Thursday, March 10, 2016

HC: Child marriages do not become void without court order

HC: Child marriages do not become void without court order

MOHAMED IMRANULLAH S.

MADURAI, March 7, 2016

In a significant judgment, the Madras High Court Bench here has held that a marriage involving a bride below 18 years of age and groom below 21 does not become void automatically without either of them approaching the Family Court concerned and obtaining a decree.

A Division Bench of Justices S. Manikumar and C.T. Selvam passed the ruling while setting aside an order passed by a Tirunelveli court, which, on April 9, 2015, refused to take on file a 36-year-old woman’s divorce petition, filed on grounds of cruelty, since she was a minor on the date of her marriage in 1995.

Writing the judgment, Justice Selvam pointed out that though the Hindu Marriage Act, 1955 prescribes a minimum age for marriage; it does not state that the breach of such prescription of age would render the marriage either void under Section 11 or voidable under Section 12.

(Section 11 states that a marriage shall be void if either of the party had a spouse living at the time of marriage or if the parties were within the degrees of prohibited relationship and Section 12 lists out instances when a marriage could be annulled by a decree of nullity.)

Even Section 13, which lists out valid grounds for divorce, states that every child marriage shall be voidable at the option of the contracting party provided that her marriage, whether consummated or not, was solemnised before she attained 15 years of age and she repudiates it between 15 and 18 years of age.

Further, dealing with the provisions of the Prohibition of Child Marriage Act, 2006, the Bench said that the legislation defines a child to mean a person who, if it was a male, had not completed 21 years of age and a person who had not completed 18 years of age in the case of a female.

Section 3 of the Act states that every child marriage, whether solemnised before or after the commencement of the Act, shall be voidable at the option of the contracting party who was a child at the time of marriage provided a petition for annulling the child marriage was filed in the district court concerned.

The provision also imposes a restriction that such a petition should be filed before the child completes two years of attaining majority. This would mean that a man could file such a petition before he completes 23 years of age whereas a woman should file the petition before she completes 20 years.

Pointing out that this anomaly was taken note of by a Full Bench (comprising three judges) of the High Court in another case on October 3, 2011, the Division Bench recalled that the Full Bench had disposed that case with the hope that the Parliament would carry out necessary amendments to avoid complications.

Subsequently, reverting to the case on hand, the Division Bench said: “It is apparent that the court below was under the mistaken impression of a marriage involving a child being void.” Hence, it directed the Family Court in Tirunelveli to number the divorce petition and proceed in accordance with law.


For detailed Judgment, visit at: http://indiankanoon.org/doc/196038778/

M.Janaki vs K.Vairamuthu on 29 February, 2016

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

C.M.A.(MD) No.100 of 2016, DATED : 29.02.2016  

CORAM: THE HONOURABLE MR.JUSTICE C.T.SELVAM AND THE HONOURABLE MR.JUSTICE  S.MANIKUMAR            

M.Janaki                                                                ... Appellant
Vs.
K.Vairamuthu                                                    ... Respondent

PRAYER : Civil Miscellaneous Appeals filed under Rule 19 of the Family Court's Act, praying to set aside the order dated 09.04.2015 made in unnumbered H.M.O.P.No.  of 2015 on the file of the Family Court, Tirunelveli.

Judgment

(Order of the Court was made by C.T.SELVAM, J.) This Civil Miscellaneous Appeal is preferred against the rejection of a petition moved by the appellant, seeking relief under Section 13(1)(i-a) of Hindu Marriage Act, 1955.

2.The petitioner informed of being the wife of respondent, they having married on 02.06.1995, their being the parents of 2 children and of the respondent picking up vices and treating her cruelly. On such contentions, she sought dissolution of her marriage.

3.In passing the order under challenge, the Court below has observed that the Aadhar Card of the petitioner informed her year of birth as 1979 and since the date of marriage was informed to be 02.06.1995, the petitioner, on such date, would have been a minor, aged 16 years. It further noted that neither the marriage invitation nor photograph has been filed and that there is no evidence to show the person in the photograph produced, was the petitioner's husband. Referring to settlement dated 29.06.2009, the Court below informed that the same informed the belief of the settlor that the settlee would reside with him and attend to his needs throughout his life time. On such reasoning, the Court below thought it fit to reject the petition, giving rise to this Civil Miscellaneous Appeal.

