Lovepreet Kaur And Another vs State Of Punjab And Others

Alka Sarin, J

Heard through video conferencing.

The present criminal writ petition has been filed under Article 226/227 of the Constitution of Indiafor enforcement of fundamental right of the

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

In brief, the relevant facts are that petitioner No.1 is aged 19 years and petitioner No.2 is aged 20 years. On 01.07.2020, both the petitioners

solemnized their marriage at Gurudwara Dashmesh Pita PatshahiDasvi (Regd.) at village Singha Devi, Tehsil Kharar, District Mohali as per Sikh rites

and ceremonies, sans the blessings of their parents. It has further been averred that the family members of both the petitioners are annoyed with them

and are against their marriage. It has also been averred that the private respondents have been threatening the petitioners. The petitioners have sent a

representation dated 01.07.2020 (Annexure P-5) to respondent No.2 for providing adequate security. However, no action has been taken on the same.

Notice of motion.

On the asking of the Court, Ms. Rashmi Attri, AAG, Punjab, has joined the session through video conferencing and accepts notice.

Heard learned counsel for the parties.

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

apprehension of the petitioners needs to be addressed.

This Court has taken note of the fact that petitioner No.2 is not of marriageable age as envisaged in Section 5 (iii) of the Hindu Marriage Act. Division

Bench of Delhi High Court in the case of “Jatinder Kumar Sharma V/s State and anotherâ€​ reported as 2010 SCC online Delhi 2705, dealt with

the complex issue regarding the marriage between two people ineligible to be married as envisaged under Section 5 (iii) of the Hindu Marriage Act. In

para 15, it was held by the Division Bench as under:-

“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€​

In the present case, though the issue in hand is not with regard to the validity of the marriage, but the fact is that the petitioners are seeking protection

of life and liberty as envisaged under Article 21 of the Constitution of India. Article 21 of the Constitution of India provides for protection of life and

personal liberty and further lays down that no person shall be deprived of his life and personal liberty except as per the procedure established by law.

In the present case, no doubt petitioner No.2 is not of marriageable age as envisaged under Section 5(iii) of the Hindu Marriage, however, this Court

cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because petitioner No.2 is not of marriageable

age, he cannot be possibly deprived of his fundamental rights as envisaged in the Constitution of India.

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

made by learned counsel for the petitioners, the present petition is disposed of with a direction to respondent No.2/Senior Superintendent of Police,

Fazilka (Punjab) to decide the representation dated 01.07.2020 (Annexure P-5)and take necessary action as per law.

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

by the petitioners or on the validity of the marriage and shall have no effect on any other civil or criminal proceedings, if any, instituted/pending against

them.