1. Heard Shri Ajay Kumar Srivastava, learned counsel for the petitioners, Shri Vaibhav Ojha, learned A.G.A. for the State-respondent, and perused the record.
2. As per petitioners' case, the petitioner no.1 is the legally wedded wife of petitioner no.2. Pursuant to the registration of impugned F.I.R. being Case Crime No.594 of 2022, under Sections 363 I.P.C., P.S. Gandhi Park, District Aligarh, by the father of petitioner no.2, she has been remanded to Rajkiya Bal Grih/Balika Kendra on the direction of Child Welfare Committee vide order dated 11.1.2023. Therefore, the petitioners have assailed the order dated 11.1.2023 through instant petition for custody of petitioner no.2. In essence, petitioners are husband and wife and husband has prayed for custody of her minor wife.
Brief Facts
3. The prosecution's case unfolds on 30.9.2022, when the mother of the prosecutrix scolded the 17-year-old victim. Following this, the victim left her residence at 03:45 p.m. Despite all possible efforts by the first informant to locate the victim in the vicinity, she remained elusive. The complainant alleged that her daughter had absconded with Manish Pratap Singh, prompting the registration of an F.I.R., Case Crime No.0594 of 2022, under Section 363 IPC, at P.S. Gandhi Park, District Aligarh, on October 1st, 2022.
4. Subsequently, the victim was recovered by police, and her statement was recorded under Section 164 Cr.P.C., disclosed that she is a 19-year-old adult who left her home of her own following a scolding from her mother. She asserted that her journey to Agra and subsequent marriage to petitioner no.2 on 1.10.2022, were free from coercion or inducement, and she has been living contentedly since. In her statement under section 164 Cr.P.C., she said to having completed the fifth class.
5. Upon investigation, the first informant provided the victim's Class-Xth mark-sheet, indicating her date of birth as 27.8.2006. The victim was sixteen years, four months, and fourteen days on the date of incident, which confirmed her status as a minor. Consequently, Section 363, 366, 376 IPC, and Section 3/4 of the POCSO Act were added to the charges against petitioner no.2.
6. Given the victim's minor status as per her academic records, she was presented before the Child Welfare Committee. The natural guardian refused to take the victim’s custody, therefore the victim was sent to Rajkiya Bal Grih/Balika, 7/202 Swaroop Nagar, Kanpur, on 11.1.2023.
7. The petitioner no.2 was arrested on 10.5.2023, and subsequently released on bail from this Court on 6.7.2023.
Petitioners’ Submissions
7.1 On 7.10.2022, petitioner no.2 and petitioner no.1 legally solemnized their marriage at Arya Samaj Mandir, Greater Noida, with petitioner no. 1's age is disclosed as 19. The marriage was duly registered at the Marriage Registration Officer-III, District Ghaziabad, vide Registration No.S.N.2239 dated 15.11.2022.
7.2 The petitioner no.1 is the legally wedded wife of petitioner no.2, and their marriage was solemnized willingly and consensually. They continue to live harmoniously as husband and wife, predating the arrest of petitioner no.2.
7.3 The statement of petitioner no.1 was recorded under Section 164 Cr.P.C., wherein she affirmed being 19 years old. She explained that due to a disagreement with her mother, she left her residence willingly and travelled to Agra. Subsequently, petitioner nos.1 & 2 solemnized their marriage. Presently, they were living as married couple. She further conveyed that she completed her education up to the 5th class and desired to accompany her husband (petitioner no. 2). Notably, the victim was a minor on the incident date, as per her academic record, therefore she was presented before the Child Welfare Committee, however, the parents declined custody, leading the Committee to send the victim in Rajkiya Bal Grih/Balika, 7/202 Swarup Nagar, Kanpur, as per the order dated 11.1.2023 passed by Child Welfare Committee.
7.4 The petitioner no.2 was arrested by the police on 10.5.2023 and subsequently sent to jail. He was later released on bail by this Hon’ble Court through an order dated 6.7.2023 in Criminal Misc. Application No.26019 of 2023.
7.5 As per Section 6 of the Hindu Minority and Guardianship Act, 1956, the husband is the natural guardian of a married woman. Consequently, petitioner no.2 is entitled to the custody of petitioner no.1.
7.6 Section 17(5) of the Guardians and Wards Act, 1890 stipulates that the Court shall not appoint or declare any person as a guardian against the will of a minor married girl if the marriage adheres to Clause (iii) of Section 5 of The Hindu Marriage Act, rendering it neither void nor voidable.
7.7 Considering Sections 19 and 21 of The Guardians and Wards Act in conjunction with Sections 6, 10, and 13 of the Hindu Minority and Guardianship Act, 1956, petitioner no.2 is the natural guardian of petitioner no.1, given their marital union.
7.8 The action of the Child Welfare Committee, sending petitioner no.1 to Nari Niketan, is inconsistent with Sections 19 and 21 of the Guardians and Wards Act, read in conjunction with Sections 6, 10, and 13 of the Hindu Minority and Guardianship Act, 1956. Consequently, the Committee's action is deemed voidable under Article 21 of the Constitution of India.
7.9 Learned counsel for the petitioners has relied upon Jitendra Kumar Sharma v. State and Another1, and T. Shiva Kumar v. The Inspector of Police2, wherein the minor wife was allowed to reside with her husband considering the welfare of minor wife.
8. On the contrary, the learned A.G.A. contends that; i) the alleged victim's age at the time of the incident was 16 years and 11 months, according to her academic records, leading to the registration of the First Information Report (F.I.R.) as Case Crime No.0594 of 2022 under Section 363 of the Indian Penal Code at P.S. Gandhi Park, District Aligarh; ii) in accordance with Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the age determination can be established through the victim's academic records. Upon scrutiny of said records, it was established that the victim was a minor. Consequently, she was presented before the Child Welfare Committee, rendering the committee's decision to send the girl to Rajkiya Bal Grih; and iii) furthermore, the complainant has corroborated the prosecution's case, affirming that her underage daughter, approximately 17 years old, was lured away by petitioner no.2.
9. Learned A.G.A. further contends that petitioner no.1 was minor at the time of marriage, rendering the marriage null and void from its inception. Consequently, petitioner no.2 faces charges under Section 363, 366, 376, 468 I.P.C. read with Section 3/4 POCSO Act.
Conclusion
10. Citing T. Shivakumar (supra), the full Bench of the Madras High Court emphasizes that a marriage solemnized in violation of sub-section (iii) of Section 5 of the Hindu Marriage Act is not declared void or voidable. While Section 11 deals with void marriages, Section 12 provides grounds for annulment. Both the Hindu Marriage Act and the Child Marriage Restraint Act do not explicitly declare the marriage of a minor as void or voidable. Therefore, such child marriages are considered valid, and the husband of a minor wife is recognized as her natural guardian under the Hindu Minorities and Guardianship Act.
11. The Bench expressed the view that, despite the marriage being voidable under the Hindu Marriage Act, 1955, due to the girl's age at the time, the circumstances warranted consideration. The couple, having deliberately chosen life partners against parental wishes and maintaining their relationship by cohabitation, prompted the Court to invoke Section 25 of the Guardians and Wards Act, 1890. The Bench emphasized that, in light of the paramount importance of the ward's welfare, this aspect could not be disregarded. Consequently, the Bench concluded, "The petitioner, as the husband, is in a relationship with respondent. In accordance with Sections 19 and 21 of the Guardians and Wards Act, coupled with Sections 6, 10, and 13 of the Hindu Minority and Guardianship Act, 1956, he holds the right to act as the natural guardian of the minor Hindu girl married to him, as statutorily designated the girl's husband. Hence, it is unfounded to allege any element of abduction or enticement in this context."
12. On the basis of the arguments advanced by counsel for the parties, two issues have emerged before this Court: i) about the validity of the marriage solemnised between petitioner no.1 and petitioner no.2, ii) who is entitled to the custody of Shivani- the minor wife, it is her mother, or it is her husband or someone else.
13. So far as the validity of marriage of the petitioners are concerned, it shall be decided in accordance with Hindu Marriage Act, 1955 in conjoint reading with the relevant provisions of the Child Marriage Restriant Act, 1929, which is not the case before us, therefore, we are not passing any order on this issue. Needless to say that the petitioners have also annexed Marriage Certificate as Annexure-6 to the writ petition, issued by the Marriage Registration Officer, Ghaziabad, and at this stage, we have no reason to doubt the genuineity of the marriage certificate in the instant case. The instant petition has been filed for release of minor-wife’s custody by the husband. We are leaving it open for the parties to raise the issue of validity of marriage in appropriate proceedings before the competent court, if any, would arise in future.
14. Concerning the custody of the minor-wife, her statement under Section 164 Cr.P.C. asserts that she is 19 years old, married to petitioner no.2 through Hindu rites and customs, and has been living as husband and wife since the date of marriage, and subsequently registered at the Marriage Registration Office-III, Ghaziabad, U.P. She further expresses her desire to live with her husband and requests to be handed over to him.
15. The court opines that a minor possesses the capacity to form an intelligent preference about the choice of living arrangements. The paramount consideration in deciding the return of a minor to the custody of a guardian or husband is the welfare of the minor.
16. The co-ordinate Bench of this Court consistently holds the view that a minor capable of making conscious decisions about her welfare and future life and voluntarily entering into a marital relationship should be considered. It is noteworthy that the mother of petitioner no.1 has declined the custody of the minor wife. Consequently, the court concludes that petitioner no.1 is no longer required to be retained and is free to go with her husband. She is at liberty to live with the man of her choice.
17. Accordingly, the petition stands disposed of in above stated terms.
