Hardev Singh vs Harpreet Kaur

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

(Criminal Misc No. 11850­M/2010) before the High Court of Punjab Date: 2019.11.22 13:32:47 IST Reason:

and Haryana at Chandigarh to grant police protection. By the aforesaid 2

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: 3

(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 4

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, 5

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.

6

…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 205th 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 7

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 8

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 9

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 10

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)