Mar
9
2016


The present appeal was preferred against the order rejecting petition moved by the Appellant seeking relief under Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The Trial Court in its judgment observed that the Aadhar Card of the Appellant wife informed her year of birth as 1979 and since the date of marriage was informed to be 02.06.1995, she, on such date would have been a minor of 16 years. Secondly, there was no evidence brought on record to show the person in the photograph produced was her husband.

In the instant appeal before the High Court it was observed that there was representation on the behalf of husband to the effect that both had entered upon marriage and the wife was then a minor.

It was observed that Section 5(3) of the Hindu Marriage Act, 1955 (HMA) places requirement that the bridegroom should have completed age of 21 years and the bride 18 years at the time of marriage. However, the breach of such condition does not render the marriage void under Section 11 or voidable under Section 12. Even in Section 13, which informs the grounds on which the divorce may be sought, the only provision relatable to age is to be found in Section 13(2)(iv) viz. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years.

Section 2 (a) of Prohibition of Child Marriage Act, 2006 defines a child as a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.

Section 15 of the Prohibition of Child Marriage Act, 2006 makes the offences there against to be cognizable and non-bailable. Section 3 makes provision for avoidance of marriage by contracting party, who was a child at the time thereof, through filing a petition for annulling the marriage by such party.

Full bench of the Madras High Court in T. Sivakumar v. Inspector of Police (AIR 2012 Madras 62), as referred by Court, has observed that such petition under Section 3(3) of the Prohibition of Child Marriage Act may be filed at any time but before the child completes two years of attaining majority. When does a child attain the age of majority is not expressly defined in the Act. However, Section 2(f) of the Prohibition of Child Marriage Act denies the term – ‘minor’ which means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority'. As defined in Majority Act, 1875, a minor either male or female, attains the age of majority on completing eighteen years of age. In the case of a female, as per sub-section (3) since she attains the age of majority on completing the age of eighteen years, there can be no difficulty in understanding of the said provision to say that a petition for annulment should be filed within two years of attaining majority, i.e. before completing twenty years of age. But, in the case of a male, any marriage solemnised before he completes the age of twenty one years is a child marriage and the same is voidable. Therefore, he can be expected to file a petition for annulment within two years after attaining the age of twenty one years. But, sub-section (3) reads that such petition should be filed when he completes two years of attaining majority which means before completing twenty years of age. For example, if the child marriage of a male takes place on his completing twenty years of age and if a literal interpretation is given to sub-section (3) of the Prohibition of Child Marriage Act, surely, he will not be in a position to file a petition to annul the marriage. Such literal interpretation in the case of a male would create anomalous situation. As well settled no provision of any law should be interpreted in such a way to make it either anamalous or unworkable. Therefore, Section 3(3) has to be read that in the case of a male, a petition for annulment of child marriage should be filed before he completes two years of attaining twenty-one years of age.

It was accordingly observed that the Court below was under the mistaken impression of a marriage involving a child being void. A presumption of marriage may arise even on proof of prolonged cohabitation. Accordingly, the matter was referred back to the concerned family court to proceed in accordance with law.

[M. Janaki vs. K. Vairamuthu]

(Madras HC, 29.02.2016)

C.M.A. (MD) No.100 of 2016

 

 

 








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