New Delhi: When does the limitation period for a man who wants to move court for declaring his marriage void under Prohibition of Child Marriage Act (PCMA) start? Does it begin when he turns 18 or 21.
The Supreme Court is going to address this question of law in a petition filed by a woman who has challenged Allahabad High Court’s order that allowed her husband’s petition to declare their marriage void because the two were minors when their parents got them married.
Section 3(3) of PCMA allows either the wife or husband to move the court for declaring their marriage void in case they were children at the time of their marriage. The same can, however, be done within two years of either of them attaining majority.
PCMA prohibits marriage of a girl under the age of 18 and boy under 21. The special legislation makes child marriages voidable provided either of the two—boy or girl—approach the court with a plea for the same within the limitation period prescribed in the law.
The woman before SC has described the HC order as erroneous because it allowed her husband’s suit, which, she argued, was barred by the limitation period. According to her, the husband could have filed the suit within two years of attaining majority, which is 18 years.
However, the man filed the suit when he was 23 years old, almost 5 years after he became a major. And, yet the HC upheld it. In the HC’s view PCMA declares that a boy ceases to be a child when he attains 21 years of age. Therefore, the limitation period, it held, would be computed from the day he turns 21 and not 18, as submitted by the wife.
The HC order of October last also took note of a 2017 Supreme Court judgment, titled ‘Independent Thought’, wherein the top court had made an observation regarding the age limit for both girl and boy to file their petition for marriage annulment in case they were married off as children. In that it said that a girl, who gets married before 18 years, can get her marriage annulled before she attains the age of 20, while a boy can do so before attaining the age of 23 years.
However, as per the woman’s petition, filed by advocate Saurabh Ajay Gupta, the observations in ‘Independent Thought’ were obiter dicta (not legally binding). Speaking to ThePrint he said: “These observations don’t have binding effect on a coordinate bench of the Supreme Court. It is not the law, but has persuasive authority.”
Also, the Independent Thought judgment dealt with the issue of marital rape concerning a minor married to an adult where the top court had struck down the exception in the rape law that gave protection to a man from facing rape charges in case his wife was a minor, Gupta explained. “There were no deliberations on the aspect of limitation period to file annulment petition, particularly by the man,” Gupta said.
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The case
The Allahabad High Court judgment under challenge before SC came on an appeal filed by the man in 2018, after he lost his case in the trial court.
Born on 7 August, 1992, the man claimed he was 12 years old when his marriage was solemnised to his wife on 28 November, 2004. His wife was then 9. While he turned 18 in 2010, his wife became a major in 2013.
In 2011, the man filed a regular divorce petition under the Hindu Marriage Act (HMA). However, the same was dismissed for non-prosecution. Later, in 2013 he moved another petition under HMA. This time he sought annulment of the marriage on the basis of fraud. While his suit was pending and when he turned 23, the man sought to amend his plea by including a prayer to declare his marriage void under section 3(3) of PCMA.
The trial court allowed amendment of his suit, but in 2018 dismissed it on the ground that it was filed after the limitation period prescribed in the law within which a suit can be filed to declare a marriage void. Besides, the court also opined that by filing a divorce petition in 2011, the man had implicitly confirmed and ratified the validity of his child marriage.
Also, since the husband had elected his marriage after attaining majority and cohabited during that period, the trial court declined to let him take benefit of section 3 of PCMA.
In his appeal before the HC, the husband quoted section 2 (a) of PCMA that defines a child. According to this definition, he said, a man remains a child till he turns 21 which is the legal age to get married under the law. It was further argued on his behalf that PCMA did not define the word major and majority. Also, the law never borrowed the definition of majority as defined in The Majority Act, which is 18 years.
However, the court was told that the context in which the word majority has been used in section 3(3) of PCMA, which allows one of the two spouses to move the court for marriage annulment, must be decided by looking at the word through the prism of section 2(a) of PCMA, which defines the word child. This means that a boy would attain majority for the purpose of filing an annulment petition under section 3 of the PCMA only when he turns 21. Hence, the limitation period for him would be computed from that age and not 18.
The complexities of computing the limitation period upon the boy turning 18, too, were addressed. The HC was told if 18 is taken as the age to fix the limitation period then a male child who gets married after 20 would never be able to take recourse of section 3(2) of PCMA and seek annulment of his marriage even though he was a child at the time of his wedding.
Questioning the Allahabad HC judgment, which accepted the husband’s argument, the wife has in her plea before SC quoted section 9 of the PCMA, which says that a male adult above the age of 18, who contracts a child marriage, shall be punishable with rigorous imprisonment of two years or fine. Further, section 2(f) of PCMA defines a minor as someone who has not yet reached the age of majority as defined by the Majority Act of 1875, which is 18 years.
The wife has asked the court to do a conjoint reading of sections 9, 3(3) and 2(f) and the Indian Majority Act, 1857 to treat 18 as the age to compute the limitation period for a man to file a marriage annulment petition.
Her petition argues that two concepts are established in PCMA, one is the legal capacity to marry for which the law defines a legally valid age and second is the legal capacity to bring a suit to seek annulment of a child marriage, which is acquired when one turns 18.
HC judgment, as per the wife’s submission, is in “direct conflict with the legislative purpose, constitutional principles and the protective ethos of the PCMA.
Moreover, permitting men to annul marriages until 23 while limiting females to 20 would violate the principle of equality and undermine the legislative protections the PCMA aims to extend to both genders, the wife has argued.
The artificial concept of child, introduced in the law, to define legal age for marriage is out of social desirability in a typical Indian marriage. The cap of 21 years for a boy is to ensure that he is financially and educationally equipped to look after his female partner, the petition said.
(Edited by Zinnia Ray Chaudhuri)
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