Despite Marrying Willingly A Minor Girl Can't Be Allowed To Stay With Husband Till She Attains Majority: Allahabad High Court

The Bench of Justice J. J. Munir ruled thus while taking into account her High School Certificate which "clearly indicated" that she is a minor as her date of birth is 04^th November 2004.

The Bench specifically stated,

"So long as the prosecutrix is a minor, she cannot be permitted to accompany the accused Pintoo, whom she claims to have married."

The matter before the Court

A Judicial Magistrate at Hapur had directed that prosecutrix/minor girl be permitted to go along with her husband, the accused Pintoo.

This order was challenged before the High Court stating that the Magistrate erred in permitting the prosecutrix to accompany her husband, an accused in the crime.

It was also submitted that she, not being a major, cannot be permitted to stay with her husband and ought not to be allowed to accompany him as doing so, would be permitting statutory rape and also an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.

It was also contended that she cannot be permitted to stay in a matrimonial relationship, where the marriage would be void under Section 12 of the Prohibition of Child Marriage Act, 2006.

Court's observations

At the outset, the Court observed that Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 makes it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into.

In this backdrop, the Court, while noting that Minor Girl's High School Certificate "clearly indicates that she is a minor", said,

"There is no cavil that evidence about her being a major, which is her stand, cannot be accepted. She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available."

Further, in order to determine whether the prosecutrix was enticed away from her guardian's lawful custody, or she went away of her own, the Court ascertained the prosecutrix's stand and found that she left her home of her own accord and married him.

In this view of the matter, the Court said,

"The marriage would not be void under Section 12 of the Prohibition of Child Marriage Act, 2006, but would be voidable under Section 3 of the said Act."

The Court also said,

"It would, therefore, be open to the prosecutrix to acknowledge the marriage or claim it to be void, once she attains the age of majority. It would also be open to her, once she attains the age of majority, to go wherever she likes and stay with whomsoever she wants."

Lastly, the Court issued the following directions:

• State asked to place her in a suitable State facility other than a Nari Niketan, may be a Safe Home/Shelter Home.
• The District Magistrate, Hapur and the Superintendent of Police, Hapur ordered to ensure that the prosecutrix is immediately housed in a suitable Safe Home/Shelter Home, or other State facility where she would be safe and taken care of.
• A Lady Judicial Officer, posted in his Judgeship, has been directed to visit the prosecutrix once a month and inquire about her welfare.
• Minor girl has been permitted to live in State facility/Safe Home/ Shelter Home till 04^th November 2022, and thereafter, she may go wherever she wants and stay with whomsoever she likes, including Pintoo, whom she claims to be her husband.