Tag: #Minor

General American Insurance Co. v. Madanlal Sonulal

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Case Number

158 Ind Cas 554

Equivalent Citation

(1935) 37 BOMLR 461

Bench

The Bombay High Court

Decided On

12.03.1935

Relevant Act / Section

  • The Indian Contract Act, 1872
  • The Insurance Act, 1938

Brief Facts and Procedural History

Introduction

This legal case centres around a minor named Madanlal Sonulal, who initiated legal proceedings against The Great American Insurance Co. Ltd. for failing to fulfil a contractual promise. The agreement was made between the minor’s guardian and the insurance company and was deemed valid. Madanlal was the only surviving son of a joint Hindu family that operated a business in Devalgaum. The family had taken out a fire insurance policy with the defendant company to cover their cotton bales. However, when the cotton bales were destroyed in a fire, the plaintiff sued the defendant company for the recovery of their loss. The defendant company, which was incorporated in New York, USA, was conducting business in Bombay, India. To represent him in the case, Madanlal was aided by his next friend, Goverdhandas Mohanlal, who was the husband of the plaintiff’s sister and with whom the plaintiff was living.

The case raises several legal issues, including the enforceability of contracts entered into by minors, the obligations of an insurance company under a fire insurance policy, and the jurisdiction of foreign companies operating in India. The court had to determine whether the contract was binding on the minor, whether the insurance company had fulfilled its obligations, and whether the court had jurisdiction to hear the case. The case has significant implications for Indian contract law, particularly in relation to minors and the obligations of insurance companies. Ultimately, the court’s ruling would have a profound impact on the rights of Indian citizens in similar legal disputes.

Facts

This is an appeal case regarding a point of law arising from Mr Justice Kania’s decision. The plaintiff, Madanlal Sonulal, is represented by Goverdhandas Mohanlal, his next friend, and has filed a lawsuit against The Great American Insurance Co., Ltd. This company is based in New York, USA, but operates in Bombay at Apollo Street within the Fort of Bombay. According to the lawsuit, the plaintiff is the only surviving coparcener of a joint Hindu family that carries on a joint family business in Devalgaum under the name Surajmal Sonulal. The plaintiff lives with his sister’s husband, Goverdhandas Mohanlal, who oversees the firm’s operations. The plaintiff had effected an insurance policy against fire with the defendant company on certain cotton bales Nevertheless, at the precise moment when the ultimate insurance was granted to the plaintiff’s company, the bales were set on fire, prompting the plaintiff to file a lawsuit seeking compensation for the resulting loss through the insurance policy. The defence raised in the written statement is that there was collusion between the agent of the defendant company and the persons who affected the insurance and that the insurance was affected after the fire. The defendants did not plead that the plaintiff was a minor and that the insurance policy was void. However, during the proceedings, the defendant’s counsel drew the attention of the learned Judge to the fact that the plaintiff was a minor and invited the Court to raise an issue as to whether the contract was void on the ground of a minority of the plaintiff. The learned Judge raised such an issue, but at the trial, he came to the conclusion that it was not necessary to answer the issue since the minority had not been pleaded.

The defendants have appealed the judgment of the learned Judge. They have not challenged the findings of fact. However, they contend that the insurance policy is void because the plaintiff is a minor, relying on the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose[1]. The Privy Council held that any contract by a minor is wholly void under the Indian Contract Act since the Act requires that parties to a contract should be persons competent to contract, and if one of the parties is a minor, he is not competent to contract, and therefore, no contract results.

The learned Judge had found that the contract was valid and negatived the case of fraud and collusion set up by the defendant company, and gave judgment for the plaintiff. The only answer raised by the defendants is that the insurance is void because the plaintiff is a minor. This contention is alarming since it means that the property of minors cannot be insured 

In numerous joint family enterprises, minors inherit ownership rights, and typically an adult member of the family manages the business under the minor’s name. However, if this family member is unable to secure insurance on behalf of the minor, it can create a highly precarious situation. Nonetheless, the evidence indicates that the agreement was actually established by Goverdhandas, who acted as a representative through his agent Trimbaksha. In other words, the minor who entered into the contract did so through the agent Trimbaksha, who was serving as the minor’s guardian. The Court need not delve into the principles of the previous cases since the answer to the defendants’ contention is a simple one. The contract was made by the guardian of the minor, and not by the minor himself. Thus, the insurance policy is not void.

