Case Title: Pradeep Tomar and Another V/S State of Uttar Pradesh and Another [Matters under Article 227 No. 4804 of 2020]
Recently Allahabad High Court disallowed a minor girl to live along with a man whom she claimed to be her husband. The verdict was delivered by the bench on 27 January on a plea by the father of a minor girl under Article 227 of Indian Constitution challenging the order passed by the Judicial Magistrate, Hapur on 24 November 2020 that the Magistrate had erred while granting permission to the minor girl to stay with her husband.
The counsel of petitioner argued that the girl was 16 years of age as per the High School Certificate which clearly shows that the girl was minor when she was enticed by the Hapur resident Pintoo who married her, even so, she cannot be permitted to live with her husband as she was yet to attain the age of majority.
The counsel further contended that marriage with a minor would be void under Section 12 of the Prohibition of Child Marriage Act, 2006 [where a minor child is taken or enticed out of the keeping of the lawful guardian – marriage of a minor to be void]. Therefore, she cannot be permitted to live in a matrimonial relationship as it is not appropriate for her, as doing so it would be permitting “statutory rape” and consider it an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.
On considering the above arguments the Court observed that Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 states that where the date of birth certificate from the school or the matriculation or any other equivalent certificate from the concerned examination board is available, the other evidence about the age of a victim cannot be taken into consideration.
Section 94: Presumption and determination of age
Description: (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining
— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
Justice J.J. Munir also clarified that the minor girl could not prove through medical examination that she is major, school certificate would be considered as conclusive proof regarding the age of the girl.
The Court said, the minor girl is enticed out of the lawful custody of her legal guardian by a man whom she claimed to be her husband cannot be allowed to live with him irrespective of the fact that they are married.
However, on the point whether the marriage would be void, the Court stated that the marriage would not be void under Section 12 of the Prohibition of Child Marriage Act, 2006, but would be voidable under Section 3 (Child marriages to be voidable at the option of contracting party being a child) of the said Act.
The Court further said that as the minor girl confessed that she wanted to live with her husband without any force or coercion, it is upon the minor girl after she attains the age of majority to go wherever she likes and stay with whomsoever she wanted.
At the outset of this, the Court affirmed the contention of the counsel of petitioner and proceeded further to set aside the order passed by the Judicial Magistrate, Hapur and held that the minor girl cannot be allowed to live with her husband.
Also, the Allahabad High Court had directed the Hapur district Judge to appoint a lady Judicial Officer to visit the girl once every month to check about her welfare.
Petitioner – Pradeep Tomar and Another
Respondent – State of U.P. and Another
Counsel for Petitioner – Dhirendra Kumar Agrahari, Sudhir Mehrortra
Counsel for Respondent – G.A. Rama Shankar Mishra
Concluding remark – The decision given by the Allahabad High Court is a welcoming one as the court use critical thinking skills to reach the objective that it is not appropriate for the minor girl to live with her husband irrespective of the fact that she is married.
- https://www.livelaw.in/news-updates/despite-marrying-willingly-a-minor-girl- cant-be-allowed-to-stay-with-husband-till-she-attains-majority-allahabad-high-court-169484
Disclaimer: The views are personal.
Vivek College of Law, U.P.