Punjab-Haryana High Court
Karuna And Anr vs State Of Punjab And Others on 22 August, 2022
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CRWP-7895 of 2022 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP-7895 of 2022 (O&M)
Date of Decision: 22.08.2022
Karuna and another
.... Petitioners
Versus
State of Punjab and others
.... Respondents
CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: - Mr. S.K. Choudhary, Advocate, for the petitioners.
Mr. G.S. Sandhu, Deputy Advocate General, Punjab.
ASHOK KUMAR VERMA, J. (ORAL)
CRM-W-1063 of 2022 This is an application filed for grant of leave under Rule 3-A
(i), Part-II of Chapter VI, Part B, Volume V of Punjab and Haryana High Court Rules and Orders to file the present petition.
In view of averments made in the application, the same is allowed and leave is granted under the aforesaid Rules and Orders to file the present petition.
CRWP-7895 of 2022 Through this petition under Article 226 of the Constitution of India, prayer has been made for issuance of a direction to respondents No.1 to 3 to protect the life and liberty of the petitioners from the hands of respondents No.4 to 8, as petitioner No.1-Karuna, who is aged 17 years 9 months and petitioner No.2-Rohit Kumar, who is aged 20 years 9 1 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -2- CRWP-7895 of 2022 (O&M) months, have solemnized marriage against the wishes of private respondents.
Notice of motion to official respondents No.1 to 3 only at this stage.
On the asking of the Court, Mr. G.S. Sandhu, Deputy Advocate General, Punjab, accepts notice on behalf of respondents No.1 to 3.
Having heard learned counsel for the petitioners, as also the learned State counsel and without going into the merits of the validity of the marriage, I am of the view that every citizen being entitled to enforcement of fundamental rights as envisaged under Constitution of India, would necessarily entail grant of appropriate protection to the petitioners herein qua their life and liberty as apprehended by them for the reasons stated hereinafter.
Perusal of paperbook shows that petitioner No.1, a minor girl born on 15.11.2004 and petitioner No.2, a boy born on 20.10.2001 have solemnized marriage against the wishes of private respondents. It is averred that marriage being against the wishes of private respondents, they are extending threats to the petitioners to face dire consequences and kill petitioner No.2.
In the circumstances, the petitioners approached respondent No.2-Senior Superintendent of Police, Pathankot, and submitted a representation dated 15.08.2022 (Annexure P-4) seeking to safeguard their life and liberty, but no action is being taken on the same.
2 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -3- CRWP-7895 of 2022 (O&M) 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 and may go to the extent of even committing their murder. The petitioners are, therefore, running here and there 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.
Both the petitioners are allegedly a run-away couple. They claim to have married each other, despite not being of marriageable age.
Be that as it may, this Court is not concerned with the legitimacy or otherwise qua the marriage of the petitioners as the concern herein is threat to their life and liberty. Assuming the petitioners were in a consensual relationship, without having got married, they would still be entitled to protection of their life and liberty as envisaged under Article 21 of the Constitution of India.
I am conscious of the fact that neither the girl is major nor of marriageable age, being three months less than 18 years. Petitioners' marriage, therefore, even if assumed to have taken place according to Hindu Rites, is in violation of Section 5 (iii) of the Hindu Marriage Act. Section 5, ibid envisages statutory pre-requisites for the consenting parties to solemnize marriage between them. Sub Section (iii) thereof stipulates the minimum ages of a bridegroom and a bride. Section 5 reads 3 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -4- CRWP-7895 of 2022 (O&M) as under:-
"Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
[(ii)at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b)though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c)has been subject to recurrent attacks of insanity [***];]
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of[eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"
A perusal of Section 5, ibid leaves no manner of doubt that one of the essential conditions of Hindu Marriage Act is that the bridegroom must be above 21 years and the bride above 18 years. However, at the same time, Section 11 of the Hindu Marriage Act which declares certain marriages, which are in contravention of Section 5 (supra), to be void, but precludes a marriage solemnized in contravention of Sub Section (iii) of Section 5, ibid from the purview of being regarded as void or invalid.
I find support to my above sentiments from a Division Bench judgment rendered by Delhi High Court in case titled as Jitender Kumar 4 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -5- CRWP-7895 of 2022 (O&M) Sharma Vs. State and Another reported as 2001 (7) AD (Delhi) 785. The relevant whereof is extracted hereinbelow:-
"It is true that one of the conditions of a Hindu marriage is that the bride should have completed 18 years age and the bridegroom, 21 years. But, does this mean that a marriage where this twin condition as to ages is not satisfied is, ipso facto, invalid or void? An examination of Section 11 of the HMA would seem to suggest otherwise. The said provision 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
5 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -6- CRWP-7895 of 2022 (O&M) 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.
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 6 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -7- CRWP-7895 of 2022 (O&M) 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 old."
The issue in hand, however, is not marriage of the petitioners, but the deprivation of fundamental right of seeking protection of life and liberty. I have no hesitation to hold that Constitutional Fundamental Right under Article 21 of Constitution of India stands on a much higher pedestal. Being sacrosanct under the Constitutional Scheme it must be protected, regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties.
It is the bounden duty of the State as per the Constitutional obligations cast upon it to protect the life and liberty of every citizen. Right to human life is to be treated on much higher pedestal, regardless of 7 of 8 ::: Downloaded on - 24-08-2022 05:40:24 ::: -8- CRWP-7895 of 2022 (O&M) a citizen being minor or a major. The mere fact that petitioner No.1 is not of marriageable age in the present case would not deprive her of her fundamental right as envisaged in Constitution of India, being citizens of India.
In view of the above, this petition is disposed of with a direction to respondent No.2-Senior Superintendent of Police, Pathankot, to look into the representation dated 15.08.2022 (Annexure P-4) of the petitioners seeking protection of life and liberty and if necessary, requisite steps be taken strictly in accordance with law for grant of protection of life and liberty of the petitioners It is, however, clarified that in case, there is any criminal case registered against the petitioners, this order shall not be construed as an impediment for the law enforcing agency to proceed against the petitioners, in accordance with law.
August 22, 2022 (ASHOK KUMAR VERMA)
R.S. JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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