Children these days attain both physiological as well as psychological maturity long before they complete the age of majority fixed for them by the statute long ago, noted the Punjab and Haryana High Court.
Brief Facts of the Case
A 17 years old girl, and a boy, have married each other and they contended that the parents of the girl are against this marriage and are threatening the couple so had approached the High Court seeking protection.
Observation made by Court
The Court permitted the girl to reside with the mother of the boy till she attains majority. The Court made the following observations
- At the outset, it may be noted that the statutory scheme on the subject of child marriages lacks clarity. Various laws deal with or touch upon aspects pertinent to child marriages but there is no consistency as to the consequences that flow therefrom. Being Hindus, Preeti and Sahil are governed by the Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’). Section 5 thereof prescribes the conditions of Hindu marriage and Section 5 (iii) requires that a bridegroom should complete the age of 21 years while a bride should complete the age of 18 years at the time of marriage. Preeti and Sahil do not satisfy this requirement. However, Section 11 of the Act of 1955 makes it clear that violation of Section 5 (iii) would not render the marriage void, as only the conditions prescribed in Section 5 (i), (iv) and (v) are mentioned therein. Section 12 of the Act of 1955 deals with voidable marriages but it only speaks of the condition prescribed in Section 5 (ii). Therefore, their marriage, if true, would be neither void nor voidable under the Act of 1955. However, the Act of 2006, which came much later, makes child marriages void if any one of the circumstances provided under Section 12 thereof is attracted. Such a marriage is voidable at the instance of the child, under Section 3 of the Act of 2006. These provisions operate independently and irrespective of the Act of 1955.
- The Protection of Children from Sexual Offences Act, 2012 (for short, ‘the Act of 2012’), was promulgated for the protection of children. Section 2 (1)(d) thereof defines a child to mean any person less than 18 years of age. The Act of 2012, however, did not choose to draw any distinction as to a girl of less than 18 who gets married out of her own choice and volition. Therefore, any sexual act or intercourse by the husband with such girl would constitute an offence under various provisions of the Act of 2012, though she is his wife.
- Significantly, Exception 2 to Section 375 IPC states to the effect that sexual intercourse and sexual acts with a wife of over 15 years of age would not amount to rape. However, this provision was not altered when the Act of 2012 was brought onto the statute book. In effect, though the husband would not be liable to be prosecuted for rape under Section 376 IPC, if his wife is over 15 years of age, he would be liable to be prosecuted under the provisions of the Act of 2012, if she is less than the age of 18 years. The Legislature seems to have been unmindful of this aspect and continues to be so despite the lapse of 8 years since the enactment of the Act of 2012. Taking note of this in Independent Thought vs. Union of India and another [(2017) 10 SCC 800], the Supreme Court held that Exception 2 to Section 375 IPC must be construed and applied by substituting ‘eighteen’ for ‘fifteen’ in the context of the age of the wife.
- It may be noted that the age of majority was altered once, but as on date it stands frozen at 21 years for boys and 18 years for girls. However, it is an acknowledged fact that children these days attain both physiological as well as psychological maturity long before they complete the aforestated age of majority fixed for them by the statute long ago.
- In any event, science recognizes the fact that children these days mature much faster than they did even a few decades ago. Taking note of this fact, the Parliament itself provided in the Juvenile Justice (Care and Protection of Children) Act, 2015, that it would be within the domain of a Juvenile Justice Board to determine as to whether a child in conflict 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 criminal act by a child of or over 16 years of age is now being treated on par with that of an adult, but a similar analogy has not been extended to a civil act of a child of the same age.
- It is also a scientifically recognized fact that girls tend to be more mature than boys of the same age. That is the reason why there is a discrepancy even with regard to the age of majority stipulated by the statute in relation to the sexes.
- The bench observed that a girl who has completed the age of 16 years and 10 months can be said to be of the age of discretion to the extent of at least knowing her own mind and as to what would be in her interest. The court said that the photographs produced by them show them walking around the ceremonial fire and it is stated that they solemnized their marriage in a temple.
- The Court further added that 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 or affirm the validity thereof. Prima facie, the photographs indicate that there was a marriage ceremony with Saptapadi and the parties thereto.
- As on date, [she] is 10 months short of attaining majority. It is not as if, upon the clock strikes 12 midnight on the eve of her 18th birthday; [she] 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 +.
- The Court held that it cannot direct that custody should be forcibly entrusted to her parents against her wishes or that she should be kept in a Protection Home till she attains the age of 18 years. Observing thus, the court, while granting police protection, allowed the girl to go with the boy’s mother, and remain with her till she attains the age of 18 years. The court also directed the Child Welfare Committee to ‘monitor’ her well-being until she attains the age of 18 years.
Case Name: Preeti vs. State of Haryana
Coram: Justice Sanjay Kumar