HARDEV SINGH versus HARPREET KAUR & ORS. on 7 November 2019

120

[2019] 14 S.C.R. 120

SUPREME COURT REPORTS

[2019] 14 S.C.R.

A

HARDEV SINGH

v.

HARPREET KAUR & ORS.

(Criminal Appeal No. 1331 of 2013)

BNOVEMBER 07, 2019

[MOHAN M. SHANTANAGOUDAR AND

ANIRUDDHA BOSE, JJ.]

Prohibition of Child Marriage Act, 2006 – s.9 – InterpretationCof – High Court directed registration of FIR for criminal offence u/s. 9 of the Act, 2006 against the appellant – It was alleged thatappellant was only 17 years, when he married respondent no.1 –However, it is not disputed that respondent no.1 (wife of theappellant) was a major at the time of marriage – Held: A literalinterpretation of ss.2(a), 2(b) and 9 would mean that if a male agedDbetween the years of eighteen and twenty-one contracts marriagewith a female above eighteen years of age, female adult would notbe punished, but it is the male who would be punished forcontracting a child marriage, though he himself is a child – However,such interpretation goes against the object of the Act – The intentionEwas to punish the male adults contracting child marriages to protectminor young girls – This is also supported by the marginal note ofthe s.9, which reads “Punishment for male adult marrying a child”– Thus, the words “male adult above eighteen years of age, contractsa child marriage” in s.9 should be read as “male adult aboveeighteen years of age marries a child” – In the instant case, theFHigh Court committed error on the face of record as appellant was17 years old i.e. below eighteen years when he married respondentno.1 – Hence, s.9 was not applicable to the appellant – Accordingly,the direction of the High Court to register FIR quashed and theimpugned order set aside – Interpretation of statutes.G

Interpretation of statutes – Marginal note of section – Held:It is well settled that where any ambiguity exists with regard to theinterpretation of a legislative provision, the marginal note can beused in aid of construction, having regard to the object of thelegislation and the mischief it seeks to remedy.

H

Allowing the appeal, the Court

HELD : 1. Section 2(a) of the Prohibition of Child MarriageAct, 2006 defines child as a person who, if a male, has notcompleted twenty-one years of age, and if a female, has notcompleted eighteen years of age. Under Section 2(b) of the Act,“child marriage” means a marriage to which either of thecontracting parties is a child. Thus, even if the husband is betweeneighteen and twenty-one years of age, it can be treated as a childmarriage. [Para 3.1] [124-C]

2. It is not in dispute that Respondent No.1 (wife of theAppellant) was a major at the time of marriage. The 2006 Actdoes not make any provision for punishing a female adult whomarries a male child. Hence, a literal interpretation of the aboveprovisions of the 2006 Act would mean that if a male agedbetween the years of eighteen and twenty-one contracts marriagewith a female above eighteen years of age, the female adult wouldnot be punished, but it is the male who would be punished forcontracting a child marriage, though he himself is a child.[Para 3.2] [124-D-E]

3. Section 9 of the 2006 Act must be viewed in the backdropof the gender dimension to the practice of child marriage. Thus,it can be inferred that the intention behind punishing only maleadults contracting child marriages is to protect minor young girlsfrom the negative consequences thereof by creating a deterrenteffect for prospective grooms who, by virtue of being aboveeighteen years of age are deemed to have the capacity to opt outof such marriages. However, it cannot be gleaned that thelegislators sought to punish a male between the age of eighteenand twenty-one years who contracts into a marriage with a femaleadult. Instead, the 2006 Act affords such a male, who is a child forthe purposes of the Act, the remedy of getting the marriageannulled by proceeding under Section 3 of the 2006 Act. Hence,male adults between the age of eighteen and twenty-one years ofage, who marry female adults cannot be brought under the ambitof Section 9, as this is not the mischief that the provision seeksto remedy. [Para 3.8] [126-E-G]

B

CD

EFG

A4. This view is supported by the marginal note of Section9, which reads “Punishment for male adult marrying a child”. Itis well settled that where any ambiguity exists with regard to theinterpretation of a legislative provision, the marginal note can beused in aid of construction, having regard to the object of thelegislation and the mischief it seeks to remedy. In view of theBabove, the words “male adult above eighteen years of age,contracts a child marriage” in Section 9 of the 2006 Act shouldbe read as “male adult above eighteen years of age marries achild”. [Para 3.9] [126-H; 127-A]

The 205[th] Report of the Law Commission of India onCthe Proposal to Amend the Prohibition of ChildMarriage Act, 2006 and Other Allied Laws at pages15-23 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1331 of 2013.DFrom the Judgment and Order dated 26.11.2010 of the High Courtof Punjab & Haryana at Chandigarh in Crl. Misc. No. 23881 of 2010 inCrl. Misc. No. 11850-M of 2010 (O&M).

