Attaining the age of majority do not decide maturity: Punjab and Haryana HC
In the case of Preeti and another v. State of Haryana and others, [CRWP-4181-2020 (O&amp;M)], the High court of Punjab and Haryana had stated that a minor girl is allowed to stay with the mother of the boy with whom she is married. The facts start with a disturbing phenomenon that has gained increasing momentum over the years is that of runaway couples – young persons who confess to love each other much and it is not liked and preferred by one or both of their families and choose to defy them by running away from home. The concomitant fall-out of such acts on their part is the possible threat of physical harm or worse, sometimes on the basis of caste considerations, with the tacit or vocal approval of Khap Panchayats or community elders. These circumstances had, therefore, driven such couples to approach this Court for the protection of their lives and liberty from their estranged family members.  Preeti and Sahil, are the petitioners in this case. They had claimed to know each other for the last two years. They state that they fell in love but Preeti’s parents, respondents No.4 and 5 herein, were opposed to their relationship The couple was also receiving severe threats from Preeti’s parents, who were determined upon killing them, and thus in this court, they prayed for stern legal action to be taken, in order to help and protect them. In this case, the court had held that “however, going by the statements made in the petition as well as in the representation of the petitioners on 23.06.2020, long before this case crystallized, Preeti had claimed that she overheard her parents planning her marriage with a boy of their choice and snatched the opportunity, when presented, to run away from home. There is no mention that, at that stage, Sahil either solicited or persuaded Preeti to leave home. That particular act on her part seems to have been completely on her own. On the other hand, she claimed that it was she who contacted Sahil after fleeing from home. In effect, Section 12 (a) of the Act of 2006 would have no application and the marriage performed on 23.06.2020 cannot be said to be void on that ground.  Section 7 of the Act of 1955 prescribes the ceremonies of a Hindu marriage. Section 7 (1) states that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto, while sub-section (2) thereof states that where such rites and ceremonies include the Saptapadi, that is, the taking of seven steps by the bridegroom and bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken. The photographs filed before this Court, along with the petition, show Preeti and Sahil walking around the ceremonial fire and it is stated that they solemnized their marriage in a temple.” “No certificate seems to have been issued in proof of the marriage but the law does not require any such certification. Registration of the marriage, which is yet to be made compulsory, can be effected any time post facto. In any event, it is not for this Court to deny the factum of the marriage performed by Preeti and Sahil or affirm the validity thereof.  Prima facie, the photographs indicate that there was a marriage ceremony with Saptapadi, and the parties thereto, Preeti and Sahil, stand by it and affirm that they were duly married as per rites and customs.  Further, Neelam, Sahil’s mother, accepts Preeti as her daughter-in-law and is prepared to stand by their marriage.   As of date, Preeti is 10 months short of attaining the majority. It is not as if, upon the clock strikes 12 midnight on the eve of her 18th birthday, Preeti would magically assume the mental maturity and wisdom to claim the status of an adult.” “The age of majority as prescribed must therefore be construed and interpreted in the context of the law for which it is being considered and in a case of this nature, where the minor is certain and unshaken in her opinion and desire, it would not be right and proper for this Court to brush aside her views on the ground that she is not 18 years of age as on date and is only 17 +.”
 on 19 10 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP 4181 2020and in any event except for some photographs there was noevidence of an actual marriage ceremony. They asserted their right to havethe custody of their minor daughter. They pointed out that they had takenrecourse to legal remedies by lodging a criminal complaint against Sahilfor kidnapping their daughter and denied that there was any threat to thelife and liberty of the petitioners from them.Certain developments that took place during the pendency ofthis case also need to be taken note of. Preeti was apprehended by thepolice and produced before the learned Duty Magistrate at Panipat. Shegot recorded her statement under Section 164 Cr.P.C. in favour of Sahiland expressed her wish to join him. She categorically refused to go backto her parents. However the Magistrate directed that Preeti should beproduced before the Child Welfare Committee at Panipat. On 21.09.2020 she was produced before the said