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SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, ANIRUDDHA BOSE, JJ.
Hardev Singh – Appellant
Versus
Harpreet Kaur and Others – Respondents
Criminal Appeal No. 1331 of 2013
Decided On : 07-11-2019
(A) Prohibition of Child Marriage Act, 2006 – Section 9 – Criminal Procedure Code, 1973 – Section 482 – Recall of protection order – High Court could not have recalled its earlier order under Section 482, Cr.P.C, inasmuch as there is no provision for recalling or reviewing an order passed by it in criminal matters – Order that was set aside was only a protection order and there was no exceptional circumstance calling for an exercise of High Court’s inherent powers – High Court was not justified in directing initiation of criminal proceedings against Appellant under Section 9 of 2006 Act – Even assuming that Appellant was aged eighteen years or above on the date of his marriage, Section 9 does not apply to facts and circumstances of this case – Male adults between age of eighteen and twenty one years of age, who marry female adults cannot be brought under ambit of Section 9, as this is not the mischief that provision seeks to remedy – Couple has been living happily and are not facing any threat from their family members – Police protection is no more required in present case – Directions issued by High Court to get First Information Report lodged quashed and impugned order set aside. (Paras 2, 3, 3.8, 5 and 6)
(B) Interpretation of Statute – Remedy of Mischief Rule – Where any ambiguity exists with regard to interpretation of a legislative provision, marginal note can be used in aid of construction, having regard to object of legislation and mischief it seeks to remedy. (Para 3.9)
Facts of the case:
By impugned order passed under Section 482 of Code of Criminal Procedure, 1973 High Court has recalled its earlier order dated 26.04.2010 giving protection to Appellant and his wife (Respondent No. 1).
Findings of Court:
2006 Act affords such a male, who is a child for the purposes of the Act, remedy of getting the marriage annulled by proceeding under Section 3 of the 2006 Act. Hence, male adults between the age of eighteen and Twenty-one years of age, who marry female adults cannot be brought under the ambit of Section 9, as this is not the mischief that the provision seeks to remedy.
Result : Appeal allowed.
JUDGMENT :
MOHAN M. SHANTANAGOUDAR, J.
1. By the impugned order passed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) the High Court has recalled its earlier order dated 26.04.2010 giving protection to the Appellant and his wife (Respondent No. 1).
The records reveal that the Appellant and Respondent No. 1 married each other on 17.4.2010 without the consent of their parents. It seems that the parents of Respondent No. 1 were creating problems for the couple and consequently, the latter made an application (Criminal Misc. No. 11850M/2010) before the High Court of Punjab and Haryana at Chandigarh to grant police protection. By the aforesaid order dated 26.04.2010, police protection was granted. Subsequently, the couple filed a contempt petition, which was disposed of by the High Court vide order dated 18.5.2010, based on an assurance given by the police that no harm would visit the petitioners at the behest of Respondent No. 1’s family members.
However, subsequently, upon application made by the father of Respondent No. 1, the High Court vide the impugned order dated 26.11.2010 recalled the protection order dated 26.04.2010 and directed registration of an FIR for criminal offence under Section 9 of the Prohibition of Child Marriage Act, 2006 (‘2006 Act’) against the Appellant. This was on the ground that the Appellant had stated in the aforesaid application Criminal Misc. No. 11850M/2010 seeking police protection that he was 23 years of age at the time of marriage, whereas he was only 17 years of age, as is apparent from the school record, where his date of birth is recorded as 30.6.1992.
We note from the order sheets maintained by this Court that the impugned order was stayed by this Court vide interim order dated 14.12.2010 and the said interim order has continued till present.
2. Having gone through the material on record and having heard learned counsel for the parties, we are of the considered opinion that:
(a) The High Court could not have recalled its earlier order under Section 482, Cr.P.C. inasmuch as there is no provision for recalling or reviewing an order passed by it in criminal matters.
(b) The order that was set aside was only a protection order and there was no exceptional circumstance calling for an exercise of the High Courts inherent powers.
(c) The High Court was not justified in directing initiation of criminal proceedings against the Appellant under Section 9 of the 2006 Act. Section 9 reads as under:
“Section 9. Punishment for male adult marrying a child - Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.”
(Emphasis supplied)
The High Court has relied upon the school record of the Appellant in directing prosecution against him under Section 9. We find that the High Court has committed a grave error on the face of the record inasmuch as if the date of birth as given in the school certificate is accepted, the Appellant was 17 years old, i.e. below eighteen years of age when he married Respondent No. 1. Hence, Section 9 cannot be applied to him.
3. In any case, even assuming that the Appellant was aged eighteen years or above on the date of his marriage, we are of the considered opinion that Section 9 does not apply to the facts and circumstances of this case. It is pertinent to refer to the overall scheme of the 2006 Act in determining whether an offence under Section 9 is made out.
3.1. Section 2(a) of the 2006 Act defines child as a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. Under Section 2(b) of the Act “child marriage” means a marriage to which either of the contracting parties is a child. Thus, even if the husband is between eighteen and twenty-one years of age, it can be treated as a child marriage.
3.2. It is not in dispute that Respondent No.
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