It definitely cannot be ever taken for granted even by the Supreme Court that none other than the Allahabad High Court which is one of the oldest High Courts in India and biggest High Court in the world with maximum number of advocates within its ambit in world in a most learned, laudable, landmark, logical and latest judgment titled Sanjay Chaudhary v Guddan @ Usha in Case :- First Appeal No. – 213 of 2018 and cited in Neutral Citation No. – 2024:AHC:173333-DB that was pronounced as recently as on 25.10.2024 minced just no words to observe that the difference in the legal age for marriage between men and women in India is “nothing but a vestige of patriarchy”. We must know that currently the age for marriage for men in India is 21 years while for women it is 18 years. While delving on the legislative intent, the Division Bench comprising of Hon’ble Mr Justice Saumitra Dayal Singh and Hon’ble Mr Justice Donadi Ramesh laid bare that the legislative intent was to allow an extra three years for men to complete their education and gain financial independence to support the family. While adding a caveat, the Court said that this amounted to denial of the same opportunity to women. Of course, this needs to be set right at the earliest by amending law by Parliament! No denying!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Division Bench comprising of Hon’ble Mr Justice Saumitra Dayal Singh and Hon’ble Mr Justice Donadi Ramesh of Allahabad High Court sets the ball in motion by first and foremost putting forth in para 2 that, “Present appeal has been filed under Section 19 of the Family Courts Act, 1984, arising from the judgement and order dated 23.02.2018 passed by learned Principal Judge, Family Court, Gautam Buddha Nagar, in Suit No. 794 of 2013 (Sanjay Chudhary v. Guddan @ Usha), whereby declaration sought by the appellant, that his marriage with respondent, solemnised on 28.11.2004, was void, has been declined. The suit has been dismissed.”
To put things in perspective, the Division Bench envisages in para 3 that, “According to the facts proven before the learned trial court, the appellant was born on 07.08.1992 whereas the respondent was born on 01.01.1995. On 28.11.2004, the date of their marriage, the appellant was about 12 years of age whereas the respondent was about 9 years of age. They would have attained the age of 18 years in the year 2010 and 2013, respectively. On 05.07.2013, claiming benefit of Section 3 of Prohibition of Child Marriage Act, 2006 (hereinafter referred to as the ‘PCMA’), the appellant filed the above-described suit at age 20 years 10 months and 28 days. Initially, the suit was instituted under Section 12 (2) of the HMA. Later, upon amendment being allowed, direct relief was claimed under Section 3 of the PCMA. Relying on Section 2(a) of PCMA- that defines “child” and thus prescribes the age requirement for a valid marriage (like that provided under Section 5(3) of the Hindu Marriage Act, 1955- hereinafter referred to as the ‘HMA’), the appellant claimed that his suit, thus filed, was within the limitation prescribed under Section 3(3) of PCMA. Other fact grounds were also pleaded to allege that the respondent never cohabited, etc.”
As it turned out, the Division Bench after hearing both sides enunciates in para 36 that, “Having heard learned counsel for the parties and having perused the record, we may first note that the HMA does not contain any provision to declare a “child marriage” void, though it contemplates criminal prosecution of male parties to such transactions. Earlier, HMA prescribed the age of marriage. It is consistent to PCMA, i.e. 18 years for females and 21 years for males. Yet, it stopped short of making any provision as to the legality of “child marriage” performed by underage male or female, or both. In contrast, Section 3 (1) of PCMA (the later enactment) clearly provides: (i) every “child marriage”; (ii) whether solemnized before or after commencement of that Act; (iii) shall be voidable; (iv) at the option of the contracting party, if they were a “child” at the time of such marriage.”
As we see, the Division Bench specifies in para 37 stating that, “The term “child marriage” is defined under Section 2 (b) of the PCMA. It clearly means a marriage where either of the contracting party is a “child”. The word “child” has been defined under Section 2(a) of the PCMA. Clearly, a male below 21 years of age is deemed to be a “child” for the purpose of PCMA. Similarly, a female below 18 years of age is deemed to be a “child”. It is admitted to the parties to the dispute that the appellant was about 12 years of age, whereas, the respondent was 9 years of age, at the time of their marriage solemnized on 28.11.2004. That transaction was a “child marriage”, admittedly voidable at the option of either party.”
Do note, the Division Bench notes in para 39 that, “The remedy available to both parties to a “child marriage” is to seek a declaration from a competent Court that their marriage was void. However, that effect and remedy is optional i.e. to be availed upon the volition of either party to that marriage, but by no other. Thus, a “child marriage” is voidable but not void. Any party to such transaction must elect to confirm or void it.”
Do also note, the Division Bench notes in para 40 that, “With respect to the procedure to seek a declaration that a transaction of “child marriage” is void, Section 3(2) of the PCMA provides that a “minor” may file a suit seeking declaration that their marriage was void, through their guardian or next friend along with the Child Marriage Prohibition Officer.”
