-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.
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.
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.
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.