In a significant judgment titled Pradeep Tomar And Another v. State of U.P. and Another [Matters Under Article 227 No. 4804 of 2020] delivered on January 27, 2021, the Allahabad High Court has recently, righteously and remarkably held that a minor girl cannot be allowed to live in a matrimonial relationship with a man she claims to be her husband even if she had left her home of her own accord and married the man out of her own free will. The Single Judge Bench of Justice JJ Munir ruled thus while taking into account her High School Certificate which “clearly indicated” that she is minor as her date of birth is 04 November 2004. The Bench specifically stated that, “So long as the prosecutrix is a minor, she cannot be permitted to accompany the accused Pintoo, whom she claims to have married.”
To start with, the ball is set rolling by first and foremost observing in para 1 that, “This petition under Article 227 of the Constitution has been filed seeking to set aside an order of the learned Judicial Magistrate-I, Hapur, dated 24.11.2020, passed in Case Crime No. 516 of 2020, under Section 363 IPC, P.S. Pilakhuwa, District Hapur, directing that the prosecutrix Km. Shivani be permitted to go along with her husband, the accused Pintoo son of Omvir.”
To be sure, it is then stated in para 2 that, “A counter affidavit has been filed on behalf of the second opposite party by Mr. Rama Shankar Mishra, Advocate, which is taken on record. The petitioner has filed a rejoinder.”
On the one hand, it is put forth in para 6 that, “The submission of Mr. Sudhir Mehrotra, learned counsel for the petitioners, briefly said, is to the effect that the date of birth of the prosecutrix, according to her High School Examination Certificate issued by the U.P. Board of High School and Intermediate Education, is 04.11.2004. She is, thus, a minor, aged 16 years and 2 months approximately. She would attain majority on 05.11.2022. Mr. Mehrotra submits that the Magistrate has erred in permitting the prosecutrix to accompany her husband, an accused in the crime, going by the marriage acknowledged by the parties to be solemnized on 21.09.2020 at the Pandav Kalin Neeli Chhatri Mandir Sanatan Dharam Vivah Padti Trust, Yamuna Bazar, Delhi. Mr. Mehrotra submits that the prosecutrix, being a minor, cannot be permitted to stay in a matrimonial relationship, where the marriage would be void under Section 12 of the Prohibition of Child Marriage Act, 2006 (for short, ‘the Act of 2006’). He submits that in any case the prosecutrix, who is not a major, cannot be permitted to stay with her husband and ought not to be allowed to accompany him. Doing so, would be permitting statutory rape and also an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.”
On the other hand, it is then brought out in para 7 that, “Mr. Rama Shankar Mishra, on the other hand, submits that the prosecutrix in her stand before the Magistrate has made it clear that she has married the accused Pintoo of her free will and wishes to stay with him. He emphasizes that the parties’ marriage has been registered under the U.P. Marriage Registration Rules, 2017 by the Marriage Registration Officer, Ghaziabad on 21.09.2020. He has drawn the attention of this Court towards a certificate of the registration of marriage, dated 21.09.2020.”
To put things in perspective, it is then pointed out in para 8 that, “This Court has perused the impugned order and considered the entire facts and circumstances. The prosecutrix is a little over 16 years of age. The Magistrate has been swayed to permit the prosecutrix to go along with the accused, her husband on ground that the father of the prosecutrix made an application that he would not take her back home and that he had lodged an FIR, out of social embarrassment. The Magistrate has relied upon the decisions of this Court in Smt. Rajkumari vs. Superintendent, Nari Niketan, 1998 Cr.L.J 654 (All) and Smt. Ramsati @ Syamsati vs. State of U.P., Habeas Corpus Writ Petition No. 245 of 2015, decided on 07.09.2005 to hold that upon marriage of a minor according to her wishes, she could be left free to live her life.”
As it turned out, it is then stated in para 10 that, “So far as the age of the prosecutrix is concerned, in the face of the High School Certificate, there is no cavil that evidence about her being a major, which is her stand, cannot be accepted. She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available. This certificate clearly indicates that she is a minor. There, her date of birth is 04.11.2004. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 makes the following provision regarding presumption and determination of age:
“94. Presumption and determination of age.– (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining –
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”
Be it noted, it is then stated in para 11 that, “The provisions of Section 94 (2) of the Act, which are designed to determine the age of a juvenile, have been extended to the victim in Jarnail Singh v. State of Haryana; (2013) 7 SCC 263 and by a Division Bench decision of this Court in Smt. Priyanka Devi through her husband vs. State of U.P. and others 2018 (1) ACR 1061, to which I was a party. It has been held in Smt. Priyanka Devi thus:
“13. Learned counsel for the petitioner lastly urged that provisions of Section 94 of the Juvenile Justice Act, 2015 do not apply to the case in hand as the same are available for the purposes of determination of age for a juvenile or a child in conflict with the law but would not apply to the determination of age in the case of a victim.
