Minor girl cannot live with her husband: Allahabad HC

Since the marriage was solemnised on her on free will, the court held it to be voidable, and said that she was free to reside with him once she turns 18

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The Allahabad High Court did not allow a minor girl to reside with her husband when it discovered that she was only 16 years of age. Justice JJ Munir perused her school certificates for the same and held that she could not prove that she was a major and will only turn one in November, 2022.

The Single-judge Bench relied on Juvenile Justice (Care and Protection of Children) Act, 2015, to say, “The provisions of Section 94(2) make it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into… She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available.”

Adding emphasis on the High School Certificate, Justice Munir said, “even if it is the prosecutrix’s stand, which this Court assumes to be so that she is 18 years old, and has married of her free will, she cannot be regarded as a major or permitted to prove herself a major, by asking herself to be referred to medical examination by a Board of Doctors, so long as her High School Certificate is clear on the point.”

The court was hearing a matter challenging the order of the Judicial Magistrate who allowed the couple to live together. Its order was challenged as the appellant believed that the Magistrate had erred in believing that the girl was an adult and that to permit her to go with her husband would entail the permission for “statutory rape and also an offence under section 5/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).” The girl had submitted that she was born in 2002 instead of 2004, which is her real birth year according to her school certificate.

When the court interacted with her, she said, “Mai Apni Marzi se Uske Saath Gayi Thi, Main Apne Pati Ke Pass Jana Chahti Hun.” (I had gone with him on my own free will and I want to stay with him). After she expressed her desire to reside with her husband, the court noted that their marriage was not “void” but “voidable”, which means that the girl may continue to maintain her marital status as soon as she attains the majority age of 18.

“..it is evident that she has not been enticed away. Rather, she has left her home of her own accord and married him. In this view of the matter, the marriage would not be void under Section 12 of the Act of 2006, but would be voidable under Section 3 of the said Act”, said the court.

Since she did not intend to go back to her parents the Court directed the State to place her in a suitable State facility other than a Nari Niketan until she turns 18 and “thereafter, she may go wherever she wants and stay with whomsoever she likes, including the man, whom she claims to be her husband.”

The judgment may be read here: 



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