NEW DELHI: Prohibition of Child Marriage Act does not make a child marriage void but prescribes that any minor spouse can seek annulment of marriage within two years of becoming major. Under the law, a minor girl or any of her well-wishers, if they so choose, can challenge her marriage up to the age of 20. She is considered to be a major and marriageable after turning 18.
But a serious problem arises in the case of a male minor because of the discrepancy between the ages when he is deemed to turn a major; that is 18, and when he is legally eligible to marry, that is 21.
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Supreme Court has decided to examine the issue and issued notice on a plea filed by a woman against an Allahabad HC order which had held that the age of becoming major for males under the Act was 21 years and annulled her marriage on her husband’s plea who was around 23 years of age at the time.
Section 3 of the Act says every child marriage shall be voidable at the option of the contracting party who was a child at the time of marriage and a petition may be filed at any time but before the child filing the petition completes two years of attaining majority.
A bench of Justices Pankaj Mithal and Ahsanuddin Amanullah agreed to hear the woman’s plea and issued notice to her spouse. In her plea, the woman contended that the HC committed an error in annulling the marriage which was solemnised in 2004 when she was nine years old and her husband was 12.
“Interpretation and application of Section 3 of the PCM Act as rendered by the HC in its judgment extends the limitation period for filing a suit to void a child marriage up to the age of 23 for a male. This is in direct conflict with the legislative purpose, constitutional principles and the protective ethos of the PCM Act,” she said in her petition filed through advocate Saurabh Ajay Gupta.
In this case, the marriage was solemnised by their parents and the husband became major (18 years) in 2010 and she in 2013. The husband thereafter filed a divorce petition in 2013. Four years later, he invoked Section 3 of the Act for annulment of marriage and amended the suit. But his plea was dismissed on the ground that he had first filed a divorce plea which meant that he implicitly confirmed and ratified the validity of the child marriage. The husband then moved the HC in 2018 and in Oct last year, the court allowed his plea for annulment of marriage. While the marriage was declared void, the HC ordered payment of permanent alimony of Rs 25 lakh to the wife.
“The respondent, having attained majority on Aug 7, 2010, filed the annulment petition on July 5, 2013, well beyond the limitation period prescribed under PCM Act. The HC failed to appreciate the distinction between the age of legal capacity to marry and the age of legal capacity to institute legal proceedings,” the woman said in her petition.