14. We are afraid that the aforesaid submission is not correct. The issue was examined by the Supreme Court in the case of Mahadeo S/o Kerba Maske v. State of Maharashtra and Another; (2013) 14 SCC 637 where in paragraph no. 12 of the report it was held as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.”
15. This issue has also been considered in an earlier judgment of the Supreme Court in Jarnail Singh v. State of Haryana; 2013 (7) SCC 263, where too it has been held that rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 must apply both to a child in conflict with law as well as to a victim of a crime. Paragraph 23 of the said report reads thus:
“Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VWPW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.”
16. Thus, principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well. It may be pointed out that at the point of time when Mahadeo (supra) was decided by their lordships of the Supreme Court, the Juvenile Justice Act, 2000 was in force and their lordships were interpreting the provision of Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007. The said Act of 2000 has since been repealed and has been replaced by the Juvenile Justice Act, 2015. The rules framed under the Act of 2000 are thus no longer on the statute book. However, the provisions that found place in Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007 framed under the Juvenile Justice Act, 2000 are now, with certain modifications engrafted into the Principal Act vide section 94 of the Juvenile Justice Act, 2015. The inter se priority of criteria to determine age under Rule 12(3) of the Rules, 2007 (supra) and section 94 of the Act, 2015 remains the same albeit with certain modifications which are of no consequences to the facts in hand. In short, provisions of Rule 12(3) of the Rules, 2007 framed under the Juvenile Justice Act, 2000 are para meteria to the provision of Section 94 of the Juvenile Justice Act, 2015. This being the comparative position, the principles of law laid down by their lordships in the case of Mahadeo (supra) would apply with equal force to the provisions of section 94(2) of the Juvenile Justice Act, 2015 while determining the age of a victim of an offence under Sections 363 and 366 IPC. Thus, the submission of the learned counsel for the petitioners, on this score, is not tenable.””
It is also worth noting that it is then stated in para 12 that, “The provisions of Section 94(2) makes it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into. If the date of birth certificate as envisaged in clause (i) of sub-Section (2) of Section 94 of the Act is not available, the birth certificate given by a corporation or a municipal authority or a panchayat is the next evidence to be considered in the rung. It is only when the evidence about age envisaged under clauses (i) and (ii) of Sub-Section (2) of Section 94 of the Act is not available, that a victim can be referred to a medico-legal examination for the determination of her age. Therefore, even if it is the prosecutrix’s stand, which this Court assumes to be so that she is 18 years old, and has married Pintoo of her free will, she cannot be regarded as a major or permitted to prove herself a major, by asking herself to be referred to medical examination by a Board of Doctors, so long as her High School Certificate is clear on the point. After the decision of their Lordships of the Supreme Court in Suhani vs. State of U.P., 2018 SCC Online SC 781, there was some confusion whether a victim could be referred to the medical examination of a Board of Doctors for determination of her age, in the face of a recorded date of birth in the High School certificate. But, after the decision of a Division Bench of this Court in Smt. Nisha Naaz alias Anuradha and another vs. State of U.P. and others 2019 (2) ACR 2075 holding that the decision in Suhani does not lay down any law but is a decision on facts, the principles in Smt. Priyanka Devi, following the decision in Jarnail Singh, is law that would govern the fate of this case. In Smt. Nisha Naaz alias Anuradha, it was held:
“14. A plain reading of Section 94 of the 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. A Division Bench of this court in the case of Smt. Priyanka Devi Vs. State of U.P. and others in Habeas Corpus Petition No.55317 of 2017, decided on 21st November, 2017, after noticing the provisions of the 2015, Act and the earlier 2000, Act and the rules framed thereunder, came to the conclusion that as there is no significant change brought about in the 2015, Act in the principles governing determination of age of a juvenile in conflict with law, in so far as weightage to medico legal evidence is concerned, the law laid down in respect of applicability of those provisions for determination of a child victim would continue to apply notwithstanding the new enactment. The Division Bench in Priyanka Devi’s case (supra) specifically held that as there is on record the High School Certificate, the medico legal evidence cannot be looked into as the statute does not permit.
15. The judgment of the apex court in Suhani’s case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani’s case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani’s case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined.””
No less significant is what is then stated in para 13 that, “So long as the prosecutrix is a minor, she cannot be permitted to accompany the accused Pintoo, whom she claims to have married. In order to determine whether the prosecutrix was enticed away from her guardian’s lawful custody, or she went away of her own, this Court ascertained the prosecutrix’s stand, who is present in Court. Her stand is recorded verbatim:
Q. Aapka Naam?
Ans. Shivani
Q. Aapki Aayu Kya Hai?
Ans. 04.01.2002 (18 years)
Q. Aap Pintoo Ko Janti Hain?
Ans. Haan.
