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According to Section 13-B of the Hindu Marriage Act, 1955, “Divorce by mutual consent”. An order was passed by the family court dismissing a petition for divorce by mutual consent on the 22^nd of July 2020 stating that it was not a valid marriage in the first place. As the girl had not completed 18 years with regard to the mandate under Section 5(iii) of the Hindu Marriage Act, 1955, “Conditions for a Hindu marriage the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage”. Therefore, this petition has been filed.

In the High Court of Punjab and Haryana at Chandigarh, this judgement was given by Honorable Mr Justice Ritu Bahri and Honorable Mr Justice Arun Monga on the 26^th of August 2021 in the case of Yogesh Kumar Versus Priya [FAO-855-2021] Ms Gitanjali Chhabra represented as the advocate for the petitioner, and Mr Raman B. Garg represented as the advocate for the respondent, the proceedings of the court were held via video conference.

The brief facts of the case are that there was a marriage between the two parties on the 27^th of February 2009 was conducted as per Hindu rituals and rites at the time of marriage the husband was 23 years old and the wife was 17years old according to their date of birth presented in the Aadhar card. After marriage, the parties resided together till the 31^st of August 2017 and they also had a son out of wedlock.

The counsel for both the parties held that the Family court who dismissed the petition relied upon the judgment, passed by the Madras High Court in Prema Kumari Vs. M. Palani, [2013 (6) RCR (Civil) 2953]. The counsel held that this judgment cannot be applicable as the age of the girl was only 15 years and could not invoke the provisions of Section 13(2)(iv) of the Hindu Marriage Act but she could nullify the marriage as a void before attaining 18 years of age. whereas the age of the petitioner in the present case was 17 years and lived together with her major husband when she attained 18 years back in 2010 therefore the family Court relied upon a wrong judgment.

The counsel relies upon the case Lajja Devi Vs. State, [2012 (4) R.C.R. (Civil) 821] where a girl eloped with the boy and married him and the boy was accused under section 363 and 376 IPC. However, the statement of the minor stated that she contracted the marriage on her own. With reference to Sections 5(iii), 11 and 12 of Hindu Marriage Act, 1955 and Sections 2 and 3 of the Prohibition of Child Marriage Act, 2006. The Delhi High court held that “when a marriage is contracted with a female under 18 years would not be a void marriage but a voidable one”. With respect to this present case, the appellant could file for a petition declaring the marriage as void before she turns 18 as per Section 11 of the Hindu Marriage Act, 1955.

The counsel further held that the parties resided together since 2009 and never once the appellant filed for any petition regarding declaring her marriage as void. Therefore, since she attained the age of 18 while living with her husband under Section 13-B of the Hindu Marriage Act, 1955, the appellant was a major and the marriage was valid.

The counsel relies upon a Delhi High Court case in Jitender Kumar Sharma Vs. State and another, [2010(4) R.C.R. (Criminal)] where a boy 18 years and girl 16 years eloped from home the bench examined provisions of Guardians and Wards Act, 1890 and stated that “the minor was competent to act as guardian of his wife as the sole consideration is the welfare of the minor”.

Another case relied upon is a full bench of Madras High Court in T.Sivakumar Vs. The Inspector of Police, Thiruvallur, [2012 AIR (Madras) 62] with regard to the provisions of section 5 of Hindu Marriage Act, 1955 and Section 3(3) of Prohibition of Child Marriage Act, 2006 stating that “if no petition is filed for an annulment of the marriage, it will become a full-fledged valid marriage”.

The Honourable Court held that in the present scenario the marriage was held in 2009 and the parties separated in 2017, the parties decided to dissolve the marriage by mutual consent and there was also a child born out of the wedlock and according to the settlement the child will be in the custody of the husband who will bear all expenses for the upbringing of the child and not money will be claimed from the appellant.  

The Honourable Court concluded that “The Family Court has wrongly dismissed the petition filed under Section 13-B of Hindu Marriage Act, 1955 as per Section 13(2)(iv) of the Hindu Marriage Act, 1955, referring to the wrong judgement. Therefore, by referring to the Madras High Court and Delhi High Court, if there is no petition filed for an annulment of the marriage, it will become a valid marriage. Therefore, this appeal is allowed and order dated 12.01.2021 is set aside and the decree of divorce under Section 13-B of the Hindu Marriage Act, 1955 is granted to the parties.”

Click here to read the judgment

Judgment reviewed by – A. Beryl Sugirtham