4.Even at the stage of admission, there has been representation on behalf of the respondent through counsel and to the effect that the petitioner and respondent had entered upon marriage and that the petitioner was then a minor. Such submission of learned counsel for respondent has been placed on record.

5.The present case provides an opportunity to clarify a position vis-a- viz, marriages involving a minor/child, and we proceed to do so.

6.The conditions for a Hindu marriage are informed in Section 5 of the Hindu Marriage Act, 1955.Section 5(3) places requirement that the bridegroom should have been completed aged of 21 years and the bride 18 years at the time of marriage. Noteworthy it is that the breach of such condition does not render the marriage void under Section 11 or voidable under Section 12. Even in Section 13, which informs the grounds on which the divorce may be sought, the only provision relatable to age is to be found in Section 13(2)(iv) viz. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years.

7.Section 2 (a) of Prohibition of Child Marriage Act, 2006 defines a child thus:

'child' means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;

8.Though Section 15 of the Prohibition of Child Marriage Act, 2006 informs offences there against to be cognizable and non-bailable, Section 3 makes provision for avoidance of marriage by contracting party, who was a child at the time thereof, through filing a petition for annulling the marriage by such party. The same is reproduced hereunder:

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 he option of the contracting party who was a child at the time of 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.

9.In Full Bench judgment of this Court in T.Sivakumar v. Inspector of Police, Thiruvallur Town Police Station (FB) reported in AIR 2012 Madras 62, it has been observed thus:

56. A plain reading of sub-section (3) would reflect that a petition under the above Section may be filed at any time but before the child completes two years of attaining majority. When does a child attain the age of majority is not expressly defined in the Act. However, Section 2(f) of the Prohibition of Child Marriage Act denies the term 'minor' which reads as follows:-

"2 (f) 'minor' means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority' As defined in Majority Act, 1875, a minor either male or female, attains the age of majority on completing eighteen years of age. Keeping in mind the same, if we again look into sub-section (3) of section 3 of the Prohibition of Child Marriage Act, the anomaly in the Act will emerge to light. In the case of a female, as per sub-section (3) since she attains the age of majority on completing the age of eighteen years, there can be no difficulty in understanding of the said provision to say that a petition for annulment should be filed within two years of attaining majority, i.e. before completing twenty years of age. But, in the case of a male, any marriage solemnised before he completes the age of twenty one years is a child marriage and the same is voidable. Therefore, he can be expected to file a petition for annulment within two years after attaining the age of twentyone years. But, sub-section (3) reads that such petition should be filed when he completes two years of attaining majority which means before completing twenty years of age. For example, if the child marriage of a male takes place on his completing twenty years of age and if a literal interpretation is given to sub-section (3) of theProhibition of Child Marriage Act, surely, he will not be in a position to file a petition to annul the marriage. Such literal interpretation in the case of a male would create anamalous situation. It is too well settled that no provision of any law shall be interpreted in such a way to make it either anamalous or unworkable. Therefore, in our considered opinion, sub-section (3) of section 3 shall be read that in the case of a male, a petition for annulment of child marriage shall be filed before he completes two years of attaining twenty-one years of age. We are hopeful that the Parliament will take note of the above anomaly and make necessary amendment to sub-section (3) to avoid any more complication".

10.Reverting to the order under challenge, it is apparent that the Court below was under the mistaken impression of a marriage involving a child being void. It also is seen that the other reasons for rejection reflect a most presumptuous view on considerations, which are matters for trial. We may also observe that a presumption of marriage may arise even on proof of prolonged cohabitation.

11.In the result, this Civil Miscellaneous Appeal stands allowed. The order of the Court below dated 09.04.2015 is set aside. The Family Court, Tirunelveli is now directed to number the H.M.O.P. filed by the appellant, if otherwise, in order and proceed further in accordance with law. The Registry is directed to return the original petition for being represented before the Court below. No costs.


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