PDF Upload-365474
PDF Upload-365474
Versus
State of Punjab and others .... Respondents
of Section 5 (iii) of the Hindu Marriage Act, 1955, inasmuch a girl aged 18
years 1 month and boy aged 20 years claim to have married each other
being issued. On the asking of the Court, Ms. Ambika Sood, DAG, Punjab
to seek any return by the official respondents or even to serve the private
respondents No.4 to 7.
learned State counsel and without going into the merits of the validity of the
1 of 8
::: Downloaded on - 13-10-2019 11:58:49 :::
CWP No.29048 of 2019 (O&M) 2
qua their life and liberty as apprehended by them for the reasons stated
hereinafter.
petitioner No.1, a girl born on 21.08.2001 and petitioner No.2, a boy born
petitioner No.2 happily. They also informed the parents of petitioner No.1
petitioners that they will not allow them to live as husband and wife and on
finding an occasion they will kill both of them. Parents of petitioner No.1
also threatened the petitioners to involve them in some false criminal case.
10. The petitioners state that they are living in constant danger as
they have every apprehension that private respondents will catch them and
carry out their threats. The petitioners are, therefore, running here and there
2 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 3
and unable to find any safe place to live in the absence of protection of their
life and liberty. Hence the present writ petition seeking appropriate
directions to the official respondents to provide protection qua their life and
liberty.
of the validity of the marriage at this stage, I am of the view that what needs
for the consenting parties to solemnize marriage between them. Sub Section
3 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 4
must be above 21 years and the bride above 18 years. However, at the same
Sharma Vs. State and Another reported as 2001 (7) AD (Delhi) 785. The
4 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 5
is as under:-
11.Void marriages- Any marriage solemnized after
the commencement of this Act shall be null and
void and may, on a petition presented by either
party thereto against the other party, be so
declared by a decree of nullity if it contravenes
any one of the conditions specified in clauses (i),
(iv) and (v) of Section 5.
Though five conditions have been stipulated in Section 5,
only the contravention of three of them, namely, clauses (i) (iv)
and (v) would render the marriage to be null and void. Clause
(iii) of section 5, which is the condition with regard to the
minimum ages of the bride and bridegroom, is conspicuous by
its absence. As a result, a hindu marriage solemnized in
contravention of clause (iii) of section 5 of the HMA cannot be
regarded as a void or invalid marriage. We are not oblivious
of section 18 of the HMA which prescribes punishment for
contravention of certain conditions for a hindu marriage. It
reads as under:-
18. Punishment for contravention of certain other
conditions for Hindu marriage.- Every person who
procures a marriage of himself or herself to be
solemnized under this Act in contravention of the
conditions specified in clauses (iii), (iv) and (v) of
Section 5 shall be punishable-
a) in the case of contravention of the condition specified
in clause (iii) of Section 5, with rigorous imprisonment
which may extend to two years or with fine which may
extend to one lakh rupees, or with both;
b) in the case of a contravention of the condition
specified in clause (iv) or clause (v) of Section 5, with
simple imprisonment which may extend to one month, or
with fine which may extend to one thousand rupees, or
with both.
5 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 6
c) (***)
But, the fact that punishment has been provided for
contravention of the condition specified in section 5 (iii) of the
HMA does not mean that the marriage itself is void or invalid.
If the legislature had intended that such a marriage would be
void or invalid, it could have easily included clause (iii) of
section 5 in Section 11 itself. Only clauses (i), (iv) and (v) of
section 5 are specifically mentioned in section 11. The only
conclusion is that the legislature consciously left out marriages
in contravention of the age stipulation in clause (iii) of section
5 from the category of void or invalid marriages.
xxx----xxx------xxx----xxx
Before we proceed further, under Hindu law there are
essentially two kinds of marriages-void marriages or valid
marriages. The latter category has a sub-category of voidable
marriages. A marriage in contravention of clause (iii) of
section 5, as we have seen above, does not fall in the category
of void marriages specified in section 11 of the HMA nor does
it fall in the category of voidable marriages specified in section
12. Consequently, by the process of elimination, it would be a
valid marriage. Of course, the marriage may be dissolved
through a decree of divorce, but, that would have to be on the
grounds specified in section 13 of the HMA. Interestingly,
section 13 (2) (iv) enables a 'wife' to petition for dissolution of
her marriage on the ground:-
(iv)that her marriage (whether consummated or not)
was solemnized before she attained the age of
fifteen years and she has repudiated the marriage
after attaining that age but before attaining the
age of eighteen years.
What does this show? It shows that even a marriage of a minor
girl below the age of fifteen is regarded as valid and can only
be dissolved on her petition, provided she repudiates the
marriage between the time she is 15 years old and 18 years
6 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 7
old.”
from the documents appended herein that the petitioners have not
Hindu Marriage Act and may be required to satisfy the validity of their
challenge.
obligations casted upon it to protect the life and liberty of every citizen.
citizen being minor or a major. The mere fact that the petitioner No.2 is not
of marriageable age in the present case would not deprive the petitioners of
of India.
Police, SAS Nagar, Mohali is directed to verify the contents of the petition
7 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::
CWP No.29048 of 2019 (O&M) 8
of this Court qua marriage of the parties nor any reflection on the merits of
(ARUN MONGA)
04.10.2019 JUDGE
smriti
8 of 8
::: Downloaded on - 13-10-2019 11:58:50 :::