The fundamental rights of individuals, as envisaged in the Constitution of India, cannot be deprived solely based on their non-marriageable age.

JUDGMENT

Alka Sarin, J. - Heard through video conferencing.

2. The present criminal writ petition has been filed under Article 226 of the Constitution of India for enforcement of fundamental rights of the petitioners seeking protection of their life and liberty as enshrined in Article 21 of the constitution of India .

3. In brief the relevant facts are that petitioner No.1 is aged about 20 years and petitioner No.2 is aged 17 years and 6 months. It has been averred in the petition that the petitioners have known each other since the last two and a half years and decided to solemnize their marriage. On 16.06.2020, the petitioners solemnized their marriage at Yamuna Nagar against the wishes of their parents and relatives. It has been further averred that both the petitioners belong to different castes as petitioner No.1 is ScheduledCaste and petitioner No.2 belongsto Backward Class. The petitioner No.1 is doing agricultural labour work at village Sasouli and petitioner No.2 is doing the work of stitching and they both can bear the burden of matrimonial life.

4. It has further been contended by learned counsel for the petitioners that the parents of petitioner No.2 are against the marriage of the petitioners and are threatening the petitioners with dire consequences and have openly been stating that they would eliminate the petitioners whenever they will get a chance.

5. Apprehending danger to the lives, the petitioners approached the Superintendent of Police, Yamuna Nagar with their representation on 16.06.2020. However, no action has been taken on the same. Meanwhile, the petitioners filed the instant petition seeking protection of their life and liberty.

6. Notice of motion.

7. On the asking of the Court, Ms. Aditi Girdhar, AAG, Haryana has joined the session through Video Conferencing and accepts notice.

8. Heard learned counsel for the parties.

9. In the present petition this Court, without expressing any opinion on the validity of the marriage of the petitioners, needs to consider as to whether the apprehension of the petitioners needs to be addressed.

10. This Court has taken note of the fact that the girl in the instant case i.e. petitioner No.2 is aged 17 years and 6 months and petitioner No.1 is aged 20 years. Both are not of marriageable age as envisaged in Section 5 (iii) of the Hindu Marriage Act. In a case having similar facts, a Division Bench of the Delhi High Court in the case of Sh. Jatinder Kumar Sharma Vs. State and Anr,2010 SCConlineDelhi 2705 dealt with the complex issue regarding the marriage between two people ineligible to be married as envisaged in Section 5 (iii) of the Hindu Marriage Act. In para 15 it was held by the Division Bench :-

"15. Returning to the facts of the present case, we find that, merely on account of contravention of clause (iii) of section 5 of the HMA, Poonam's marriage with Jitender is neither void under the HMA nor under the Prohibition of Child marriage Act, 2006. It is, however, voidable, as now all child marriages are, at the option of both Poonam and Jitender, both being covered by the word 'child' at the time of their marriage. But, neither seeks to exercise this option and both want to reinforce and strengthen their marital bond by living together. We also find that stronger punishments for offences under the Prohibition of Child marriage Act, 2006 have been prescribed and that the offences have also been made cognizable and non- bailable but, this does not in any event have any impact on the validity of the child marriage. This is apparent from the fact that while the legislature brought about these changes on the punitive aspects of child marriages it, at the same time brought about conscious changes to the aspects having a bearing on the validity of child marriages. It made a specific provision for void marriages under certain circumstances but did not render all child marriages void. It also introduced the concept of a voidable child marriage. The flip-side of which clear