Marriage with Minor Girl is neither valid & nor Invalid but voidable Marriage – Madras High Court

Marriage of a person with a girl whose age is below 18 is voidable. It will subsist until it is annulled by a court under the Prohibition of Child Marriage Act, the Madras High Court said on Monday.

Such a marriage is not a “valid marriage” in the strict sense; but it is “not invalid,” it said.

In a judgment, a Full Bench, comprising Justices K.N. Basha, T. Sudanthiram and S. Nagamuthu, said that the adult male in a child marriage would not be the natural guardian of the female child. This was in view of the implied repealing of section 6 (c) of the Hindu Minority and Guardianship Act.

As per the provision, in the case of a married minor girl, the husband should be the natural guardian. Impliedly the provision stood repealed by the Prohibition of Child Marriage Act.

Earlier, the father of a minor girl filed a habeas corpus petition seeking a direction to the Tiruvallur Town police station to secure his daughter aged 17 years from the illegal custody of a person, produce her before the court and hand her over to him.

When the matter came up before a Division Bench, the minor girl appeared and filed an affidavit that she had fallen in love with a person and married him in July this year. After considering the rival submissions, the Bench directed that the girl be kept in a government’s children’s home.

It referred the matter to a Full Bench to decide the questions, including whether a marriage of a person with a female of less than 18 years could be said to be a valid marriage and the custody of the girl be given to the husband, and whether a minor could be said to have reached the age of discretion and, thereby, walk away from the lawful guardianship of her parents and refuse to go in their custody.

The male who married a child falling within the provision of Section 12 of the Hindu Marriage Act was not a husband of the minor in the legal sense. Therefore, as per the Hindu Minority and Guardianship Act, he would not acquire the status of natural guardian of such a child at all.

Though such a voidable marriage subsists, until it was either accepted expressly or impliedly by the child after attaining the eligible age or annulled by a court of law, such marriage could not be equated to a “valid marriage”.

The Bench said since the parties in the case were Hindus, it was confining its discussions only to laws relating to that religion. It said the male who married a child would not be entitled to custody of the child even if she expressed her desire to go with him.

However, in the interest of the girl’s welfare, he may move the court to set her at liberty if she was illegally detained by anybody.

In a habeas corpus petition, while granting custody of a minor girl, the court should consider the paramount welfare including the minor girl’s safety notwithstanding the legal right of the persons who sought custody.

Customers in a brothel house are not offenders under the Immoral Traffic (Prevention) Act, 1956

Karnataka High Court: A criminal petition was filed under Section 482 CrPC to quash the proceedings in a criminal case filed under the Immoral Traffic (Prevention) Act, 1956, where a Single Judge Bench comprising of K.N. Phaneendra, J. held that the offences under ITP Act or under Section 370 IPC are not attracted as far as the customers in a brothel house are concerned.

The petitioners in the instant petition were customers in a brothel house found by the police during a raid. The petitioners were charged as accused in a criminal case for offences punishable under Sections 3, 4, 5 and 7 of the ITP Act. The High Court perused the entire charge-sheet papers and also referred to a few of the earlier decisions pronounced by it on the same or similar matter.

On perusal of the earlier decisions as well as various provisions of the ITP Act, the High Court was of the view that offences under the said sections were not attracted to the customers in a brothel house. It was observed that though the customers virtually encourage prostitution, but in the absence of any specific penal provision, they can not be said to be liable for prosecution for the above said offences. Accordingly, the petitions were allowed and all the proceedings pending against the petitioners in the said criminal case were quashed.

[Chandru S v. State, Crl. Petition No. 5059 of 2017, order dated December 7, 2017]

Father Wins custody of a 5 Year child – SC

Supreme Court: Setting aside the Delhi High Court order where a father was directed to hand over the custody of his 5-year-old son to his mother, the bench of Dipak Misra, CJ and Amitava Roy, J held that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.

Considering the facts of the case where the child was barely 2½ years old when he came over to India and had stayed with his father since then, the Court said that since he has stayed in US in his infant years, the duration is too little for the required integration of his with the social, physical, psychological, cultural and academic environment of US to get totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back.

Hence, the verdict that was penned by Roy, J said:

“a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.”

The Court also took note of the fact that no material was brought on record, persuasive and convincing enough, to take a view that immediate restoration of the custody of the child to the mother in the native country is obligatorily called for in its interest and welfare.

The Court noticed that the child is growing in a congenial environment in the loving company of his grand-parents and other relatives and has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.

The Court, hence, directed that the child, till he attains majority, ought to continue in the custody, charge and care of his father. [Prateek Gupta v. Shilpi Gupta, 2017 SCC OnLine SC 1421, decided on 06.12.2017]

Adultery charges also applicable to Woman

Supreme Court: Agreeing to hear the petition that sought for examining Section 497 of Penal Code, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ issued notice to Central Government asking why a married woman, who is equally liable for the offence of adultery with a married man who is not her husband, be not punished along with the man.

