THE Delhi High Court has asked the Union Government to file its response to a petition seeking the declaration of all child marriages as void-ab-initio (invalid in law).
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla has additionally sought the responses of the Union Ministry of Law and Justice, and the National Commission for Women.
The bench issued notice after an application was moved in an already pending petition by one Aisha Kumari.
Kumari, in her petition, alleged that she was fraudulently married to a boy when she was 16 years old. She was forced to give consent to the marriage as she could not think about going against the wishes of her family and community. However, she added that the marriage was never consummated.
Later, she pursued a bachelor's degree in education from the Guru Gobind Singh Indraprastha University between 2016 and 2018. She then cleared the Central Teacher eligibility test, and then went to Jamia Millia Islamia for a master's course.
Two years later, the respondent, her husband showed up at her house to take her to Gujarat with him, claiming that she is his wife, her plea alleged.
After fleeing from her home, she filed the present petition before the high court. The petitioner also alleged that she is now facing threats from her family and in-laws.
Though the Court had earlier issued notice to the Delhi government, it was later pointed out that the union government should be made a party before the court deals with the prayer of making the child marriages void-ab-initio.
While hearing the petition on Monday, the high court, besides issuing notice to the Centre, also directed the Delhi Police to provide security to the petitioner. Meanwhile, the Delhi Commission for Women apprised the court that it will provide shelter to her.
Section 3(1) of the Prohibition of Child Marriage Act provides that child marriages are voidable. The petition prays to declare this provision as unconstitutional and ultra vires of Article 21 of the Constitution of India.
"The prohibition of Child Marriage Act, 2006 in so far as it provides that a child marriage shall be voidable, violates the fundamental right of a minor girl child to have life with dignity and thus in teeth of Article 21 of the Constitution of India. A consent for marriage given under the age of 18 years cannot be held to be a valid consent under any circumstances and as such, the said marriage should be imposed under the protection of making it a voidable marriage."
Substantiating her argument, the plea further argued that the consent for marriage given by a child under 18 years of age cannot be held valid and needs to be declared void ab initio instead of being voidable.
"The legislature, in its wisdom, has universally enacted that a person below the age of 18 years is deemed to be a child unable to look after his or her own interests."
The petitioner pointed out that on April 26, 2017, the Karnataka Government passed a law titled the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 declaring all child marriages as void ab initio.
This was even highlighted by the Supreme Court in the case of Independent Thought vs. Union of India (2017).
"…any marriage of a child, i.e., a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka. This is how the law should have been throughout the country."
Taking note of this, the petitioner contended that the Delhi government has failed to act in a manner the Karnataka government did, to declare child marriages as invalid in law. This is violative of the petitioner's fundamental right to live with dignity.
Further, it was contended that under the principle of parens patriae, the State is bound to protect the well-being of children and minor girls who are most vulnerable. Therefore, when girl children are married against their consent, the State must proactively come forward to protect them.
Parens patriae is a doctrine that allows the state to intervene in case an individual requires care - this person may be a minor, disabled, elderly, incompetent, or otherwise unable to care for themselves.
In this regard, the plea reads as follows,
"Because the Respondent No. 1 (Delhi government) is duty-bound to take such measures to ensure the protection of the fundamental rights of the Petitioner and many more girl children around the State, who are forced into child marriage because of the lack of a strict law. It is submitted that child marriages are still in existence as the same is still reorganized by the Respondent No.1, however, if the same is declared as void ab-initio, the children who are forced to enter into child marriage would be rescued without any onus or requirement on their part."
The matter will be next heard on September 13.
Click here to view the petition filed in this matter at the Delhi High Court.