While granting divorce to a couple, Punjab and Haryana High Court noted that if a minor was married off before attaining the age of 18, then separation can be sought from the husband only through a divorce in case she did not declare the marriage void after officially becoming an adult.
Setting aside an order by Ludhiana’s family court, the division bench comprising Justice Ritu Bahri and Justice Arun Monga noted that the petition for divorce under Section 13-B of the Hindu Marriage Act, 1955, should have been allowed.
The couple had filed for divorce in a family court in Ludhiana on June 22, 2020. The family court termed the marriage invalid and refused to grant the divorce by mutual consent stating that Section 5(iii) of the Hindu Marriage Act, 1955 requires the bride to be 18 or above for union to be considered legally valid.
The couple got married on February 27, 2009, and the man was 23 years old at that time. The couple had a child on January 31, 2010.
“Since the respondent wife was 17 years, 6 months and 8 days old at the time of marriage, and for all intents and purposes no petition was filed for declaration of her marriage as void by the wife, the petition for divorce under Section 13-B of the Hindu Marriage Act, 1955, should have been allowed,” noted the division bench.
Punjab and Haryana High Court further observed that Ludhiana family court had wrongly dismissed the petition of the couple by invoking the Madras HC judgment about both parties being required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act, 1955.
“Since the girl was just over 17-year-old at the time of the wedding and did not file for a dissolution of marriage on attaining the age of majority, the plea for dissolution of marriage by mutual consent should have been allowed by the family court,” the court noted.