Before this case, in Mohori Bibee and Ors. Vs. Dharmodas Gosh (1903), the Privy Council had held that a contract by a minor is void-ab-initio. Yet, the Privy Council ruled in Sri Kakulam Subrahmanyam Vs. Kurra Subba Rao (1948)[2] that an agreement made by a guardian on behalf of a minor for their advantage is considered legally binding. In Suraj Narain Dube v. Sukhu Aheer and Anr (1928)[3], the Allahabad High Court held that the old consideration by the minor is not valid consideration for a fresh contract. In the case of Kunwarlal Daryavsingh vs Surajmal Makhanlal And Ors. (1963)[4], the Madhya Pradesh High Court held that a minor is liable to pay rent for the property given to him on rent due to necessities for living and continuing study.

The case of General American Insurance Co v/s Madanlal Sonulal[5] thus stands in line with the legal precedents established by the above cases, where the validity of a contract made on behalf of a minor or involving a minor was challenged and resolved.

Issues Of The Case

  • Validity of the insurance made by the minor: An important matter to be addressed in this case pertains to the validity of the insurance policy made by the minor. As the minor is not legally competent to enter into a contract, the enforceability of the policy is uncertain. Thus, the court must decide whether the policy is binding or whether it should be rendered void on account of the minor’s legal incapacity.
  • Liability of the insurance company to pay losses under the policy: A second matter for the court to consider is whether the insurance company is responsible for covering the losses under the policy. In the event that the policy is deemed valid, the court must then decide whether the insurance company is legally required to fulfil the terms and conditions outlined in the contract. In making this determination, the court may need to evaluate various factors such as the nature of the loss, the degree of damage incurred, as well as any provisions or restrictions included in the policy.

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. dealt with several legal issues, including:

  1. Whether a policy of insurance is void if entered into on behalf of a minor by an adult member of their family.
  2. Whether the defendant could raise the defence that the contract was void on the ground of the minority of the plaintiff, citing the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose.
  3. Whether the contract was actually made by the minor’s guardian acting through an agent, or whether it was made directly by an adult member of the minor’s family.
  4. Whether the defendant could use technical defences to policies, especially in cases involving minors and joint family businesses.
  5. Whether the law strikes an appropriate balance between protecting the rights of minors and ensuring the smooth functioning of businesses and transactions involving minors.

Decision Of The Court

In the case at hand, Defendant had raised a claim in their written statement that there was collusion between Plaintiff and the agent of Defendant’s company. According to Defendant, the insurance came into effect after the occurrence of the fire, and therefore, they were not liable for the damages. The Plaintiff’s minority was not pleaded, and as a result, the learned judge concluded that since the issue of the minority was not raised, it was not necessary to address it. The judge further held that the insurance was valid and ruled in favour of the Plaintiff in the case of collusion and fraud.

However, Defendant appealed this decision on the grounds that Plaintiff was a minor at the time the insurance was taken out, and therefore, the insurance should be considered void ab initio. The court analyzed the circumstances surrounding the insurance policy and found that it had been entered into by Goverdhandas on behalf of the minor through the agent Trimbaksha with Puranmal on behalf of the Defendant’s company. The court further noted that Puranmal had knowledge of the Plaintiff’s minority, which made the Defendant’s company aware of the Plaintiff’s status as a minor.

The court then considered whether Goverdhandas could be considered a guardian within the meaning of the relevant Act. The Act defines a guardian as a person who has the care of the person of a minor or of their property, or both. In this case, the insurance was made for the benefit of the minor and their property, and Goverdhandas had acted on behalf of the minor in entering into the insurance agreement. Therefore, the court held that the insurance was valid and dismissed the Defendant’s appeal with costs.

In light of the court’s decision, the parties agreed that the insurance company would pay Rs. 7000 to the Plaintiff. This decision reflects the court’s careful consideration of the legal issues at play, including the definition of a guardian under the relevant Act and the circumstances surrounding the insurance policy in question.

