IN THE HIGH COURT OF DELHI AT NEW DELHI
+W.P. (Crl.) No.338/2008, Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011,
W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008, WP (Crl.) No.566/2010
Reserved on: 18.05.2012
% Pronounced on: 27.07.2012
1) W.P. (Crl.) No.338/2008
COURT ON ITS OWN MOTION (LAJJA DEVI) …..Petitioner
through: NEMO
VERSUS
STATE …..Respondent
through:Mr.A.S. Chandhiok, ASG with
Mr.Baldev Malik for the UOI
Mr. Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
Prabhakar and Mr.Sahil Mongia
for the State
Ms. Aparna Bhat for the
National Commission for Women
2) Crl.M.C. No.1001/2011 & Crl.M.A. No.3737/2011
SMT. LAXMI DEVI AND ANOTHER …..Petitioner
through:Mr.Javed Ahmed
VERSUS
STATE (GNCT OF DELHI) & ORS. …..Respondent
through: Mr. Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
WP(Crl.) No.338/08 and connected matters Page 2 of 62
3) W.P. (Crl.) No.821/2008 and Crl.M.A. No.8765/2008
MAHA DEV …..Petitioner
through:Mr. Arvind Jain with
Mr.T.S. Chaudhary and
Mr. Kuldeep Singh
VERSUS
STATE (GNCT OF DELHI) & ANR. …..Respondent
through: Mr. Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
AND
4) W.P. (Crl.) No.566/2010
DEVENDER @ BABLI …..Petitioner
through:Mr. M. Hussain
VERSUS
STATE (GNCT OF DELHI) & ANR. …..Respondent
through: Mr. Pawan Sharma, Standing
Counsel (Crl.) with Mr.Harsh
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE SANJIV KHANNA
HON’BLE MR. JUSTICE V.K. SHALI
A.K. SIKRI (Acting Chief Justice)
1. Five questions are formulated Five questions are formulated by the Division Bench in its order dated
31.7.2008 passed in WP(Crl.) No.338/2008 for reference to the larger
Bench. Though we shall take note of these questions at a later and more
WP(Crl.) No.338/08 and connected matters Page 3 of 62
appropriate stage, we would like to point out at the outset that the issues
raised can be put in two compartments, viz., (i) what is the status of marriage
under Hindu Law when one of the parties to the marriage is below the age of
18 years prescribed under Section 5(iii) of the Hindu Marriage Act, 1955
and Section 2 (a) of Prohibition of Child Marriage Act, 2006 (hereinafter
referred as the „PCM Act?) and (ii) when the girl is minor (but the boy has
attained the age of marriage as prescribed) whether the husband he can be
regarded as the lawful guardian of the minor wife and claim her custody in
spite of contest and claim by the parents of the girl. What is the effect of the
Prohibition of Child Marriage Act, 2006?
2. After the aforesaid reference was made, as some other petitions involving
same questions came up for adjudication, they were also directed to be listed
along with Writ Petition (Crl.) No.338/2008. That is the raison d?etre that
all these petitions were heard together. We would be in a better position to
appreciate the issues involved if facts in each of these cases are taken note of
in the first instance.
PCM Act, 2006 does not render such a marriage as void but
only declares it as voidable, though it leads to an anomalous situation where
on the one hand child marriage is treated as offence which is punishable
under law and on the other hand, it still treats this marriage as valid, i.e.,
voidable till it is declared as void. We would also hasten to add that there is
no challenge to the validity of the provisions and therefore, declaration by
the legislature of such a marriage as voidable even when it is treated as
violation of human rights and also punishable as criminal offence as proper
or not, cannot be gone into in these proceedings. The remedy lies with the
legislature which should take adequate steps by not only incorporating
changes under the PCM Act, 2006 but also corresponding amendments in
various other laws noted above. In this behalf, we would like to point out
that the Law Commission has made certain recommendations to improve the
laws related to child marriage.
40.Be as it may, having regard to the legal/statutory position that stands as of
now leaves us to answer first part of question No.1 by concluding that the
marriage contracted with a female of less than 18 years or a male of less than
WP(Crl.) No.338/08 and connected matters Page 51 of 62
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 PCM Act, 2002 under Section 3 of the said Act seeking
declaration of this marriage as void.
