The validity of a marriage under the Hindu Marriage Act and the Prohibition of Child Marriage Act depends on the age of the parties at the time of marriage and the filing of a petition for the marriage to be declared void.

ORDER

Ritu Bahri, J. (Oral). - The appellant as well as respondent are aggrieved of order dated 12.01.2021 whereby the learned Principal Judge, Family Court, District Ludhiana has dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955.

2. The brief facts of the present case are that the marriage between the parties was solemnized on 27.02.2009 as per Hindu rites and ceremonies. At the time of marriage i.e. on 27.02.2009, the appellant (husband) was major being of the age of 23 years, 5 months and 10 days because his date of birth was 17.09.1985 as per Aadhar Card (Mark-B). Whereas the respondent (wife) was of the age of 17 years, 6 months and 8 days on the date of marriage i.e. on 27.02.2009 because her date of birth was 19.08.1991 as per Aadhar Card (Mark-A). Both the parties continued to live together and cohabited as husband and wife till 31.08.2017. Out of this wedlock, a male child namely Manas was born on 31.01.2010, who has been living with the appellant (father) since 31.08.2017.

3. The grievance of the parties is that they had filed a joint petition under Section 13-B of the Hindu Marriage Act, 1955 for dissolution of marriage by way of decree of divorce by mutual consent before the learned Family Court on 22.06.2020. However, the learned Family Court dismissed their joint petition vide judgment and decree dated 12.01.2021 by observing that the marriage of the parties was not a valid marriage as the respondent (wife) had not completed the age of 18 years as per the mandate of Section 5(iii) of the Hindu Marriage Act, 1955 vide which the parties were required to fulfill the basic condition of the said Section.

4. The Family Court had referred to a judgment passed by the Madras High Court in Prema Kumari Vs. M. Palani, 2013 (6) RCR (Civil) 2953 and held that parties were required to get their marriage nullified as per Section 13(2)(iv) of the Hindu Marriage Act.

5. Heard learned counsel for the parties and perused the case file.

6. The above said judgment is not applicable to the facts of the present case. Section 13(2)(iv) is reproduced as under:-

13-(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground- (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

The girl who has attained 15 years of age and has got married can seek dissolution of marriage before she attains the age of 18 years by filing a petition under Section 13(2)(iv) of the Hindu Marriage Act.

7. In the facts of the present case, the marriage of Yogesh Kumar was solemnized on 27.02.2009 and the appellant (husband) was major being the age of 23 years, 5 months and 10 days being his date of birth as17.09.1985 as per Aadhar Card (Mark-B) and the respondent (wife) was of the age of 17 years, 6 months and 8 days being her date of birth as 19.08.1991 as per Aadhar Card (Mark-A). The wife was not 15 years of age and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act. Had she been 15 years of age, she could have invoked the provisions only before she attains the age of 18. In the present case, after marriage both the parties continued to live together till 31.08.2017. The respondent (wife) had crossed the age of 18 years in the year 2010 itself. Hence, the Family Court has wrongly dismissed the petition by relying on Prema Kumari's case (supra).

8. Reference at this stage can be made to a Full Bench judgment of Delhi High Court in Court on Us own Motion (Lajja Devi) Vs. State, 2012 (4) R.C.R. (Civil) 821 where the girl eloped with the boy and married him. A case under Sections 363 and 376 IPC was registered against the accused husband and the issue was whether FIR can be quashed on the basis of the statement of such a minor that she had contracted the marriage on her own. While referring to Sections 5(