Committee. Mr. Gautam Diwan learned counsel brought it to the noticeof the Chairperson of the Committee that this writ petition was pendingand apprised the Chairperson of the orders passed by this Court both inthis writ petition as well as in LPA 2146 2016 titled Bhim Sain vs. Stateof Punjab and others decided on 27.10.2016. The Chairperson on 19 10 CRWP 4181 2020requires that a bridegroom should complete the age of 21years while a bride should complete the age of 18 years at the time ofmarriage. Preeti and Sahil do not satisfy this requirement. However Section 11 of the Act of 1955 makes it clear that violation of Section5would not render the marriage void as only the conditionsprescribed in Section 5(iv) andare mentioned therein. Section 12of the Act of 1955 deals with voidable marriages but it only speaks of thecondition prescribed in Section 5was promulgated for the protection ofchildren. Section 2thereof defines a child to mean any person lessthan 18 years of age. The Act of 2012 however did not choose to drawany distinction as to a girl of less than 18 who gets married out of her ownchoice and volition. Therefore any sexual act or intercourse by thehusband with such girl would constitute an offence under variousprovisions of the Act of 2012 though she is his wife. Significantly Exception 2 to Section 375 IPC states to theeffect that sexual intercourse and sexual acts with a wife of over 15 yearsof age would not amount to rape. However this provision was not alteredwhen the Act of 2012 was brought onto the statute book. In effect thoughthe husband would not be liable to be prosecuted for rape under Section376 IPC if his wife is over 15 years of age he would be liable to beprosecuted under the provisions of the Act of 2012 if she is less than theage of 18 years. The Legislature seems to have been unmindful of thisaspect and continues to be so despite the lapse of 8 years since theenactment of the Act of 2012. Taking note of this in IndependentThought vs. Union of India and another10 SCC 800] theSupreme Court held that Exception 2 to Section 375 IPC must be on 19 10 CRWP 4181 2020observed that given the nuances of scientific methodology andconflicting views Courts which can only consider the limited evidenceon the record before them are ill equipped to determine which view ofscience is the right one.Nearer home in their Study on Social Maturity ofAdolescent College Students in Colleges at Tiruchirappalli in 2017 authors P. Anitha Research Scholar PG and Research Department ofSocial work Bishop Heber College Trichy and Dr. A. Umesh SamuelJebaseelan Associate Professor PG and Research Department of SocialWork Bishop Heber College Trichy state thus: Present study is an attempt in the direction of finding asignificant relationship between social maturity various demographicalparameters namely gender age and the achievement motivation ofadolescent students. It found that social maturity and age of therespondents are not related. And in this study gender plays a significantrelationship in developing social maturity. It indicates that excessivecontrol over protectiveness and strictly punishment to the adolescent byfamily prevents development of social maturity of adolescent. To keepstudents isolated from the society affects inversely their social maturity.This study concluded that social maturity of adolescents would be higherwhen they perceive their home environment and academic centers as 1 on 19 10 CRWP 4181 2020Act 2015 that it would be within thedomain of a Juvenile Justice Board to determine as to whether a child inconflict with the law who has completed or is over the age of 16 years should face trial as an adult for the alleged offence. Therefore a criminalact by a child of or over 16 years of age is now being treated on par withthat of an adult but a similar analogy has not been extended to a civil actof a child of the same age. It is also a scientifically recognized fact that girls tend to bemore mature than boys of the same age. That is the reason why there is adiscrepancy even with regard to the age of majority stipulated by thestatute in relation to the sexes. Therefore a girl who has completed theage of 16 years and 10 months can be said to be of the age of discretion tothe extent of at least knowing her own mind and as to what would be inher interest. In any event even if such a girl is treated as a minor the 1 on 19 10 CRWP 4181 2020a learned Judge of thisCourt had occasion to consider a somewhat similar case. The issue beforethe learned Judge was whether the couple were entitled to seek protectionfrom the girl s parents. The learned Judge found that Amnider Kaur was16 years and 2 months of age at the time of her marriage. Reliance wasplaced upon Ravi Kumar vs. State and anotherRCR(Criminal) 41] a Division Bench judgment of the Delhi High Court tocontend that if the girl is above 16 years but below 18 years of age shewould attain the age of discretion and therefore her marriage could not besaid to be void or illegal. Reference was also made to other case law onsimilar lines. The learned Judge however relied upon the provisions of theAct of 2006 and observed that once a minor girl is enticed away from thelawful keeping of her guardian by the alleged husband the marriage itselfwould be void in terms of Section 12thereof. The learned Judgeaccordingly held that he had no choice but to hold that the marriage wasvoid. The learned Judge held that Ravi Kumarwas a decisionrendered before the Act of 2006 and was therefore of no relevance. 