2010(2) Crimes 489 (P&H)
PUNJAB AND HARYANA HIGH COURT
Rakesh Kumar Jain, J.
Amnider Kaur & Anr. —Appellants
versus
State of Punjab & Ors. —Respondents
CRM-M 29790 of 2009 (O&M)
Decided on 27.11.2009

IMPORTANT POINTS
1 In the case of run away marriage where the grail is admittedly minor who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under Sections 363/366 Indian Penal Code is also registered, the marriage shall be null and void.
2. Where the allegation against the husband is of enticing away minor girl form the lawful keeping of guardian/parents and a criminal case has been registered, no protection under Section 482 Cr.P.C. can be granted by the High Court.

Headnote:(i) Prohibition of Child Marriage Act, 2006—Sections 2(b), 9,10,12—Indian Penal Code, 1860—Sec 363/366A—Criminal Procedure Code, 1973—Section 482—Run away marriages—Girl being 16 years of age at the time of her marriage allegedly performed on 21-10-2009—Criminal case has been registered against the boy and his parents for offences u/ss. 363/366A, Indian Penal Code—Whether such a marriage is void u/s 12 of the Act—(Yes)

       Held: In order to appreciate the submissions of the counsel for respondent No.4 which is primarily based upon the provisions of the Act, it needs to be highlighted that initially The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages. However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. (Para 12)

       In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2(f) of the Act “minor” means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2(a) of the Act, “child” means 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 and according to Section 2(b) of the Act, “child marriage” means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void. (Para 13)

       In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the .facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii) of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1lac or with both. (Para 14)

       (ii) Prohibition of Child Marriage Act, 2006—Sections 9,10 & 12—Criminal Procedure Code, 1973—Section 482—Petitions by run away couples—Girls, who have just attained the majority, are filing petitions seeking protection of life and liberty allegedly threatened by their parents—Whether a person who has entitled/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of Indian Penal Code has already been registered can claim police protection in the name of his life and liberty—(No)—Whether the persons, who have performed the marriage are also liable for punishment—(Yes).

       Held: In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No. 4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law. (Para 15)