Rishi Malhotra, Utkarsh Singh, Advs. for the Appellant.EBankey Bihari Sharma, Ram Nath, Ms. Ranjeeta Rohatgi, SatishKumar, Advs. for the Respondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.F1. By the impugned order passed under Section 482 of the Codeof Criminal Procedure, 1973 (Cr.P.C.), the High Court has recalled itsearlier order dated 26.04.2010 giving protection to the Appellant and hiswife (Respondent No. 1).

The records reveal that the Appellant and Respondent No. 1Gmarried each other on 17.4.2010 without the consent of their parents. Itseems that the parents of Respondent No. 1 were creating problems forthe couple and consequently, the latter made an application (CriminalMisc No. 11850-M/2010) before the High Court of Punjab and Haryanaat Chandigarh to grant police protection. By the aforesaid order dated26.04.2010, police protection was granted. Subsequently, the couple filedH

a contempt petition, which was disposed of by the High Court vide orderdated 18.5.2010, based on an assurance given by the police that no harmwould visit the petitioners at the behest of Respondent No. 1’s familymembers.

However, subsequently, upon application made by the father ofRespondent No. 1, the High Court vide the impugned order dated26.11.2010 recalled the protection order dated 26.04.2010, and directedregistration of an FIR for criminal offence under Section 9 of theProhibition of Child Marriage Act, 2006 (‘2006 Act’) against theAppellant. This was on the ground that the Appellant had stated in theaforesaid application Criminal Misc No. 11850-M/2010 seeking policeprotection that he was 23 years of age at the time of marriage, whereashe 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 theimpugned order was stayed by this Court vide interim order dated14.12.2010 and the said interim order has continued till present.

2. Having gone through the material on record and having heardlearned counsel for the parties, we are of the considered opinion that:

(a) The High Court could not have recalled its earlier order underSection 482, Cr.P.C, inasmuch as there is no provision for recalling orreviewing an order passed by it in criminal matters.

(b) The order that was set aside was only a protection order andthere was no exceptional circumstance calling for an exercise of theHigh Court’s inherent powers.

(c) The High Court was not justified in directing initiation of criminalproceedings against the Appellant under Section 9 of the 2006 Act. Section9 reads as under:

“Section 9. Punishment for male adult marrying a child.-Whoever, being a male adult above eighteen yearsof age, contractsa child marriage shall be punishable with rigorous imprisonmentwhich may extend to two years or with fine which may extend toone lakh rupees or with both.” (emphasis supplied)

The High Court has relied upon the school record of the Appellantin directing prosecution against him under Section 9. We find that theHigh Court has committed a grave error on the face of the record A

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Ainasmuch as if the date of birth as given in the school certificate isaccepted, the Appellant was 17 years old, i.e. below eighteen years ofage when he married Respondent No. 1. Hence, Section 9 cannot beapplied to him.

3. In any case, even assuming that the Appellant was aged eighteenByears or above on the date of his marriage, we are of the consideredopinion that Section 9 does not apply to the facts and circumstances ofthis case. It is pertinent to refer to the overall scheme of the 2006 Act indetermining whether an offence under Section 9 is made out.

3.1. Section 2(a) of the 2006 Act defines child as a person who, ifCa male, has not completed twenty-one years of age, and if a female, hasnot completed eighteen years of age. Under Section 2(b) of the Act,“child marriage” means a marriage to which either of the contractingparties is a child. Thus, even if the husband is between eighteen andtwenty-one years of age, it can be treated as a child marriage.

D3.2. It is not in dispute that Respondent No.1 (wife of theAppellant) was a major at the time of marriage. The 2006 Act does notmake any provision for punishing a female adult who marries a malechild. Hence, a literal interpretation of the above provisions of the 2006Act would mean that if a male aged between the years of eighteen andtwenty-one contracts marriage with a female above eighteen years ofEage, the female adult would not be punished, but it is the male whowould be punished for contracting a child marriage, though he himself isa child.

3.3. We are of the view that such an interpretation goes againstthe object of the Act as borne out in its legislative history. Undoubtedly,Fthe Act is meant to eradicate the deplorable practice of child marriagewhich continues to be prevalent in many parts of our society. TheStatement of Objects and Reasons declares that prohibition of childmarriage is a major step towards enhancing the health of both male andfemale children, as well as enhancing the status of women in particular.GNotably, therefore, a significant motivation behind the introduction ofthis legislation was to curb the disproportionate adverse impact of thispractice on child brides in particular.

