Can't Give Custody Of Minor 'Husband' To 'Wife' As It Would Be Sanctioning Cohabitation Between Adult & A Child: Allahabad High Court

Noting that if a minor boy would be placed under the custody of his wife, it would be permitting an offence under the POCSO Act, the Allahabad High Court recently refused to give custody of a minor 'husband' to his 'wife'. The Bench of Justice J. J. Munir held that their marriage was voidable and if the minor boy is placed under the custody of his wife, it would amount to sanctioning cohabitation between a major and a minor. The matter before the Court Manish Kumar, aged about 16 years and a half and he married Jyoti, a major and an adult in the cognizance of law, who is just above the age of 18 years. Manish, after his marriage to Jyoti, was staying with Jyoti and her family members, however, Manish's mother alleged that Jyoti and her family members enticed away her minor son (Manish) and forced him into a marriage of sorts, which was illegal for want of the minor's competence under the law. She also alleged that her minor son was illegally detained by Jyoti and her family members and thus Manish's mother filed the instant Habeas Corpus Writ Petition. She arrayed Manish Kumar as the first petitioner and herself as the second, asking the Court to order Manish Kumar, her minor son, to be produced before this Court and upon production, set at liberty in the manner that Manish Kumar be entrusted to her care and custody. However, before the Court, the Minor boy Manish Kumar stated it clear that he did not wish to live with her mother. Court's observations The Court noted that just as there cannot be the case of a minor Hindu wife being married to a major and the husband regarded as her natural guardian under Section 6(c) of the Act of 1956, the POCSO Act, similarly works to prohibit sex between a man, who is a minor and a woman, who is a major. Coming to the POCSO Act, the Court noted that the offence defined under Section 3 [Penetrative sexual assault] together with the penal clause under Section 4 [Punishment for penetrative sexual assault], would be attracted to the case of a person, who commits penetrative sexual assault as defined under Section 3, irrespective of the offender's age or sex. Therefore, the Court ruled: "A female, who is a major, if she were permitted to marry, or more particularly, consummate marriage with a child, would be liable under Section 3/4 of the Act of 2012, subject, of course, to the charge being established at the trial, after a prosecution is instituted." Referring to the facts of the case, the Court ruled that if Manish, who is still below the age of 18, were to be placed in the custody of his wife, it would be virtually sanctioning the imminent commission of the offence under Section 3/4 of the Act of 2012, or the other penal provisions of the said Statute. Therefore, the Court observed: "To entrust the minor Manish Kumar to the custody of his major wife, would not only be patently illegal, but virtually permitting an offence under the Act of 2012, in violation of the interest of the child that the said Statute is designed to protect. If that were done, by application of no principle or yardstick, can it be regarded as an option that would secure the welfare of the minor." Importantly, the Court ruled that: "The custody or care of a minor, that inherently makes or has the potential of making the minor the victim of an offence and his adult guardian an offender under the Act of 2012, cannot be regarded as a custody or arrangement made to ensure the welfare of the minor." Hearing both the parties, the Court also formed the following issues for consideration: Question: Whether the marriage of a minor in contravention of the Hindu Marriage Act and Section 14 of the Prohibition of Child Marriage Act, 2006 is void ab initio? Answer: Marriage of a minor in contravention of Section 5 (iii) of the HMA and Section 3(1) of the PCMA is not void ab initio for a rule, but voidable at the option of the minor. But, if any of the contingencies contemplated under Section 12 of the PCMA exist and can be proved, the marriage would be void. Question: Whether a minor who does not want to stay with his parents, is entitled to stay with a person of his choice, particularly, where he is on the verge of attaining majority and in the age group of expressing his intelligent choice? Answer: Depending on the totality of circumstances of a given case and the expression of his intelligent choice by a minor, who is on the verge of attaining majority, the Court may, in a given case, permit a minor to stay with a person of his choice in preference to his parents or other natural guardians Questions: Whether a minor who decides to stay away from his parents or natural guardian with a stranger of his/her choice can be compelled by the natural guardian to be restored to his custody, particularly, through a writ of habeas corpus? Answer: Where a minor decides to stay away from his ...

Can't Give Custody Of Minor 'Husband' To 'Wife' As It Would Be Sanctioning Cohabitation Between Adult & A Child: Allahabad High Court

Sparsh Upadhyay

Tags