Needless to say, the Division Bench states in para 41 that, “Insofar as the PCMA does not make any provision – who may file such a suit (where the plaintiff may have attained the age of “majority”), it naturally follows from Section 3(2) of the PCMA, that such suit may be filed only by the person seeking that declaration, that right accruing to such person from “majority” attained.”
Do further note, the Division Bench notes in para 42 that, “Then Section 3(3) of the PCMA provides that a suit may be filed “at any time” but before the “child” filing the suit completes two years of “attaining majority”. Thus, the start point of limitation has been prescribed- “at any time”. Clearly, that would refer to any time after solemnization of a “child marriage” and not before. On the other hand, the end of limitation has been prescribed with reference to date of “attaining majority”. It has been fixed at the completion of two years therefrom. Therefore, it becomes material to ascertain – what would be the age when a “child” (either male or female), may attain “majority”.”
As things stands, the Division Bench maintains in para 43 that, “The term “majority” and the phrase “attaining majority” have not been defined under the PCMA. At the same time, the word “minor” has been defined under Section 2(f) of the PCMA to mean a person “deemed not to have attained his majority” under the Majority Act. Therefore, the legislature has defined the word “minor” as the opposite of a “major” under the Majority Act. Section 3 of the Majority Act provides for the “age of majority of persons domiciled in India, at 18 years and not before”.”
Be it noted, the Division Bench notes in para 44 that, “Consistent thereto, Section 9 of the PCMA prescribes punishment to any “male adult”, who may marry a “child”. Thus, any “male adult”, “above 18 years of age”, who may contract a “child marriage” shall be punished with rigorous imprisonment, that may extend to two years or fine that may extend to one lakh INR, or both. Thus, Section 9 of the PCMA also uses the phrase “male adult” in the context and with reference to age of such person being more than 18 years i.e. such male who may have attained the age of majority under the Majority Act.”
It is worth noting that the Division Bench notes in para 45 that, “In our view, the PCMA uses two concepts. First, to deal with the menace of “child marriage”, the legislature devices a concept of “child”. In that it creates an artificial distinction between the male and female population in the country. Consistent to the provisions of the Majority Act, it assumes that in our society a female would cease to be a “child” at age 18 years, purely by work of unexplained legal fiction, it artificially assumes that a male would remain a “child” up to the age of 21 years.”
It would be worthwhile to note that the Division Bench acknowledges in para 46 that, “We recognize that that legislative prescription also involving legislatively drawn artificial distinction (on the strength of a legal fiction incorporated), may have arisen for two completely different and largely distinct considerations. First, the legislature sought to protect the female population from the vice of “child marriage”, inherently involving risks to their life and health upon premature and therefore wholly unhealthy and undesirable exposure sexual intercourse and early childbirth – both leading to serious risks to their health (both physical and physiological), and longevity. It thus prohibits performance of any marriage involving a female below 18 years of age. At the same time, it uses that legislative opportunity to confirm a pre-existing societal concern to allow the male population, three more years to equip itself-educationally and financially, before the responsibilities of a married life may arise.”
Most significantly, most commendably and most remarkably, what encapsulates the cornerstone of this notable judgment is then laid bare in para 47 wherein it is postulated that, “If we look beyond the surface of things, the artificial distinction drawn by Section 2(a) of PCMA between male and female members of the population, is nothing but a vestige of patriarchy. In making that observation we first appreciate the positive legislative step, to allow three years further time to members of the society to complete their education and gain financial independence. Yet, by confining that opportunity only to the male population and by deliberately denying and equal opportunity to the female population, the pre-existing patriarchal bias existing in the society and the statutory law has been confirmed. Thus, a legislative assumption appears to exist that in a matrimonial relationship, it is the male who would be elder of the two spouses and would bear the financial burden of running the family expenses while his female partner would remain a child bearer or a second party – not equal to the first, in all respects.”
Adding further, the Division Bench observes in para 48 that, “Otherwise, the legislature would have necessarily equipped the female population also with time till age 21 – to complete their education and become financially independent. Thus, the higher and more desirable, and in any case the Constitutionally protected and cherished goal of equality enshrined under Article 14 of the Constitution of India, may have remained unaddressed. Yet, this is a statutory appeal proceeding, not involving any issue of validity of PCMA. Hence, we decline to rule on that issue.”
Simply put, the Division Bench states in para 49 that, “At the same time, the dominant purpose of the PCMA is to prohibit solemnisation of “child marriages” especially those involving girls of tender age. They may never be prematurely exposed to inherently unhealthy sexual intercourse and to attending risks to their health and early childbirth that may endanger their life and health, especially through institution of marriage. Thus, that legislatively introduced social reform must be enforced scrupulously. The interpretation to Section 3 offered by the appellant does not serve that purpose.”
