marriages and their consequences,the Bench did not agree with Jitendar Kumar Sharma's case. Thus, sofar as the Delhi High Court is concerned, there are conflictingviews taken by two different Division Benches and the matter ispending before a larger Bench on reference.49. A close reading of the above judgments would clearly go toindicate that before the introduction of the Prohibition of ChildMarriage Act, the courts were almost uniform in their opinion thatthe husband of a minor child is entitled for the custody of the minorwife. In the post Prohibition of Child Marriage Act scenario we areable to see considerable change in the approach of various HighCourts. As we have referred to above a Division Bench of theKarnataka High Court has gone to the extent of declining to grantcustody of the minor wife to the husband on the ground that thehusband is an offender. In view of the said position, we are of theview that it will be very safe to hold that after the advent of theProhibition of Child Marriage Act since the male contracting party toa child marriage does not attain the full status of the husbanduntil the child attains the eligible age , like a husband of a full-fledged valid marriage and consequentially since he is not theguardian of the female child of such child marriage, he is notentitled for the custody of the minor. If a different interpretationis adopted to say that such husband is entitled for the custody ofminor wife will only defeat the very object of the Act. This is ouranswer to the latter part of the 1st question referred to us. https://hcservices.ecourts.gov.in/hcservices/

50. Nextly, coming to the question whether a minor could be saidto have reached the aged of the discretion , we may refer to Section17(3) of the Guardians and Wards Act which states that one of thematters to be considered by the court in appointing guardian is, ifthe minor is old enough to form an intelligent preference , the courtmay consider that preference also. Whether a minor has attained theintelligent preference is a question of fact which depends upon thecapacity of the minor in each case. It cannot be put in a straight-jacket formula. As per the law laid down by the Hon'ble SupremeCourt though the wish of the minor is also a factor to be taken intoconsideration by the Court while deciding the custody of the minor,it is not the only matter which is to be taken into consideration.Therefore, the minor cannot walk away to her whims and fancies fromthe lawful guardianship of her parents. At this juncture , we mayrefer to The Tamil Nadu Juvenile Justice [Care and Protection ofChildren] Rules, 2001 wherein Rule 18 states as follows:-“18. Orders that may not be passed – (i) No childshall be ordered to be kept in jail or prison.(ii) No child shall be sent back to family againstthe wishes of the child who shall have an evolvingcapacity to determine the concept.”51. The aforesaid rule is almost in pari materia with Section 17of the Guardians and Wards Act, 1890. Therefore, if the child, whohas capacity to determine, expresses her wish not to go with herparents, it may not be appropriate for the court to compel her to goto the custody of her parents . The court may keep her in appropriatecustody like, custody in a welfare home for children in need ofcare and protection set up under the Juvenile Justice [Care andProtection] Act. Here, it should not be misunderstood that the childcould be sent either to a special home or an observation home whichare meant for juveniles in conflict with law under the JuvenileJustice [Care and Protection of Children] Act. We make it clear thata female child who is a victim of child marriage, if expresses herwish not to go with her parents, the court may direct such femalechild be kept in a separate home for children in need of care andprotection established under the Juvenile Justice [Care andProtection Act] and not in a special home or observation home meantfor juveniles in conflict with law. Accordingly, we answer the 2ndquestion referred to us.52. The next question is, “Whether the minor child can be keptin protective custody of the State?” In our considered opinion, ifthe welfare of the minor child will be well protected if she is keptin the protective custody of the State, the court can resort to suchcourse also as dealt with in the previous paragraph. https://hcservices.ecourts.gov.in/hcservices/

53. The next question is “Whether the minor girl who claims tohave solemnized her marriage with another person would not be ajuvenile in conflict with law?”In our considered opinion, ajuvenile in conflict with law is the one who is alleged to havecommitted an offence and has not completed eighteenth year of age ason the date of commission of such offence. Here, the minor, whoenters into a marriage is not an offender under any of the provisionsof the Prohibition of Child Marriage Act, 2006. Neither the minorgirl is an offender under section 18 of the Hindu Marriage Act. Thesaid provision states that “every person who procures a marriage ofhimself or herself ......” is punishable. Here, the minor girl doesnot procure the marriage and instead her marriage is procured by theothers. Thus, , such a minor girl is not a juvenile in conflict withlaw. Accordingly, we answer the 4th question referred to us.54. The last question is, “Whether the principles of Sections 17and 19(a) of the Guardians and Wards Act, 1890, could be imported toa case arising out of the alleged marriage of a minor girl,admittedly in contravention of the provisions of the Hindu MarriageAct?” As held by the Hon'ble Supreme Court in the judgmentscited supra, Sections 17 & 19 of the Guardians and Wards Act canalso be taken for guidance while deciding the question of custody ofa minor girl whose marriage has been celebrated. We answer thisquestion accordingly. 