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Sapna Sharma And Another vs State Of Haryana And Others on 12 February, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRM-M No.47291 of 2017
Date of Decision: 12.02.2018

Sapna Sharma and another ….Petitioners
Vs

State of Haryana and others …..Respondents

CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH

Present: Mr. Munish Kumar Garg, Advocate,
for the petitioners.

Mr. Munish Dev Sharma, A.A.G. Haryana.

Mr. V.D. Sharma, Advocate
for respondents No.4 to 9.

****

RAJ MOHAN SINGH, J.(Oral)

On 08.02.2018, following order was passed:-

“By this petition, the petitioners are seeking
protection of their lives and liberty at the hands of
respondents no. 4 to 9, who are stated to be the parents
and other relatives of petitioner no. 1.

Vide an order passed on 12.12.2017, the
Superintendent of Police, Panipat, i.e. respondent no. 2,
had been directed to send the petitioners to the Protection
Home at Panipat, where they are stated to be still lodged.

Learned counsel for the aforesaid respondents
has produced in Court today, a copy of a petition filed by
respondent no. 4, i.e. the father of petitioner no. 1 in the

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Court of the Additional Civil Judge (Senior Division),
Samalkha, seeking to declare the marriage between
petitioners no. 1 and 2 to be null and void, invoking therein
the provisions of the Prohibition of Child Marriage Act,
2006.

He further submits that as a matter of fact,
petitioner no. 2 being admittedly below the legally
marriageable age for boys, i.e. he being less than 20
years of age, with the legally marriageable age being 21
years, both under the provisions of Hindu Marriage Act,
1955, as also the Prohibition of Child Marriage Act, 2006,
the marriage itself is void and therefore, the petitioners
cannot be permitted to reside together.

He relies upon a judgment of a co-ordinate
Bench of this Court in Amnider Kaur and another vs.
State of Punjab and others 2010 (1) R.C.R (Criminal)
261, wherein after discussing that the girl in that case was
16 years and 02 months old at the time of her marriage,
she being therefore a child, in terms of Section 3 of the
Majority Act, 1875, it was held that the
marriage was void.

Firstly, of course, it is to be noticed here that
both the petitioners are admittedly above 18 years of age,
with learned counsel for respondents no. 4 and 5 also not
denying that he has taken instructions in that regard, with
petitioner no. 1 having been born on 09.02.1999.

Thus, the situation in Amninder Kaurs’ case
(supra) is different to the present case, with both the
petitioners most definitely being above the age of majority,
i.e. above 18 years of age, in terms of the Majority Act,
1875.

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Having said that, what cannot be denied is that
as per Section 12 of the Act of 2006, a marriage of a minor
child (a “child” as defined in Section 2 (a) of that Act as
being a male who has not completed 21 years of age and
a female who has not completed 18 years of age), would
be void only if the child has been taken or enticed out of
the keeping of the lawful guardian; or by force compelled,
or by any deceitful means induced to go from any place’ or
sold for the purpose of marriage and made to go through a
‘form of marriage’, or if the minor was earlier married,
he/she was sold or trafficked or used for immoral
purposes. Otherwise, the marriage would be voidable at
the instance of petitioner no. 2, when he turns 21 years of
age.

In such circumstances, the Court would first
consider it appropriate to query petitioner no. 2 with regard
to any possible enticement.

Consequently, both the petitioners be produced
in Court, under escort provided by the Senior
Superintendent of Police, Panipat, on the next date of
hearing.

Adjourned to 12.02.2018.

To be shown in the urgent cause list.

A copy of this order be given to learned counsel
for the State under the signatures of the Bench Secretary
of this Court.”

Today, petitioners have been produced by ASI

Bijender from Protection Home, Panipat.

Learned counsel for the petitioners submitted that

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petition under Section 12 of Prohibition of Child Marriage Act,

2006 has already been filed by the parents of petitioner No.1 in

which defendants/respondents therein have already received

notices from the Court.

At this stage, this Court is only concerned about the

safety of the petitioners. This Court is not supposed to comment

upon the validity of marriage of the petitioners and respective

ages of the petitioners at this stage.

In Smt. Lila Gupta Vs. Laxmi Narain and others,

AIR 1978 Supreme Court, 1351, the Hon’ble Apex Court

proceeded to held in the following manner:-

“A comprehensive review of the relevant
provisions of the Act unmistakably manifests the
legislative thrust that every marriage solemnised in
contravention or one of other condition prescribed for
valid marriage is not void. Section 5 prescribes six
conditions for valid marriage. Section 11 tenders
marriage solemnised in contravention of conditions (i),

(iv) and (v) of Section 5 only, void. Two incontrovertible
propositions emerge from a combined reading of
Sections 5 and 11 and other provisions of the Act, that
the Act specifies conditions for valid marriage and a
marriage contracted in breach of some but not all of
them renders the marriage void. The statute thus
prescribes conditions for valid marriage and also does
not leave it to inference that each one of such
conditions is mandatory and a contravention, violation

