Court on its own motion (Lajja Devi) v. State (2012)

Unit 4 is examined on the Prohibition of Child Marriage Act 2006, and the two propositions it is examined on hardest are that a child marriage is voidable and not void, and that a child marriage is nevertheless an offence. Students find the combination hard to state without contradicting themselves. This is the decision that states it correctly, and that adds the practical consequence nobody guesses: who gets custody of a girl who has been married as a child.

The proceedings began with a letter to the Chief Justice from a mother, Lajja Devi, alleging that her daughter Meera — date of birth 6 July 1995 — had been kidnapped; the letter was treated as a writ petition, and an FIR for kidnapping had been registered in February 2008. The police recovered the girl, who was living with one of the accused. She stated before a Magistrate that she had gone with him of her own free will, because her uncle and aunt were marrying her against her wishes; she and he had married. She was then about thirteen.

She first refused to go with her parents, fearing they would marry her off, and was sent to a protective home; later she chose to live with them on their assurance that they would not. Other petitions raising the same questions were heard with hers, and a Division Bench referred five questions to the Full Bench. They fall into two groups: what is the status of a marriage where a party is below the statutory age; and, where the girl is a minor, can the husband be treated as her lawful guardian and claim her custody against her parents.

1. Status of the marriage. A marriage contracted with a female under eighteen or a male under twenty-one is not void but voidable, and it becomes valid if no steps are taken under s. 3 of the 2006 Act by the party who was a child to have it declared void. A marriage in contravention of s. 5(iii) of the Hindu Marriage Act was, before the 2006 Act, neither void nor voidable; the 2006 Act, a secular law, introduced the concept of the voidable child marriage. Such a marriage is void only where the circumstances in s. 12 are present.

1. The offence and the validity are separate questions. Stronger punishments were prescribed by the 2006 Act and the offences made cognizable and non-bailable, but this has no impact on the validity of the child marriage: the legislature deliberately made specific provision for void marriages in certain circumstances and did not render all child marriages void. One cannot make voidable something that is already void.

1. The anomaly is for Parliament. The Court recorded the anomalous result — child marriage is punishable as an offence and is treated as a violation of human rights, yet the marriage remains valid until avoided — and said that, there being no challenge to the validity of the provisions, the remedy lies with the legislature, which should amend the 2006 Act and the connected laws; the Law Commission had made recommendations to that end. It also pointed out that registration of marriages has still not been made compulsory, and that compulsory registration, requiring the ages to be recorded, would discourage parents from marrying off minor children.

1. Custody is decided by welfare, not by status. The argument that the husband of a minor married girl is her guardian, so that he may claim custody, was rejected. A claim to the status of guardian is not a right: the overriding and compelling consideration governing custody and guardianship is the child's welfare, and by s. 13 of the 1956 Act the welfare of the minor is the paramount consideration, no person being entitled to guardianship if the court is of opinion that it will not be for the minor's welfare. There is no straightforward answer to whom custody should go; it depends on the circumstances of each case.

1. Consummation. Allowing the husband to consummate the marriage may not be appropriate, the rationale of the 2006 Act being that a child is not psychologically or medically fit for marriage. The marriage being voidable, the girl retains the right to seek a declaration that it is void; consummation, with the possibility of pregnancy and child-bearing, would defeat her ability to exercise that right.

1. Consent and the criminal case. Where the girl is below sixteen, consent does not matter and the proceedings cannot be quashed on the ground that she consented; consent at such an age is difficult to conceive and accept, and it makes no difference whether she is married, nor which personal law applies. Where she is above sixteen and states that she went of her own free will, without force, coercion or undue influence, the court may quash the proceedings, but cautiously and on the attending circumstances, including her maturity and understanding — remembering that she has a right to have the marriage nullified under s. 3. The Court added that the marital exception in the then rape provision required a relook, being out of consonance with the 2006 Act, and left the general question of the age of consent open as outside the reference.

In Meera's own case, the marriage being voidable and she being still a minor living with her parents, that arrangement was to continue; on attaining majority it would be for her to exercise her right under the Act.

It opens the standard Unit 4 question on the 2006 Act. Structure the answer as the Court did: s. 3 makes the marriage voidable at the option of the party who was a child, exercisable through a guardian while still a minor and within two years of attaining majority; s. 12 makes it void where enticement, force, deceit, or sale, trafficking or an immoral purpose is present; and the punitive provisions operate independently of validity. It also opens the criticism paragraph — the Court's own statement of the anomaly is the best authority you can cite for it.

It disposes of the two commonest errors: that a child marriage is void, and that a husband who married a minor is her guardian and may claim custody.

It does not decide the constitutional validity of the scheme, no challenge having been made, and it does not fix the age of consent. Note when citing the criminal aspects that the case was decided on the superseded Penal Code and Code of Criminal Procedure, replaced by the Bharatiya Nyaya Sanhita 2023 and the Bharatiya Nagarik Suraksha Sanhita 2023 on 1 July 2024, and that the marital exception the Court criticised belongs to that earlier law.