Dispensing away the doubts as to its legal status, a division bench of the Delhi High Court in a recent decision has explained the legal position of marriage between minor couples. Holding that traditionally the valid between minors has been taken as neither void or voidable and on the contrary a legally valid marriage, the law was changed in 2006 by the Parliament with the enactment of the Prohibition of Child marriage Act, 2006 wherein under such marriages were made voidable at the option of the minor spouse. The High Court declaring the law in Jitender Kumar Sharma v. State observed as under;
8. It was argued on behalf of Poonam‘s father that the marriage between Jitender and Poonam, who are hindus, is invalid because it is in violation of section 5(iii) of the Hindu Marriage Act, 1955 (hereinafter referred to as ―the HMA), inasmuch as Poonam is below 18 years of age and Jitender is below the age of 21 years. Section 5 sets out the conditions for a hindu marriage, one of them [clause (iii)] being the stipulation as to ages of the bridegroom and bride. It reads as under:-
5. Conditions for a Hindu marriage.—A marriage may solemnized between any two Hindus, if the following conditions are fulfilled, namely :— (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
It is true that one of the conditions of a hindu marriage is that the bride should have completed 18 years age and the bridegroom, 21 years. But, does this mean that a marriage where this twin condition as to ages is not satisfied is, ipso facto, invalid or void? An examination of section 11 of the HMA would seem to suggest otherwise. The said provision is as under:-
“11. Void marriages.—Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5.
Though five conditions have been stipulated in section 5, only the contravention of three of them, namely, clauses (i), (iv) and (v) would render the marriage to be null and void. Clause (iii) of section 5, which is the condition with regard to the minimum ages of the bride and bridegroom, is conspicuous by its absence. As a result, a hindu marriage solemnized in contravention of clause (iii) of section 5 of the HMA cannot be regarded as a void or invalid marriage.
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But, the fact that punishment has been provided for contravention of the condition specified in section 5(iii) of the HMA does not mean that the marriage itself is void or invalid. If the legislature had intended that such a marriage would be void or invalid, it could have easily included clause (iii) of section 5 in Section 11 itself. Only clauses (i), (iv) and (v) of section 5 are specifically mentioned in section 11. The only conclusion is that the legislature consciously left out marriages in contravention of the age stipulation in clause (iii) of section 5 from the category of void or invalid marriages.
9. This view is well supported by several division bench decisions of this court. In Neetu Singh v. State: 77 (1999) DLT 601 (DB), after considering two decisions, one of the Allahabad High Court [Mrs Kalyani Chaudhary v. The State of U.P.: 1978 CrLJ 1003] and the other of the Himachal Pradesh High Court [Seema Devi alias Simaran Kaur v. State of H.P.: 1998 (2) Crime 168], it was held that a marriage in contravention of clause (iii) of section 5 of the HMA is ―neither void nor voidable although it may be punishable under section 18 of the HMA. This view has been reinforced in Ravi Kumar v. The State: 124 (2005) DLT 1 (DB) and Manish Singh v. State Govt of NCT: AIR 2006 Del 37= 126 DLT 28 (DB). While the decisions in Neetu Singh (supra) and Ravi Kumar (supra) did not refer to the provisions of the Child Marriage Restraint Act, 1929, the said provisions were specifically noticed in Manish Singh (supra). In that case the division bench held that the ―Act aims to restrain performances of child marriages but the ―Act does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the Act. After referring to the penal provisions in the HMA and the Child Marriage Restraint Act, 1929, the division bench observed marriages solemnized in contravention of the age prescription in section 5(iii) of the HMA were neither void nor voidable but were ... only punishable under section 18 of the Hindu marriage Act with imprisonment of 15 days and a fine of Rs 1000/- as also under the provisions of Child marriage Restraint Act.
