108

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRWP-4505-2021 (O&M)

Date of decision : 18.05.2021

Harjeet Kaur and another

... Petitioner(s)

Versus

State of Punjab and others

... Respondent(s)

CORAM: HON'BLE MRS. JUSTICE ALKA SARIN

Present:

Mr. Kamal Narula, Advocate for the petitioners.

Ms. Bhavna Gupta, DAG Punjab.

****

ALKA SARIN, J. (ORAL)

Taken up through video conferencing.

The present criminal writ petition has been filed under Article

226 of the Constitution of India for enforcement of fundamental right of the

petitioners seeking protection of their life and liberty as enshrined under

Article 21 of the Constitution of India as they apprehend threat to their life

and liberty at the hands of private respondent Nos.4 to 6.

In brief, the relevant facts are that petitioner No.1 is aged 21

years and petitioner No.2 is aged 20 years. On 16.04.2021, both the

petitioners ran away from their respective homes and solemnized their

marriage at Gurudwara Shri Singh Sabha, Village Nore Kai. It has further

been averred that the family members of both the petitioners are annoyed

with them and are against their marriage. It has also been averred that the

YOGESH SHARMA

2021.05.19 11:00

I attest to the accuracy and

integrity of this document

CRWP-4505-2021 (O&M)

-2-

private respondents have been threatening the petitioners. The petitioners

have sent a representation dated 07.05.2021 (Annexure P-4) to respondent

No.2 for providing adequate security. However, no action has been taken on

the same.

Notice of motion.

On the asking of the Court, Ms. Bhavna Gupta, DAG Punjab

has joined the session through video conferencing and accepts notice.

Heard learned counsel for the parties.

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.

This Court has taken note of the fact that petitioner No.2 is not

of marriageable age as envisaged in Section 5(iii) of the Hindu Marriage

Act, 1955. A Division Bench of the Delhi High Court in the case of

“Jitender Kumar Sharma V/s State &Anr.” reported as 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, 1955. 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 5of

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

YOGESH SHARMA

2021.05.19 11:00

I attest to the accuracy and

integrity of this document

CRWP-4505-2021 (O&M)

-3-

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

marriages under certain circumstances but did not render all

child marriages void. It also introduced the concept of a

vo