Conclusion

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. serves as a reminder of the importance of understanding the legal implications of contracts entered into on behalf of minors and the role of guardians in such transactions. In this case, the defendant raised the defence that the contract was void on the grounds of the plaintiff’s minority, citing the decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose (1903).

However, the court ultimately ruled that the contract was not made by the minor but by Goverdhandas, acting through his agent Trimbaksha. Thus, it was the person acting as the guardian for the minor who entered into the contract through the agent. This ruling underscores the importance of understanding who the contracting parties are and whether the person entering into the contract has the legal authority to do so on behalf of the minor.

Furthermore, this case highlights the need for insurance companies to carefully consider technical defences to policies, especially in cases involving minors and joint family businesses. Insurance companies must be diligent in their review of the policy and ensure that the person who enters into the contract on behalf of the minor has the legal authority to do so.

In conclusion, while the law seeks to protect minors from entering into contracts that may be detrimental to their interests, it is essential to balance the need to protect their rights with the smooth functioning of businesses and transactions involving minors. It is important to take into account the role of guardians in such transactions and to ensure that all parties understand the legal implications of the contract before entering into it. Overall, this case serves as a valuable reminder to all parties involved in contractual relationships to be aware of the legal implications of their actions and to seek legal advice where necessary.

Endnotes:

  1. Mohori Bibee v. Dhurmodas Ghose, (1903) 30 Cal. 539 (India).
  2. Sri Kakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 Mad 207 (India).
  3. Suraj Narain Dube v. Sukhu Aheer and Anr, AIR 1929 All 210 (India).
  4. Kunwarlal Daryavsingh v. Surajmal Makhanlal and Ors., AIR 1964 SC 193 (India).
  5. Madanlal Sonulal v. The Great American Insurance Co. Ltd., AIR 1962 SC 439 (India).

This case is analysed by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

RELATED POST: When Age Matters: Examining the Implications of Minors Entering into Contracts

When Age Matters: Examining the Implications of Minors Entering into Contracts

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S.noContents
1.INTRODUCTION
2.WHO IS A MINOR?
3.CAN MINORS ENTER INTO A CONTRACT?
4.CONTRACTS OF BENEFICIAL NATURE
5.BENEFICIARY TO A CONTRACT
6.RESTITUTION
7.NO ESTOPPEL AGAINST MINOR
8.RATIFICATION BY A MINOR
9.VOIDABLE AT THE OPTION OF A MINOR
10.CONCLUSION

INTRODUCTION

The capacity to contract is a crucial aspect of contract law, which refers to the ability of a person to enter into a legally binding agreement. In other words, it is the legal competence or power of an individual or entity to enter into a contract that creates enforceable rights and obligations between the parties involved.

To be bound by a contract, the parties must have the legal capacity to agree. This means that they must have the mental capacity and legal status required to form a legally binding contract. The law recognizes that certain individuals or entities may not have the necessary capacity to enter into a contract, and therefore, any agreement they make may not be legally binding.

For example, minors, individuals with mental incapacities, and individuals under the influence of drugs or alcohol may not have the legal capacity to enter into a contract. In such cases, any contract they enter into may be deemed void or unenforceable. Similarly, corporations and other legal entities must also have the capacity to contract. This means that they must have the legal authority and power to enter into a contract, as well as the necessary authorization from their board of directors or shareholders.

Overall, the capacity to contract is a fundamental element of contract law, as it ensures that contracts are entered into freely and voluntarily by parties who have the legal competence and power to be bound by them.

WHO IS A MINOR?

According to Section 3[1] of the Indian Majority Act, of 1875, an individual is considered to have achieved the age of majority once they turn 18 years old, with the exception of two scenarios

  • If a guardian has been appointed for a minor’s person or property under the Guardians and Wards Act, of 1890, then the minor will remain a minor until they complete the age of 21 years.
  • If a Court of Wards has assumed the superintendence of a minor’s property, then the minor will also remain a minor until they complete the age of 21 years, even if they have already turned 18 years old.

