A father petitioned the Madras High Court to direct the Inspector of Police (the first respondent) to secure his daughter’s release from the custody of the second and third respondents (a father and son) and place her in his custody. The daughter, who was 17 years old, had left to go to a local temple but did not return. Her father stated that the second and third respondents had kidnapped her and filed a habeas corpus petition on this basis.
Upon the hearing of this petition, the daughter filed an affidavit stating that she was in love with and had married the second respondent, and that she had not been kidnapped nor was she being illegally detained by him or any of his family members. She stated that, when her parents discovered her feelings, they had started arranging a marriage with her maternal uncle against her wishes and so she left her home of her own accord.
The second and third respondents submitted a petition for the girl to attend an engineering college and live in accommodations provided for her there. Since the girl was not willing to go with her parents, the girl was housed in a government children’s home by the Division Bench of the Madras High Court.
When considering the issues of the case, the Division Bench of the Madras High Court referred certain questions to a three-judge bench of the Madras High Court, principally:
(a) Whether a marriage contracted by a person with a female of less than 18 years could be said to be a valid marriage;
(b) Whether the custody of the said girl be given to the husband;
(c) Whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go into their custody and if yes) can she be kept in the protective custody of the State;
(d) Whether, in view of the provisions of Juvenile Justice (Care and Protection of Children) Act 2000, a minor girl who claims to have solemnized her marriage with another person constitutes a juvenile in conflict with law and whether in violation of the procedure mandated by the Juvenile Justice (Care and Protection of Children) Act 2000 the Court has the power to entrust the custody of the minor girl to the person to whom she was illegal married;
(e) Whether the principles of Sections 17 & 19(a) of the Guardians and Wards Act 1890 could be imported to a case arising out of the alleged marriage of a minor girl, admittedly in contravention of the provisions of the Hindu Marriage Act.
The Court firstly took note of the fact that since the daughter of the Petitioner and the second respondent are Hindus, Hindu Personal Laws of marriage and guardianship (i.e. the Hindu Marriage Act 1955 and the Hindu Minority and Guardianship Act 1956) will be applicable in this case. Then it began its analysis by studying legal developments in the area of child marriage in India, taking particular care to consider the provisions of the Prohibition of Child Marriages Act 2006 (PCMA).
In considering question (a) of whether a marriage contracted by a person with a female of less than 18 years was a valid marriage, the Court considered that PCMA had made such marriages “voidable”, making them capable of being annulled or solemnized by the contracting party who was a child at the time of the marriage once the contracting party attained majority. Such marriages were neither valid marriages in the strict sense and nor invalid – the consequence being that such marriages afforded limited rights to the husband (in this case, the second respondent).
In considering question (b) of whether the custody of a girl who was married as a child could be given to the husband, the Court considered the issue of natural guardianship of Hindu females (before and after marriage). The Court noted that, although natural guardianship of the female passed from the father (or mother) to the husband upon marriage, this could not be said to occur in the case of a child marriage as, under PCMA, such a marriage was an offence. The Court concluded that it would defeat the objective of PCMA if a husband could be the natural guardian of a female child he had married in contravention of the law. The Court also made clear that, in determining custody, the minor’s welfare was of paramount importance (more so than the legal rights of those seeking relief through the court system). The Court further held that even if the female child expresses her desire to remain in her husband’s custody, this shall not be considered. However, as an interested person in the welfare of the minor girl, her husband may apply to the Court to set her at liberty if she is illegally detained.
In determining question (c) of whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go into their custody, the Court held that this issue has to be decided based on the facts and circumstances of each case and though the views of the minor should be considered, the minor’s views cannot be the sole relevant factor to be taken into account by the Court. Additionally, if a minor expressed a wish not to return to her/his parents and if the Court is of the opinion that minor girl has capacity to make this determination, then the Court cannot compel her to go to her parents and may hand over her custody to a person or a children’s home as it deems fit subject to the minor girl’s consent. Linking to the question of whether a minor can be kept in the protective custody of the State in such circumstances, the Court held that it would be possible for the court to order the minor to be placed in the custody of the State if it would serve the minor’s interests.
While answering question (d), the Court further determined that a minor was not an offender under PCMA or any other act dealing with child marriage. A minor girl whose marriage has been contracted in violation of PCMA is not an offender under PCMA or the Hindu Marriage Act and thus she is not a juvenile in conflict with law. The Court also held that the minor girl not being a child in conflict with law should not at any cost be kept in a home for children who are in conflict with the law.
While considering question (e), the Court held that it may take into consideration the principles embodied in the Guardians and Wards Act 1890 for guidance.
In considering the above questions, the Court made clear its distaste for child marriage and labelled it both a menace and a human rights violation which should be eradicated. The Court highlighted that PCMA made such marriages illegal, urged the Government to do more to promote PCMA and urged the police to be more active in seeking prosecutions under PCMA. In considering the questions put before it in this case, the Court made clear its view that (i) no benefits or rights should be provided to those who enter into marriage with a child, (ii) that the child itself cannot be a culpable individual in such situations, and (iii) the minor’s best interests were of paramount importance.
The matter was then sent back to the Division Bench of the Madras High Court to be decided in light of these findings of the three-judge bench.