Most forthrightly and most sagaciously, the Division Bench points out in para 50 that, “At the same time, the interpretation being offered would allow for an unfair and absurd advantage to arise in favour of male adults between 18 and 21 years of age. They may knowingly perform “child marriage” with underage and/or adult females, exposing their spouses to risk of their marriage being declared void at the instance of such “male adult” three years after such a victim female spouse may have crossed age of 20 years. Thus, a male who may be 18 years of age may marry a female 18 years of age and still have that marriage declared void by filing a suit under Section 3 of the PCMA up to age 23, though the victim female may remain helpless and disabled in law in setting up any valid defence. Even where an underage female party to such a “child marriage” may herself elect to confirm such a transaction – at age 18 and in any case loose limitation to institute any suit proceeding to seek a declaration that the transaction was void, at age 20, the male party to that transaction may continue to claim limitation to institute such a suit till age 23 years. No constitutional or legislative or socially justifiable reason may ever exist to accept that scheme of the Act.”
As a corollary, the Division Bench states in para 53 which cannot be lost sight of that, “By way of necessary corollary to the above, any person whether male or female, who has attained the age of 18 years may file a suit seeking declaration that their marriage is void, only in his own capacity. Once the Parliament has vested that legal capacity to both male and female population alike (at age of 18 years), that person may be deemed to know all – the election to be made; remedy to be applied; the statutory procedure under which it may be applied and the limitation to apply. There is no reason, either explicit or implied, apparent or inherent, necessary or possible, to accept that males would need or may be permitted to seek such discretionary relief within three years extra limitation than provided to the female, for the same purpose.”
What’s more, the Division Bench clarifies in para 74 stating that, “Then, it not disputed that the suit had been filed by a party to the transaction of “child marriage”. It is wholly maintainable. As to the competence and capacity of the appellant to institute the suit proceeding, there is no doubt. The appellant was more than 18 years of age. He alone could have filed that suit in his individual capacity. Last, as to limitation, we have already reached a conclusion considering the decision of the Supreme Court primarily in Independent Thought (supra) read with Hardev Singh (supra), that the appellant had limitation available up to 23 years of age, to institute that suit. Undoubtedly, on the date of institution of the suit by the appellant he was less than 23 years of age. Therefore, the suit was instituted within limitation, it having been instituted before expiry of 2 years from the date the appellant ceased to be a “child” i.e. attained 21 years of age.”
Interestingly enough, the Division Bench then further expounds in para 75 that, “No other issue is to be dealt with. The findings recorded by the learned court below to the effect that earlier the appellant had instituted proceedings under Section 13 of the Hindu Marriage Act, that failed or that the present proceedings were originally instituted under Section 12(2) of the Hindu Marriage Act or that the amendment was made later to set-up ground of Section 3 PCMA and the other fact finding with respect to conduct of the parties up to the time the appellant sought a declaration under Section 3 of PCMA fade into insignificance, in view of the foregoing discussion. In any case, it was not proven by the respondent that the appellant had ever elected to confirm his “child marriage” after “attaining majority” or that he ever waived his right to void that transaction. The learned court below ought to have granted the relief prayed.”
Still more, the Division Bench directs in para 76 stating that, “What last survives for our consideration is, provision for maintenance and residence of the respondent. In that, counsel for the respondent has (in the alternative), pressed for INR 50,00,000/- towards permanent alimony and a residential house for the residence of the respondent. On his part, the appellant has offered to pay permanent alimony @ INR 15,00,000/-, at most. Insofar as the respondent has continued to reside with her parents the prayer for residential accommodation made by the respondent is declined. As to permanent alimony, we peg the amount at INR 25,00,000/-.”
Not stopping, the Division Bench further directs in para 77 that, “Accordingly, the order of the learned court below cannot be sustained. It is set-aside. The transaction of “child marriage” performed between the parties is declared void. Let INR 25,00,000/- be paid to the respondent within a period of one month. Failing that, the awarded amount shall carry interest @ 8% after one month till the date of its actual payment. No other relief has been pressed under Section 3(4) of the PCMA or otherwise.”
Finally, the Division Bench concludes by holding in para 78 that, “Appeal is allowed as above. No order as to costs.”
In conclusion, it is high time and Parliament must step in and amend law most promptly and bring men and women on equal footing on age as ideally it should be and as has been so validly pointed out by the Division Bench of Allahabad High Court in this leading case. This noteworthy judgment is an eye opener and definitely also provides an exhaustive detail on how this discrimination has been continuing since such a long time unabashedly! It has been thus very rightly pointed out in this notable judgment that the difference in legal marriage age for men and women is based on patriarchal basis which needs to be uprooted. It thus certainly merits no reiteration that the time is ripe now to ensure that all such meaningless discrimination in age between men and women are eliminated at the earliest and both are treated on an equal footing! No denying or disputing it!
Author Bio