1 on 19 10 CRWP 4181 2020and another[2010RCR20] a Division Bench of the Delhi High Courtconsidered the case of a runaway couple where both of them were minors.Jitender was 18 years while Poonam was 16 years old. Jitender filed thecase seeking a writ of habeas corpus to produce Poonam and to hand herover to him. Police protection was also sought. Arguments were advancedbefore the Division Bench as to the validity of the marriage. The DivisionBench adverted to the provisions of the Act of 1955 as well as the Act of2006 and held that a child marriage would not be ipso facto void but maybe rendered so if the circumstances enumerated in Section 12 of the Act of2006 were established and would be voidable at the option of the childspouse in terms of Section 3 of the Act of 2006. The Division Benchfurther held that the mere fact that stricter punishment had been prescribedfor offences under the Act of 2006 did not have any impact on the validityof such child marriages. The Bench thereafter dealt with the issue ofcustody. Reference was made to an earlier judgment of the Delhi HighCourt in Neetu Singh vs. StateRCR26] whereinit was held that even a minor girl cannot be kept in a Protection Homeagainst her wishes. Taking note of the fact that Poonam had marriedJitender the Division Bench observed that her father no longer remainedher natural guardian and that her husband himself a minor would have tobe treated as her guardian. The Division Bench accordingly left Poonamfree to go with Jitender.In Court On Its Own Motionvs. StateRCR821] a Full Bench of the Delhi High Court dealt 1 on 19 10 CRWP 4181 2020whether a marriage contracted with a female of less than 18 years anda male of less than 21 years could be said to be valid and whether thecustody of the said girl can be given to the husband whether a minorcan be said to have reached the age of discretion and thereby walk awayfrom the lawful guardianship of her parents and refuse to be in theircustody if yes can she be kept in the protective custody of the Statewhether the FIR under Section 363 IPC or even under Section 376 IPCcan be quashed on the basis of the statement of such a minor that she hadcontracted the marriage of her own andwhether there may be otherpresumptions also which may arise. Having considered various relevant statutes and case law theFull Bench observed that the object behind enacting the Act of 2006 wasto curb the menace of child marriages which is still prevalent in thiscountry and is more common in rural areas. The Bench found that in thestatutory scheme obtaining even after the promulgation of the Act of2006 a child marriage could not be treated as void ab initio or as a nullity.Noting the loopholes which remain in the context of various laws on thesubject some of recent origin and some of ancient vintage the Full Benchconcluded as regards question No.1 that a marriage contracted with afemale of less than 18 years or a male of less than 21 years would not be avoid marriage unless Section 12 of the Act of 2006 applied but avoidable one under Section 3 thereof. Dealing with questions No.2 and 3 the Full Bench noted thescheme of the Hindu Minority and Guardianship Act 1956and opined that there cannot be a straight forward answerand it would have to depend upon the circumstances for the Court todecide as to what would be in the interest of the minor girl. As regards question No.4 the Full Bench held that if the girlis more than 16 years of age and makes a statement that she went with herown consent and it can be accepted the Court would be within its powerin quashing the proceedings under Sections 363 and 376 IPC. However the Full Bench cautioned that there can be no straitjacket formula to beapplied and the Court has to be careful to ensure the girl s right to get themarriage nullified under Section 3 of the Act of 2006. Further theattending circumstances which would include the maturity andunderstanding of the girl her social background the age of the boy andgirl would also have to be taken into consideration. As regards question No.5 the Full Bench stated that nofurther observations needed to be made in the light of the discussion in thebody of the judgment insofar as that question was concerned.In Neelam Rani and another vs. State of Haryana andanotherRCR636] a learned Judge of this Court wasdealing with the plea of a runaway couple for protection. The age ofNeelam Rani was in dispute but the learned Judge was of the opinion thatshe had reached the age of discretion as she was over 17 years even as perthe claim of her parents. She had married Pawan Kumar against thewishes of her