Under the act, minors enjoy a privileged position whereby they can bind others to contracts, but cannot themselves be held accountable for any breaches. This means that a minor cannot be held personally responsible for any wrongdoing they may commit.

CAN MINORS ENTER INTO A CONTRACT?

According to Section 11[2] of the Indian Contract Act, of 1872, it is explicitly prohibited for a minor to enter into a contract. This prohibition means that any contract entered into by a minor, regardless of whether the other party was aware of their age, will be considered void-ab-initio, or invalid from the outset. This means that even if a minor is just one day away from turning 18, they will still be considered a minor in the eyes of the law, and any contracts they enter into will be deemed void.

Let’s take an example to understand the legal concept of minors and contracts;

In this case, Mr D, a minor, mortgaged his house for Rs.20,000 to a moneylender, who paid him only Rs.8,000. Subsequently, Mr D filed a lawsuit to set aside the mortgage agreement.

The court held that as per Section 11 of the act, a minor is not capable of entering into a contract, and any contract entered into by a minor is void. Therefore, the mortgage agreement between Mr D and the moneylender was void-ab-initio, as Mr D was a minor at the time of the agreement. The court further held that since the contract was void, Mr D was not liable to repay the moneylender any amount of the mortgage. The court allowed Mr D’s request to set aside the mortgage agreement, and the moneylender was not entitled to claim any rights on the property mortgaged by Mr D.

It is a well-established legal principle that minors are generally unable to enter into contracts, given their lack of legal capacity. However, there are two notable exceptions to this rule;

CONTRACTS FOR NECESSARIES

These are goods and services that are necessary for the minor’s support and maintenance. In such cases, a minor can enter into a contract for necessities, and the contract will be binding on the minor to the extent that it is reasonable and necessary.

CONTRACTS OF BENEFICIAL NATURE

 This type of contract is entered into for the benefit of the minor and is therefore binding on the minor. Examples of such contracts may include contracts for education or to advance the minor’s business interests. It is important to note that in both cases, the contracts must be entered into for the benefit of the minor in order to be legally enforceable. These exceptions to the general rule regarding minors and contracts serve to protect the best interests of minors and ensure that they can enter into necessary and beneficial agreements. The principle that a minor cannot enter into a legally binding contract has been firmly established in various landmark cases. One such notable case is Mahori Bibi v/s Dharmodas Ghose[3], where the court held that a minor’s contract is void ab initio and unenforceable, even if the minor has misrepresented their age or misled the other party into believing that they were of age. The case has been widely cited and has played a pivotal role in shaping contract law in India, reaffirming the principle that minors cannot be held liable for obligations under a contract and can seek to have the contract set aside if necessary.

BENEFICIARY TO A CONTRACT

It is recognized that a minor can serve as a promisee or beneficiary in a contract and that a contract that is advantageous to a minor can be enforced by them. Notably, there are no limitations on a minor serving as a beneficiary, such as in the role of a payee or promisee within a contract. In light of these considerations, it follows that a minor possesses the ability to purchase real property and may initiate legal action to recover possession of the property after tendering payment for its purchase.

RESTITUTION

Where a minor has received benefits under a contract, he is bound to make restitution or return the benefits received. For instance, if a minor enters into a contract to purchase a car and has paid some amount of money, the seller is required to return the money to the minor and take back the car. If a promissory note is executed in favour of a minor, they have the right to enforce it accordingly.

Furthermore, a minor who has extended a loan to someone and experiences a refusal by the borrower to repay the loan based on the voided agreement has the entitlement to reclaim the loaned funds. In a legal context, these principles are crucial for contracts in which minors are involved. It is important to note that this legal principle regarding the capacity of minors in contracts has been demonstrated in various legal cases. For instance, the case of General American Insurance Co v/s Madanlal Sonulal[4] illustrates how a minor was able to recover insurance funds after a loss, despite the fact that the goods in question had been insured on behalf of the minor. Such cases serve to affirm the legal rights and entitlements of minors in contractual matters.