10. Before we proceed further, under Hindu law there are essentially two kinds of marriages – void marriages or valid marriages. The latter category has a sub-category of voidable marriages. A marriage in contravention of clause (iii) of section 5, as we have seen above, does not fall in the category of void marriages specified in section 11 of the HMA nor does it fall in the category of voidable marriages specified in section12. Consequently, by the process of elimination, it would be a valid marriage. Of course, the marriage may be dissolved through a decree of divorce, but, that would have to be on the grounds specified in section 13 of the HMA.
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11. Coming back to the division bench decisions mentioned above, it is pertinent to note that they were rendered prior to the enactment and enforcement of The Prohibition of Child Marriage Act, 2006 which replaced the Child Marriage Restraint Act, 1929. The latter act did not contain any provisions impinging upon the validity of a marriage. However, the Prohibition of Child Marriage Act, 2006 contains specific provisions which deal with void and voidable marriages.
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12. The validity of a marriage is primarily to be adjudged from the stand point of the personal law applicable to the parties to the marriage. The validity of a marriage between Hindus is to be considered in the context of the HMA and the validity of a marriage between Muslims is to be viewed in the light of Muslim personal law and so on. We have already seen that a Hindu marriage in contravention of clause (iii) of section 5 of the HMA is not void. But, by virtue of section 12 of the Prohibition of Child Marriage Act, 2006, which is a secular provision cutting across all religious barriers, a marriage which is not void under the personal laws of the parties to the marriage may yet be void if the circumstances specified therein are attracted. However, the other side of the coin is that where the circumstances listed in section 12 do not arise, the marriage of a ―minor child would still be valid unless it is a void marriage under the applicable personal law. So, a Hindu marriage which is not a void marriage under the HMA would continue to be such provided the provisions of section 12 of the Prohibition of Child marriage Act, 2006 are not attracted. In the case at hand, none of the circumstances specified in the said section 12 arise. Consequently, the position as obtaining under the HMA, that the marriage between Jitender and Poonam is not void or invalid, would be unaffected by the Prohibition of Child marriage Act, 2006.
13. We shall now consider the issue of voidable marriages. We have seen that the division bench decisions of this court referred to above, consistently held that a marriage in contravention of clause (iii) of section 5 of the HMA was neither void nor voidable. We have discussed the aspect of void marriages and found that a marriage which is not void under the HMA may yet be void in any one or more of the circumstances specified in section 12 of the Prohibition of Child marriage Act, 2006. The latter act has, unlike its precursor – the Child Marriage Restraint Act, 1929, also introduced the concept of a voidable marriage. Section 3 of the Prohibition of Child marriage Act, 2006 reads as under:-
3. Child marriages to be voidable at the option of contracting party being a child.(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
This provision, irrespective of whether a child marriage is or is not voidable under personal law, makes every child marriage voidable at the option of a party to the marriage, who was a child at the time of marriage. Another important aspect of this provision is that a petition for annulling a child marriage by a decree of nullity can be filed only by a party to the marriage, who was a child at the time of marriage. It is therefore clear that where, earlier, a child marriage may not have been voidable under personal law, as in the case of the HMA, by virtue of the 'secular‘ provisions of section 3 of the Prohibition of Child marriage Act, 2006 it has explicitly been made voidable at the option of the 'child‘ spouse. But, nobody other than a party to the marriage can petition for annulment of the marriage.
14. It is clear that because of the change in law brought about by the enactment of the Prohibition of Child marriage Act, 2006 and repeal of the Child Marriage Restraint Act, 1929, the statement of law with regard to the validity of a child marriage has to be modified. The legal principle that a marriage in contravention of clause (iii) of section 5 of the HMA was ―neither void nor voidable, was established prior to the enactment and enforcement of the Prohibition of Child marriage Act, 2006. The principle which is now applicable is that a marriage in contravention of clause (iii) of section 5 of the HMA is not ipso facto void but could be void if any of the circumstances enumerated in section 12 of the Prohibition of Child marriage Act, 2006 is triggered and that, in any event, all such marriages would be voidable at the option of the 'child‘ spouse in terms of section 3 of the Prohibition of Child marriage Act, 2006.
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