parents but out of her own free will. The learned Judgeobserved that in exercise of jurisdiction under Section 482 Cr.P.C. thisCourt would not go into the validity or otherwise of the marriage for that 1 on 19 10 CRWP 4181 2020HLR 293] a learned Judge of this Court found that thegirl was a minor at the time of solemnization of her marriage. However placing reliance on case law the learned Judge directed that the girlshould be set free and allowed to accompany her husband. Reference inthis regard was made by the learned Judge to the Division Benchjudgment of this Court in Bhim Sain vs. State of Punjab and others(LPA 2146 2016 decided on 27.10.2016). In Baljeet Kaur and anothervs. State of Punjab and anotherHLR 107] the same principlewas again reiterated and affirmed by the learned Judge.In LPA 2146 2016 titled Bhim Sain vs. State of Punjaband others decided on 27.10.2016 a Division Bench of this Court wasdealing with an appeal filed against the order of a learned Judge directingthe minor girl to be sent to the Nari Niketan. The reason for doing so wasthat she intended to perform her marriage with the appellant withoutparental consent. The Division Bench noted that the girl was on the vergeof attaining the age of majority and was short of doing so by just oneweek. The Bench observed that an individual even a minor would havethe freedom to choose and could not be detained in a Nari Niketan againsther wishes as it would be violative of her fundamental rights. 1 on 19 10 CRWP 4181 20201539] a learned Judge of the Allahabad High Courtobserved that once Section 12 of the Act of 2006 had no application thechild marriage would not be liable to be declared void and the naturalguardian of the minor girl would become her husband in terms of Section6(c) of the Act of 1956. The learned Judge further noted that it would notbe in the welfare of a female to remain in a Nari Niketan for a prolongedperiod particularly when she wanted to join the company of her husband who would be her natural guardian in the eye of law. The learned Judgeaccordingly directed that the custody of the minor girl be released by theauthorities of the Nari Niketan in favour of her husband. In CRWP 5531 2020 titled Gaurav vs. State of Punjab andothers decided on 04.08.2020 a learned Judge of this Court denied grantof a writ of habeas corpus on the ground that the girl had been sent to theChildren s Home by the Magistrate of competent jurisdiction who wasdealing with the criminal case registered against her husband. The learnedJudge opined that the minor girl could not be said to be in the illegalcustody of the Children s Home or that she was wrongly confined there.The learned Judge observed that consent of a minor was no consent in theeye of law and accordingly dismissed the writ petition. In CRWP 727 2020 titled Parminder Kaur and another vs.State of Punjab and others decided on 30.01.2020 a learned Judge ofthis Court denied protection to the runaway couple on the ground that acase had already been registered against the husband under Sections 363and 366 A IPC and directed the minor girl who was present in Court to 1 on 19 10 CRWP 4181 2020of the Act of 2006 speaks of the child being taken or enticed out ofthe keeping of the lawful guardian in the context of rendering such child smarriage void. On the same lines Section 361 IPC dealing withkidnapping from lawful guardianship provides that whoever takes orentices any minor out of the keeping of the lawful guardian commits theoffence of kidnapping. In S. Varadarajan vs. State of Madrasa 3 Judge Bench of the Supreme Court dealt with the scope of Section 361IPC and more particularly the interpretation of the words takes or enticesany minor found therein. The Supreme Court observed that there is a 1 on 19 10 CRWP 4181 2020was considered by a 2 Judge Benchof the Supreme Court in Moniram Hazarika vs. State of Assam[(2004) 5 SCC 120]. This judgment dealt with Sections 361 and 366 IPC.On facts the Supreme Court held that the plea of the appellant that theminor girl had voluntarily accompanied him with a view to marry him andthat there was no inducement or taking away as contemplated underSection 361 could not be accepted. The Supreme Court found that thematerial on record showed otherwise. Reference was made to theobservations in S. Varadarajanthat it would be sufficient if theprosecution established that the accused had at some earlier stage solicited or persuaded the minor to leave the father s protection. The largerprinciple laid down in S. Varadarajanwas accordingly held to beinapplicable. Therefore this judgment did not dilute the principle laiddown by the 3 Judge Bench but merely distinguished the case on facts.Much earlier in Jai Narain vs. State of Haryanaa learned Judge of this Court considered the scope of the word takes in Section 361 IPC. On facts the learned Judge found that theaccused had never compelled the minor girl to leave her house. Further the learned Judge found that the girl herself desired to leave the housebecause she thought it would be safe for her to do so. The