Court Can't Protect Live-In Relationships Where Male Partner Is Below Marriageable Age Of 21 Yrs: Allahabad High Court
The Allahabad High Court has held that live-in relationships cannot be protected in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, if one of the partners is below the statutorily prescribed marriageable age. Justice Garima Prashad however clarified that the parties would still be entitled to protection against harm, in view of their rights under Article...
The Allahabad High Court has held that live-in relationships cannot be protected in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, if one of the partners is below the statutorily prescribed marriageable age.
Justice Garima Prashad however clarified that the parties would still be entitled to protection against harm, in view of their rights under Article 21 of the Constitution of India. The bench held,
“This Court, in exercise of its writ jurisdiction, cannot grant protection to a live-in relationship in a manner that confers legitimacy upon, or facilitates the continuation of, a relationship which, in substance, operates as a substitute for a marriage that is presently impermissible under the statutory framework governing capacity to marry.”
Further, the Court held, “...neither parents, guardians, nor statutory authorities including the Child Marriage Prohibition Officers can be restrained from taking lawful steps in accordance with the Prohibition of Child Marriage Act, 2006 and other applicable laws, provided that such action remains within the bounds of law.”
Petitioner no.1 is a Muslim woman aged about 20 years and petitioner no.2 is a Scheduled Caste Hindu male aged about 19 years. It was pleaded that the father of the lady was threatening the parties who were in a live-in relationship while the family of the man did not have any problem with them. Petitioners approached the High Court seeking protection of their life and liberty.
The question before the Court was whether protection could be granted to a live-in couple, when the male is below 21 years of age and is statutorily a 'child' for the purpose of marriage.
The Court observed that Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006 govern marriages in India and uniformly provide the requirements for marriage including minimum age, which is 21 for males and 18 for females.
It noted that under Prohibition of Child Marriage Act, 2006 any male below the age of 21 years and female below the age of 18 years was referred to as 'child'.
Noting that the Prohibition of Child Marriage Act, 2006 is a complete code against child marriages, the Court held,
“The need for such child marriage restriction legislation is also clear from the structure and purpose of the Act itself. These laws exist because Parliament has recognised that premature unions often involve lack of maturity, lack of financial and emotional readiness, interruption of education, gendered vulnerability, and serious social and long-term consequences. The statute is not an obsolete formality. It is a modern welfare enactment responding to conditions that Parliament considered serious enough to warrant prevention, punishment and institutional oversight.”
It further observed that the Hindu Marriage Act, 1955 also provided age of marriage and provided punishment for contravention of the provisions containing conditions of marriage including age. It observed that even the Special Marriages Act, 1954 also provided the same age bars for marriage.
“A conjoint reading of the aforesaid enactments leaves no manner of doubt that, across both personal and secular law, as well as under the special preventive legislation, a uniform legislative policy has been adopted. A male who has not completed twenty-one years of age is not regarded as possessing the requisite legal capacity to enter into a marital relationship, and any union involving such a person falls within the zone of statutory restriction.”
Further, the Court held that since the parties did not assert marriage, the Muslim Personal Laws, which in some cases allow marriages below the prescribed ages, would not be applicable in the present case. It further noted that the parties had stated that they were living together only because they could not get married as per law.
Noting that the parties were using live-in as an alternate to marriage and that such relationships are in nature of marriage, the Court held
“If such a relationship is consciously adopted because the law withholds the right to marry until a later age, then a court order protecting its continuance does not remain a bare protection order. It begins to operate as an indirect sanction for a presently impermissible marriage-like arrangement.”
It held that if a live-in relationship exhibiting the nature of a marriage between adult female and male child is permitted, then the female may alter her life for the relationship while the male would have an option to annul the same at a later stage.
Discussing the concept of consent under the Protection of Children from Sexual Offences Act, 2012, the Court held that since they are applicable on a female below 18, it would be applicable on a male below the age of 21 years as he is treated like a 'child' under various enactments.
It further held that when child marriage is prohibited, the Court cannot stop parental intervention by judicial order to prevent such marriages.
“Accordingly, while parents or family members cannot resort to threats, violence, coercion, or illegal confinement, they cannot be restrained from taking lawful steps such as approaching the police, informing the Child Marriage Prohibition Officer, or initiating proceedings before the competent Magistrate under the statute.”
Holding that the petitioner no.2 was a child and that no specifics of the threats were detailed in the petition, the Court dismissed the writ petition.
Case Title: Shajiya Parveen and another v. State of U.P. and 3 others