New Delhi: The Delhi High Court has ruled that courts can decide to whom the custody of a minor girl child be given in case she enters into a wed-lock on her own will.
A three judge-bench comprising Acting Chief Justice AK Sikri, Justices Sanjiv Khanna and V K Shali while deciding on the issue of custody of minor girl child who gets married, said depending on the circumstances the court will have to decide in an appropriate manner as to whom the custody of the said girl child has to be given.
The courts’s orders came after observing that though the Legislature has realised the menace of child marriage but has not made adequate provisions to make it void.
Many matters of child custody were coming up before the courts and the issue was raised when a division bench had urged a larger bench to decide the status of a marriage under the Hindu Marriage Act and the Prohibition of Child Marriage Act when the girl is a minor and whether her husband can be given her custody.
The bench held that the status of marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage, but voidable one.
The court further said such a marriage would “become valid if no steps are taken by such ‘child’ within the meaning of Section 2(a) of the Prohibition of Child Marriage Act, 2002, under Section 3 seeking declaration of this marriage as void.”
The Bench said if the question of custody of a minor girl child arises there cannot be a straightforward answer.
The court held that the charges of rape and kidnapping made against the boy in case of child marriage could also be quashed if the girl is more than 16 years of age and she makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence.
Clarifying the powers of the court to quash the charges against the accused boy, the court held that the statement of the girl could be accepted and court will be within its powers to quash the proceedings against the boy under section 363(Kidnapping) or 376(Rape) of Indian Penal Code, the bench held.
Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc., have to be taken into consideration,” the bench held. (UNI)