The husband of a minor girl is entitled to his wife’s custody but cannot consummate his marriage with her till she attains the age of 20 as law gives her the liberty to approach the court to get her marriage declared void.
A Delhi High Court Bench gave this ruling in response to a Division Bench reference as to whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents.
“We are of the opinion that simply because the marriage is not void, it should automatically follow that the husband is entitled to the custody of the minor girl,” the three-judge Bench headed by Acting Chief Justice A K Sikri said.
“But, allowing the husband to consummate a marriage may not be appropriate more so when the purpose and rationale behind the PCM (Prevention of Child Marriage) Act is that there should be a marriage of a child at a tender age as he or she is not psychologically or medically fit to get married”.
“Such a marriage, after all, is voidable and the girl child still has the right to approach the court seeking to exercise her option to get the marriage declared as void till she attains the age of 20 years,” said the Bench, also comprising justices Sanjiv Khanna and V K Shali.
“How would she be able to exercise her right if in the meantime the marriage is consummated when she is not even in a position to give consent which also could lead to pregnancy and child bearing. Such marriages, if they are made legally enforceable will have deleterious effect and shall not prevent anyone from entering into such marriages,” the court also said.
The Bench also answered the Division Bench’s another query as to whether the marriage of a boy below 21 with a girl younger than 18 years could be said to be valid and the custody of the girl be given to the husband, if he is not in jail.
The court held that the marriage between a minor girl and a boy can be declared illegal if the spouses move the court before they attain majority.
“The marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but voidable one, which would become valid if no steps are taken by such child to get their marriage declared void under relevant legal provisions,” said the Bench.
The Bench gave the ruling while answering a host of legal questions, relating to various conflicting provisions on the right age for a girl for her marriage and her consent for having sex as per various statutory provisions, including those under the Indian Penal Code, Prevention of Child Marriage Act and the Hindu Marriage Act.
In its judgement, the court also said the consummation of marriage with a girl below the age of 15 amounts to raping her despite her consent and the man not protected by the personal law of his religion.
“Consummation, with the wife below the age of 15 years, is an offence under Section 375. No exception can be made to the said legal mandate and the same has to be strictly and diligently enforced,” the Bench also said.
“Consent in such cases is completely immaterial, for consent at such a young age is difficult to conceive and accept. It makes no difference whether the girl is married or not. Personal law applicable to the parties is also immaterial,” it added.