Allahabad High Court disallowed a minor girl from staying with her husband even if she had married him with her own will. The 16-year old girl can decide whether she wants to continue that marriage or seek its annulment once she turns major.
Justice JJ Munir noted that the girl was not able to prove that she is a major through a medical examination. Also, her school certificate indicated that she was born in 2004.
The high court announced the judgment while hearing an application of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and subsequent case laws.
“The provisions of Section 94(2) makes it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into. She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available,” ruled Allahabad High Court.
The court further stated, “Even if it is the prosecutrix’s stand, which this Court assumes to be so, that she is 18 years old, and has married Pintoo of her free will, she cannot be regarded as a major or permitted to prove herself a major, by asking herself to be referred to medical examination by a Board of Doctors, so long as her High School Certificate is clear on the point.”
A Judicial Magistrate at Hapur had allowed the couple to live together. The order was then challenged in the High Court stating the magistrate had erred in believing that the girl was an adult. The application filed by the girl’s father further stated that to permit her to go with her husband would entail permission for “statutory rape” and offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
On the other hand, the minor girl claimed that she was born in 2002 and is a major. However, her claims contradicted her High School certificate.
Taking into consideration that the girl is willing to live with her husband, the court noted that this marriage is ‘void’ but not ‘voidable’ which means that the girl has the freedom to carry forward the marriage if she wants to once she turns 18.
“She has left her home of her own accord and married him. In this view of the matter, the marriage would not be void under Section 12 of the Act of 2006, but would be voidable under Section 3 of the said Act,” the court said.
The court had asked the state to place the minor girl in a shelter home, not a Nari Niketan till November 4, 2022, when she turns an adult. The court had also asked the district judge to appoint a female judicial officer who is going to visit the minor every month and inquire about her welfare.