55. During the course of analysis of the provisions of theProhibition of Child Marriage Act, we have come across a seriousanomaly in Section 3(3) of the Act which we would like to highlightto draw the attention of the legislature. Sub-section 3 of section 3of the Act reads as follows:-"3. Child marriages to be voidable at theoption of contracting party being a child:-(1)... .... .... (2) ... .... .... (3) The petition under this section may befiled at any time but before the child filing thepetition completes two years of attaining majority.56. A plain reading of sub section (3) would reflect that apetition under the above Section may be filed at any time but beforethe child completes two years of attaining majority. When does achild attains the age of majority is not expressly defined in theAct. However, Section 2 (f) of the Prohibition of Child Marriage Actdenies the term "minor" which reads as follows:-"2 (f) "minor" means a person who, under theprovisions of the Majority Act, 1875 (9 of 1875) is tobe deemed not to have attained his majority" https://hcservices.ecourts.gov.in/hcservices/ As defined in Majority Act, 1875, a minor, either male or female,attains the age of majority on completing eighteen years of age.Keeping in mind the same, if we again look into sub section (3) ofsection 3 of the Prohibition of Child Marriage Act, the anomaly inthe Act will emerge to light. In the case of a female , as per subsection (3) since she attains the age of majority on completing theage of eighteen years, there can be no difficulty in understanding ofthe said provision to say that a petition for annulment should befiled within two years of attaining majority, i.e. before completingtwenty years of age. But, in the case of a male, any marriagesolemnised before he completes the age of twenty one years is a childmarriage and the same is voidable. Therefore, he can be expected tofile a petition for annulment within two years after attaining theage of twenty-one years. But, sub section (3) reads that suchpetition should be filed when he completes two years of attainingmajority which means before completing twenty years of age. Forexample, if the child marriage of a male takes place on hiscompleting twenty years of age and if a literal interpretation isgiven to sub section (3) of the Prohibition of Child Marriage Act,surely, he will not be in a position to file a petition to annul themarriage. Such literal interpretation in the case of a male wouldcreate anomalous situation. It is too well settled that no provisionof any law shall be interpreted in such a way to make it eitheranomalous or unworkable. Therefore, in our considered opinion, subsection (3) of section 3 shall be read that in the case of a male,a petition for annulment of child marriage shall be filed before hecompletes two years of attaining twenty-one years of age. We arehopeful that the parliament will take note of the above anomaly andmake necessary amendment to sub section (3) to avoid any morecomplication. 57. In conclusion, to sum up , our answers to the questionsreferred to by the Division Bench are as follows:-i. The marriage contracted by a person with a female of lessthan 18 years is voidable and the same shall be subsisting until itis annulled by a competent court under section 3 of the Prohibitionof Child Marriage Act. The said marriage is not a “valid marriage”stricto sensu as per the classification but it is “not invalid”. Themale contracting party shall not enjoin all the rights which wouldotherwise emanate from a valid marriage stricto sensu, instead hewill enjoin only limited rights.ii. The adult male contracting party to a child marriage with afemale child shall not be the natural guardian of the female child inview of the implied repealing of section 6(c) of the Hindu Minorityand Guardianship Act, 1956. https://hcservices.ecourts.gov.in/hcservices/ iii. The male contracting party of a child marriage shall not beentitled for the custody of the female child whose marriage has beencontracted by him even if the female child expresses her desire to goto his custody. However, as an interested person in the welfare ofthe minor girl, he may apply to the court to set her at liberty ifshe is illegally detained by anybody. iv. In a habeas corpus proceeding, while granting custody of aminor girl, the court shall consider the paramount welfare includingthe safety of the minor girl not withstanding the legal right of theperson who seeks custody and grant of custody in a habeas corpusproceeding shall not prejudice the legal rights of the parties toapproach the civil court for appropriate relief. v. Whether a minor girl has reached the age of discretion is