The marriage between two minors shall be considered as valid unless it is declared void until or before the age of Eighteen : High Court of Punjab and Haryana
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 22nd 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.
This landmark judgement was given by the disvison bench of HONORABLE MR JUSTICE RITU BAHRI AND HONORABLE MR JUSTICE ARUN MONGA in the case of YOGESH KUMAR VERSUS PRIYA [FAO-855-2021]
The brief facts of the case are that there was a marriage between the two parties on the 27th 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 31st 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.
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 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 d 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.”
Judgement reviewed by Pratikshya Pattnaik