Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ALLAHABAD HIGH COURT
Saumitra Dayal Singh and Donadi Ramesh, JJ.
Sanjay Chudhary – Appellant
versus
Guddan @ Usha – Respondent
First Appeal No.213 of 2018
Decided on 25.10.2024

Advocates:
Counsel for the Parties:
For the Appellant: Anil Kumar Mehrotra, Srijan Mehrotra
For the Respondent: Anurag Vajpeyi, Bindu Kumari, Gaurav Tripathi

IMPORTANT POINTS
(1) Child marriage is voidable but not void – Any party to such transaction must elect to confirm or void it.
(2) Void marriage—Child marriage—Any person whether male or female, who has attained age of 18 years may file a suit seeking declaration that their marriage is void, only in his own capacity.

Headnote:
(A) Hindu Marriage Act, 1955 – Section 12 (2)—Prohibition of Child Marriage Act, 2006—Section 3—Void marriage—Child marriage—Remedy available to both parties to child marriage is to seek declaration from a competent Court that their marriage was void—However, that effect and remedy is optional, to be availed upon volition of either party to that marriage, but by no other—Child marriage is voidable but not void—Any party to such transaction must elect to confirm or void it—Legislative prescription prohibits performance of any marriage involving a female below 18 years of age—Any suit under Section 3 of PCMA may be filed by a person below 18 years of age (whether male or female), only through their guardian or next friend along with Child Marriage Prohibition Officer—By way of necessary corollary, any person whether male or female, who has attained age of 18 years may file a suit seeking declaration that their marriage is void, only in his own capacity. (Paras 39, 46, 52 and 53)
(B) Prohibition of Child Marriage Act, 2006—Section 3—Hindu Marriage Act, 1955—Section 12 (2)—Void marriage—Child marriage—Mere incorrect section description may have no bearing on scope of statutory suit proceedings—Substantive rights claimed by appellant must be tested on strength of pre-existing statutory law in light of amended pleadings—Suit was instituted before a competent court—Court below has erred in dismissing suit instituted by appellant—Suit had been filed by a party to transaction of child marriage—It is wholly maintainable—Suit was instituted within limitation, it having been instituted before expiry of two years from the date appellant ceased to be a child, having attained 21 years of age—Transaction of child marriage performed between parties declared void—Permanent alimony of Rs. 25,00,000/- to be paid to respondent within a period of one month. (Paras 72, 74, 76 and 77)
Result: Appeal allowed.

JUDGMENT

Heard Shri Anil Kumar Mehrotra, assisted by Shri Srijan Mehrotra and Shri Ashwani Kumar Patel, learned counsel for the appellant and Shri Gaurav Tripathi, learned counsel for the respondent.

2. Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the judgement and order dated 23.02.2018 passed by learned Principal Judge, Family Court, Gautam Buddha Nagar, in Suit No. 794 of 2013 (Sanjay Chudhary v. Guddan @ Usha), whereby declaration sought by the appellant, that his marriage with respondent, solemnised on 28.11.2004, was void, has been declined. The suit has been dismissed.

3. According to the facts proven before the learned trial court, the appellant was born on 07.08.1992 whereas the respondent was born on 01.01.1995. On 28.11.2004, the date of their marriage, the appellant was about 12 years of age whereas the respondent was about 9 years of age. They would have attained the age of 18 years in the year 2010 and 2013, respectively. On 05.07.2013, claiming benefit of Section 3 of Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the ‘PCMA’), the appellant filed the above-described suit at age 20 years 10 months and 28 days. Initially, the suit was instituted under Section 12 (2) of the HMA. Later, upon amendment being allowed, direct relief was claimed under Section 3 of the PCMA. Relying on Section 2(a) of PCMA- that defines “child” and thus prescribes the age requirement for a valid marriage (like that provided under Section 5(3) of the Hindu Marriage Act, 1955- hereinafter referred to as the ‘HMA’), the appellant claimed that his suit, thus filed, was within the limitation prescribed under Section 3(3) of PCMA. Other fact grounds were also pleaded to allege that the respondent never cohabited, etc.

4. In the objections (filed by the respondent) to that suit, amongst others, it was objected that the appellant had attained the age of majority i.e. 18 years in the year 2010 and therefore, the suit presented after expiry of two years therefrom i.e. beyond 07.08.2012, was barred by limitation prescribed under Section 3(3) of PCMA. Other objections were also raised for reason of earlier divorce suit filed and dismissed, as also for other facts and reasons describing the conduct of the appellant indicating cohabitation as also election to the marriage, after attaining majority etc.

5. The learned Court below has categorically found that the marriage solemnised between the parties was a “child marriage” under PCMA. Yet, it has sustained the objections raised and has dismissed the suit filed by the appellant, primarily on the reasoning that prior to institution of the present proceeding, the appellant had instituted a divorce suit proceeding being Matrimonial Case No. 1110 of 2011, under Section 13 of HMA, on 17.09.2011. Though it was dismissed under Order 9 Rule 8 on 19.05.2012 the learned Court below has reasoned - by filing the divorce suit, the appellant had elected to confirm his “child marriage”. Further, no second suit may have been filed thereafter for the declaration sought. Then, conditions prescribed under section 12(2) of HMA have been found, not fulfilled. Also, the suit has been found instituted outside limitation. As to Section 3 PCMA, it has been held on his own showing the appellant had earlier pleaded, he wanted to live in matrimony with the respondent and that the parties cohabited for some time. Hence, their marriage is valid.

6. Shri Anil Mehrotra, learned counsel for the appellant would submit that word “major” and “majority” are not defined under PCMA. The concept of “majority” contained in the Majority Act, 1875 (hereinafter referred to as the Majority Act) has also not been borrowed in PCMA. Referring to Section 2(a) of the PCMA it has been shown that it borrows the age requirement as prescribed under Section 5(iii) of H.M.A. Reference has been made to the phrase “child marriage” and the word “minor” defined under the PCMA. For ready referenc