Section 497 IPC, that deals with the offence of adultery, says that a man who has sexual intercourse with the wife of another man, without that man’s consent, will be punished for the offence of adultery. The said provision, however, expressly states that the woman will not be punished for the offence.

The Court noticed that the provision grants relief to the wife by treating her as a victim. Hence, when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. The Court said that the provision:

“seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband.”

Not only this, the Court also noticed that the provision creates a dent on the individual identity of woman as:

“the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field.”

Noticing that the provision, prima facie, appears to be quite archaic, the Court issued notice to Centre returnable within 4 weeks. [Joseph Shine v. Union of India, 2017 SCC OnLine SC 1447, order dated 08.12.2017]

Freedom of speech may turn to sedition charges

In India, the right to freedom of speech and expression is endowed under Article 19(1)(a) of the Constitution. Free speech allows theconveyance of an individual’s ideas and opinions. Its expression is instrumental in permitting individuals their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised by governance by the self (in India through a choice-based representation) and affording the individual to market its modulating opinion across all hues. In such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing or curtailing an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Jurisprudence on free speech and constitutional morality

According to Bhatia[1], two trajectories pertaining to Indian free speech exist. Firstly, the “moral paternalistic” approach and secondly, the “liberal autonomous approach”. The former does not endow individual’s abundant freedom since it views individuals as corruptible and intrinsically ferocious with a tendency to engage in violence. The latter approach is relatively more tolerant and permissive viewing individuals as entities competent to decide for oneself, this approach respects an individual’s intellectual capabilities has relatively fewer restrictions imposed on them. Bhatia further constructs on Kant’s ideology elucidating on the equality of individuals. Relying on the premise that all individuals are equivalent, every individual’s ability to communicate and express oneself should be of equal. Subsequently, no fringe nor political nor majoritarian group should be in a position to asphyxiate the expression of another. He further relies on the Athenian philosophy that drew an inverse nexus between free speech and slavery.[2]

Dworkin[3], similarly provided two justifications as the underlying basis for the arguments advocating free speech. Firstly, permitting individuals to converse and express themselves freely allows the promotion of good policies and serves as a check on relatively poor ones, for this approach an inherent comprehension of the concept of free speech is required. Secondly, a broader justification is the equal endowment of autonomy to individuals and the corresponding appreciation and respect for their right to speak freely.

Bhatia[4] further stipulates the “constitutionalising” of all dimensions of free speech. He promotes the extension of protection of free speech and in the scenario where such protection is unfeasible and impracticable, it should be restrained solely by the Constitution based on certain values and principles of the Constitution as opposed to the prevalent social convictions of the qualifications of morality and decency which have a tendency to be ambiguous and non-uniform.

Constitutionality of Section 124-A[5] IPC

The Supreme Court had constitutionalised and limited the scope of sedition in Kedar Nath Singh v. State of Bihar[6] by restricting it to instances where individuals through their speech and expression disrupt the law or provoke and incite violence. However, in practice and past trend showcases that despite the existence of this stipulation, sedition charges are levied on individuals for mere criticism of the Government in the public arena, mere expressions of detest and abhorrence for State policies, religion and showcasing contempt against what is morally acceptable in our society.

Thus, prevailing present day practices are not in accordance with the judicial intention at the time of articulation of the Kedar Nath judgment[7]. Based on this premise and the following grounds, certain reasons provide why sedition laws should be repealed from the Indian nation State.

Firstly, the overbreadth test should be applied to a provision to gauge its constitutionality. If a provision is excessively ambiguous, very subjective pertaining its applicability and its breadth very expansive, this could lead to obscurity in its practice and its overbreadth could serve to its detriment. Applying this test to Section 124 of the Penal Code, the exact interpretation of the word “disaffection” is uncertain and indeterminable. Despite, the elaboration of the terminology in the explanation to the section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and expression which is reasonably restricted by Article 19(2) in the interest of public order when pertaining to sedition. However, in India, recent trend showcases the application of sedition under the IPC being charged on individuals on grounds barring the instances limited to interest of public order. Given the haziness in the practical applicability of this provision, it should be rendered unconstitutional.

Secondly, this test is further extended to the vagueness test, whereby an individual should be aware of articulation of the provision, what it seeks to condone and the consequences attached. Given the obscurity attached with the provision, an individual may be dubious to the horizons of the provision which would lead to a negative externality such as the chilling effect.

Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches with the provision excessive damages and penalties for instances of sedition. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc. In the backdrop of substantial punishments, the provision serves as a disincentive on the freedom of speech endowed to citizens under Article 19(1)(a) of the Constitution.

