New Delhi (ILNS): The Punjab and Haryana High Court on Friday, allowed a 17-year-old girl to stay with mother of the boy she married, till she attains the age of 18 years.
The Single Bench of Justice Sanjay Kumar passed this order while disposing of the writ petition filed by a girl aged about 17 years, and a boy, seeking protection from the parents of the girl who are against this marriage and are threatening the couple.
The fact of the case is that the petitioners know each other for the last two years. The parents of the girl were opposed to their relationship. The couple ran away from their home on June 18, 2020 and got married on June 23 at a temple in Panchkula. The petitioners have stated that they were receiving severe threats from the girl’s parents, who were hell bent upon killing them. Thereafter, the couple approached the High Court seeking protection.
In their reply, her parents stated that she was just 16 years and 10 months at the time of her marriage. They claimed that boy, who was 18 years and 6 months of age, had lured her from their custody on the pretext of marriage, though neither of them was of marriageable age. The marriage was void under the Prohibition of Child Marriage Act, 2006 (for short, ‘the Act of 2006’) and in any event, except for some photographs there was no evidence of an actual marriage ceremony.
They further asserted that they have right to have the custody of their minor daughter. They pointed out that they had taken recourse to legal remedies by lodging a criminal complaint against the boy for kidnapping their daughter and also denied that there was any threat to the life and liberty of the Petitioners from them.
The high court while considering the petition observed that: “The Protection of Children from Sexual Offences Act, 2012, was promulgated for the protection of children. Section 2 (1)(d) thereof defines a child to mean any person less than 18 years of age. The Act of 2012, however, did not choose to draw any distinction as to a girl of less than 18 who gets married out of her own choice and volition. Therefore, any sexual act or intercourse by the husband with such girl would constitute an offence under various provisions of the Act of 2012, though she is his wife.
“Significantly, Exception 2 to Section 375 IPC states to the effect that sexual intercourse and sexual acts with a wife of over 15 years of age would not amount to rape. However, this provision was not altered when the Act of 2012 was brought onto the statute book. In effect, though the husband would not be liable to be prosecuted for rape under Section 376 IPC, if his wife is over 15 years of age, he would be liable to be prosecuted under the provisions of the Act of 2012, if she is less than the age of 18 years. The legislature seems to have been unmindful of this aspect and continues to be so despite the lapse of 8 years since the enactment of the Act of 2012, citing the Judgment in Independent Thought vs. Union of India and another [(2017).”
The Court laid emphasis on ‘Study on Social Maturity of Adolescent College Students in Colleges at Tiruchirappalli’, in 2017, which indicates that excessive control, over protectiveness and strict punishment to the adolescent by family prevents development of social maturity of adolescent. “It is always very important for the society to give them such type of environment in which they can improve their actions and behavior to make their own future and can add peace and success to the society.”
In any event, science recognizes the fact that children these days mature much faster than they did even a few decades ago. Taking note of this fact, the parliament itself provided in the Juvenile Justice (Care and Protection of Children) Act, 2015, that it would be within the domain of a Juvenile Justice Board to determine as to whether a child in conflict with the law, who has completed or is over the age of 16 years, should face trial as an adult for the alleged offence. Therefore, a criminal act by a child of or over 16 years of age is now being treated on par with that of an adult, but a similar analogy has not been extended to a civil act of a child of the same age.”
“It is also a scientifically recognized fact that girls tend to be more mature than boys of the same age. That is the reason why there is a discrepancy even with regard to the age of majority stipulated by the statute in relation to the sexes,” the Court held.
The judge further remarked that
“As on date, [she] is 10 months short of attaining majority. It is not as if, upon the clock striking 12 midnight on the eve of her 18th birthday, [she] would magically assume the mental maturity and wisdom to claim the status of an adult. The age of majority as prescribed must therefore be construed and interpreted in the context of the law for which it is being considered and in a case of this nature, where the minor is certain and unshaken in her opinion and desire, it would not be right and proper for this court to brush aside her views on the ground that she is not 18 years of age as on date and is only 17 plus.”
This Court in its order said: “The court does not deem it appropriate to direct that girl’s custody should be forcibly entrusted to her parents against her wishes or that she should be kept in a Protection Home till she attains the age of 18 years.
In light of above observation the high court has allowed the girl to live under the custody of boy’s mother and directed the Chairperson of the Child Welfare Committee, Sonipat, to depute a Child Welfare Officer to randomly visit her residence at Kakroi, District Sonipat, twice a month to ensure that she is being well cared for and to ascertain whether she has any complaints.
The court disposed of the petition with the direction to Superintendent of Police, Sonipat, to provide protection to the petitioners.
Read the order here;CRWP-4181-2020-16-10-2020-FINAL-ORDER