Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1331 OF 2013
Hardev Singh ...Appellant
Versus
Harpreet Kaur & Ors. …Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
1. By the impugned order passed under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.), the High Court has recalled its
earlier order dated 26.04.2010 giving protection to the Appellant and
his wife (Respondent No. 1).
The records reveal that the Appellant and Respondent No. 1
married each other on 17.4.2010 without the consent of their parents.
It seems that the parents of Respondent No. 1 were creating problems
for the couple and consequently, the latter made an application
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2019.11.22
13:32:47 IST
Reason:
(Criminal Misc No. 11850M/2010) before the High Court of Punjab
and Haryana at Chandigarh to grant police protection. By the aforesaid
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order dated 26.04.2010, police protection was granted. Subsequently,
the couple filed a contempt petition, which was disposed of by the High
Court vide order dated 18.5.2010, based on an assurance given by the
police that no harm would visit the petitioners at the behest of
Respondent No. 1’s family members.
However, subsequently, upon application made by the father of
Respondent No. 1, the High Court vide the impugned order dated
26.11.2010 recalled the protection order dated 26.04.2010, and
directed registration of an FIR for criminal offence under Section 9 of
the Prohibition of Child Marriage Act, 2006 (‘2006 Act’) against the
Appellant. This was on the ground that the Appellant had stated in the
aforesaid application Criminal Misc No. 11850M/2010 seeking police
protection that he was 23 years of age at the time of marriage,
whereas he was only 17 years of age, as is apparent from the school
record, where his date of birth is recorded as 30.6.1992.
We note from the order sheets maintained by this Court that the
impugned order was stayed by this Court vide interim order dated
14.12.2010 and the said interim order has continued till present.
2.
Having gone through the material on record and having heard
learned counsel for the parties, we are of the considered opinion that:
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(a) The High Court could not have recalled its earlier order
under Section 482, Cr.P.C, inasmuch as there is no provision for
recalling or reviewing an order passed by it in criminal matters.
(b)
The order that was set aside was only a protection order and
there was no exceptional circumstance calling for an exercise of the
High Court’s inherent powers.
(c)
The High Court was not justified in directing initiation of
criminal proceedings against the Appellant under Section 9 of the
2006 Act. Section 9 reads as under:
| “ | Section 9. Punishment for male adult marrying a | |||
|---|---|---|---|---|
| child. | Whoever, being a male adult | above eighteen years | ||
| of age, contracts a child marriage shall be punishable with | ||||
| rigorous imprisonment which may extend to two years or | ||||
| with fine which may extend to one lakh rupees or with | ||||
| both.” (emphasis supplied) |
| The High Court has relied upon the school record of the |
|---|
Appellant in directing prosecution against him under Section 9. We
find that the High Court has committed a grave error on the face of the
record inasmuch as if the date of birth as given in the school
certificate is accepted, the Appellant was 17 years old, i.e. below
eighteen years of age when he married Respondent No. 1. Hence,
Section 9 cannot be applied to him.
3. In any case, even assuming that the Appellant was aged eighteen
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years or above on the date of his marriage, we are of the considered
opinion that Section 9 does not apply to the facts and circumstances
of this case. It is pertinent to refer to the overall scheme of the 2006
Act in determining whether an offence under Section 9 is made out.
3.1. Section 2(a) of the 2006 Act defines child as a person who, if a
male, has not completed twentyone years of age, and if a female, has
not completed eighteen years of age. Under Section 2(b) of the Act,
“child marriage” means a marriage to which either of the contracting
parties is a child. Thus, even if the husband is between eighteen and
twentyone years of age, it can be treated as a child marriage.
3.2. It is not in dispute that Respondent No.1 (wife of the Appellant)
was a major at the time of marriage. The 2006 Act does not make any
provision for punishing a female adult who marries a male child.
Hence, a literal interpretation of the above provisions of the 2006 Act
would mean that if a male aged between the years of eighteen and
twentyone contracts marriage with a female above eighteen years of
| age, the female adult would not be punished, but it is the | male | who |
|---|
would be punished for contracting a child marriage, though he himself
is a child.
3.3.
We are of the view that such an interpretation goes against the
object of the Act as borne out in its legislative history. Undoubtedly,
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the Act is meant to eradicate the deplorable practice of child marriage
which continues to be prevalent in many parts of our society. The
Statement of Objects and Reasons declares that prohibition of child
marriage is a major step towards enhancing the health of both male
and female children, as well as enhancing the status of women in
particular. Notably, therefore, a significant motivation behind the
introduction of this legislation was to curb the disproportionate
| adverse impact of this practice on child | brides | in particular. |
|---|
3.4. After being passed by the Rajya Sabha, when the Prohibition of
| Child Marriage Bill, 2006 was introduced for discussion in the 14 | th |
|---|
Lok Sabha by Smt. Renuka Chowdhury, the then Minister of State for
Women and Child Development, she emphatically highlighted how
child marriage reinforces gender discrimination in the country:
| “ | …Unfortunately, here in India today gender is a matter of | |||
|---|---|---|---|---|
| life and death. Boys live and girls die and that is the tragedy | ||||
| of our times. | ||||
| These girls are then denied access to schools, they are | ||||
| made to look after their younger siblings, they have no | ||||
| access to food security, much less to immunization, they | ||||
| are anemic, they are subjected to untold exposures of | ||||
| infections and horrors and as soon as they enter their | ||||
| reproductive years, irrespective of the fact that they live in a | ||||
| tropical country like ours where onset of reproductive years | ||||
| is much earlier than in some other countries, these children | ||||
| are then sent off to be married and they become mothers at | ||||
| that age, at that stage of malnutrition, at that stage of | ||||
| denial of food security and at that stage of incubating | ||||
| disease whereby they, in turn, give birth to malnutrition | ||||
| children. |
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| …After that these children are then vulnerable to | ||
|---|---|---|
| domestic violence, alcoholic husbands who come home and | ||
| beat them, abuse of different kinds, trafficking, taken away | ||
| and exposed to horrors of such type that we cannot even | ||
| begin to imagine. Although, the Child Marriage Restraint | ||
| Act 1929 was brought into force nearly 77 years ago, it only | ||
| brought restraint. It did not talk of prevention or removal.” |
3.5.
