No Inherent Right Vested In Husband Or His Relatives To Claim Custody Of Minor Girl By Filing Habeas Corpus Plea: Punjab & Haryana High Court

A Single Bench of Justice Jasgurpreet Singh Puri held that there is no inherent right vested in the husband or his relatives to claim custody of the minor girl by filing writ of habeas corpus.

"Keeping a minor girl child in such like circumstances either by an order of judicial Court or by the Child Welfare Committee by following proper procedure cannot be held to be an illegal detention," it held.

It further held that the plea taken by the in-laws of such minor girl that the marriage was performed with the girl's consent would pale into insignificance in view of the fact that child marriage itself is an offence.

It held,

"The element of consent is always sub-servient 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."

It added that even though child marriage is not illegal under the Hindu Marriage Act, it certainly is a voidable marriage under the Prohibition of Child Marriage Act, 2006.

The remarks were made in reference to the observations made by the Supreme Court in Independent Thought v. Union of India & Anr., 2017 (10) SCC 800 and in Shafin Jahan v. Asokan KM & Ors., 2018 AIR (SC) 1933.

In Independent Thought (supra), the Top Court dealt with the issue that when the girl is minor but the boy has attained the age of marriage as prescribed, whether the husband can be regarded as lawful guardian of the minor wife and claim her custody inspite of differences by the parents of the girl and what is the effect of the Prohibition of Child Marriage Act, 2006.

It was held therein that allowing the husband to consummate marriage may not be appropriate more so when the purpose and rationale behind the Prohibition of Child Marriage Act, 2006, is that there should not be a marriage of a child at a tender age as he or she is not psychologically or medically fit to get married. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years and how she would be able to exercise her right if in the meantime because the marriage is consummated when she is not even in a position to give consent which also could lead to pregnancy and child bearing.

In Shafin Jahan (supra), the Apex Court held that when a girl is not a major and has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents, the Court should send her to appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major.

In this backdrop, the Single Bench in the instant case held,

"there is no inherent right vested in the husband or his relatives to claim custody of minor girl by filing writ of habeas corpus. Keeping a minor girl child in such like circumstances either by an order of judicial Court or by the Child Welfare Committee by following proper procedure cannot be held to be an illegal detention."

It added that forced marriage of a girl child by her parents is a "social menace that needs a solution and not another menace" in the form of allowing marriage of such minor girls as per their own consent.

It observed,

"Pleas which are usually taken that in case the girl does not marry with her choice then there is an apprehension that she may be forced to get married by her parents with some other person, would not carry any weight because steps which are required to be taken in that eventuality is to protect the girl child by keeping her in a safe custody rather than permitting her to marry before she attains the age of majority."

Background

The issue before the Court was whether a girl who is less than 18 years of age gets married to a boy with her consent can be compelled to stay at Nari Niketan/Child Protection Home while she refuses to accompany her parents or not?

The minor girl herein, Neha, aged 16.5 years had married one Harpreet Singh with consent. On a FIR lodged by Neha's parents, Harpreet came to be arrested following which, Neha was sent to Nari Niketan, as she did not want to go with her father.

The Petitioner herein, Harpreet's sister-in-law had filed a habeas corpus petition seeking Neha's release from alleged illegal detention.

During the hearing, Neha apprised the Court that she is duly married with Harpreet Singh and her age is about 16½ years. On being pointedly asked as to where she wants to reside, she stated that she wishes to go with her husband. When she was asked as to whether she was ready and willing to go with her father or not, she flatly refused to go along with her father. On being further asked as to whether she was facing any difficulty in the Nari Niketan/Child Protection Home, she stated that she is not facing any difficulty or problem while staying in the Nari Niketan/Child Protection Home.

Arguments

The Petitioner submitted that notwithstanding that Neha was minor, she still had a legal right to live with her husband and therefore, she cannot be compelled to stay at Nari Niketan.

It was argued that there is no bar for releasing Neha in view of the fact that she had voluntarily married Harpreet Singh and she wanted to stay with him and not with her father.

The Assistant Advocate General appearing for the State on the other hand submitted that since Neha is even less than 17 years of age, it was a case of child marriage and prohibited under law and therefore, even if she has consented to marriage, the same would not be of any significance.

He also disputed maintainability of the petition for the same having being filed by sister-in-law of Harpreet Singh.

Neha's father referred to a ruling of the Patna High Court in Shikha Kumari v. State of Bihar & Ors., 2020 (2) PLJR 15, to contend that in such like situation where the minor girl has refused to go along with her parents, the only option left with the Court is to send her to Protection Home till time she is major or does not consent to go to her family.

Findings

At the outset, the Court held that the preliminary objection of maintainability cannot be sustained in view of the fact that the present petition is filed seeking a writ in the nature of habeas corpus. It held,

"it is a settled law that locus standi for filing writ in the nature of habeas corpus is relaxed and it is not necessary that the petitioner who files the petition should be directly an affected party."

The Court then proceeded to analyse various provisions of the Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956 and Prohibition of Child Marriage Act, 2006, to hold that in case of Hindu marriage performed by a boy below the age of 21 years and a girl below the age of 18 years then the same is neither void nor voidable. However, it certainly attracts punishment of two years with a fine of one lakh rupees or with both under Section 18 of the Hindu Marriage Act.

It observed,

"The Hindu Marriage Act as well as the Prohibition of Child Marriage Act provide for penal provisions in case of a child marriage and performance of child marriage is also an offence. The plea taken by the learned counsel for the petitioner that the marriage was performed with consent of a minor girl would pale into insignificance in view of the fact that child marriage itself is an offence although it may not be illegal under the Hindu Marriage Act but certainly it is a voidable marriage under the Prohibition of Child Marriage Act."

It added,

"A legislative intention cannot be given a go-bye by way of judicial intervention which would in turn defeat the very purpose and rationale of legislation because it would otherwise amount to waiver of an illegal act or an offence"

In its order, the Single Bench also highlighted the evil effects of a female child marriage. It held,

"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."

In the facts of the present case, the Court noted that the girl child has specifically refused to go along with her father and is not facing any difficulty or problem while staying at Nari Niketan. It thus held,

"Her stay at Nari Niketan/Child Protection Home, cannot be said to be detrimental to her well being. In the facts and circumstances of the present case, she cannot be directed to be released till she attains the age of majority by giving her custody either to her husband or his relatives including the petitioner who is stated to be her sister-in-law."

It refused to apply the principle laid down another Single Bench of the High Court in Preeti & Anr. v. State of Haryana & Ors., where it was held that children these days attain both physiological as well as psychological maturity long before they complete the ages of majority fixed for them by the statute long ago.

In the instant case the Single Bench said,

"The aforesaid judgment in Preeti and another (supra), would be distinguishable from the facts and circumstances of the present case. In the present case, the girl is below 17 years of age whereas in Preeti and another (supra), the girl was more than 17 years of age and was only ten months short of 18 years. Furthermore, the custody in Preeti and another (supra), was given to the petitioner of that case who was stated to be her mother-in-law whereas in the present case the petitioner is sister-in-law of Neha."

It thus directed the Child Welfare Committee to monitor the well-being of Neha by making periodical inspections of Nari Niketan.

"It is made clear that if at any time Neha, even before attaining the age of 18 years, expresses her desire to go to her father/parents, then the Child Welfare Committee shall permit her to do so in the presence of her father/parents and by passing an appropriate order in this regard," the Bench concluded.

Case Title: Ranjeet Kaur v. State of Punjab & Ors.

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