Punjab and Haryana High Court ruled that the consent of a minor girl was insignificant in child marriage cases and the court may exercise its jurisdiction to send her to an appropriate home till she turns 18.
The High Court also clarified that inherent right was not vested in the husband or his relatives to claim the minor girl’s custody by filing a writ of habeas corpus.
“Keeping a minor girl child in such circumstances either by an order of a judicial court or by a child welfare committee (in a child protection home) by following proper procedure cannot be held to be an illegal detention,” noted Justice Jasgurpreet Singh Puri.
The observations are related to a matter wherein a minor was sent to Nari Niketan/child protection home by the Child Welfare Committee in September 2020. The minor girl had denied going with her father and insisted upon going with her husband.
After hearing the submissions of the petitioner and counsel Harsh Chopra appearing for complainant-father, Justice Puri stated that the Hindu Marriage Act and the Prohibition of Child Marriage Act provided penal provisions in child marriage cases. He asserted that the performance of such a marriage was also an offence.
The High court further noted that the plea filed by the petitioner-husband’s relative stating that the marriage was performed with the minor girl’s consent would pale into insignificance as child marriage was an offence, although not illegal under the Hindu Marriage Act. The court further added that it certainly was a voidable marriage under the Prohibition of Child Marriage Act.
Justice Puri noted, “The child’s welfare was always of paramount consideration. Pleas usually taken of parents forcing the girl to get married to some other person, too, would not carry any weight. In that eventuality, steps were required to be taken to protect the girl child by keeping her in a safe custody rather than permitting marriage before attaining maturity.”
“A social menace required a solution, not another menace. It would be trite in law to acknowledge child marriages based on consent. The element of consent is always subservient to a child’s overall,” he further added.
The court directed that the Child Welfare Committee would permit the girl to go to her parents before turning 18 if she desired to.
