Recently, Punjab & Haryana High Court in Deepak Kumar and another vs. State of Haryana and others, has held that the marriage which has been solemnized in violation of the age restriction laid down therein, the marriage is only voidable.
The Petitioner in this case moved an application for the registration of their marriage in November 2019 before the registrar of marriages since both the parties have crossed the age of 18 years. Meanwhile, two children have been born out of the wedlock. On 18.11.2019, an application for registration of their marriage was filed, but their marriage has still not been registered till date.
What laws says?
Section 5(iii) of Hindu Marriage Act 1955 specifies condition of marriage as “the bridegroom (husband) has completed the age of 21 years and the bride has completed 18 years at the time of marriage”. If there is violation of this condition then the marriage will be voidable. Moreover, Section 18 of the Hindu Marriage Act 1955 says that in the case of contravention of the condition specified in clause (iii) of Section 5 shall be punishable with rigrous imprisonment which may extend to two years, or with fine which may extend to one lakh or with both.
To clear our doubts we can refer to the few provisions of the Prohibition of Child Marriage Act. As per this act a male is child if he has not completed the age of 21 years and a female is a child if she has not completed the age of 18 years. Section 3 of Prohibition of Child Marriage Act says that a child marriage under the act is a marriage where either party or both are children as given under the act (male- below 21 and female below 18) and it is voidable at the option of the party who is the Child. Futher, Section 12 makes such marriage null and void in case the child is enticed or taken away from the custody of his/her lawful guardian or is by force compelled or by deceitful means induced to go from any place or is sold for the purpose of marriage etc.
Important Judicial Precedents:
1. In Rabindra v. Sita AIR 1986 Pat 128, the Court said that the marriage performed in violation of condition under section 5 (iii) of Hindu Marriage Act 1955 is valid.
2. The Delhi High Court had in the case of Jitender Kumar Sharma v. State & Anr., had held,
“It is clear that where, earlier, a child marriage may not have been voidable under personal law, as in the case of the Hindu Marriage Act, by virtue of the section 3 of the Prohibition of Child Marriage Act, it has explicitly been made voidable at the option of the child spouse. But nobody other than a party to the marriage can petition for its annulment.“
3. Interestingly, in Kokkula Suresh vs. State of Andra Pradesh 2009 AP 52, the Andra Pradesh High Court seems to have overlooked Section 3 of the Prohibition of Child Marriage Act 2006 and held that under Hindu law, marriage of minor girl below 18 years is neither void nor voidable.
Punjab & Haryana High Court decision in the present case:
The Hon’ble High Court said that “A perusal of the Hindu Marriage Act, 1955, shows that in case, a marriage has been solemnized in violation of the age restriction laid down therein, the marriage is only voidable. However, neither of the parties have sought annulment of the marriage. In fact, the parties are seeking to register their marriage. In law, the marriage is legal and there is no bar to its registration.”
Further, the bench said that the law in this regard was settled in the case of Baljit Kaur Boprai v. State of Punjab & Anr., 2008 (3) RCR (Civil) 109, whereby the High Court had held that an application for registration of marriage, after both the parties have attained majority, has to be accepted.
Furthermore, the Court directed concerned authorities to ensure that the marriage be registered within two weeks from the date of receipt of certified copy of this order.
2. Modern Hindu law by Dr. Paras Diwan
Click Here to Read Complete Order