aquestion of fact which the court has to decide based on the facts andcircumstances of each case. vi. The minor girl cannot be allowed to walk away from the legalguardianship of her parents. But, if she expresses her desire not togo with her parents, provided in the opinion of the court she hascapacity to determine, the court cannot compel her to go to thecustody of her parents and instead, the court may entrust her in thecustody of a fit person subject to her volition.vii. If the minor girl expresses her desire not to go with herparents, provided in the opinion of the court she has capacity todetermine, the court may order her to be kept in a children home setup for children in need of care and protection under the provisionsof the Juvenile Justice [Care and Protection] Act and at any cost sheshall not be kept in a special home or observation home meant forjuveniles in conflict with law established under the Juvenile Justice[Care and Protection] Act, 2000viii. A minor girl whose marriage has been contracted inviolation of section 3 of the Prohibition of Child Marriage Act isnot an offender either under Section 9 of the Act or under Section 18of the Hindu Marriage Act and so she is not a juvenile in conflictwith law.ix. While considering the custody of a minor girl in a habeascorpus proceeding, the court may take into consideration theprinciples embodied in Sections 17 and 19(a) of the Guardians andWards Act, 1890 for guidance.58. We make it clear that the above answers have been arrived atby us only on discussions in respect of the laws relating to Hindus.Since the parties in this case are Hindus, we have confined our https://hcservices.ecourts.gov.in/hcservices/ discussions only to the laws relating to Hindus and we have notexamined the above questions referred to us in the context of lawsrelating to other religions. 59. Before concluding this judgment we would like to state thatdespite several legislations which we have referred to above, theevil menace of child marriages has not been eradicated in toto.Though the Central Government evolved "The National Plan of Actionfor Children 2005", aiming to eliminate child marriages entirely bythe end of the year 2010, the same could not be achieved. Often, wesee in news papers incidents of such child marriages including youngchildren of less than ten years of age. There are also reports thatthere are widows of age group of less than 10 years. Undoubtedly,child marriage is a violation of human rights and it affects thehealth of the girls as well as the children born to them. We havealso come across reports that minor girls and boys induced byinfatuation elope resulting in number of habeas corpus petitionsfiled by the parents. We feel that adequate publicity has not beenmade to the Prohibition of Child Marriage Act , more particularly,about section 9 of the Act which provides for punishment up to twoyears and that the offence is also cognizable and non-bailable. Weare hopeful that if police register criminal cases against theoffenders and file final reports bringing them to book, the incidentsof child marriage can be at least reduced, if not completelyeradicated. Therefore, we direct the Government to give adequatepublicity for the Act so that it could reach the people and also tosensitize them through Governmental and Non-Governmental VoluntaryOrganizations. The police may also be sensitized about their legalobligation to register criminal cases as and when there isinformation regarding commission of offence of child marriage inviolation of the Act. We also direct the Government to ensure thatthe calendars and prospectus issued by Educational Institutions ofand above Higher Secondary Courses including Colleges, bothprofessional and non professional, to incorporate the salientfeatures more particularly, the penal provisions of the Prohibitionof Child Marriage Act so as to sensitize the students and parents.We feel, it is high time that the Government instructs theEducational Institutions to conduct counseling classes for thestudents in their teens and parents to sensitize them of the ill-effects of child marriages. 60. We direct the Registry to place the Habeas Corpus Petitionbefore the Division Bench for disposal. https://hcservices.ecourts.gov.in/hcservices/

61. Before parting with this judgment, we would like to recordour appreciation to the excellent assistance rendered byMr.P.N.Prakash, the learned counsel who acted as amicus curiae. Sd/Asst. Registrar/true copy/Sub Asst.RegistrarkmkTo1.The Inspector of Police,Thiruvallur Town Police Station,Thiruvallur District.2.The Public Prosecutor, High Court, Madras.3. The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr.R. Sivakumar, Advocate Sr.61676Copy to:-1.The Secretary, Department of Law and Justice, Union of India, New Delhi.2.The Chief Secretary,Government of Tamil Nadu, Chennai.3.The Secretary,Home Department,Government of Tamil Nadu, Chennai.4.The Secretary Law Department,Government of Tamil Nadu, Chennai.5.The Secretary Social Welfare Department, Government of Tamil Nadu Chennai.6.The Secretary,Higher Education Department,Government of Tamil Nadu Chennai.7.The Secretary, School Education Department,Government of Tamil Nadu Chennai. H.C.P.No.907 of 2011 SS(CO)Eu 18.10.11