Q. Pintoo Kaun Hain?
Ans. Mere Pati.
Q. Pintoo Aapko Bahla Fusla Kar Le Gaya Tha?
Ans. Nahi, Mai Apni Marzi se Uske Saath Gayi Thi.
Q. Aap Apne Mata-Pita Ke Pass Jaana Chahti Hain?
Ans. Nahi. Main Apne Pati Ke Pass Jana Chahti Hun.”
As a corollary, it is then stated in para 14 that, “Looking to Shivani’s stand, it is evident that she has not been enticed away by Pintoo. Rather, she has left her home of her own accord and married him. In this view of the matter, the marriage would not be void under Section 12 of the Act of 2006, but would be voidable under Section 3 of the said Act.”
Interestingly enough, it is then envisaged in para 15 that, “The conclusion is evident from the provisions of Sections 3 and 12 of the Act of 2006 which read as under:
“3. Child marriages to be voidable at the option of contracting party being a child.—(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
12. Marriage of a minor child to be void in certain circumstances.—Where a child, being a minor—
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes,
such marriage shall be null and void.””
Needless to say, it is then rightly asserted in para 16 that, “It would, therefore, be open to the prosecutrix to acknowledge the marriage or claim it to be void, once she attains the age of majority. It would also be open to her, once she attains the age of majority, to go wherever she likes and stay with whomsoever she wants.”
Simply put, the Bench then holds in para 17 that, “Since, she is not inclined to go back to her parents, for the present, this Court is left with no alternative but to direct the State to place her in a suitable State facility other than a Nari Niketan, may be a Safe Home/Shelter Home.”
What’s more, the Bench then also holds in para 18 that, “The District Magistrate, Hapur and the Superintendent of Police, Hapur are ordered to ensure that the prosecutrix is immediately housed in a suitable Safe Home/Shelter Home, or other State facility where she would be safe and taken care of.”
Furthermore, para 19 then states that, “The learned District Judge, Hapur is also directed to ensure that a Lady Judicial Officer, posted in his Judgeship, will visit the prosecutrix once a month and inquire about her welfare. In case there is anything objectionable, she will immediately report the matter to the District Judge, who will take appropriate steps to ensure the prosecutrix’s welfare during her stay in the State facility/Safe Home/ Shelter Home, wherever she is housed.”
Thereafter, it is then held in para 20 that, “Shivani would be permitted to live in State facility/Safe Home/ Shelter Home till 04.11.2022, and thereafter, she may go wherever she wants and stay with whomsoever she likes, including Pintoo, whom she claims to be her husband.”
As we see, it is then stated in para 21 that, “In the result, this petition succeeds and is allowed. The impugned order dated 24.11.2020, passed by the learned Judicial Magistrate-I, Hapur in Case Crime No. 516 of 2020 under Section 363 IPC, P.S. Pilakhuwa, District Hapur is hereby set aside. The prosecutrix shall be dealt with in accordance with the directions made hereinabove.”
Adding more to it, para 22 then states that, “Let Shivani, who is present in person, be forthwith taken into the care of the Court Officer and conveyed through the Registrar General to the Senior Superintendent of Police, Prayagraj. The Senior Superintendent of Police, Prayagraj shall cause the prosecutrix to be conveyed in safety to the Superintendent of Police, Hapur, who, along with the District Magistrate, Hapur will carry out the directions carried in this order forthwith.”
Now coming to concluding paras. Para 23 states that, “The Court Officer shall convey Shivani to the Registrar General, who shall make immediate arrangement to take her into his immediate care and ensure compliance of this order.” Finally, the last para 24 holds that, “Let this order be communicated to the learned District Judge, Hapur, the District Magistrate, Hapur, the Senior Superintendent of Police, Prayagraj and the Superintendent of Police, Hapur by the Joint Registrar (Compliance) within 24 hours.”
To sum it up, what can be inferred from this noteworthy ruling of Allahabad High Court is that despite marrying willingly a minor girl can’t be allowed to stay with her husband till she attains majority. This is so because if she is permitted to stay with her husband it would tantamount to permitting statutory rape and also would constitute an offence under Section 5/6 of the Protection of Children from Sexual Offences Act, 2012. Such a marriage of minor would not be void under Section 12 of the Prohibition of Child Marriage Act, 2006 but would be voidable under Section 3 of the said Act. It would be open to the minor girl to either acknowledge the marriage or claim it to be void once she attains the age of majority. It is left entirely on her own discretion to take what decision she likes once she attains the age of majority. This is the real crux of this commendable judgment!