learned Judgetherefore held that no offence was made out under Section 361 IPC. Mr. Ravi Malik learned counsel would contend that it is notopen to this Court to decide Preeti s custody issue as the writ petition is 2 on 19 10 CRWP 4181 2020the use of the words taken or enticed out of the keeping of thelawful guardian in Section 12of the Act of 2006 would require that at some point of time Sahil should have induced solicited or persuadedPreeti to run away from the custody of her parents respondents No.4and 5. However going by the statements made in the petition aswell as in the representation of the petitioners on 23.06.2020 long beforethis case crystallized Preeti had claimed that she overheard her parentsplanning her marriage with a boy of their choice and snatched theopportunity when presented to run away from home. There is no mentionthat at that stage Sahil either solicited or persuaded Preeti to leave home.That particular act on her part seems to have been completely on her own.On the other hand she claimed that it was she who contacted Sahil afterfleeing from home. In effect Section 12of the Act of 2006 would have 2 on 19 10 CRWP 4181 2020states that a Hindu marriage may besolemnized in accordance with the customary rites and ceremonies ofeither party thereto while sub sectionthereof states that where suchrites and ceremonies include the Saptapadi that is the taking of sevensteps by the bridegroom and bride jointly before the sacred fire themarriage becomes complete and binding when the seventh step is taken.The photographs filed before this Court along with the petition showPreeti and Sahil walking around the ceremonial fire and it is stated thatthey solemnized their marriage in a temple. No certificate seems to havebeen issued in proof of the marriage but law does not require any suchcertification. Registration of the marriage which is yet to be madecompulsory can be effected any time post facto. In any event it is not forthis Court to deny the factum of the marriage performed by Preeti andSahil or affirm the validity thereof. Prima facie the photographs indicatethat there was a marriage ceremony with Saptapadi and the parties thereto Preeti and Sahil stand by it and affirm that they were duly married as perrites and customs. Further Neelam Sahil s mother accepts Preeti as herdaughter in law and is prepared to stand by their marriage. As on date Preeti is 10 months short of attaining majority. Itis not as if upon the clock striking 12 midnight on the eve of her 18thbirthday Preeti would magically assume the mental maturity and wisdomto claim the status of an adult. The age of majority as prescribed must 2 on 19 10 CRWP 4181 2020 (O&M)23therefore be construed and interpreted in the context of the law for whichit is being considered and in a case of this nature where the minor iscertain and unshaken in her opinion and desire it would not be right andproper for this Court to brush aside her views on the ground that she is not18 years of age as on date and is only 17 +. This Court therefore does not deem it appropriate to directthat Preeti s custody should be forcibly entrusted to her parents against herwishes or that she should be kept in a Protection Home till she attains theage of 18 years. It would suffice at this stage if Preeti is allowed to gowith Neelam Sahil s mother and remain with her till she attains the age of18 years. Neelam shall be bound by the affidavit filed by her before thisCourt and take care of Preeti to the best of her capacity and ability.However as Neelam is not her legal guardian and she is being entrustedPreeti s custody only as per the desire and wish expressed by Preetiherself it would be appropriate that the Child Welfare Committee Sonipat monitors Preeti s well being till she attains the age of 18 yearswhile she remains in Neelam s custody. The Chairperson of the ChildWelfare Committee Sonipat is accordingly directed to depute a ChildWelfare Officer to randomly visit Neelam s residence at Kakroi DistrictSonipat twice a month to ensure that Preeti is being well cared for and toascertain whether she has any complaints. The Child Welfare Committee Sonipat shall take on record the reports of such Child Welfare Officerand monitor the case till Preeti attains the age of 18 years. The Superintendent of Police Sonipat shall however remainmindful of the representation made by the petitioners on 23.06.2020 and 2 on 19 10 CRWP 4181 2020 (O&M)24the order passed by this Court on 26.06.2020 in this writ petition andcontinue to extend protection to the petitioners insofar as any physicalthreat from respondents No.4 and 5 or their family members is concerned.The writ petition is disposed of with the above directions. A copy of this order shall be forwarded to the Chairperson Child Welfare Committee Sonipat for necessary further action asindicated hereinabove.Pending miscellaneous applications if any shall standdisposed of in the light of this final order. No order as to costs. October 16th 2020 ( Sanjay Kumar )Kang JudgeWhether speaking reasonedYesWhether reportableYes 