No Inherent Right Vested In Husband Or His Relatives To Claim Custody Of Minor Girl By Filing Habeas Corpus Plea: Punjab & Haryana High Court

Underlining the principle of paramount welfare of child, the Punjab and Haryana High Court has held that a minor girl who marries with her consent and refuses to stay with her parents, can be sent to child protection home. A Single Bench of Justice Jasgurpreet Singh Puri held that there is no inherent right vested in the husband or his relatives to claim custody of the minor girl by filing writ of habeas corpus. "Keeping a minor girl child in such like circumstances either by an order of judicial Court or by the Child Welfare Committee by following proper procedure cannot be held to be an illegal detention," it held. It further held that the plea taken by the in-laws of such minor girl that the marriage was performed with the girl's consent would pale into insignificance in view of the fact that child marriage itself is an offence. It held, "The element of consent is always sub-servient to overall welfare of a child. Furthermore, the medical hazards in case of a child marriage cannot be overlooked. Fixing the age of marriage for females as 18 years by the Legislature is not without any reason as it is also based upon the evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors." It added that even though child marriage is not illegal under the Hindu Marriage Act, it certainly is a voidable marriage under the Prohibition of Child Marriage Act, 2006. The remarks were made in reference to the observations made by the Supreme Court in Independent Thought v. Union of India & Anr., 2017 (10) SCC 800 and in Shafin Jahan v. Asokan KM & Ors., 2018 AIR (SC) 1933. In Independent Thought (supra), the Top Court dealt with the issue that when the girl is minor but the boy has attained the age of marriage as prescribed, whether the husband can be regarded as lawful guardian of the minor wife and claim her custody inspite of differences by the parents of the girl and what is the effect of the Prohibition of Child Marriage Act, 2006. It was held therein that allowing the husband to consummate marriage may not be appropriate more so when the purpose and rationale behind the Prohibition of Child Marriage Act, 2006, is that there should not be a marriage of a child at a tender age as he or she is not psychologically or medically fit to get married. Such a marriage, after all, is voidable and the girl child still has right to approach the Court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years and how she would be able to exercise her right if in the meantime because the marriage is consummated when she is not even in a position to give consent which also could lead to pregnancy and child bearing. In Shafin Jahan (supra), the Apex Court held that when a girl is not a major and has eloped with a person and she is produced at the behest of habeas corpus filed by her parents and she expresses fear of life in the custody of her parents, the Court should send her to appropriate home meant to give shelter to women where her interest can be best taken care of till she becomes a major. In this backdrop, the Single Bench in the instant case held, "there is no inherent right vested in the husband or his relatives to claim custody of minor girl by filing writ of habeas corpus. Keeping a minor girl child in such like circumstances either by an order of judicial Court or by the Child Welfare Committee by following proper procedure cannot be held to be an illegal detention." It added that forced marriage of a girl child by her parents is a "social menace that needs a solution and not another menace" in the form of allowing marriage of such minor girls as per their own consent. It observed, "Pleas which are usually taken that in case the girl does not marry with her choice then there is an apprehension that she may be forced to get married by her parents with some other person, would not carry any weight because steps which are required to be taken in that eventuality is to protect the girl child by keeping her in a safe custody rather than permitting her to marry before she attains the age of majority." Background The issue before the Court was whether a girl who is less than 18 years of age gets married to a boy with her consent can be compelled to stay at Nari Niketan/Child Protection Home while she refuses to accompany her parents or not? The minor girl herein, Neha, aged 16.5 years had married one Harpreet Singh with consent. On a FIR lodged by Neha's parents, Harpreet came to be arrested following which, Neha was sent to Nari Niketan, as she did not want to go with her father. The Petitioner herein, Harpreet's sister-in-law had filed a habeas corpus petition seeking Neha's release from alleged illegal detention. During the hearing, Neha apprised the Court that she is duly married with Harpreet Singh and her age is...

No Inherent Right Vested In Husband Or His Relatives To Claim Custody Of Minor Girl By Filing Habeas Corpus Plea: Punjab & Haryana High Court

Akshita Saxena

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