3.4. After being passed by the Rajya Sabha, when the Prohibitionof Child Marriage Bill, 2006 was introduced for discussion in the 14[th]Lok Sabha by Smt. Renuka Chowdhury, the then Minister of State forH

Women and Child Development, she emphatically highlighted how childmarriage reinforces gender discrimination in the country:

“…Unfortunately, here in India today gender is a matter of lifeand death. Boys live and girls die and that is the tragedy of ourtimes.

These girls are then denied access to schools, they are made tolook after their younger siblings, they have no access to foodsecurity, much less to immunization, they are anemic, they aresubjected to untold exposures of infections and horrors and assoon as they enter their reproductive years, irrespective of thefact that they live in a tropical country like ours where onset ofreproductive years is much earlier than in some other countries,these children are then sent off to be married and they becomemothers at that age, at that stage of malnutrition, at that stage ofdenial of food security and at that stage of incubating diseasewhereby they, in turn, give birth to malnutrition children.

…After that these children are then vulnerable to domesticviolence, alcoholic husbands who come home and beat them, abuseof different kinds, trafficking, taken away and exposed to horrorsof such type that we cannot even begin to imagine. Although, theChild Marriage Restraint Act 1929 was brought into force nearly77 years ago, it only brought restraint. It did not talk of preventionor removal.”

3.5. Further, the Law Commission of India has also noted thatchild marriage is far more prevalent amongst girls, whose husbands areoften much older than them, therefore compromising their development.(See The 205[th] Report of the Law Commission of India on theProposal to Amend the Prohibition of Child Marriage Act, 2006and Other Allied Laws at pages 15-23)

3.6. It is also pertinent in this regard to refer to the Prevention ofChild 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 thecorresponding Sections of the 2006 Act, except insofar as Clause 9 ofthe 2004 Bill prescribed simple imprisonment, whereas Section 9 of the2006 Act prescribes rigorous imprisonment for the offence. TheParliamentary Standing Committee on Personnel, Public Grievances, Lawand Justice, in its Thirteenth Report, on the 2004 Bill, notes that although A

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Aboth men and women are deemed to have attained majority at eighteenyears of age under other laws, a differential metric has been adopted forthe purposes of defining child marriage. A higher age is prescribed formen, based on the prevailing societal notions that the age of eighteenyears is insufficient for a boy to attain the desired level of education andeconomic independence, and that an age gap ought to be maintainedBbetween the groom and the bride.

3.7. However, the 2004 Bill, as also the 2006 Act, treats men whoare above the age of 18 as having sufficient maturity to be held responsiblefor marrying a female child. The Report also notes that the purpose ofClause 9 of the 2004 Bill is to provide adequate penal consequences forCa male adult who marries a child. However, an adult woman is exemptfrom punishment for marrying a male child as, in a society like ours,decisions regarding marriage are usually taken by the family membersof 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 theDdesirability of maintaining the aforesaid distinction in culpability. However,the context in which this distinction was considered appropriate by thelegislature must be taken into account.

3.8. Section 9 of the 2006 Act must be viewed in the backdrop ofthis gender dimension to the practice of child marriage. Thus, it can beEinferred that the intention behind punishing only male adults contractingchild marriages is to protect minor young girls from the negativeconsequences thereof by creating a deterrent effect for prospectivegrooms who, by virtue of being above eighteen years of age are deemedto have the capacity to opt out of such marriages. Nowhere from thediscussion above can it be gleaned that the legislators sought to punish aFmale between the age of eighteen and twenty-one years who contractsinto a marriage with a female adult. Instead, the 2006 Act affords sucha male, who is a child for the purposes of the Act, the remedy of gettingthe marriage annulled by proceeding under Section 3 of the 2006 Act.Hence, male adults between the age of eighteen and twenty-one yearsGof age, who marry female adults cannot be brought under the ambit ofSection 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 wellsettled that where any ambiguity exists with regard to the interpretationHof a legislative provision, the marginal note can be used in aid of construction, having regard to the object of the legislation and the mischiefit seeks to remedy.

A

In view of the above, the words “male adult above eighteen yearsof age, contracts a child marriage” in Section 9 of the 2006 Act shouldbe read as “male adult above eighteen years of age marries a child”.

B

4. Having regard to the above discussion, Section 9 of the 2006Act 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 marriagesentered into by a man aged between eighteen and twenty-one years andan adult woman. In such cases, the man may have the option to get hismarriage annulled under Section 3 of the 2006 Act, subject to the conditionsprescribed therein.

C

5. Be that as it may, it is brought to our notice by the advocatesfor the parties herein, that the couple has been living happily, and are notfacing any threat from their family members. Hence, we are of theopinion that police protection is no more required in the present case.

D

6. In view of the above, the directions issued by the High Court toget the First Information Report lodged (FIR No. 122 dated 24.12.2010)are quashed, and the impugned order is set aside. The appeal is allowedaccordingly.

EAppeal allowed.

Ankit Gyan

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H