Fourthly, despite limiting the scope in the 1962 provision, the Court did not establish a reasonable nexus[8] between a speech and its role as an instrument to the causation of public disorder. Although, in recent years the courts have initiated the identification of occurrences whereby this nexus exists, there is no absolute provision in existence. In the absence of such a provision with the restriction imposed in Article 19 of the Constitution, the chilling effect may supersede in society, which is in a direct contradiction of the articulation of the freedom endowed under Article 19(1)(a).

In Shreya Singhal v. Union of India[9], the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124-A IPC does not seem reasonable.

Schenck v. United States[10], elucidated the required proximity between the utterance of speech and incitement of violence. It lays the possibility of danger or the intent to bring it about must be imminent or immediate. This case established the “bad tendency test”.[11] Brandenburg v. Ohio[12], laid the “clear and present” danger test, whereby the State was prohibited by the US Constitution from repressing speech and its advocacy barring the possibility of it causing an immediate harm to law by an illicit act or if it aimed at causing such an action. In the US under the 1st amendment, further speech is promoted as opposed to necessitating silence to remedy bad or injurious speech. Thus, in the US even though some sedition laws have been retained, the courts are dispensing extensive protection to the right of free speech.

In India, such a linear demarcation does not exist and in the scenario where the implementation of such tests are attempted, reasonable restrictions serve as a hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam[13], the Supreme Court has rejected such tests in other cases resulting in no fixed applicability.

India’s sedition law is derivative from the colonial era. In 2009, the Britain abolished its sedition laws to endorse the freedom of speech and expression. This abolition was on the premise that such laws were in contradiction to Britain’s human rights commitments and were also responsible in inducing a chilling effect on the right to freedom of speech and expression.

In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of Seditious Offences) Amendment Act, 2007[14]. It has addressed comparable offences under other conventional criminal provision.[15]


Thus, articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The punishment associated with it render the provision draconian. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

[1] Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford University Press, USA.

[2] Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,<>.

[3] Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <>.

[4] Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <>.

[5] 124-A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, [***] the Government estab­lished by law in [India], [***] shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

[6] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[7] 1962 Supp (2) SCR 769 : AIR 1962 SC 955.

[8] Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu, <>.

[9] (2015) 5 SCC 1.

[10] 1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).

[11] Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire, <>.

[12] 1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).

[13] (2015) 12 SCC 702.

[14] Crimes (Repeal of Seditious Offences) Amendment Act, 2007, <>.

[15] Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, <>.

Husband Cannot Deny His Duty To Maintain The Wife, Neither When She Is Earning Nor After The Divorce

Delhi High Court: The Single Judge Bench comprising of I.S. Mehta J., decided upon a case related to the Protection of Women against Domestic Violence Act, 2005 (DV Act). The present appeal is from the petitioner husband, aggrieved by the decision of the Metropoliton Magistrate, who ordered him to pay the maintenance to the respondent wife, for maintaining her as well as their child. The same appeal, earlier has been dismissed by the learned Special Judge of the Sessions Court.
The counsel for the petitioner argued that after deducting all the necessary expenditure, a very meagre amount is left, which is much less than the maintenance amount. The counsel also stated that the respondent earlier had a job, which she had intentionally left. The counsel for the respondent on the other hand said that she was unable to maintain herself and her minor child.
The Court observed that the petitioner cannot shy away from his duty to maintain his wife as well as the child, except in the case of denial of existence of marriage and denial of paternity of his minor child. Also the Court said that it is the responsibility of the parents to look towards the education of the child and his status of living within their means. The fact that the spouse, with whom the child is living, has sufficient source of income does not absolve the other spouse from his responsibility to maintain the child. The question whether the respondent, on the day of filing of the application under Section 12 of DV Act, was in domestic relationship is irrelevant and has no affect on granting of monetary reliefs. The Court also said that the decree of divorce does not free the husband from his duty to maintain the wife and the child.
Thus, the Court held that the instant revision petition by the petitioner is dismissed and the order passed by the Special Judge was upheld. Also, it directed the trial court to dispose off the application under Section 12 of DV Act as soon as possible, preferably within a period of 6 months from the date of this judgement. [Sukhjinder Singh v. Harvinder Kaur, 2017 SCC OnLine Del 11621, decided on 10.11.2017]

Builder not in a position to Deliver Possession of Property for a long time has to payback the Buyer with Interest

