By LE Desk

Chandigarh, April 4: The Punjab and Haryana High Court has made it clear that a minor girl’s consent was insignificant in child marriage cases and the court may exercise its jurisdiction to send her to an appropriate “home” till she became a major.

The High Court also made it clear that inherent right was not vested in the husband or his relatives to claim the minor girl’s custody by filing a writ of habeas corpus. 

“Keeping a minor girl child in such circumstances either by an order of a judicial court or by a child welfare committee (in a child protection home) by following proper procedure cannot be held to be an illegal detention,” Justice Jasgurpreet Singh Puri ruled, The Tribune reported.

The ruling came in a case where a minor was sent to Nari Niketan/child protection home by the Child Welfare Committee in September last. The under-17 had refused to go along with her father and had insisted upon going with her husband. Otherwise, the minor had stated that she was not facing any problem in the Nari Niketan/child protection home.

After hearing the petitioner and counsel Harsh Chopra for complainant-father, Justice Puri asserted the Hindu Marriage Act and the Prohibition of Child Marriage Act provided penal provisions in child marriage cases and performance of such a marriage was also an offence. 

The plea taken by the counsel for the petitioner-husband’s relative that the marriage was performed with the minor girl’s consent would pale into insignificance as child marriage was an offence, although not illegal under the Hindu Marriage Act. It certainly was a voidable marriage under the Prohibition of Child Marriage Act.

Justice Puri added the child’s welfare was always of paramount consideration. Pleas usually taken of parents forcing the girl to get married to some other person, too, would not carry any weight. In that eventuality, steps were required to be taken to protect the girl child by keeping her in a safe custody rather than permitting marriage before attaining maturity.

Justice Puri added a social menace required a solution, not another menace. “It would be trite in law to acknowledge child marriages based on consent. The element of consent is always subservient to a child’s overall”.

Before parting, Justice Puri added the girl in the facts and circumstances could not be directed to be released till she attained maturity by giving her custody either to her husband or his relatives. The Child Welfare Committee would permit her to go to her father/parents if she desired before turning 18.

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