The Punjab and Haryana High Court has passed several judgments in last couple of months on issue of protection to the minor girls who had approached the Court seeking protection under Article 21 of the Indian Constitution. The recent judgments in such matters have created a confusion amongst the legal fraternity and the society. In India, child marriage was outlawed in the year 1929. After Independence and adoption of our Constitution, the law on child marriage has undergone several revisions. Since long the minimum age of marriage has been 18 and 21 for women & men respectively. At present, the law related to prevention of child marriage in India is Prohibition of Child Marriage Act, 2006 which serves threefold purpose – Prevention of child marriage, Protection of children involved and Prosecution of offender. However, the actual data display a very different picture as child marriage is still prevalent in many states of India. Further, few recent judgments passed by the Punjab and Haryana High Court has also ignored the issue of child marriage by focusing around Article 21 of Indian Constitution in various protection cases of couple claiming to live-in relationship.
Before discussing these particular cases, one must give an eye to few of the landmark cases which are relevant in this discussion. In case of Badri Prasad Vs. Dy. Director Consolidation, AIR 1978 (SC) 1557, the Supreme Court of India for the first time gave legal validity to a 50-year live-in relationship. In another case of Moniram Hazarika Vs. State of Assam, (2004) 5 SCC 120, the Apex Court held that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping. Further, in case of Independent Thought Vs. Union of India & Anr. (2017) 10 SCC 800, the Supreme Court has categorically stated that When the State on the one hand, has, by legislation, laid down that abetting child marriage is a criminal offence, it cannot, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage.
The Punjab and Haryana High Court has passed various judgments in last couple of months which are contradictory to the each other. Followings are judgments passed by the Punjab and Haryana High Court in favour of the protection to minor girls:
Banshi Lal & Another v/s State of Haryana & Others, decided on 25.09.2020: The High Court held that right to human life is to be treated on much higher pedestal, regardless of a citizen being minor or a major. The mere fact that the petitioners are not of marriageable age in the present case would not deprive them of their fundamental right as envisaged in Constitution of India, being citizens of India.
Priyapreet Kaur And Anr v/s State of Punjab And Ors decided on 23.12.2020: In this case the petitioners are 18 and 19 year old seeking protection and the High Court held that “The female petitioner is well within her right to decide for herself what is good for her and what is not. She has decided to take a step to be in a live-in-relationship with petitioner No.2 who is also major, though may not be of a marriageable age. Be that as it may, the fact remains that both the petitioners in the present case are major and have a right to live their life on their own terms.”
Seema Kaur and another v/s State of Punjab and others, decided on 03.06.2021: In this case court provided protection to a couple even though the girl was not of marriageable age and observed that even under The Protection of Women from Domestic Violence Act, 2005, a woman who is in a ‘domestic relationship’ has been provided protection, maintenance etc. It is interesting to note that the word ‘wife’ has not been used under the said Act. Thus, the female live-in-partners and the children of live-in-couples have been accorded adequate protection by the Parliament.
Baljinder Kumar and another v/s State of Punjab and others, decided on 04.06.2021: Girl being minor cannot be reason to deny protection to the couple as court said that though the issue in hand is not with regard to the validity of the marriage, but that the petitioners are seeking protection.
The High Court has also denied protection in some other cases and discussed the legitimacy of such relationships. Illustratively, in:
Amnider Kaur and another v/s State of Punjab and others, decided on 27.11.2009: In this case girl aged about 16 years and two months was minor and the Couple approached the High Court seeking protection. The High Court denied the protection and held that marriage of the minor girl, who had been enticed away out of the keeping of the lawful guardian, is void ab initio under Section 12 (a) of the PCM Act.
Neelam Rani and another v/s State of Punjab and others, decided on 21.12.2020: Girl aged about 16-1/2 years and boy aged about 18 years approached the Court for protection. The Court held that under Articles 14, 15 and 21 of the Constitution of India read with National Policy and National Plan, a girl child between the age of 15 and 18 years need protection from early marriages and to provide the girl child a life of dignity.
Ujjawal and another v/s State of Haryana and others, decided on 12.05.2021: Petitioner no.1 was barely 18 years old whereas petitioner no.2 was 21 years old and court denied the protection to the couple, both being live -in relationship.
Daya Ram & another v/s State of Haryana & others, decided on 10.06.2021: The High Court denied protection to minor couple living in relationship and held that it is necessary to remind states to eradicate child marriage menace. The High Court further reproduced the suggestions given to the Government of India and State Governments by the Supreme Court of India in case of Independent Thought v/s Union of India & Anr. to follow the decision of State of Karnataka, which has declared child marriage as void ab initio through an amendment in PCM Act.
Apart of all these judgments, a protection matter has also been referred to larger bench of the Punjab and Haryana High Court in Yash pal and another Versus State of Haryana and Others, CRWP-4660-2021 (O&M) to decide the following questions: –
Where two persons living together seek protection of their life and liberty by filing an appropriate petition, whether the Court is required to grant them protection, per se, without examining their marital status and the other circumstances of that case?
If the answer to the above is in the negative, what are the circumstances in which the Court can deny them protection?
While these abovementioned High Court judgements are reflecting different views on this issue, there is a relevant judgement passed by the Madras High Court which had discussed the present issue in detail. In case of T. Sivakumar Vs. The Inspector of Police, the Madras High Court had framed a question as to whether a marriage contracted by a person with a female of less than 18 years could be said to be valid marriage and the custody of said girl be given to the husband? The High Court while answering the said question held that the marriage contracted by a person with a female of less than 18 years is voidable. The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him.
As it is evident from the above-mentioned judgements that there are different legal versions available on the issue of protection to minor child, there is a dire need of implementation of suggestion given by the Supreme Court way back in 2017 in case of Independent Thought (Supra) wherein the Court suggested that any marriage of a child i.e. a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka and this is how the law should have been throughout the country. Child marriage is a social evil and it needs to be prevented in this modern society. It has been observed that there has been a large number of such cases which are getting listed before the Courts. It is pertinent to mention here that one cannot overlook the detrimental effects that child marriages have on the overall growth of the child, especially the girl as her exposure to sex and its related issues adversely impact her health. Her nutrition, education, employability, confidence; it all gets adversely affected. The suggested amendment needs to be incorporated throughout the country to eradicate the menace of child marriage. Further, to improve nutrition level and lowering maternal mortality, the Union Government is considering to raise the minimum age of marriage for women which can be looked into on urgent basis along with some strict provisions to implement the same as a constant hike is being observed in cases of child marriage.