Further, the Law Commission of India has also noted that child
marriage is far more prevalent amongst girls, whose husbands are
often much older than them, therefore compromising their
| development. ( | See | The | 205 | th | Report of the Law Commission of India on |
|---|
the Proposal to Amend the Prohibition of Child Marriage Act, 2006 and
| Other Allied Laws | at pages 1523) |
|---|
3.6. It is also pertinent in this regard to refer to the Prevention of
Child Marriage Bill, 2004 (‘2004 Bill’) which preceded the 2006 Act.
| Clauses 2(a), 2(b), and 9 of the 2004 Bill are | in pari materia | with the |
|---|
corresponding Sections of the 2006 Act, except insofar as Clause 9 of
the 2004 Bill prescribed simple imprisonment, whereas Section 9 of
the 2006 Act prescribes rigorous imprisonment for the offence. The
Parliamentary Standing Committee on Personnel, Public Grievances,
Law and Justice, in its Thirteenth Report, on the 2004 Bill, notes that
although both men and women are deemed to have attained majority
at eighteen years of age under other laws, a differential metric has
| been adopted for the purposes of defining child marriage. | A higher age |
|---|
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is prescribed for men, based on the prevailing societal notions that the
age of eighteen years is insufficient for a boy to attain the desired level
of education and economic independence, and that an age gap ought
| to be maintained between the groom and the bride. |
|---|
3.7. However, the 2004 Bill, as also the 2006 Act, treats men who are
above the age of 18 as having sufficient maturity to be held
responsible for marrying a female child. The Report also notes that the
purpose of Clause 9 of the 2004 Bill is to provide adequate penal
| consequences for a male adult who marries a | child | . However, an adult |
|---|
woman is exempt from punishment for marrying a male child as, in a
society like ours, decisions regarding marriage are usually taken by
the family members of the bride and groom, and women generally have
little say in the matter. We hasten to emphasise that we do not wish to
comment on the desirability of maintaining the aforesaid distinction in
culpability. However, the context in which this distinction was
considered appropriate by the legislature must be taken into account.
3.8.
Section 9 of the 2006 Act must be viewed in the backdrop of this
gender dimension to the practice of child marriage. Thus, it can be
inferred that the intention behind punishing only male adults
contracting child marriages is to protect minor young girls from the
negative consequences thereof by creating a deterrent effect for
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prospective grooms who, by virtue of being above eighteen years of age
are deemed to have the capacity to opt out of such marriages. Nowhere
from the discussion above can it be gleaned that the legislators sought
to punish a male between the age of eighteen and twentyone years
who contracts into a marriage with a female adult. Instead, the 2006
Act affords such a male, who is a child for the purposes of the Act, the
| remedy | of getting the marriage annulled by proceeding under Section |
|---|
3 of the 2006 Act. Hence, male adults between the age of eighteen and
twentyone years of age, who marry female adults cannot be brought
under the ambit of Section 9, as this is not the mischief that the
provision seeks to remedy.
3.9.
Our views are supported by the marginal note of Section 9, which
reads “Punishment for male adult marrying a child”. It is well settled
that where any ambiguity exists with regard to the interpretation of a
legislative provision, the marginal note can be used in aid of
construction, having regard to the object of the legislation and the
mischief it seeks to remedy.
In view of the above, the words “male adult above eighteen years
of age, contracts a child marriage” in Section 9 of the 2006 Act should
be read as “male adult above eighteen years of age marries a child”.
4.
Having regard to the above discussion, Section 9 of the 2006 Act
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does not apply to the present case at all. By way of abundant caution,
we wish to clarify that we are not commenting on the validity of
marriages entered into by a man aged between eighteen and twenty
one years and an adult woman. In such cases, the man may have the
option to get his marriage annulled under Section 3 of the 2006 Act,
subject to the conditions prescribed therein.
5.
Be that as it may, it is brought to our notice by the advocates for
the parties herein, that the couple has been living happily, and are not
facing any threat from their family members. Hence, we are of the
opinion that police protection is no more required in the present case.
6.
In view of the above, the directions issued by the High Court to
get the First Information Report lodged (FIR No. 122 dated
24.12.2010) are quashed, and the impugned order is set aside. The
| appeal is allowed accordingly. |
|---|
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
.……………………………...............J.
(ANIRUDDHA BOSE)
New Delhi;
November 07, 2019
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ITEM NO.110 COURT NO.14 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1331/2013
HARDEV SINGH Appellant(s)
VERSUS
HARPREET KAUR & ORS. Respondent(s)
Date : 07-11-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Appellant(s) Mr. Rishi Malhotra, AOR
Mr. Utkarsh Singh, Adv.
For Respondent(s) Mr. Bankey Bihari Sharma, AOR
Mr. Ram Nath, Adv.
Ms. Ranjeeta Rohatgi, AOR
Mr. Satish Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable
judgment.
Pending application(s), if any, stands disposed of
accordingly.
(ASHWANI THAKUR) (R.S. NARAYANAN)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)