Minor girl cannot be allowed to stay with husband
Pradeep Tomar and Anr Vs State of UP and Anr
MATTERS UNDER ARTICLE 227 No. - 4804 of 2020
About/from the judgment:
The High Court recently disallowed a girl from staying with a man she claimed to be her husband, upon finding that her school certificates indicated that she was a minor, aged a little over 16 years old.
Pertinently, the Court clarified that the girl could not prove that she is of majority age through a medical examination when her school certificate indicated that she was born in 2004.
The ruling was based on an application of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, and subsequent case laws.
"The provisions of Section 94(2) makes it vivid that in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board, the other evidence about the age of a victim cannot be looked into... She cannot be referred to medical examination for determination of her age, so long as her date of birth founded on her High School Certificate, is available.", the Court noted.
The Court said that the school certificate would be regarded as conclusive with respect to the age of the girl and she cannot permit to prove herself a major by a medical examination.
“Even if it is the prosecutrix's stand, which this Court assumes to be so, that she is 18 years old, and has married Pintoo of her free will, she cannot be regarded as a major or permitted to prove herself a major, by asking herself to be referred to medical examination by a Board of Doctors, so long as her High School Certificate is clear on the point,” the Court said.
Earlier, a Judicial Magistrate at Hapur had directed the girl to go along with her husband.
This order was challenged in the High Court on the ground that the Magistrate had erred in believing that the girl was an adult and that to permit her to go with her husband would entail the permission for “statutory rape” and offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
On the other hand, the girl/ prosecutrix told the Court that she’s not a minor and that she was born in 2002. The Court, however, found that this was contradicted by her High School certificate.
All the same, during personal interaction with the judge, the girl informed the Court that she wanted to live with her husband and that there was no force or coercion.
The Court noted that the marriage, in this case, was not ‘void’ but ‘voidable', which means that the girl may choose to carry forward the marriage if she wishes to once she becomes an adult.
"... she has left her home of her own accord and married him. In this view of the matter, the marriage would not be void under Section 12 of the Act of 2006, but would be voidable under Section 3 of the said Act,” the Court observed.
The Court proceeded to set aside the order of Judicial Magistrate Hapur which had allowed the girl to go with her husband. Since the girl had expressed that she did not want to go with her parents, the High Court directed that she be housed in a safe home or a shelter home for now.
The Court added that once she attains the age of majority, it would be open to her to go wherever she likes and stay with whomsoever she wants.
The following directions were also issued:
-> The State is to place the minor in a suitable State facility other than a Nari Niketan.
-> The District Judge, Hapur is to ensure that a lady Judicial Officer, posted in his Judgeship, will visit the minor once a month and inquire about her welfare. In case there is anything objectionable, she will immediately report the matter to the District Judge.
-> The minor would be permitted to live in State facility/Safe Home/ Shelter Home till November 4, 2022, when she turns 18 as per her school records. Thereafter, she may go wherever she wants and stay with whomsoever she likes, including the man she claims to be her husband.
Read the Judgment
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