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or breach of any one of them would be treated as a
breach of a prerequisite for a valid marriage rendering
it void. The law while prescribing conditions for valid
marriage simultaneously prescribes that breach of
some of the conditions but not all would render the
marriage void. Simultaneously, the Act is conspicuously
silent on the effect on a marriage solemnised in
contravention or breach of the time bound prohibition
enacted in Section 15. A further aspect that stares into
the face is that while a marriage solemnised in
contravention of clauses (iii), (iv), (v) and (vi) of Section
5 is made penal, a marriage in contravention of the
prohibition prescribed by the proviso does not attract
any penalty. The Act is suggestively silent on the
question as to what is the effect on the marriage
contracted by two persons one or both of whom were
incapacitated from contracting marriage at the time
when it was contracted in view of the fact that a period
of one year had not elapsed since the dissolution of
their earlier marriage by a decree of divorce granted by
the Court of first instance. Such a marriage is not
expressly declared void nor made punishable though
marriages in breach of conditions Nos.(i), (iv) and (v)
are expressly declared void and marriages in breach of
conditions Nos. (iii), (iv), (v) and (vi) of Section 5 are
specifically made punishable by Section 18. These
express provisions would show that Parliament was
aware about treating any specific marriage void and
only specific marriages punishable. This express
provision prima facie would go a long way to negative
any suggestion of marriage being void though not

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covered by Section 11 such as in breach of proviso to
Section 15 as being void by necessary implication. The
net effect of it is that at any rate Parliament did not
think fit to treat such marriage void or that it is so
opposed to public policy as to make it punishable.

Similarly, a reference to Child Marriage Restraint
Act would also show that the Child Marriage Restraint
Act was enacted to carry forward the reformist
movement of prohibiting child marriages and while it
made marriage in contravention of the provisions of the
Child Marriage Restraint Act punishable,
simultaneously it did not render the marriage void. It
would thus appear that voidness of marriage unless
statutorily provided for is not to be readily inferred.

Thus, examining the matter from all possible
angles and keeping in view the fact that the scheme of
the Act provides for treating certain marriages void and
simultaneously some marriages which are made
punishable yet not void and no consequences having
been provided for in respect of the marriage in
contravention of the proviso to Section 15, it cannot be
said that such marriage would be void.”

In Neetu Singh Vs. State, 1999 (3) RCR (Criminal)

26, it was held by the Division Bench of Delhi High Court that

the minor cannot be kept in preventive institution against her

wishes. The said case was related to minority of the girl. It was

also observed that the marriage of a minor is neither void nor

voidable in the absence of any such declaration given by the

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competent Court.

In Seema Devi @ Simaran Kaur Vs. State of HP,

1998 (2) Crimes 168 ; Rukshana and another vs. Govt. of

NCT of Delhi and others, 2007(3) R.C.R. (Criminal) 542; Lalla

@ Ranjeet vs. State of U.P. and others, 2013(96) ALR 568;

Santosh vs. State of Rajasthan, 2004(2) Crl.L.R. 1394;

Shamsher vs. U.T., Chandigarh and another, 2011(5) R.C.R.

(Criminal) 677; Balwinder Singh @ Binder vs. State of

Punjab and others, 2008(3) R.C.R. (Criminal) 1 and in Court

of Its Own Motion (Lajja Devi) vs. State, 2012 (4) R.C.R.

(Civil) 821, it was observed that the relief cannot be denied

merely because of girl is found to be minor. If the corpus has

given birth to a child in Nari Niketan, then keeping the corpus in

Nari Niketan is not proper and she will be released from Nari

Niketan. Minor girl should be allowed to go as per her own

wishes and her wishes cannot be curtailed.

In Santosh’s case (supra), the Rajasthan High Court

also quashed the detention of the girl on the ground that the

marriage of a minor in contravention of Section 5 of the Hindu

Marriage Act, is neither void nor voidable unless it is so

declared by the competent Court. At this stage, only welfare of

the minor has to be seen without being prejudiced by any of the

violation.

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The apprehension of the complainant on the basis of

minority of one of the party is inconsequential and is squarely

met by the ratio laid down by this Court in Court On Its Own

Motion (Lajja Devi)’s case (supra).

At this stage, this Court is not in a position to

comment upon the validity of marriage or otherwise between the

petitioners, but in the given situation, Superintendent of Police,

Panipat can be asked to look into the grievance of the

petitioners and pass appropriate order in accordance with law. If

the lives and liberties of the petitioners are found to be at stake,

necessary protection can be granted to them, if they are not

involved in any other case. Both the parties can approach

Superintendent of Police, Panipat without being prejudiced to

their civil rights in pending litigation.

A copy of this order be given to learned State

Counsel under the signatures of the Bench Secretary of this

Court as per rules.

(RAJ MOHAN SINGH)
12.02.2018 JUDGE
prince

Whether Reasoned/Speaking Yes/No

Whether Reportable Yes/No

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