Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 535

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vinod S. Bhardwaj, J.
Gurpreet Singh & Anr. – Appellants
Versus
State Of Haryana & Ors. – Respondents
CRWP-4111-2022
Decided On : 04-05-2022

Advocates Appeared:
Mr. Rohit Kumar, Advocate, for the Appellant; Mr. Ashish Yadav, Additional A.G. Haryana, for the Respondent

The paramount consideration of the welfare of the minor and the applicability of the statutory framework provided by the Juvenile Justice (Care and Protection of Children) Act 2015 and the Protection of Children from Sexual Offences Act 2012 in ensuring the protection of the life and liberty of the minor girl.

Headnote:
Minor - Protection of Life and Liberty - Hindu Minority and Guardianship Act 1956, Guardians and Wards Act 1890, Juvenile Justice (Care and Protection of Children) Act 2015, Protection of Children from Sexual Offences Act 2012 - The court discussed the protection of life and liberty of a minor girl seeking to live with her chosen partner and the applicability of various acts and sections including the Hindu Minority and Guardianship Act 1956, Guardians and Wards Act 1890, Juvenile Justice (Care and Protection of Children) Act 2015, and Protection of Children from Sexual Offences Act 2012. The court emphasized the paramount consideration of the welfare of the minor in appointing a guardian and the prohibition of a de-facto guardian from dealing with the property of a minor under the Hindu Minority and Guardianship Act 1956. The court also highlighted the conditions under which a minor is considered a child in need of care and protection under the Juvenile Justice (Care and Protection of Children) Act 2015 and the Protection of Children from Sexual Offences Act 2012.
Fact of the Case:

The petitioners sought protection for a minor girl who intended to live with her chosen partner and eventually marry him against the wishes of the private respondents. The minor girl was allegedly being threatened with forced marriage and interference in her personal life by the private respondents.
Finding of the Court:

The court found that the minor girl fell within the definition of a child in need of care and protection under the Juvenile Justice (Care and Protection of Children) Act 2015. The court emphasized the paramount consideration of the welfare of the minor and directed the Senior Superintendent of Police/Superintendent of Police to depute a Child Welfare Police Officer to produce the minor before the Committee constituted under the Juvenile Justice (Care and Protection of Children) Act 2015.
Issues: The issues involved the protection of the life and liberty of the minor girl, the applicability of the Hindu Minority and Guardianship Act 1956, Guardians and Wards Act 1890, Juvenile Justice (Care and Protection of Children) Act 2015, and Protection of Children from Sexual Offences Act 2012, and the determination of the best interest of the minor girl.
Ratio Decidendi: The court's decision was based on the paramount consideration of the welfare of the minor girl and the applicability of the statutory framework provided by the Juvenile Justice (Care and Protection of Children) Act 2015 and the Protection of Children from Sexual Offences Act 2012. The court also emphasized the prohibition of a de-facto guardian from dealing with the property of a minor under the Hindu Minority and Guardianship Act 1956.
Final Decision: The court directed the Senior Superintendent of Police/Superintendent of Police to depute a Child Welfare Police Officer to produce the minor before the Committee constituted under the Juvenile Justice (Care and Protection of Children) Act 2015 and to ensure the welfare and protection of the minor girl. The petition was disposed of with the directive for the concerned authorities to comply with the court's orders.

JUDGMENT

Vinod S. Bhardwaj, J. (Oral). - The instant criminal writ petition has been filed under Article 226 of the Constitution of India for issuance of directions to the officials respondents No.2 & 3 to initiate action on the representation dated 25.04.2022 (Annexure P-3) submitted to the official respondents No.2 for protecting of the life and liberty of the petitioners and with a further direction that the private respondents should not interfere in the personal life of the petitioners.

2. Learned counsel appearing on behalf of the petitioners has contended that the petitioner No.2 is a minor and that the private respondents are going to sell the petitioner No.2 to someone who was not to the liking of the petitioner No.2 and they had even fixed marriage of petitioner No.2 against her wishes and it has been alleged that currently the minor is living in live-in-relationship with a petitioner No. 1 Gurpreet Singh and wants to marry him in future. Parents of both the petitioners do not have any objections and it is the private respondents against whom the petitioners are seeking protection. It is also contended that the private respondents are not even the natural guardians of petitioner No.2.

3. Reference can be made to certain orders/judgements of this Court passed in CRWP-2238-2021 titled as Priyanka & Another Vs. State of Haryana & Ors decided on 05.03.2021, wherein the minor who was in a live-in-relationship was extended an indulgence; a similar order had been passed in CRWP-6660-2020 titled as Jyoti Vs. State of Haryana & Ors decided on 01.09.2020; CRWP-3990-2020 titled as Roopa Vs. State of Haryana & Ors decided on 22.06.2020; CRWP- 1525-2020 titled as Sarabjeet Kaur & Another Vs. State of Punjab & Ors decided on 12.02.2020; CRWP-29048-2019 titled as Navpreet Kaur & Another Vs. State of Punjab & Ors decided on 04.10.2019. A reference was also made to the judgement of this Court reported as 2019(4) RCR (Civil) 183 titled as Jashanpreet Kaur & Another Vs. State of Punjab & Ors.

4. The gist of the aforesaid orders/judgements was to the effect that merely because the petitioners are not of marriageable age, it would not deprive them of their fundamental right to seek protection of their lives and liberties. The Court examined the issue in the context of the Hindu Marriage Act, 1955 and held that merely because the petitioners are not of the marriageable age and the marriage performed, if any, would be hit by Section 5(iii) of the Hindu Marriage Act 1955, the same being only a civil consequence qua the validity of the marriage, their rights under Article 21 of the Constitution of India cannot be denied as they stand on a much higher pedestal. Life and liberty of the persons is sacrosanct being integral to their being, it ought to be protected regardless of solemnization of invalid or void marriage or even in the absence of any marriage amongst the parties. In all the said matters, the respective SSPs/SPs were directed to verify the threat perception and to take necessary steps to provide protection to the life and liberty of the petitioners, if deemed fit and necessary.

5. I have heard learned counsel for the parties and have gone through the documents appended by them with the respective petitions . The documents are in the nature of documents related to date of birth and a representation submitted to the concerned SSP/SP.

6. Law recognizes the guardians of following types:-

(a) Natural guardian;

(b) Testamentary Guardian;

(c ) Guardians appointed/declared by the Court;

(d) a person empowered to act as such by or under any enactment relating to any Court of Wards.

7. However, in the pre-1956 Hindu law, there also existed a guardian by affinity, who happened to be the guardian of a minor widow. As per the position in law as it existed, then the husband's relation, if there existed any, within the degree of sapinda were the guardians of a minor widow in preference to her father and his relations. There is yet another concept of de-fact