Thursday, July 25, 2013

child marriage voidable ¬ void ab initio, at option of contracting party who was child at time of marriage

Supreme court gives a good  blast to NCW and sends back their plea saying ...."... No straightjacket formula on marriageable age of girls,..."


No straightjacket formula on marriageable age of girls, says SC

On 25/07/2013 by Live Law News Network

A Supreme Court Bench comprising of Justices J S Khehar and Dipak Misra [in SLP (Crl.) No. 1507/2006] on Wednesday observed that there can be no straightjacket formula on marriageable age of girls. As long as there is no extraneous consideration, coercion, malice, misuse or assault, the child marriage shall be voidable and not void ab initio, at the option of the contracting party who was a child at the time of the marriage.

The Court said that a distinction has to be drawn in cases where girls are lured away or enticed and cases where there is no extraneous consideration, coercion, malice, misuse or assault and the parties to the marriage have voluntarily remained together.

The matter came before the consideration of Supreme Court after the Delhi High Court and the Andhra Pradesh High Court had allowed underage girls to marry after they acknowledged that they had eloped voluntarily with their lovers. Being aggrieved by these two verdicts, the National Commission of Women (NCW) approached the Supreme Court to address the question, "What is the correct statutory age for a girl to wed".

The Supreme Court Bench said, "Can we pass an order annulling the marriage now? Have the girls who have now become adults given a statement contrary to what they had told the HC's then? As far as uniformity of marriageable age is concerned, the NCW must approach the appropriate authority. Who are we to bring in uniformity?"

The Bench also observed that NCW should register its protest when taking up cases where it finds the women are harassed, coerced or misused. The Supreme Court disposed of NCW's appeals against the High Court Judgments but kept open NCW's plea for bringing in uniformity in legislations on marriageable age of girls. This is with respect to the fact that Hindus and other religious sects except for Muslims are regulated by Prohibition of Child Marriage Act which prescribes the marriageable age for girls to be 18 while Muslim personal laws dictates that the girl can be given in marriage when she attains puberty, that is, in normal course at the age of 15 years.

The Delhi High Court in Tahra Begum v. State of Delhi permitted a minor girl (on her wish) to stay with her husband rather than with her parents. The Court held that, "A Muslim girl who has attained puberty i.e. 15 years can marry and such a marriage would not be a void marriage. However, she has the option of treating the marriage as voidable, at the time of her attaining the age of majority, i.e. 18 years."

Recently, the Kerala Government issued a marriage circular allowing Marriage Registrars' to register Muslim marriages where the man is less than 21 and the woman is less than 18 (but older than 16). The Circular was based on the Muslim Marriage Act, 1957. As reported by Live Law, there was no such legislation in India and the controversial Act was a Jamaican legislation. The Kerala Government later modified the circular.

The Supreme Court has given eight weeks to the NCW and Delhi Government to hold consultations with stakeholders and report back to the court. The NCW were being represented by Advocates Aparna Bhat and Upasana Garnaik. State of Delhi was represented by Additional Solicitor General, Indira Jai Singh.



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