NO ESTOPPEL AGAINST MINOR

The legal principle of estoppel is intended to stop a person from arguing something or asserting a right that refutes what they formerly said or agreed to by law. However, it is important to note that this principle does not apply to minors in the context of contractual agreements. Specifically, an infant or minor is not estopped from setting up the defence of incompetence due to minority. This is because the law of contract is designed to protect minors from incurring contractual liability, given their limited legal capacity. As such, the defence of estoppel cannot be used against minors in contractual matters.

In situations where a minor misrepresents their age and induces another party to enter into a contract with them, the minor cannot be held liable for the resulting contract. Specifically, no estoppel can be asserted against a minor in such cases. This means that the minor cannot be prevented from pleading their infancy as a defence in order to avoid the contractual obligation.

This is because the law recognizes the limited legal capacity of minors and aims to protect them from the consequences of their contractual agreements. As such, a minor cannot be held responsible for a contract that they entered into while still legally considered a minor, regardless of any misrepresentation that may have occurred. Ultimately, the principle of no estoppel against a minor serves to safeguard the rights and interests of minors in contractual dealings.

According to the ruling in Vaikuntarama Pillai v. Athimoolom Chettiar (1915 Madras H.C.)[5], “There is a clear statutory provision that minor being incompetent to contract is incapable of incurring any liability for any debt, the law of estoppel cannot overrule this provision to make him liable.” This statement emphasizes that minors are not legally responsible for debts incurred through contracts and that the doctrine of estoppel cannot be used to make a minor liable for a contractual debt. The ruling underscores the importance of protecting minors in contractual matters and ensuring that they are not unfairly subjected to legal liabilities.

RATIFICATION BY A MINOR

Ratification refers to the act of confirming or validating a contract that was entered into while the person was a minor, after they have attained the age of majority. Once a minor attains majority, he or she has the option to either affirm or disaffirm the contract. If the minor chooses to affirm or ratify the contract, then the contract becomes binding and enforceable. By doing so, the minor becomes bound by the terms of the contract and can be held liable for any breach of the contract. It is essential to note that once a contract has been ratified, the right to disaffirm the contract is lost and cannot be exercised again. Ratification can be expressed or implied, and it can be done through words or actions. For example, if a minor purchases a car and continues to use it after attaining the age of majority, then it can be considered an implied ratification of the contract.

VOIDABLE AT THE OPTION OF A MINOR

In cases where a minor enters into a contract that is not for necessaries or of a beneficial nature, the contract is considered voidable at the option of the minor. This means that the minor has the option to either ratify the contract or repudiate it. If the minor chooses to repudiate the contract, then he or she is not bound by the terms of the contract and is not liable for any breach of the contract.

This provision is based on the understanding that minors are not legally competent to enter into binding contracts. Therefore, if a minor is to be held responsible for a contract, it must be a contract that is for necessaries or of a beneficial nature, or one that has been ratified after the minor has attained the age of majority. If a minor decides to repudiate a contract, he or she must do so before attaining the age of majority. Once the minor attains the age of majority, he or she can no longer repudiate the contract. If the minor does not repudiate the contract before attaining the age of majority, then the contract will be considered valid and enforceable.

It is important to note that if the minor ratifies the contract after attaining the age of majority, then the contract becomes binding on the minor, and he or she can be held liable for any breach of the contract. Therefore, it is essential for minors to carefully consider the consequences of their actions when entering into contracts, and to seek legal advice if necessary.

CONCLUSION

It is crucial to recognize that strict rules must be applied to contracts made by minors. It is often questioned why a minor who is one day away from attaining majority and has committed a breach in the contract should get away with it. However, it is important to understand that the law exists to provide a reliable framework to protect individuals’ rights when they have been infringed. Minors are considered to lack the capacity to make informed decisions as they are not yet fully accustomed to the complexities of the real world. Therefore, it is essential to ensure that minors are provided with adequate protection until they reach the age of majority. By adhering to these strict rules, we can create a consistent legal system that protects everyone’s interests, including minors who may be vulnerable in contractual relationships.

