Harjeet Kaur And ANR v. State Of Punjab And Others

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of decision : 18.05.2021 Harjeet Kaur and another ... Petitioner(s)

Versus

State of Punjab and others ... Respondent(s) CORAM: HON'BLE MRS. JUSTICE ALKA SARIN

Present:

Mr. Kamal Narula, Advocate for the petitioners. Ms. Bhavna Gupta, DAG Punjab.

**** ALKA SARIN, J. (ORAL) Taken up through video conferencing.

The present criminal writ petition has been filed under Article 226 of the Constitution of India for enforcement of fundamental right of the petitioners seeking protection of their life and liberty as enshrined under Article 21 of the Constitution of India as they apprehend threat to their life and liberty at the hands of private respondent Nos.4 to 6. In brief, the relevant facts are that petitioner No.1 is aged 21 years and petitioner No.2 is aged 20 years. On 16.04.2021, both the petitioners ran away from their respective homes and solemnized their marriage at Gurudwara Shri Singh Sabha, Village Nore Kai. It has further been averred that the family members of both the petitioners are annoyed with them and are against their marriage. It has also been averred that the

-2private respondents have been threatening the petitioners. The petitioners have sent a representation dated 07.05.2021 (Annexure P-4) to respondent No.2 for providing adequate security. However, no action has been taken on the same.

Notice of motion.

On the asking of the Court, Ms. Bhavna Gupta, DAG Punjab has joined the session through video conferencing and accepts notice. Heard learned counsel for the parties.

In the present case, 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. This Court has taken note of the fact that petitioner No.2 is not of marriageable age as envisaged in Section 5(iii) of the Hindu Marriage Act, 1955. A Division Bench of the Delhi High Court in the case of "Jitender Kumar Sharma V/s State &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 under Section 5(iii) of the Hindu Marriage Act, 1955. In para 15, it was held by the Division Bench as under:- "15.

Returning to the facts of the present case, we find that, merely on account of contravention of clause (iii) of Section 5of 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 marriages are, at the option of both Poonam and Jitender, both being covered by the word 'child' at the time of their marriage.

-3- 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 flip-side of which clearly indicated that all child marriages were not void. For, one cannot make something voidable which is already void or invalid."

In the present case, though the issue in hand is not with regard to the validity of the marriage, but the fact is that the petitioners are seeking protection of 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, no doubt petitioner No.2 is not of marriageable age as envisaged under Section 5(iii) of the Hindu Marriage Act, 1955, however, this Court cannot shut its eyes to the fact that the apprehension of the petitioners needs to be addressed. Merely because petitioner No.2 is not of marriageable age he cannot be possibly deprived of his fundamental rights as envisaged in the Constitution of India.

-4In 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 of with a direction to respondent No.2 - Senior Superintendent of Police, Ferozepur (Punjab) - to decide the representation dated 07.05.2021 (Annexure P-4) and 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 the 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.

Disposed off accordingly.

18.05.2021 Yogesh Sharma ( ALKA SARIN ) JUDGE NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO