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AMINDER KAUR VS STATE OF PUNJAB AND ORS CRM-M 29790 of 2009 (O&M)

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The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages.However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of  solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :

Definitions – In this Act, unless the context otherwise requires-

(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

(b) “child marriage” means a marriage to which either of the contracting parties is a child;

(f) “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority.”

9. Punishment for male adult marrying a child – Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

10.Punishment for solemnising a child marriage – Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

11.Punishment for promoting or permitting solemnization of child marriages –

(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.

12.Marriage of a minor child to be void in certain circumstances – Where a child, being a minor – (a) is taken or enticed out of the keeping of the lawful guardian; or  (b) by force compelled, or by any deceitful means induced to go from any place; or (c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,

Interestingly the question that has been raised by the counsel for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners. Therefore, the questions which arise for consideration of this Court are :

(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?

(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?

(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?

In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, “child” means a person, who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age and according to Section 2 (b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.

In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable.

The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void.

The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.

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