HC: Validity of marriage can be contested by minor

NT Correspondent

Bengaluru: The validity of a marriage in which one of the partners is a minor can be challenged by the minor and not the other partner, the High Court of Karnataka has held. It set aside the order of a Family Court which had ordered that the marriage was void based on a plea filed by the husband claiming that his wife was a minor at the time of the wedding and she could not have given consent to it.

The High Court allowed the petition filed by the wife challenging it. She had claimed that her husband had taken another wife and therefore wanted a divorce from her. The couple is from Chitradurga and had married in March 2008. The wife’s date of birth as per the school records was March 12, 1994. In 2013, the husband filed a plea in a family court challenging the validity of the marriage.

The family court allowed his case stating that the marriage was in contravention of Section 5 of the Hindu Marriage Act. The family court however did not accept his plea relating to cruelty and desertion. The husband filed an appeal in the HC even though the marriage had been voided claiming that divorce should also have been granted on grounds of cruelty and desertion by his wife. The wife also filed an appeal in the HC challenging the family court voiding the marriage.

Both the appeals were heard together by the division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde. The advocate for the husband argued that as per the amended Section 3(1A) of the Child Marriage Act, “marriage solemnized before the male completing 21 years of age and female completing 18 years of age is void ab intio and the wife was aged years at the time of marriage, as such the marriage is void.”

The HC however pointed out that “The amended provision came into force on 26th April, 2017. The said amendment is prospective in operation. Before the amendment such marriage was voidable under Section 3 of the Act of 2006. A marriage which was voidable under Section of the Act of 2006, at the option of contracting child to the marriage, cannot be declared as void by giving retrospective effect to the amended provision.”

Further the HC noted that the decree seeking dissolution of marriage on the ground that it contravene Section 3 of the Act of 2006 “is available only to the contracting party to the marriage who was minor at the time of marriage.” So it could have been invoked only by the wife in this case who was the minor.

“Since the husband had completed 21 years at the time of marriage, the trial Court could not have held that marriage is void in the petition filed by the husband,” the HC said. The HC also dismissed the contention of cruelty and desertion alleged by the husband. It noted that he had taken a second wife and even had a child from the second marriage in 2009.

“That being the fact, even if the first wife had stayed away from the husband, the same cannot be treated as desertion or cruelty. The wife who was minor cannot be expected to live with her husband who contracted a second marriage against the wish and will of his first wife,” the HC said. The HC set aside the order of the Family Court which had held that their marriage was void.