Citation: AIR 2012 Mad 62
A father approached the Madras High Court to order the Inspector of Police (the first respondent) to ensure his daughter’s release from the custody of a father and his son (second and third respondents). The petitioner contended that the respondents had kidnapped her and documented a habeas corpus petition on this premise.
However, the daughter recorded an affidavit affirming that she had willingly married the second respondent and that she was not being detained wrongfully. She conveyed that her parents had begun arranging her marriage to her maternal uncle without her consent. Thus, she left her home voluntarily. The respondents filed a petition for the girl to attend college and reside in the accommodation provided there. Given that she did not want to live with her parents, the girl was accommodated in a children’s home by the Madras High Court.
While deliberating upon the issues of the case, the Madras High Court alluded to certain inquiries encompassing marriage, custody and guardianship to a three-judge bench. However, as ‘guardianship’ is the main objective of this assignment, the researcher shall analyze only the following issues:
- Whether the bridegroom is the natural guardian of the minor child?;
- Whether the bridegroom is entrusted with the minor child’s custody?; and
- Whether the minor, upon her discretion, can walk away from the natural guardianship of her parents?
Section 6(c) of the Hindu Minority and Guardianship Act provides that “the natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property in the case of a married girl is the husband.”
Section 2 of the Hindu Minority and Guardianship Act provides that “the provisions of this Act shall be in addition to, and not, in derogation of, the Guardians and Wards Act, 1890.”
The Court noted that Section 6(c) of the Hindu Minority and Guardianship Act states that provides that a married minor’s natural guardian is her husband who thereby replaces her parents as the natural guardians. However, taking Section 3 of the Prohibition of Child Marriage Act, 2006 into account, under which such marriage is voidable, the bridegroom in question may not be legally deemed as her valid husband. Therefore, Section 6(c) of the Hindu Minority and Guardianship Act, would impliedly stand repealed by the Prohibition of Child Marriage Act because the provisions of the latter hold primacy over the former.
Coming to the question of a minor child’s custody, the Court observed that Section 2 of the Hindu Minority and Guardianship Act, would be in addition to and not in derogation of the Guardians and Wards Act, 1890. Section 12(3) of the Guardians and Wards Act provides that the District Court cannot put a minor in the temporary custody of an individual claiming to be her guardian by virtue of marriage, unless the minor has sought her parents’ consent for the same. Therefore, even if it were to be assumed that the husband is the natural guardian, the minor’s temporary custody can’t be bestowed upon him if she hasn’t taken her parents’ consent.
Lastly, for determining whether a minor has the discretion to leave her parents’ custody, the Court referred to Section 17(3) of the Guardians and Wards Act which provides that if the minor is mature enough to decide for herself, the court can consider the same. But such a question usually differs from case to case depending upon the minor’s capacity in each situation. It cannot be put in a straight-jacket formula. Moreover, while the minor’s wish is to be taken into account, it is only one of the many aspects considered. Thus, the minor can’t leave her parents’ guardianship and custody unreasonably. At this juncture, if it is a reasonable wish, then the court may keep her in appropriate custody such as in a welfare home for children set up under the Juvenile Justice (Care and Protection) Act.
Suggestions for Improvement
Ultimately, the Court held in the present case, that the bridegroom shall not be the natural guardian of the minor due to the implied repealing of Section 6(c) of the Hindu Minority and Guardianship Act, 1956; that the bridegroom shall not gain the minor’s regardless of the minor’s desire and that out of genuine concern, the groom may appeal to the court to free her from any illegal detention; and that the question of a minor having reached the age of discretion varies depending on the facts and circumstances of each case.
There are many structural and social obstacles in the legal framework of the government which affect the successful enforcement of the provisions on child marriage. The enactment of the laws is hindered by feel infrastructural uphold, and further debilitated by the inaccessibility of sufficient and even-handed legal remedies because of absence of powerful institutional arrangements. The following suggestions seek to facilitate for girls, the option to end their child marriages:
Equal threshold for age
A lower minimum age of marriage for girls affects their capacity to exit child marriages. The age of marriage for both should be 18 years as there is logical motivation as to why it ought to be different for both.
Explicit declaration of PCMA’s primacy
Endeavours should be made to spread awareness that personal laws can’t deny women the rights and remedies given under the PCMA. The stance of the PCMA as a special law means that it should have primacy over personal laws.
Removal of legal obstacles
- Take significant measures to make child marriages void ab initio and guarantee that girls in nullified marriages can opt for unique measures of protection.
- Recognize rights of girls in marriages that are void ab initio to maintenance and residence, as exists for marriages that are voidable under the PCMA.
- Recognize child marriage as an infringement of fundamental rights to take suo moto action to coordinate legal loopholes and irregularities between child marriage and other relevant laws.
Child marriage in India is rooted in gender disparity, involving patriarchal practices that deem women to be less than men and perceive married women and girls to reside with their husband’s family only.
Furthermore, child marriage is connected to hindrances in admittance to erudition, worries about girls’ safety, and the outlook that women are liabilities, a conviction sparked partially by practices of dowry, exorbitant weddings and the underestimation of women’s work that usually done at home.
It is high time these baseless norms are effectively tackled by carrying out the aforementioned suggestions by primarily bringing about improvements in the legal sphere, thereby resulting in the same in society as well.
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