Delhi HC Asks For Centre’s Opinion on Declaring the Child Marriage ‘Void ab Initio’

The Delhi High Court sked for Central Government’s response with respect to declare all child marriages as void-ab-initio. On March 21, a Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla heard a Civil Writ Petition (Aisha Kumari V/s. State of NCT of Delhi & Ors.), and after the petitioner filed a Civil Misc. Application in an already pending Writ Petition before the High Court, the court issued notices to the Ministry of Law and Justice and the National Commission for Women asking them for their response on the issue raised by this Petition.

Facts of the case

Aisha was 16-years-old student of 10th standard when she was married off to her aunt’s son without free consent. The marriage ceremony was conducted by the parents of the bride and groom after gaining the consent of the Petitioner by deceitful means, which in eyes of law is not a free consent. As reported by Law Times Journal, Aisha even argued that she had “no option to go against her parents and community’s wishes, and despite her request, she was compelled to give her consent for the child marriage ceremony.”

In the year 2018 she completed her bachelor’s in Bachelor of Education (B.Ed) from Guru Gobind Singh Indraprastha University. She then took an entrance test, Central Teacher Eligibility Test (CTET), to get an admission in Master of Education (M.Ed) course in Jamia Malia Islamia University in Delhi.

In the year 2020, the Respondent suddenly came to her place of residence to take her with him to Gujarat; claiming her to be his wife. She escaped from her home and then filed a Civil Writ Petition before the Delhi High Court, seeking declaration of Section 3(1) of Prohibition of Child Marriage Act - which provides child marriage as voidable, as unconstitutional and ultra vires of Article 21 of the Constitution of India as it violates the fundamental rights of minor girl child to live her life with dignity.

As reported by Bar and Bench, the Petition also stated that the marriage is not been consummated and also consent given by a child under 18 years for marriage cannot be held valid and needs to be declared void ab initio instead of being voidable. The Petition also held that it is the duty of the State Government under the principles of ‘parens patriae’ to protect the minor children from getting exploited at such a vulnerable age.  

The Court had earlier issued notice to the state as the state was the party to the Petition. It was later brought to the Court’s attention that to declare the child marriages void ab initio, Central Government has to be made party to this Petition. In March 21 hearing, the Petitioner had submitted to the Court an amended copy of the Petition which includes Central government as a Respondent party to the Petition. The Court also issued notices to the newly added Respondents.

The Petitioner submitted that she apprehends a threat to her life from her in-laws as well as her family, and then the Delhi High Court directed the Delhi police to provide protection to the Petitioner. Even the Delhi Commission of Women submitted to the Court that they are ready to provide shelter to the Petitioner in case she desires.  

The order may be read here: 

Stand of Parliament expressed earlier in regard to Prohibition of Child Marriage Act

As reported by Hindustan times in March 2018, the Centre is moving ahead with a proposal to amend an existing law so as to make all future child marriages in the country invalid from the outset, according to two senior government officials familiar with the matter who asked not to be identified. Currently, child marriages are valid, but can be annulled on request.

Also, Times of India in a December 2021 news report quoted Vikram Srivastava, founder of ‘Independent thought’ and Convenor, Campaign against Child Marriage as saying, “The 2021 amendment to the Prohibition of Child Marriage Act, 2006, however leaves the most controversial and complicating gap of ‘void ab initio’ clause unresolved. It is unclear how this increase in age would resolve or restrict solemnization of marriage if it remains to be valid.”  

This amendment Bill was introduced by Lok Sabha on December 21, 2021 which is till date not passed by the Houses of Parliament, has only risen the age of a child for marriage to 21 years of age. There is no inclusion of provision to make child marriage void ab initio.

Implications for legal validity of marriages in retrospect

If the child marriage becomes void ab initio, then the child marriages solemnized before the amendment made, will not have any existence in the eyes of law. The children born out of such marriage will not be considered legitimate as the marriage does not exist at the first place in eyes of law. At least by this way, by amending the act and replacing the word ‘void’ with ‘void ab initio’, the child marriages can be controlled at some extent in the densely populated country like India.

Impacts on other rights

According to Section 3(1) of the Prohibition of Child Marriage Act, 2006 –

“Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:

Provided that a Petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.”

According to Prohibition of Child Marriage Act, the age of minor child is considered to be below 18 years. Even in the Indian Contract Act, if the child is minor his consent is not considered and even if some legal contracts are made with his consent that becomes void. Then how is it even possible to consider the marriage to become valid (till reported) with the consent of child. It not only snatches away the right to live with personal liberty, but also affects the dignity of life of those children. 

The Constitution of India guarantees to all its citizens - protection of life and liberty under Article 21. The Section 3(1) of the Prohibition of Child Marriage Act is in violation of the Article 21 of the Constitution of India. The children are not allowed to make a decision of choosing a life partner on their own which directly hammers the right of the person - liberty to choose. The Section 3(1) of the act makes the child marriage void which means the marriage is not legal. The things which are not legal can exist in the society until someone reports about it. But declaring the child marriage ‘void ab initio’ means the marriage does not exist right from the outset.

If the Central Government accepts the altercations to be made to the Prohibition of Child Marriage Act, it will save many lives of the children and also protects them from being exploited. Under Article 13(2) of the Constitution of India, the State is restricted to make any such law that violates any of the fundamental rights provided to the citizens and if such law is made, it becomes void.