Patna High Court: While deciding a criminal writ application filed by petitioner seeking for direction to Respondent 8, State Girls Care Home, Gaighat, Patna for release of Respondent 11, the Division Bench of P.B. Bajanthri and Ramesh Chand Malviya*, JJ., held that Respondent 11 who had not attained the age of majority could not be directed to be released by giving her custody to her husband and also to stay with the parents after her refusal to go along with them. Thus, the Court dismissed the petition and upheld her stay at State Girls Care Home as lawful and not detrimental.
Background
Petitioner was seeking direction for release of Respondent 11 on the ground that her age was assessed to be under 18 years after examination. Her statement was recorded under Section 164 of the Criminal Procedure Code, 1973 (‘the CrPC’) where she had admitted that she moved out with petitioner out of her own will and had given birth to a child out of the relationship. Respondent 11 also stated that she was a major and the marriage was out of will. Also, the father of Respondent 11 had instituted a criminal case against petitioner, wherein petitioner had been granted bail.
Petitioner contended that he and Respondent 11 married voluntarily and without any force or coercion. Notwithstanding that Respondent 11 was a minor, she still had a legal right to live with her husband and therefore, she could not be compelled to stay at State Girls Care Home, Gaighat, Patna. It was further submitted that there was no bar for releasing Respondent 11 from State Girls Care Home as she herself took the stand that she had voluntarily married her husband and wanted to stay with him and not with her parents and therefore, no purpose would be served if she continued to remain in State Girls Care Home, till the age of majority.
Per contra, Respondents 5 and 9 contended that the affidavit filed by the District Magistrate showed that the age of Respondent 11 was 14 years and the letter issued by the Chairman of the Child Welfare Committee, Patna also stated that she was a minor. Respondent further contended that as the girl was even less than 17 years, it would be a case of child marriage, which was prohibited under law and therefore, even if she had consented for the marriage, the same would not be of any significance as it was prohibited under the law. Therefore, it would be in the interest of the girl and her child if they continued to remain in State Girls Care Home till, she attained the age of majority.
Court’s Assessment
The Court opined that firstly, even if the marriage involving minor was legal under the Hindu Marriage Act, 1955, it violated the provisions of the Prohibition of Child Marriage Act, 2006 (‘the PCM Act’), so it would be voidable rather than being void and secondly, if the husband was allowed to consummate marriage, it would not fulfill the purpose behind the PCM Act which focused on a tender age of marriage of a child as he or she was not psychologically or medically fit to get married.
The Court while dealing with the question of this case being under Exception 2 of Section 375 of the Penal Code, 1860, relied on Supreme Court’s observation in Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, and held that the age of consent had not been specifically reduced by any statute and unless there was such a specific reduction, it must proceed on the basis that age of consent to sexual intercourse remained 18 years and it would be in the best interest of the girl child and would also be consistent with the provisions of the PCM Act.
The Court further relied on Supreme Court’s observation in Shafin Jahan v. Aoskan K.M., 2018 SCC OnLine SC 343, and held that if the girl was not a major and had eloped with a person and expressed fear of life if her custody was given back to her parents, then the Court should send her to appropriate shelter home where her interest could be best taken care of till she became a major.
Thus, the Court whilst dismissing the writ application held that Respondent 11 had specifically denied to go along with her father and therefore, her stay at Girls Care Home could not be said to be detrimental to her well-being and she could not be directed to be released, by giving her custody to her husband, till she attained the age of majority. etitioner was directed to open a bank account in the name of Respondent 11’s newborn child and regularly deposit a considerable amount of money for the child’s welfare. Also, if Respondent 11 at any age wishes to go to her father, then the committee should permit it by passing an appropriate order.
[Nitish Kumar v. State of Bihar, 2024 SCC OnLine Pat 274, decided on 16-01-2024]
*Judgment authored by: Justice Ramesh Chand Malviya
Advocates who appeared in this case :
For the Petitioner: Lakshmindra Kumar Yadav, Advocate
For the Respondent: P.K. Shahi, AG; Prabhu Narayan Sharma, AC to AG
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