The Division bench of Chief Justice DN Patel and Justice Jyoti Singh today issued notice on a plea seeking directions for the declaration of Section 3(1) of the Prohibition of Child Marriage Act, 2006 as ultra vires of the Constitution insofar as it makes child marriage 'voidable'. It specifically seeks the declaration of child marriages as performed in the state of Delhi to be treated as 'void ab initio'.
In law, while voidable means a transaction or action that may be annulled at the option of any of the parties to the transaction, void ab initio implies of a transaction or action having no legal effect/ being invalid at the outset/being an absolute nullity.
The petitioner, one Aisha Kumari, who describes herself as a "bright student", completed her B.Ed degree in 2018 from the Guru Gobind Singh Indraprastha University, and in October last year took the entrance examination for admission into the M.Ed course at the Jamia Milia Islamia University in Delhi. She submitted that she was forcefully married to her aunt's son, by her and his parents while she was in the 10th standard. She further submitted that she had had "no choice to go against the wish of her parents and community and despite her request, she was forced to give her consent for the said ceremony of child marriage."
She sought protection from the court under its parens patriae jurisdiction, and the intervention of the court to the extent of protecting her from the ramifications of the said child marriage by the declaration of such marriage as null and void.
In November last year, Aisha was approached by her 'husband' alongwith his parents, who sought to take her away to Gujarat. She had managed to escape from her parental home, and had found a temporary place for living. She had then preferred this writ petition seeking the High Court's protection.
Citing the Karnataka government's move in 2017 whereby it passed the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016, declaring child marriage as void ab initio, Aisha also relied on the Supreme Court's judgment in the matter of Independent Thought v UOI 2017 10 SCC 800 to press home the point that Delhi also needs to follow suit.
She stated that the Delhi government's failure to declare child marriages as void ab initio was violative of the fundamental and human right to live with dignity.
"Under the doctrine of parens patriae the State is duty bound to protect the interest and look after the well being of children, particularly minor girls, who are most vulnerable," she said.
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