Endnotes:

  1. The Majority Act, 1875, Act No. 9 of 1875
  2. The Indian Contract Act, 1872, Act No. 9 of 1875
  3. Mahori Bibi v/s Dharmodas Ghose, UKPC 12, (1903) LR 30 IA 114 (India).
  4. General American Insurance Co v/s Madanlal Sonulal, (1935) 37 BOMLR 461, 158 Ind Cas 554 (India).
  5. Vaikuntarama Pillai v. Athimoolom Chettiar, (1914) 26 MLJ 612 (India).

This article is authored by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

Case Analysis: Mohori Bibee V. Dharmodas Ghose

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Name of the Case

Mohori Bibee V. Dharmodas Ghose

Equivalent Citation

(1903) ILR 30 Cal 539 (PC)

Date of Judgement

04 March 1903

Name of Judges 

Lord McNaughton, Lord Davey, Lord Lindley, Sir Ford North, Sir Andrew Scoble, Sir Andrew Wilson.

Facts of the Case

In this case, the respondent was Dharmodas Ghose. He was a minor (i.e., he had not reached the age of 18), and he was the only owner of his immovable property. Dharmodas Ghose’s mother was appointed as his legal guardian by the Calcutta High Court. He was a minor when he went for the mortgage of his own immovable property in favor of the appellant, Brahmo Dutta, and obtained this mortgage deed for Rs. 20,000 at a 12% interest rate each year. Brahmo Dutta, a money lender at the time, acquired a loan of Rs. 20,000, and the management of his firm was in the hands of Kedar Nath, who functioned as Brahmo Dutta’s attorney. Dharmodas Ghose’s mother notified Brahmo Dutta about Dharmodas Ghose’s minority on the day such mortgage deed was started, but the proportion or quantity of loan that was actually granted was less than Rs. 20,000. The defendant’s representative, who actually acted on behalf of the moneylender, gave money to the plaintiff, who was a minor, and he was fully aware of the plaintiff’s incompetency to perform or enter into a contract, as well as that he was legally incompetent to mortgage his property, which belonged to him. On September 10, 1895, Dharmodas Ghose and his mother filed legal action against Brahmo Dutta, claiming that the mortgage Dharmodas executed was commenced while he was a minor or infant, and thus such mortgage was void, disproportionate, or improper, and as a result, such contract should be revoked. Brahmo Dutta died while this petition or claim was being processed, and the appeal or petition was then litigated by his executors. The plaintiff contended or addressed that in such a scenario, no relief or assistance should be granted to them since, in his opinion, the defendant had dishonestly misunderstood the truth about his age. Furthermore, if the mortgage is terminated at the request of the defendant, Dharmodas Ghose.

Issues

  • Whether or not the deed was void under sections 2, 10, and 11 of the Indian Contract Act of 1872.
  • Whether or whether the defendant was obligated to repay the amount of debt obtained under such deed or mortgage?
  • Whether or if the defendant’s mortgage was voidable?

Judgment 

According to the Trial Court’s decision, the mortgage deed or contract that was initiated between the plaintiff and the defendant was void since it was completed by a person who was a baby at the time of mortgage execution.

When Brahmo Dutta was dissatisfied with the Trial Court’s decision, he filed an appeal in the Calcutta High Court.

According to the ruling of the Calcutta High Court, they concurred with the verdict of the Trial Court and dismissed Brahmo Dutta’s appeal.

Then he proceeded to the Privy Council for an appeal, and the Privy Council likewise denied Brahmo Dutta’s petition, ruling that there can be no contract between a minor and a major.

The council’s final conclusion was that any contract entered into with a child or newborn is void/void ab initio (void from beginning).

Because the minor was incompetent to create such a mortgage, the contract that was established or begun is likewise void and unenforceable in the eyes of the law.

Because he was not bound by the commitment that was fulfilled in a contract, the minor, Dharmodas Gosh, cannot be forced to repay the amount of money that was advanced to him.

This case analysis is written by Mudit Jain, pursuing B.B.A.LL.B.(H) from Indore Institute of Law.

