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Love, romance and the age of marriage

By Rakesh Shukla

Legally, a Hindu bridegroom should be aged 21 and a bride 18. However, several girls over 15 but under 18 elope to marry men of their choice. In many cases, the boy is subsequently arrested and charged with rape and kidnapping. What does the court do in such circumstances?

At present the age of marriage specified under the Hindu Marriage Act is 18 years for women and 21 years for men. But there have been a number of instances where girls/young women below the age of 18 fall in love, elope and marry boys of their choice. A complaint is later filed by the girl’s family, and a First Information Report (FIR) of rape and kidnapping registered against the boy. The boy’s family and friends are also made co-accused in the case. The police machinery then swings into action. The boy is arrested and  jailed, as rape and kidnapping are grave offences. The girl is apprehended; her parents try to get custody of her and she is illegally confined to the home. She is emotionally blackmailed as well as physically and mentally harassed to get her to repudiate the marriage.

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In an inter-caste marriage, the caste factor plays a large part. Often the girl is from a higher caste and so is the station house officer at the local police station. Caste solidarity and the influence of the parents are brought to bear on the proceedings. The boy and his family are harassed, and the girl placed in a situation where there is hardly any space to exercise her free will. Sometimes the girl is sent to a Nari Niketan (a protective home), but by and large the girl’s parents manage to get custody of their daughter.

The judgment delivered in October 2005 by the Delhi High Court in Ravi Kumar versus State, [124 (2005) Delhi Law Times 1] deals with this essentially social issue which is converted into a criminal matter. The high court heard two separate cases involving girls below 18 years who had eloped and whose husbands had criminal cases of kidnapping registered against them.

Ravi Kumar was 28 years old. He earned between Rs 5,000 and Rs 6,000 as a vegetable vendor. Shikha Sharma was around 16 years and eight months old. Her father was an unemployed driver and her mother a housewife. Her elder sister Shilpi was a salesgirl and the breadwinner of the family. Ravi and Shikha fell in love and got married on December 8, 2004, at the Arya Samaj Mandir in Delhi. The date of birth recorded in the certificate issued by the Arya Samaj Mandir is April 10, 1986; Shikha’s actual date of birth is April 10, 1988. The couple took a room on rent, where they stayed after the marriage.

Shilpi Sharma lodged a report saying that her sister had been missing since December 8, 2004, and that she suspected Ravi Kumar of having enticed, threatened and kidnapped her. A case of kidnapping under Section 363 of the Indian Penal Code was registered against Ravi Kumar, and he was arrested for kidnapping. Shikha was unwilling to return to her parents, as her relations with them were strained. Ravi’s uncle sought custody of Shikha. The magistrate held that Shikha’s will was of lesser importance. Taking into account that Ravi Kumar’s trial would go on, and there was the possibility of Shikha being pressurised, the magistrate directed her to be housed at Nari Niketan. Ravi was put in jail, from where he managed to get bail only on April 8, 2005, after Shikha gave a statement saying that the couple were in love and that she had called Ravi Kumar and got married of her own free will.

In another case, Phoolan Devi filed a petition that her daughter Sonia had been kidnapped by her tenants Santosh Rai and Jhandu Rai. A case of kidnapping was subsequently registered against the two men. Sonia resurfaced. In her statement before the magistrate she said that she had been coerced into giving an earlier statement to the police that she had been enticed and taken away for sex by Santosh Rai. She admitted that she had married Santosh Rai on July 24, 2005, and had left for her in-laws’ place in Balia. The marriage was registered on August 4, 2005. Phoolan Devi asked for custody of her daughter, but Sonia refused to go with her mother. She was sent to Nari Niketan, while Santosh Rai was sent to judicial custody. 

Ravi Kumar filed a writ petition in the Delhi High Court. Later, Shikha Sharma also filed a petition through Ravi Kumar. The court entertained these petitions and issued a notice to the complainant’s elder sister Shilpi Sharma. It directed that Shikha be brought from Nari Niketan and produced in court. It ordered Ravi Kumar to also be present in court. The sister-complainant stated on oath in court that she now understood that Shikha and Ravi had got married. That she had lodged an FIR under the misapprehension that her sister had been enticed and taken away by Ravi Kumar. She now understood that her sister had gone of her own accord and got married and was now no longer interested in prosecuting Ravi Kumar.

In the petition filed by the mother Phoolan Devi, the high court directed that Sonia be brought from Nari Niketan and produced in court. A production warrant was also issued to bring Santosh Rai from jail. Notice was issued to Phoolan Devi and her brother-in-law Ganeshi Rai who stayed with them. Under oath, Sonia told the court that she and Santosh Rai had known each other for two years. Their relationship had blossomed into a love affair. They left home as their parents would not approve of their friendship. Sonia stated that it was she, and not Santosh Rai, who had suggested they leave the house and get married. Ganeshi Rai stated that Santosh Rai did not entice his niece Sonia to leave the house. That it was Sonia who suggested that she and Santosh leave the house and get married. Ganeshi Rai also stated that Sonia was a minor, as she was over 16 years but under 18 years, and that Santosh Rai should be dealt with in accordance with the law. Phoolan Devi submitted that her daughter should live with them at least until she attained majority. But Sonia, who incidentally was also pregnant, was determined not to return to her parents. She wanted to live with Santosh Rai and said that she would continue to stay at Nari Niketan until he was released.

