The fundamental rights of individuals, as envisaged in the Constitution of India, cannot be denied solely based on the non-marriageable age of a party involved in a marriage.

ORDER

ALKA SARIN, J. (Oral). - Heard through video conferencing.

2. The present Criminal Writ Petition has been filed under Article 226 of the Constitution of India for issuance of directions to respondent Nos.2 and 3 to protect the life and liberty of the petitioners at the hands of respondent Nos.4 to 6.

3. As per the averments made in the petition, the date of birth of petitioner No.1 is 10.02.2000 (copy of the Aadhar card is appended as Annexure P-l) and that of petitioner No.2 is 25.04.2000 (copy of the Aadhar card is appended as Annexure P-2). Petitioner No.2 is 13 days short of turning 21 years. It has further been averred that both the petitioners have developed a liking for each other and decided to solemnize their marriage. It has further been averred that the petitioners have tried their level best to convince their parents, however, the parents refused to accept their alliance and rather started threatening the petitioners that they would be eliminated. Both the petitioners belong to different castes and hence apprehend danger to their life and liberty.

4. The petitioners solemnized their marriage on07.04.2021 in accordance with Hindu Rites and Rituals. Since the petitioners apprehending danger to their life and liberty, a representation was also sent to respondent No.2 on 07.04.2021 (Annexure P-4). However, no action has been taken qua the same.

5. Learned counsel for the petitioner would contend that, at this stage, the petitioners would be satisfied if a direction is issued to respondent No.2 to taken a decision on the representation dated 07.04.2021 (Annexure P-4) in accordance with law.

6. Notice of motion.

7. On the asking of the Court, Mr. Gaurav Gulzar Singh Chauhan, Deputy Advocate General, Haryana has joined the session through video conferencing and accepts notice on behalf of respondent Nos.1 to 3. The service on respondent Nos.4 to 7 is dispensed with, at this stage, as the matter is not being decided on merits.

8. Heard learned counsel for the parties.

9. In the present case 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 is aware of the fact that the date of birth of petitioner No.1 is 10.02.2000 and she is major and of marriageable age. However, the date of birth of petitioner No.2 is 25.04.2000. Though he is major, but is not yet of marriageable age as envisaged in Section 5(iii) of the Hindu Marriage Act, 1955. Division Bench of the Delhi High Court in the case of "Jatinder Kumar Sharma V/s State and another" revortedas 2010 SCC online Delhi 2705, dealt with the complex issue regarding the marriage between two people ineligible to be married as envisaged under Section 5(iii) of the Hindu Marriage Act. In para 15, it was held by the Division Bench as under:-

"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 mar