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 Impliedly the provision stood repealed by the Prohibition of Child Marriage Act.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.