Kawalpreet Kaur And Another v. State Of Punjab And Others
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH CRWP No.1844 of 2022 (O&M) DATE OF DECISION : 03.03.2022 Kawalpreet Kaur and Another .....Petitioners versus State of Punjab and Others .....Respondents CORAM : HON'BLE MRS. JUSTICE ALKA SARIN Present :
Mr. Gagandeep Singh Manku, Advocate for the petitioners ..
ALKA SARIN, J. (Oral):
Heard in virtual mode.
The present criminal writ petition has been filed under Article 226 of the Constitution of India for enforcement of fundamental rights of the petitioners' seeking protection of their life and liberty as enshrined in Article 21 of the Constitution of India. Learned counsel for the petitioners would contend that both the petitioners are major. The date of birth of petitioner No.1 is 10.02.2002 and that of petitioner No.2 is 01.01.2000. The Aadhar Cards
- 2 - of both the petitioners have been annexed with the petition as Annexures P/1 and P/2. It is further the contention that the petitioners have solemnized their marriage on 25.02.2022 against the wishes of the parents of petitioner No.1 who have been arrayed in the present petition as respondent Nos.4 to 7. The learned counsel would further contend that when the petitioners requested the private respondent Nos.4 to 7 to accept their marriage and give blessings, the private respondents threatened that the petitioners would be eliminated for the sake of family prestige. Apprehending danger to their lives, the petitioners approached the Senior Superintendent of Police, Police District Batala with their representation on 25.02.2022 (Annexure P-4). However, no action has been taken on the same.
Meanwhile, the petitioners filed the instant petition seeking protection of their life and liberty. Learned counsel for the petitioners would contend that, at this stage, the petitioners would be satisfied if a direction is issued to respondent No.2 to take a decision on the representation dated 25.02.2022 (Annexure P-4) in accordance with law. Notice of motion.
On the asking of the Court, Mr. Rehat Bir Singh Maan, DAG Punjab has joined the session through Video Conferencing and accepts notice on behalf of respondent Nos.1 to 3. The service on respondent Nos.4 to 7 is dispensed with, at this stage, as the matter is not being decided on merits.
- 3 - Learned counsel for the State, on instructions from ASI Paramjit Singh, has pointed out that they have got a copy of the Matriculation Certificate of petitioner No.1 which shows that petitioner No.1 is not a major, her date of birth being 25.09.2004. Heard learned counsel for the parties.
In the present petition this Court, without expressing any opinion on the validity of the marriage of the petitioners, needs to consider as to whether the apprehension of the petitioners needs to be addressed.
Even if petitioner No.1 has not attained marriageable age as envisaged in Section 5(iii) of the Hindu Marriage Act, 1955 as per the contention raised by learned State counsel, in a case having similar facts, a Division Bench of the Delhi High Court in the case of Sh. Jatinder Kumar Sharma Vs. State and Anr. reported as 2010 SCC Online Delhi 2705 dealt with the complex issue regarding the marriage between two people ineligible to be married as envisaged in Section 5(iii) of the Hindu Marriage Act, 1955. In para 15 it was held by the Division Bench: "15. Returning to the facts of the present case, we find that, merely on account of contravention of clause (iii) of section 5 of the HMA, Poonam's marriage with Jitender is neither void under the HMA nor under the Prohibition of Child marriage Act, 2006. It is, however, voidable, as now all child
- 4 - marriages are, at the option of both Poonam and Jitender, both being covered by the word '̳child' at the time of their marriage. But, neither seeks to exercise this option and both want to reinforce and strengthen their marital bond by living together. We also find that stronger punishments for offences under the Prohibition of Child marriage Act, 2006 have been prescribed and that the offences have also been made cognizable and non-bailable but, this does not in any event have any impact on the validity of the child marriage. This is apparent from the fact that while the legislature brought about these changes on the punitive aspects of child marriages it, at the same time brought about conscious changes to the aspects having a bearing on the validity of child marriages.
It made a specific provision for void marriages under certain circumstances but did not render all child marriages void. It also introduced the concept of a voidable child marriage. The flipside of which clearly indicated that all child marriages were not void. For, one cannot make something voidable which is already void or invalid."
Further, in the said case the Division Bench also considered
- 5 - the question of custody of the minor girl. After detailed discussion, the Division Bench held as under:
"23. In the present case, Poonam is a minor Hindu girl who is married. Her natural guardian is no longer her father but her husband. A husband who is a minor can be the guardian of his minor wife. No other person can be appointed as the guardian of Poonam, unless we find that Jitender is unfit to act as her guardian for reasons other than his minority. We also have to give due weight and consideration to the preference indicated by Poonam. She has refused to live with her parents and has categorically expressed her desire and wish to live with her husband, Jitender. Coming to Poonam's welfare which is of paramount importance, we are of the view that her welfare would be best served if she were to live with her husband. She would get the love and affection of her husband.
She would have the support of her inlaws who, as we have mentioned earlier, welcomed her. She cannot be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against her will and would be violative of her rights guaranteed under article 21 of the Constitution.
- 6 - Neetu Singh's case (supra) is a precedent for this. Sending her to live with her parents is not an option as she fears for her life and liberty."
In the present case, though the issue in hand is not the validity of the marriage but the fact is that the petitioners are seeking protection of their life and liberty as envisaged under Article 21 of the Constitution of India.
Article 21 of the Constitution of India provides for protection of life and personal liberty and further lays down that no person shall be deprived of his life and personal liberty except as per the procedure established by law.
In the present case even if petitioner No.1 is a minor and is not of marriageable age, however, the Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because petitioner No.1 is not of marriageable age she cannot possibly be deprived of the fundamental rights as envisaged in the Constitution of India.
In view of the above discussion and without expressing any opinion with regard to the veracity of the contents of the petition and the submissions made by learned counsel for the petitioners, the present petition is disposed off with a direction to the Senior Superintendent of Police, Police District Batala (respondent No.2) to decide the representation of the petitioners dated 25.02.2022 (Annexure P-4) and
- 7 - take necessary action as per law.
It is, however, made clear that this order shall not, in any manner, be construed as an expression of opinion on the veracity of the statement made by the petitioners or on the validity of the marriage and shall have no effect on any other civil or criminal proceedings, if any, instituted/pending against them.
(ALKA SARIN) JUDGE 03.03.2022 parkash NOTE:
Whether speaking/non-speaking: Speaking Whether reportable: YES/NO