When male child contracts marriage with a female adult, the remedy is annulment, not punishment

Asmita Kuvalekar | Government Law College, Mumbai | 12^th April 2020. 

HARDEV SINGH V HARPREET KAUR AND OS (CRIMINAL APPEAL NO 1331 OF 2013) 

FACTS OF THE CASE: 

Challenging Punjab and Haryana High Court’s removal of police protection earlier granted by it to the appellant and his wife, this case brings to the fore the correct application of Section 9 of the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the ‘2006 Act’). Thereby, the appellant also questions the filing of FIR against him, per the directions of the High Court.

The Supreme Court carefully examines the object of the 2006 Act. In doing so, it emphasizes the correct interpretation of Section 9, one that epitomizes the original aim behind its creation. 

ISSUE: 

1. Whether Section 9 of the 2006 Act punishes a male child for marrying a female adult? 

JUDGEMENT: 

To come to a decision regarding the true object of Section 9 and the punishment it envisages, the Apex Court conducted a thorough analysis of its origin. The wording of this provision clearly punishes a male adult above 18 years for contracting a marriage with a female child, below 18. The Court duly noted that the High Court was made aware of the appellant’s age at the time of the marriage in this case. Him being 17 years at that point, Section 9 on a bare perusal, cannot be applied to him and he can’t be punished thereby. 

However, the Supreme Court thought it best to go a step further and examine the purpose of the Act so as to fully understand the societal aim it seeks to achieve. Thus, it entertained a hypothetical situation where the appellant was in fact 18 years of age at the time of marriage. It clarified that under the 2006 Act, a male child is one under 21 years of age and a female child is one under 18. Child marriage is where either one of the parties is a child. 

The female in the present situation was not a child at the time of marriage and that fact was not disputed by either side. In that regard, Section 9 does not punish a male child marrying a female adult. Therefore, punishing a child for his marriage to a female 18 or above would be a wrong interpretation of Section 9 and would undermine the high ideals of the Act. The Act seeks to uplift women and ensure their safety in the society by criminalizing the taking of a child bride. India’s historical background shows a tendency of minor girls being given in marriage to much older men, a phenomenon that hampers their physical and emotional growth. It is this evil in particular that acted as a catalyst for discussions around abolition of child marriage. 

There is no doubt that under the 2006 Act, a man under 21 is a child and his marriage to a woman, of legal age or otherwise, is not advisable. However, the remedy in such cases is the annulment of marriage under Section 3 and not punishment of the child under Section 9. Both the 2004 version of the Act and the present 2006 version hold men above 18 responsible and mature enough to contract marriage with a female child. But when the female herself is not a child, no punishment can be imposed. The Court declared that it did not wish to comment on such distinction in culpability but the fact that the Legislature created this distinction should not be overlooked. 

Thus, it was held that male adults can be punished under Section 9 for contracting marriage with a female child but the reverse situation where the male is a child and the female is 18 or above cannot be made a punishable offence. The man remains a child for the purposes of the Act and cannot be persecuted for the same. His remedy lies under Section 3 and no offence can be made out.

In coming to its decision, the Court relied upon the marginal note beside Section 9 of the 2006 Act, stating that any possible doubts are unequivocally cleared by the note. It reads: Punishment for male adult marrying a child. Having due regard to the same, the FIR against the appellant was quashed. 

Lastly, considering the absence of threat to the couple and their happy, thriving marriage, the Court accepted the High Court’s decision to withdraw police protection albeit with a rider that the order under Section 482 CrPC was not an exceptional situation calling for use of inherent powers. Moreover, there being no provision for recall of orders passed in criminal matters, the High Court gravely erred in doing so.