Supreme Court’s landmark ruling on Child Marriages

Disha Agarwal | ICFAI Hyderabad | 4th August 2020 

Hardev Singh v/s Harpreet Kaur & Ors

Facts:

In the present case, Appellant (Hardev Singh) and Respondent (Harpreet Kaur) have married each other without the consent of their parents. Due to the problems created by the parents of Respondent, they sought police protection. High Court in lieu of the same granted protection order. Subsequently, on an application made by the Respondent’s father, High Court recalled its protection order and ordered registration of FIR under Section 9 of the Prohibition of Child Marriage Act, 2006 against the Appellant. This order was passed on the ground that the Appellant had stated his age as 23 where as per his school records he was 17. Therefore, the impugned order stayed by the Supreme Court and the interim order passed by Supreme Court is in continuance.

Issues:

1. Whether the High Court’s order of directing a criminal appeal against the Appellant under Section 9 of the Prohibition of Child Marriage Act, 2006 is valid?
2. Whether the High Court is within its powers to recall/review an order passed by it in criminal matters?

Judgment:

The Supreme Court set aside the order of Punjab and Haryana Court which initiated criminal proceedings against the Appellant and stated the following:

• The High Court has committed an error as the age of the Appellant as per school records was 17 years i.e below 18 years of age and thus Section 9 cannot be applied thereto.
• According to the literal interpretation of Section 9, it states that if a male is below the age group of 18-21 years and if the female is above 18 years, and they contract marriage, the adult female will not be punished and the male who is a child himself (below 21 years of age) will be punished as per Section 9 of the Prohibition of Child Marriage Act, 2006. The Court observed that the above interpretation is against the object of the Act as borne out in its legislative history.^[1]
• This Act was passed with the motive to provide protection to child brides in particular. It was also noted that child marriages take place where husbands are much older than the girl child thereby hampering their development.^[2]The Court also stated that it is essential that Section 9 of Prohibition of Child Marriage Act, 2006 should be interpreted in the backdrop of the gender discrimination and violence against females. 
• Thus, Supreme Court inferred that the reason behind punishing male adults who contract child marriage is to protect minor female children. The Act nowhere conveys its intention to punish a male aged between 18-21 years contracting a marriage with female adults. It provides recourse to the male who is a child to get the marriage annulled under Section 3 of the Prohibition of Child Marriage Act, 2006. The Court in conveying the same resorted to the marginal note provided under Section 9 “male adult above 18 years of age marrying a child”.
• With respect to the review of the order by the High Court, Supreme Court stated that there is no such power to review or recall the earlier order under Section 482 of Criminal Procedure Code, 1973 as there is no provision with respect to review or recall of orders in criminal matters.

Conclusion:

The Supreme Court has taken a standing with respect to child marriages and cleared ambiguities regarding Section 9. It upheld the importance of the intention behind the Act rather than simply going by the literal interpretation of provisions. While delivering justice, it is of utmost importance that no innocent person is convicted due to the literal provisions rather the facts, circumstances and intention of the parties and the legislation should be given due consideration. Though the present judgment has cleared few ambiguities, but there are still few loop holes in the present act. According to Indian Majority Act, a male is considered to be an adult after attaining the age of 21 years but as per the Prohibition of Child Marriage Act, 2006 the age for punishment is above 18 years. This reveals the discrepancies between different statutes in dealing with same aspects. Secondly, the Act provides for voluntary annulment of the child marriages rather than adopting the practice of compulsory or automatic annulment. Thirdly, Section 9 only provides punishment for an adult-male contracting a child marriage and there is no provision for the punishment for an adult female. Though the intention behind the act was set out clear as to the protection of minor girl children which was important in the ancient types but at present considering the existing societal norms it becomes essential to revise or update laws as per the changing time. Therefore, it becomes equally important to provide protection to minor children in general rather than encouraging gender-stereotypes. 

^[1]  Hardev Singh v/s Harpreet Kaur & Ors AIR 2020 SC 37 at Para 33.

^[2] 205th Report of the Law Commission of India on “The Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” at pages 15­-23