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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Manish Kumar and Another – Petitioners
Versus
State of U.P. and Others – Respondents
Habeas Corpus Writ Petition No. 451 of 2020
Decided On : 31-05-2021
Hindu Marriage Act, 1955 – Section 5, 11,12 and 14 - Prohibition of Child Marriage Act, 2006 – Custody of children - Marriage of a minor child to be void in certain circumstances - Child marriages to be voidable at the option of contracting party being a child - Whether the marriage of a minor in contravention of the Hindu Marriage Act and Section 14 of the Prohibition of Child Marriage Act, 2006 is void ab initio - Whether a minor who does not want to stay with his parents, is entitled to stay with a person of his choice, particularly, where he is on the verge of attaining majority and in the age group of expressing his intelligent choice - Whether a minor who decides to stay away from his parents or natural guardian with a stranger of his/her choice can be compelled by the natural guardian to be restored to his custody, particularly, through a writ of habeas corpus?
Finding of the court: If Manish's stand is clear that he wishes to go back to his mother during the period of his minority and the Child Welfare Committee are satisfied that it is a voluntary statement, Manish shall be permitted to go back to his mother and shall stay there until he attains the age of 18 years. After that Manish would be free to go wherever he likes and stay with whomsoever he wants, including his wife - A wife, who is a major, cannot be entrusted the custody of her minor husband, where the marriage is voidable for reason that entrusting a minor husband's custody to a major wife, would be sanctioning cohabitation between an adult/major and a child - an offence under Section 3/4 or 7/8 of the Act of 2012. The custody or care of a minor, that inherently makes or has the potential of making the minor the victim of an offence and his adult guardian an offender under the Act of 2012, cannot be regarded as a custody or arrangement made to ensure the welfare of the minor - expression of his intelligent choice by a minor, who is on the verge of attaining majority, the Court may, in a given case, permit a minor to stay with a person of his choice in preference to his parents or other natural guardians - An older minor's choice is to be accorded some higher weightage by the Court, together with the other criteria, while deciding the question of his/her welfare. This is not to say that for an older minor, who is in a position to form an intelligent preference, his expressed choice is a substitute for the Court's determination about his welfare. Many factors have to enter the Court's determination while deciding the vexed question about the minor's welfare.
Result: Writ Petition allowed
JUDGMENT :
J.J. MUNIR, J.
1. The facts giving rise to this Habeas Corpus Writ Petition are rather unconventional and not commonplace or so it seems.
2. Manish Kumar is a youth, aged about 16 years and a half. He has married Jyoti, as he says, of his freewill. Jyoti is a major and an adult in the cognizance of law, just above the age of 18 years. Pramila Devi is Jyoti’s mother and Manish Kumar’s mother-in-law. Arjun and Bheem are Jyoti’s brothers and Pramila Devi’s sons. Manish Kumar, after his marriage to Jyoti, was staying with his wife, his mother-in-law and his two brothers-in-law, Arjun and Bheem. Haushila Devi is Manish Kumar’s mother. She appears to have thought that Jyoti, her mother Pramila Devi and her brothers, Arjun and Bheem have enticed away her minor son and forced him into a marriage of sorts, which is illegal for want of the minor’s competence under the law. She has gone on to say that Manish Kumar, her minor son, is illegally detained by Pramila Devi, Arjun, Bheem and Jyoti, arrayed as respondent nos. 5, 6, 7 and 8 in that order. In keeping with her thought and word, Haushila Devi has effectively instituted the present Habeas Corpus Writ Petition, arraying Manish Kumar as the first petitioner and herself as the second, asking this Court to order Manish Kumar, her minor son, to be produced on a Rule Nisi before this Court and upon production, set at liberty in the manner that Manish Kumar be entrusted to her care and custody.
3. Upon the petition coming up before this Court on 18.09.2020, it was admitted to hearing, and a Rule Nisi was issued, ordering the production of Manish Kumar, said to be in the illegal confinement of respondent nos. 5 to 8. The Rule was made returnable on 23.09.2020. On the date of return, Manish Kumar was produced before this Court and what he said before us about the nature and character of his association with respondent nos. 5, 6, 7 and 8 spares no doubt that Manish Kumar was never under any kind of coercion to stay with Jyoti or the other respondents, who are claimed to be illegally detaining him. He also does not appear to have been enticed away. This conclusion on facts can best be fathomed by what he stated before the Court in answer to questions that were put to him. His stand recorded in the Court’s order on 23.09.2020 is extracted below:
Ans. Manish Kumar
Q.2. Aapke pitaji ka kya naam hai?
Ans. Paras Nath
Q.3. Aapki aayu kya hai?
Ans. 16 Saal
Q.4. Aap kaha se aaye hain?
Ans. Chauki Narshinghpur
Q.5. Aap waha kiske pas rahte hain?
Ans. Apni Sas ke pas
Q.6. Aapki sas ka kya naam hai?
Ans. Pramila
Q.7. Jyoti kaun hai?
Ans. Hamari Aurat
Q.8. Aap apni marji se rahte hain Pramila aur Jyoti ke pas?
Ans. Ji Sir
Q.9. Haushila Devi kaun hai?
Ans. Hamari maa hai
Q.10. Aap apni maa ke pas jana chahte hain?
Ans. Nahi
Q.11. Kaha jana chahte hain?
Ans. Sas aur Aurat ke pas
4. Upon the Court asking Mr. Anand Kumar Srivastava, learned Counsel for the petitioners, about Haushila Devi’s stand in the matter, he insisted that Manish was a minor and did not have the legal competence to marry Jyoti. He said that their marriage is void, in view of the provisions of The Hindu Marriage Act, 1955 [for short “HMA”] and the Prohibition of Child Marriage Act, 2006 [for short “PCMA”]. It was contended by Mr. Srivastava that Manish being a minor, cannot exercise his choice to stay with strangers like respondent nos. 5 and 8, and that Haushila Devi, being his mother and natural guardian, is entitled to ask this Court, in the interest of the minor’s welfare, to restore him to her custody.
5. In view of the stand of parties, and the way the law would tentatively bear upon their conflicting rights and claims, this Court formulated the following questions for consideration, again vide order dated 23.09.2020:
2. Whether a minor who does not want to stay with his
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