Marriage Of Minor Becomes Valid If Not Declared Void Till Age Of 18, Dissolution U/S 13B Of Hindu Marriage Act Allowed: P&H High Court

The Punjab and Haryana High Court recently held that if a girl marries before attaining the age of 18 years, she can seek separation through a decree of divorce, if till attaining the age of majority, the marriage was not declared void under the Hindu Marriage Act.

A Division Bench of Justices Ritu Bahri and Arung Monga added that such a marriage cannot be declared a nullity under Section 13(2)(iv) of HMA, as that provision is applicable to a girl whose marriage was solemnised before she attained the age of 15 years.

"If a marriage contracted with a female of less than 18 years or a male of less than 21 years, would not be a void marriage but voidable one, which would become valid if no steps are taken by such "child" within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void," the Court held.

It added,

"A petition for nullity under Section 13(2)(iv) could be filed if she-wife had got married at the age of 15 and she could file petition for dissolution of marriage before she attains the age of 18."

Background

The parties solemnized their marriage as per Hindu rites and ceremonies, at that time the husband was 23 years old, and the wife was 17 years old. They lived together and cohabited in a marital relationship for eleven years and had a baby boy.

After eleven years, they filed a joint petition under Section 13B of the Hindu Marriage Act, 1955 for dissolution of marriage by way of a decree of divorce by mutual consent before the Family Court. However, the Family Court dismissed their joint petition, observing that their marriage was not valid on account of the wife being less than 18 years at the time of marriage and hence, they were required to get their marriage nullified as per Section 13(2)(iv) of HMA. It relied on Prema Kumari v. M. Palami (2013).

Findings

The High Court held that the said judgment does not apply to the facts of the present case, as Section 13(2)(iv) can only be invoked if the wife is 15 years old, which is not the present case.

Therefore, noting that the respondent-wife had crossed the age of 18 years in 2010 itself, the High Court set aside the Family Court's decision.

The High Court referred to Court on its Motion (Lajja Devi) v. State (2012) where the Delhi High Court, while referring to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006, observed that if a marriage contracted with a female of less than 18 years or a male of less than 21 years, would not be a void marriage but voidable one, which would become valid if no steps are taken by such "child" within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2006 seeking declaration of this marriage as void.

The Court noted,

"Both the parties continued to live together and cohabited as husband and wife since 2009 till 2017, and the respondent-wife had not chosen to file a petition for getting her marriage void. Hence, for all intents and purposes, when they made a petition under Section 13-B of the Hindu Marriage Act, 1955, the respondent-wife was major, and the marriage was valid as per the observation made by the Delhi High Court Full Bench (Lajja Devi)."

The Court also referred to Jitendra Kumar Sharma v. State & Anr. (2010) and T. Sivakumar v. The Inspector of Police, Thiruvallur Town Police Station & Ors. (2012).

In the present matter, the Court noted that every possible effort made by the parties and friends for reconciliation failed. The parties decided to dissolve their marriage by way of mutual consent.

As per the settlement between the parties, the custody of the son was given to the husband, and he undertook to bear all the expenses for the upbringing of the child and will not claim any expenses from the respondent-wife.

Hence, the appeal was allowed with directions to draw a decree-sheet.

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