Minor Girl Fearing Life In Parents' Custody Can Be Sent To Shelter Home Till Adulthood; 'Husband' Lacks Right To Claim Her Custody: Patna HC

The Court added that there is no inherent right vested in the husband to claim custody of such a girl by filing a writ of habeas corpus alleging illegal detention.

A bench of Justice PB Bajanthri and Justice Ramesh Chand Malviya observed thus while refusing to grant custody of a minor girl, presently staying at a shelter home, to her alleged husband (petitioner).

Essentially, the petitioner had moved the court by way of filing a Habeas Corpus seeking a direction for the release of the minor girl from the shelter home, where she was directed to be sent by the Child Welfare Committee while exercising powers under the Juvenile Justice (Care and Protection of Children) Act, 2015.

In his petition, he claimed that the girl had voluntarily married him and also delivered a baby and further, that she wanted to stay with him and not with her parents and therefore, she be released from the shelter home.

On the other hand, the counsel for the State submitted that since the girl is even less than 17 years of age, it was a case of child marriage and prohibited under law and therefore, even if she had consented to the marriage, the same would not be of any significance.

It was the state's further stand that it would be in the interest of the girl and her child to remain in the shelter home until she attained the age of majority.

In her interaction with the Court, the minor girl informed that she is legally married to the petitioner, and she is approximately 18-19 years old.

When directly questioned about her preferred residence, she expressed the desire to live with her husband (petitioner). When asked if she would go with her father, she adamantly declined to accompany him.

However, as per the admission register of her school as well as her birth certificate, her date of birth was March 17, 2008.

Against this backdrop, the Court was faced with the question as to whether a girl who is less than 18 years of age and gets married to a boy with her consent, can be compelled to stay at a shelter home, while she refuses to accompany her parents or not.

Further, the HC took into account the Supreme Court's ruling in the case of Independent Thought Vs. Union of India 2017, wherein it was held that a child remains a child and therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse and if at all, a marriage takes place, it cannot be in the best interest of the girl child and the solemnization of such a marriage would violate the provisions of the Prohibition of Child Marriage Act, 2006.

“The consequences of girl-child marriage are much more devastating. It exposes girls to increased health problems and violence, denies them access to social networks and support systems and perpetuates a cycle of poverty and gender inequality. The element of consent is always subservient to overall welfare of a child. Furthermore, the medical hazards in case of a child marriage cannot be overlooked. Fixing the age of marriage for females as 18 years by the Legislature is not without any reason as it is also based upon the evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors,” the High Court further observed while stressing that the welfare of a girl is always of paramount consideration.

Further, noting that the minor girl refused to go along with her father, the Court said that her stay at the shelter home cannot be said to be detrimental to her well-being and her child, she cannot be directed to be released till she attains the age of majority by giving her custody to her husband (petitioner).

Therefore, the Court issued the following directions:

• Child Welfare Committee constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015, shall monitor the well-being of the minor girl by making periodical inspections of State Girls Care Home and shall comply with all the statutory obligations cast upon the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2015.
• The petitioner would open a bank account in the name of the newborn child and regularly deposit a considerable amount of money for the newborn child's welfare.
• If at any time, the minor girl, even before attaining the age of 18 years, she expresses her desire to go to her father/parents, then the CWC shall permit her to do so in the presence of her father/parents and by passing an appropriate order in this regard

With this, the petition was disposed of.

Case Title – Nitish Kumar vs. State of Bihar and others

LL Citation: 2024 LiveLaw (Pat) 10

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