Depending upon the circumstances, the Court will have to decide in an appropriate manner as to whom the custody of the said girl child is to be given : Delhi High Court
Observing that though the Legislature has realised the menace of child marriage but has not made adequate legal provisions to make it void, the Delhi High Court has left it to the discretion of courts to decide the custody of a minor girl in case she enters into a marriage of her own free will.
A three-judge Bench comprising Justice A. K. Sikri, Justice Sanjiv Khanna and Justice V.K. Shali pronounced the judgment on a reference by a Division Bench which had urged the larger Bench to decide the status of a marriage under the Hindu Marriage Act and the Prohibition of Child Marriage Act when the girl is a minor and whether her husband can be given her custody.
Responding to the first query, the Bench said: “…having regard to the legal/statutory position that stands as of now leaves us to answer first part of question by concluding that the marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage, but voidable one.”
It further said that such a marriage would “become valid if no steps are taken by such ‘child’ within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2002, under Section 3 seeking declaration of this marriage as void.”
On the question of the custody of a minor married girl, the Bench said: “We are of the opinion that there cannot be a straightforward answer to the second part of this question, and depending upon the circumstances, the Court will have to decide in an appropriate manner as to whom the custody of the said girl child is to be given.”
On quashing of the charge of rape or kidnapping made against the boy in case of a child marriage, the Bench said: “If the girl is more than 16 years and she makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and court will be within its power to quash the proceedings under Section 363 [kidnapping] or 376 [rape] of the Indian Penal Code.”
However, the Bench did not give a carte blanche on this issue as well. “Here again, no straightjacket formula can be applied. The court has to be cautious, for the girl has the right to get the marriage nullified under Section 3 of the Prohibition of Child Marriage Act. Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc., have to be taken into consideration.”