Anita &Anr. vs State Of Punjab And Others.

Alka Sarin, J

Heard through Video Conferencing.

The present criminal writ petition has filed under Article 226/227 of the Constitution of India for enforcement of fundamental right of the petitioners

seeking protection of their life and liberty as enshrined in Article 21 of the Constitution of India.

In brief the relevant facts are that petitioner No.1 is aged about 17 years and 10 months and petitioner No.2 is about 24 years. It has been averred

in the petition that the petitioners have known each other for a long time and decided to solemnize their marriage. On 02.07.2020, the petitioners

solemnized their marriage at Jalalabad, District Fazilka, according to Sikh Rites against the wishes of their parents and relatives. It has been further

averred that both the petitioners belong to different castes as petitioner No.1 belongs to Scheduled Caste and petitioner No.2 belongs to Mahajan

Community.

It has further been contended by learned counsel for the petitioners that the parents of petitioner No.1 (who are respondent Nos. 4 and 5 in the

instant petition) and relative of petitioner No.2 (who is respondent No.6) are against the marriage of the petitioners and are threatening the petitioners

with dire consequences and have openly been stating that they would eliminate the petitioners whenever they get a chance.

Apprehending danger to the lives, the petitioners approached the Superintendent ofPolice, Fazilka with their representation on 02.07.2020

(Annexure P-4). However, no action has been takenon the same. Meanwhile, the petitioners filed the instant petition seeking protection of their life

andliberty.

Notice of motion.

On the asking of the Court, Ms. Rashmi Attri, AAG, Punjab, has joined the sessionthrough Video Conferencing and accepts notice.

Heard learned counsel for the parties.

In the present petition this Court, without expressing any opinion on the validity ofthe marriage of the petitioners, needs to consider as to whether

the apprehension of the petitionersneeds to be addressed.

This Court has taken note of the fact that the girl in the instant case i.e. petitioner No.1 is aged 17 years and 10 months and petitioner No.2 is aged

about 24years. Petitioner No.1 is not of marriageable ageas envisaged in Section 5

(iii) of the Hindu Marriage Act. In a case having similar facts, a DivisionBench of the Delhi High Court in the case of Sh. Jatinder Kumar Sharma Vs.

State and Anr. reported as 2010 SCC online Delhi 2705 dealt with the complex issue regarding the marriagebetween two people ineligible to be

married as envisaged in Section 5 (iii) of the Hindu Marriage Act. In para 15 it was held by the Division Bench:-

“15. Returning to the facts of the present case, we find that, merely on account of contravention of clause (iii) of section 5of the HMA, Poonam's

marriage with Jitender is neither voidunder the HMA nor under the Prohibition of Child marriageAct, 2006. It is, however, voidable, as now all child

marriagesare, at the option of both Poonam and Jitender, both beingcovered by the word ̳child'at the time of their marriage. But,neither seeks to

exercise this option and both want to reinforceand strengthen their marital bond by living together. We alsofind that stronger punishments for offences

under theProhibition of Child marriage Act, 2006 have been prescribedand that the offences have also been made cognizable andnon- bailable but, this

does not in any event have any impacton the validity of the child marriage. This is apparent from thefact that while the legislature brought about these

changes onthe punitive aspects of child marriages it, at the same timebrought about conscious changes to the aspects having abearing on the validity of

child marriages. It made a specificprovision for void marriages under certain circumstances butdid not render all child marriages void. It also

introduced theconcept of a voidable child marriage. The flip-side of whichclearly indicated that all child marriages were not void. For,one cannot make

something voidable which is already void orinvalid.â€​

Further, in the said case the Division Bench also considered the question of custodyof the minor girl. After detailed discussion, the Division Bench

held as under:-

“23. In the present case, Poonam is a minor Hindu girl who is married. Her natural guardian is no longer her father but her husband. A husband

who is a minor can be the guardian of his minor wife. No other person can be appointed as the guardian of Poonam, unless we find that Jitender is

unfit to act as her guardian for reasons other than his minority. We also have to give due weight and consideration to the preference indicated by

Poonam. She has refused to live with her parents and has categorically expressed her desire and wish to live with her husband, Jitender. Coming to

Poonam's welfare which is of paramount importance, we are of the view that her elfare would be best served if she were to livewith her husband.

She would get the love and affection of her husband. She would have the support of her in-laws who, as we have mentioned earlier, welcomed her.

She cannot be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against

her will and would be violative of her rights guaranteed under article 21 of the Constitution. Neetu Singh's case (supra) is a precedent for this. Sending

her to live with her parents is not an option as she fears for her life and liberty.â€​

In the present case, though the issue in hand is not the validity of the marriage but thefact is that the petitioners are seeking protection oflife and

liberty as envisaged under Article 21 of theConstitution of India.

Article 21 of the Constitution of India provides for protection of life and personalliberty and further lays down that no person shall be deprived of

his life and personal liberty except asper the procedure established by law.

In the present case no doubt petitioner No.1 is minor and is not ofmarriageable age, however, the Court cannot shut its eyes to the fact that the

apprehension of thepetitioners needs to be addressed. Merely because petitioner No.1 is not of marriageable age she cannot possibly be deprived of

the fundamental rights as envisaged in the Constitution of India.

In view of the above discussion and without expressing any opinion with regard tothe veracity of the contents of the petition and the submission

made by learned counsel for thepetitioners, the present petition is disposed of with a direction to the Senior Superintendent of Police, Fazilka

(respondent No.2) to decide the representation of the petitioners dated 02.07.2020 (Annexure -4) and take necessary action as per law.

It is, however, made clear that this order shall not, in any manner, be construed as anexpression of the opinion on the veracity of the statement

made by the petitioners or the validity of themarriage and shall have no effect on any other civil or criminal proceedings, if any,

instituted/pendingagainst them.