Mst. SHABNAM v. Mohd. SHAF AIR 2004 Raj. 303

FACTS OF THE CASE:

The appellant/plaintiff Mst. Shabnam was married to Mohd. Shafiq on 02-11-1991. She was married by her father because she was a minor at the time of Nikah aged 14 years. She filed a suit for dissolution of marriage under Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 on the ground that she was being married by her father before she attained the age of 15 years which was repudiated by her before attaining the age of eighteen years. She disclosed her date of birth as 15-3-1978. It was further averred that the marriage of the plaintiff was never consummated with the defendant.
The defendants denied that at the time of Nikah she (Shabnam) was 14 years i.e., on 2-11-1991. It was said that she was the age of 16 years (dated 15-3-1975) according to pro forma filled by Shahar Qazi Shri Abid Ali. But, thereafter the father of the plaintiff managed to change the date of birth by producing false affidavits before the District Education Officer. It was also contended that the marriage was consummated between them after Nikah and the defendants have filed for the restoration of conjugal rights before Bikaner Family Court.
This is the plaintiff’s appeal under Section 19 of the Family Courts Act against the judgment dated 27- 7-1996 whereby the Judge, Family Court, Jodhpur dismissed the appellant’s petition for dissolution of marriage.

ISSUES FRAMED:

1. Whether the marriage of the petitioner was solemnized before she attained 15 years of age and she repudiated the same before attaining her 18 years of age?
2. Whether the petitioner ever discharged her conjugal duties after her marriage?

RULE OF LAW:

• Section 2 of Dissolution of Muslim Marriage Act, 1939
• The Evidence Act, 1872

OBSERVATION:

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides the grounds of divorce of Muslim Marriages. Sub-section (vii) reads as follows:
“(vii) that she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;”

In Muslim law, Marriage is considered as in the nature of the Contract. In the case of a minor, in Muslim law, married before attaining the age of puberty i.e., 15 years can always repudiate or ratify the contract made by her father during the minority after the attainment of puberty. The minor on attaining puberty may apply to the Court for dissolution of marriage on the ground as mentioned under Section 2 of the Act of 1939 but she has to establish that the marriage is not consummated. The Kerala High Court has held that even after there was any cohabitation before she had attained puberty, it would not affect her right to repudiate the marriage which right she gets only after attaining puberty. The cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate the marriage after attaining puberty.
Further, the plaintiff produced many certificates regarding her date of birth (15-3-1978) i.e., secondary school certificate, date of the birth certificate issued by Municipal Council, marriage certificate, etc.
Defendant has produced as many as 50 documents. All the documents are nothing but certificates obtained from different schools to show the date of birth of the plaintiff.
The court observed that there is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. “A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it.”
The opinion of the court was that Birth and Death certificate are statutory certificates and birth certificate issued by Municipal Council is presumed to be correct unless any contravention arises. As regards the issue of the consummation of the marriage, the court observed that the best witness available is the plaintiff herself. She has stated in terms that marriage was never consummated. Even if the version of the defendant that after the marriage on 2-11-1991, the plaintiff stayed with him and the marriage was consummated, is accepted the plaintiff’s date of birth being held to be 15-3- 1978, on that date she was a minor. She attained the age of puberty on 15-3-1993. There is no evidence worth the name to show that marriage was consummated after she attained the age of puberty. The court has the opinion that the consent to intercourse by a girl who had not attained puberty is not of any consequence.

JUDGEMENT:

The High Court confirms that the evidence produced on the record fully satisfies the essential ingredient of sub-section (vii) of Section 2 of Dissolution of Muslim Marriage Act, 1939. The Order of Family Court, Jodhpur set aside and marriage between plaintiff and defendant is dissolved.

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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

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