The high court formulated four major issues that had arisen in these petitions:

  1. Whether, on account of the girl’s minor status, the marriage entered into was illegal and void.
  2. Whether young girls who got married after having reached the age of discretion, but not yet attained majority, could be sent into protective custody to a remand home against their will.
  3. Whether in a writ petition the high court should entertain a prayer for the quashing of criminal proceedings.
  4. Whether, in these cases, the high court should quash the FIR and criminal proceedings instituted for kidnapping.

The high court examined the provisions of the Hindu Marriage Act and referred to cases where this issue had previously arisen. Section 5 (iii) of the Act lays down the condition that for a marriage to be solemnised between two Hindus, the bridegroom should have completed 21 years and the bride 18, at the time of the marriage.

The other conditions for a valid marriage are valid consent and the parties not being related to each other in a way that makes marriage impermissible according to law or custom. These relationships are referred to as falling within “degrees of prohibited relationship” and have been defined under Section 3 (g) of the Act. Suffering from a mental disorder, such that renders a person unfit for marriage or procreation, and recurrent insanity are other disqualifications for marriage. Another requirement is that neither party should have a spouse living at the time of marriage.

Under Section 11 of the Act, however, a marriage is void only on the grounds of having a spouse living at the time of marriage, or lack of valid consent, or because the parties fall within a “prohibited relationship”. Thus a marriage where the bride is below the age of 18, though in contravention of Section 5 (iii), does not make a marriage void under the Hindu Marriage Act.

Voidable marriages are dealt with under Section 12 of the Act. Under this, marriages are voidable and can be annulled by a decree on grounds of lack of valid consent, mental disorders and recurring insanity at the time of marriage. Pregnancy by someone other than the bridegroom at the time of marriage, and non-consummation of marriage due to impotence, are other grounds that can render a marriage voidable. A marriage where the bride is below the age of 18 does not fall within the ambit of voidable marriages.

Marriage where the bride is below 18 years of age or the bridegroom below 21 years is neither a void nor a voidable marriage under the Hindu Marriage Act. However, the Act has a penalising provision for violations of Section 5 (iii) pertaining to the age of the bride and bridegroom. Section 18 provides that a marriage solemnised between a bride below 18 years or a bridegroom below 21 years is punishable with simple imprisonment of 15 days or a fine of Rs 1,000.

The Delhi High Court referred to the decision of the Himachal High Court, in Seema Devi/Simran Kaur versus State of HP. Seema was 15 years old, and cases of rape and kidnapping had been registered against her husband. The magistrate had sent her into protective custody at Nari Niketan. The high court held that there was no provision in the law that permitted a direction to be given to detain the minor against her will in a protective home. Even if the minor is 15 years of age, her wishes should be ascertained before placing her in the custody of any person or institution. It held that the magistrate should have given credence to Seema/Simran Kaur’s wishes and directed her custody to be with her accused husband and not with Nari Niketan.

The Allahabad High Court judgment in Kalyani Chaudhuri versus State of UP, where a division bench held that a person could not be detained in a protective home unless required in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or some other law. The court also observed that a minor could not be detained in a protective home against her will or that of her father.

The Delhi High Court applied the law enunciated to the cases before it. It held that the marriage of Ravi Kumar and Shikha Sharma as well as that of Sonia and Santosh Rai were neither illegal nor void on account of the spouse being less than 18 years old, but over 15 years of age. The court held that the question of punishment under Section 18 of the Hindu Marriage Act was not pending before them, and expressed no opinion on it with regard to the cases. The court also declared that the minor girl, in the circumstances, could not be directed to be detained in a remand home -- Nari Niketan -- against her wishes.

Coming to the nature and scope of the powers of the high court under the Constitution while exercising writ jurisdiction, the Delhi High Court held that the powers were wide and comprehensive. The power of the high court was held to extend to quash an FIR and criminal proceedings in appropriate cases. The court observed that in the present cases, Ravi Kumar was a vegetable vendor and Santosh Rai a rickshaw-puller. Taking into account their economic situation, forcing them to engage counsel and file separate proceedings to quash the criminal charges against them was held tantamount to denial of access to justice.

Analysing Section 363 of the Indian Penal Code in the context of the cases before it, the court observed that an essential ingredient of the offence of kidnapping was “taking or enticing away a minor out of the keeping of a lawful guardian”. The court noted the distinction between “taking away” and allowing a minor to accompany a person.

It held that in the two cases before it, the girls had reached the age of discretion and had, of their own volition, accompanied men of their choice. It observed that the evidence indicated that, in fact, the initiative came from the girls; they had got married of their own accord and wanted to live with their husbands. The court observed that continuing criminal cases against Ravi Kumar and Santosh Rai would cause further undue misery and unwarranted hardship. It quashed the FIR and criminal proceedings for the offence of kidnapping against Ravi Kumar and Santosh Rai. It had earlier, through an interim order, permitted Shikha Sharma to be released from Nari Niketan to accompany her husband Ravi Kumar. The high court ordered the release of Santosh Rai from jail and directed that Sonia too be released from Nari Niketan. She was told that she was free to live with her husband. 

(Rakesh Shukla is a Supreme Court lawyer)

InfoChange News & Features, July 2006