The Patna High Court recently held that a husband does not have any any inherent right to claim custody of his wife if she is a minor..A division bench of Justices PB Bajanthri and Ramesh Chand Malviya dismissed a plea filed by a man who sought custody of his wife aged less than 17 years."This court is of considered view that there is no inherent right vested in the husband to claim custody of minor girl by filing writ of habeas corpus on illegal detention," the Court held.It further ruled that in case where a girl is not a major and expresses fear of life in the custody of her parents, then the Court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women till she becomes a major. "That a girl child below the age of 18 years, who is sought to be married is a child in need of care and protection and is required to be produced before the Child Welfare Committee under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that she can be cared for, protected and rehabilitated in a society and that under no circumstances can a child below 18 years of age gives consent express or implied for sexual intercourse," the bench further observed. .The petitioner had married the girl in question who was 14 years of age and she had later delivered a child. However, the girl was ordered to be kept in a shelter home meant for women after her parents filed a case against the petitioner. However, the girl refused to go with her parents and insisted that she be allowed to live with her husband - the petitioner.The petitioner argued that since the girl married him on her own volition, he must be given her custody. The State argued that the girl is not even 17 years old. It was pointed out that the girl being a minor at the time of her marriage, her consent was not valid and the said marriage amounted to child marriage. The Court noted that the Hindu Marriage Act and the Prohibition of Child Marriage Act provide for penal provisions in case of child marriage as the same is an offence. "The argument of the petitioner that the marriage was performed with consent of the minor girl would pale into insignificance in view of the fact that the child marriage itself is an offence although it may not be illegal under the Hindu Marriage Act but certainly it is a voidable marriage under the Prohibition of Child Marriage Act," the bench said. It further underlined that the welfare of a girl is always of paramount consideration. "In several cases, where the girl does not marry with her choice then there is an apprehension that she may be forced to get married to any other person by her parents, steps which are required to be taken in that eventuality is to protect the girl by keeping her in a safe custody rather than permitting her to marry before she attains the age of majority," the Court underscored. .The Court also highlighted the consequences of child marriage on a girl. "The consequences are much more devastating. It exposes the girl to increased health problems and violence, denies them access to social networks and support systems and perpetuates a cycle of poverty and gender inequality. The element of consent is always subservient to overall welfare of a child," the judgment stated.Further, the medical hazards in case of a child marriage cannot be overlooked, the Court underlined."Fixing the age of marriage for females as 18 years by the Legislature is not without any reason as it is also based upon the evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors," the bench underscored. With these observations, the Court dismissed the husband's plea. .Advocates Lakshmindra Kumar Yadav appeared for the petitioner. Advocate General PK Shahi and Advocate Prabhu Narayan Sharma represented the State..[Read Judgment]
The Patna High Court recently held that a husband does not have any any inherent right to claim custody of his wife if she is a minor..A division bench of Justices PB Bajanthri and Ramesh Chand Malviya dismissed a plea filed by a man who sought custody of his wife aged less than 17 years."This court is of considered view that there is no inherent right vested in the husband to claim custody of minor girl by filing writ of habeas corpus on illegal detention," the Court held.It further ruled that in case where a girl is not a major and expresses fear of life in the custody of her parents, then the Court may exercise the jurisdiction to send her to an appropriate home meant to give shelter to women till she becomes a major. "That a girl child below the age of 18 years, who is sought to be married is a child in need of care and protection and is required to be produced before the Child Welfare Committee under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that she can be cared for, protected and rehabilitated in a society and that under no circumstances can a child below 18 years of age gives consent express or implied for sexual intercourse," the bench further observed. .The petitioner had married the girl in question who was 14 years of age and she had later delivered a child. However, the girl was ordered to be kept in a shelter home meant for women after her parents filed a case against the petitioner. However, the girl refused to go with her parents and insisted that she be allowed to live with her husband - the petitioner.The petitioner argued that since the girl married him on her own volition, he must be given her custody. The State argued that the girl is not even 17 years old. It was pointed out that the girl being a minor at the time of her marriage, her consent was not valid and the said marriage amounted to child marriage. The Court noted that the Hindu Marriage Act and the Prohibition of Child Marriage Act provide for penal provisions in case of child marriage as the same is an offence. "The argument of the petitioner that the marriage was performed with consent of the minor girl would pale into insignificance in view of the fact that the child marriage itself is an offence although it may not be illegal under the Hindu Marriage Act but certainly it is a voidable marriage under the Prohibition of Child Marriage Act," the bench said. It further underlined that the welfare of a girl is always of paramount consideration. "In several cases, where the girl does not marry with her choice then there is an apprehension that she may be forced to get married to any other person by her parents, steps which are required to be taken in that eventuality is to protect the girl by keeping her in a safe custody rather than permitting her to marry before she attains the age of majority," the Court underscored. .The Court also highlighted the consequences of child marriage on a girl. "The consequences are much more devastating. It exposes the girl to increased health problems and violence, denies them access to social networks and support systems and perpetuates a cycle of poverty and gender inequality. The element of consent is always subservient to overall welfare of a child," the judgment stated.Further, the medical hazards in case of a child marriage cannot be overlooked, the Court underlined."Fixing the age of marriage for females as 18 years by the Legislature is not without any reason as it is also based upon the evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors," the bench underscored. With these observations, the Court dismissed the husband's plea. .Advocates Lakshmindra Kumar Yadav appeared for the petitioner. Advocate General PK Shahi and Advocate Prabhu Narayan Sharma represented the State..[Read Judgment]