National Consumer Disputes Redressal Commission: The complainant in a recent case before NCRDC had complained that a sales representative of the Unitech Ltd. approached him in 2006 to purchase a residential apartment in a new project of the respondent to be developed in Noida, UP. The complainant alleged that he was lured by the promises of the representative that the flat would be handed over to him within 36 months and in consequence, applied for the allotment of an apartment by entering into a builder-buyer agreement with the respondent.
The case of the complainant is that the opposite party has failed to complete the construction and deliver possession of the apartment after expiry of stipulated date of delivery of possession and has affidavit to support allegations made in the complaint. The Commission after going through all the allegations and all documents and agreements, concluded that it was not just a case of delay on part of builder to deliver possession, but a case in which builder was not in a position to offer possession of the apartment at all.
Thereafter, the Bench comprising Mr. Ajit Bharihoke (Presiding Member) and Mr. Anup K. Thakur (Member) directed refund of the amount paid by the complainant with simple interest of 10% per annum and observed that in such a case where builder is not in a position to deliver possession of the apartment even after 8 years, it would be wrong to expect to wait for possession of apartment for an indefinite period. [Shalini Lanbah v. M/s Unitech Ltd., 2017 SCC OnLine NCDRC 525, decided on 05.10.2017]

Rti Application From Any Institution Or Organization, Signed By A Citizen Of India Would Be Valid

RTI application from any institution or organization, if signed by a citizen of India would be valid

Published on November 14, 2017By Saba

Central Information Commission: In a recent case before the Commission, the appellant had appealed on the ground that information sought by him was not provided to him without any just and cogent reasons. The appellant had submitted his RTI application on a paper having the letter head of the NGO, National Human Rights Committee seeking information on 3 points relating to the details of losses incurred by the Railways from the year 2012 to 2016 and steps taken by the railways to overcome such loss.
Before the Commission, the CPIO contended that because the appellant had not filed the present RTI application in his individual capacity, it would not be worth answering while referring to the case of Inder Grover v. Ministry of Railways (CIC/OK/A/2006/00121 dated 27.06.2006). Observing this, the Commission said that in plethora of decisions by the Commission itself, it has been held that so long as the said RTI application is signed by an individual who is a citizen of India, then notwithstanding the capacity in which such application is filed, it shall be valid and cited many decisions stating the same.
Accordingly, Information Commissioner, Amitava Bhattacharyya said that appellant is entitled to the information sought for in the stated RTI application and can’t be denied the same merely because the application had the letter-head of the institution he is working in. The Commission directed the respondent CPIO to provide point wise reply complete in all respects to the appellant as available on record in the form of certified true copies of the documents sought and further directed to send a report containing the copy of the revised reply to the Commission as well for record. [Vinay Gupta v. DPG & CPIO, RTI Cell, Railway Board, CIC/MORLY/A/2017/129291, decided on 18.10.2017]

Sign mismatch also covered under 138NI act

*SC :: Cheque signature mismatch may lead to qualifcation for prosecution under Section 138 N. I. Act.*
In a case where the cheque is returned unpaid by the bank on the ground that the signature of the drawer on the cheque differs from his specimen signature on record of the bank, a case of dishonour of cheque punishable under Section 138 may be made out if other ingredients of the offence are satisfied. The Supreme Court has ruled that in case of cheque bounce, a mismatch of signatures will be treated on par with insufficiency of funds, “payment stopped” and “closure of account”, which are offences under Section 138 of the Negotiable Instruments Act, 1881. But It’s not constitute an offence by itself. Such a dishonour in order to qualify for prosecution under Section 138 shall have to be preceded by a statutory notice where the drawer is called upon and has the opportunity to arrange the payment of the amount covered by the cheque. It is only when the drawer despite receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount that the dishonour would be considered a dishonour constituting an offence, hence punishable. *Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375*

Bail by default after 60days in offence punishable upto 10years

*LANDMARK JUDGEMENT — Bail—Default Bail—If offence is punishable with imprisonment upto 10 years’ then accused in entitled for default bail after 60 days and where minimum sentence is 10 years or more then after 90 days.*

2017(3) Law Herald (SC) 1745 : 2017 LawHerald.Org 1271


Hon’ble Mr. Justice Madan B. Lokur

Hon’ble Mr. Justice Deepak Gupta

Hon’ble Mr. Justice Prafulla C. Pant

Special Leave to Appeal (Crl.) No. 2009 of 2017

*Rakesh Kumar Paul*
*State of Assam*

Decided on 16/08/2017

For the Petitioner: Mr. Wajeeh Shafiq, Advocate.

For the Respondent: Mr. Debojit Borkakati, Advocate.

Bail—Default Bail—If offence is punishable with imprisonment upto 10 years’ then accused in entitled for default bail after 60 days and where minimum sentence is 10 years or more then after 90 days.

Criminal Procedure Code, 1973, S.167(2)–Default Bail-60 days or 90 days–Non-filing of charge sheet—Held;

(i) If the offence is punishable with death or life imprisonment or with a minimum sentence of 10 years then default bail can be claimed after expiry of 90 days; and

(ii) In all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then accused would be entitled for default bail after 60 days

  • (iii) Right to get ‘default bail’ is an indefeasible right-Court must appraise accused of this right and grant bail on offer to furnish baii bond/surety.