@
Depending upon the circumstances,
the Court will have to decide in an
appropriate manner as to whom the
custody of the said girl child is to be
given : Delhi High Court
Observing that though the Legislature
has realised the menace of child
marriage but has not made adequate
legal provisions to make it void, the
Delhi High Court has left it to the
discretion of courts to decide the
custody of a minor girl in case she
enters into a marriage of her own
free will.
A three-judge Bench comprising
Justice A. K. Sikri, Justice Sanjiv
Khanna and Justice V.K. Shali
pronounced the judgment on a
reference by a Division Bench which
had urged the larger Bench to decide
the status of a marriage under the
Hindu Marriage Act and the
Prohibition of Child Marriage Act
when the girl is a minor and whether
her husband can be given her
custody.
Responding to the first query, the
Bench said:
having regard to the
legal/statutory position that stands
as of now leaves us to answer first
part of question by concluding that
the marriage contracted with a female
of less than 18 years or a male of
less than 21 years would not be a
void marriage, but voidable one.
It further said that such a marriage
would become valid if no steps are
taken by such child within the
meaning of Section 2(a) of the
Prohibition of Child Marriage Act,
2002, under Section 3 seeking
declaration of this marriage as void.
On the question of the custody of a
minor married girl, the Bench said:
We are of the opinion that there
cannot be a straightforward answer
to the second part of this question,
and depending upon the
circumstances, the Court will have to
decide in an appropriate manner as
to whom the custody of the said girl
child is to be given.
On quashing of the charge of rape or
kidnapping made against the boy in
case of a child marriage, the Bench
said: If the girl is more than 16
years and she makes a statement
that she went with her consent and
the statement and consent is without
any force, coercion or undue
influence, the statement could be
accepted and court will be within its
power to quash the proceedings
under Section 363 [kidnapping] or
376 [rape] of the Indian Penal Code.
However, the Bench did not give a
carte blanche on this issue as well.
Here again, no straightjacket formula
can be applied. The court has to be
cautious, for the girl has the right to
get the marriage nullified under
Section 3 of the Prohibition of Child
Marriage Act. Attending
circumstances including the maturity
and understanding of the girl, social
background of girl, age of the girl
and boy etc., have to be taken into
consideration.
Courts can decide custody of minor married girl: High Court - The Hindu - The Hindu: Mobile Edition
@
sankranti , @
Soumitra
did you just say 'symbolic child marriage'?
will always ensure there is no 'red corridor' in kerala.
