Legal Status of a Child Marriage: Madras HC Decides

Recently, a Full Bench of the Madras High Court decided on the legal status of a marriage concluded in contravention with the prohibition of Child Marriage Act, 2006. The Full Bench held that such a marriage was valid unless it is annulled by a competent court. The decision arose out of a Habeas Corpus petition filed by T Sivakumar, for the production before the court of his minor daughter. Against the petition, the minor daughter filed an affidavit stating that she had left her parental home on her own accord and married the Second Respondent. The Division Bench hearing the matter had doubts over the decision of a Division Bench of the Madras High Court in G Saravanan v the Commissioner of Policy, Trichy where it was held that child marriage was valid and the husband of the child was entitled to the child's custody. The following questions were referred to the Full Bench:

"(1) Whether a marriage contracted by a person with a female of less than 18 years could be said to be valid marriage and the custody of the said girl be given to the husband (if he is not in custody)?

(2) 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 in their custody?

(3) If yes, can she be kept in the protective custody of the State?

(4) 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 would not be 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 dealing with a Writ of Habeas Corpus, has the power to entrust the custody of the minor girl to a person, who contracted the marriage with the minor girl and thereby committed an office punishable under Section 18 of the Hindu Marriage Act and Section 9 of the Prohibition of Child Marriage Act, 2006 ? and

(5) Whether the principles of Sections 17 and 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 Full Bench answered these questions as follows:

Nature of a marriage in Contravention of Prohibition of Child Marriage Act

"The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court under Section 3 of the Prohibition of Child Marriage Act. The said marriage is not a 'valid marriage' stricto sensu as per the classification but it is 'not invalid'. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights."

Status of the Adult Husband vis-a-vis the Minor

The adult male contracting party to a child marriage with a female child shall not be the natural guardian of the female child in view of the implied repealing of Section 6(c) of the Hindu Minority and Guardianship Act, 1956."

"The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he may apply to the court to set her at liberty if she is illegally detained by anybody."

Legal Status of the Married Minor Girl

"A minor girl whose marriage has been contracted in violation of Section 3 of the Prohibition of Child Marriage Act is not an offender either under Section 9 of the Act or under Section 18 of the Hindu Marriage Act and so she is not a juvenile in conflict with law."

Rights of Parents vis-a-vis Married minor Girl

"The minor girl cannot be allowed to walk away from the legal guardianship of her parents. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition."

"If the minor girl expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court may order her to be kept in a children home set up for children in need of care and protection under the provisions of the Juvenile Justice (Care and Protection) Act and at any cost she shall not be kept in a special home or observation home meant for juveniles in conflict with law established under the Juvenile Justice (Care and Protection) Act, 2000."

"Whether a minor girl has reached the age of discretion is a question of fact which the court has to decide based on the facts and circumstances of each case."

Considerations in a Habeas Corpus Petition Similar to the Instant Case

"In a habeas corpus proceeding, while granting custody of a minor girl, the court shall consider the paramount welfare including the safety of the minor girl not withstanding the legal right of the person who seeks custody and grant of custody in a habeas corpus proceeding shall not prejudice the legal rights of the parties to approach the civil court for appropriate relief."

"While considering the custody of a minor girl in a habeas corpus proceeding, the court may take into consideration the principles embodied in Sections 17 and 19(a) of the Guardians and Wards Act, 1890 for guidance."

Decision: Sivakumar v the Inspector of Police, Thiruvallur MANU/TN/3959/2011: 2011-5-LW 1