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The Hon’ble High Court of Allahabad Denies Providing Custody of ‘Minor’ Husband to his ‘Major’ Wife, as it would amount to an Illicit Relationship between them

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-Report by Saksham Srivastava

The Hon’ble High Court of Judicature, Allahabad, refuses to grant custody of a ‘minor’ husband to his wedded ‘major’ wife. The Hon’ble Court says that such an act would amount to an offence under the POCSO Act. The bench headed by Justice J.J Muneer, is of the view, that the marriage between a minor and major is voidable at the option of the party, as given under the POCSO Act and if allowed to stay together, it would result in sanctioning cohabitation between a minor and major.

Petitioner’s Contention

The petitioner, named as Haushila Devi, is the mother of Manish, age 16 years and who is also made as to the petitioner number one by her mother, alleges in hon’ble court that the respondents, namely, Jyoti and her family members forced her son into procuring matrimonial ties with Jyoti, who is a major and is also the respondent number one in the aforesaid case. The learned counsel on behalf of Haushila Devi, claims that her son, Manish has been illegally confined in the house of the respondents, and the conspiracy of the said offence is carried by Jyoti, her mother Pamila Devi, and her two brothers. The petitioner has filed a writ of habeas corpus (to produce the body) in the Hon’ble High Court of Allahabad under Article 226 of the Constitution of India, to retain the care and custody of the minor child, Manish, back to her mother who is also the natural guardian of Manish, as claimed by the petitioner number two, Haushila Devi. The learned counsel argues further, that, Manish being a minor of age 16 years is under no competence to enter into any such life-long holy agreements like marriage. They claim that the marriage so performed is void under the provisions laid down in the Hindu Marriage Act, 1955 and the Prohibition of Child Marriage Act, 2006. The petitioner further claims that since Manish is a minor as per the law, hence, he cannot be entrusted with the decision-making choice of residing with the strangers, thereby the care and custody should be handed over to the natural guardian, i.e.- her mother, Haushila Devi, also the petitioner number two in the said case.

Respondent’ Contention

The learned counsel on behalf of the respondents, i.e.- Jyoti and her family members, contends that the legislature did not outlay any such provisions of the aftermath about the marriage being solemnized in breach of section 5 (3) of the Hindu Marriage Act, 1955. He argues that the marriage is neither void nor voidable, but valid. As per the law, the penal punishment would be inflicted upon the party who was a major at the time of the commission of such foul act. The learned counsel is of the view that if both the party is minor at the time of such acts, then their parents upon whom the responsibility was bestowed, would be dealt as per the law. He further argues that no matter who suffers the penal consequences, the marriage cannot be solemnized being void or voidable. The learned counsel says that holding a marriage to be void under the Prohibition of Child Marriage Act, it should strictly adhere to the stipulations laid down under section 12 of the said Act, else the marriage could be declared as voidable at the option of the party who was minor at the time of marriage. The respondents argued through their learned counsel that Manish who is a minor of 16 years, is about to attain majority and hence, should be bestowed upon with the responsibility of residing with whomsoever he chooses. Section 17 of the Wards Act, 1890 lays down the provision for the minor to chose his/her natural guardian through their own. Therefore since Manish does not want to stay wither mother, he cannot be compelled by the hon’ble court to do so.

Judgment

The bench of Hon’ble High Court of Allahabad, led by Justice J.J Muneer, in the aforesaid case of Manish and Anr v. State of U.P. and 7 others, that the marriage in the said case is voidable at the option of the party who is a minor, i.e.- Manish of age 16 years. The Hon’ble court said it loud and clear that they cannot allow the care and custody of the Manish to be entrusted with his wife as it would originate an event that could facilitate the cohabitation between the minor and the major, regarded as an offence under the POCSO Act, 2006. The court even considered the essential fact of the POCSO Act, that it prevents any sort of cohabitation between the major and the minor. The Lordship also highlighted the sections under the POCSO Act, which defines the offence and also inlays the penal consequences, under sections 3 & 4 respectively, irrespective of the age or sex of the offender. The Hon’ble court ordered to send the minor into the state facilities like ‘Child Home’ to reside till he attains the age of 18 years and thereby he can choose with whom to reside after completion of his age as major. If he still chooses to stay with her mother during the said period, he would have to apply the Child Welfare Committee Act, 2012. The order should comply immediately.