Written By – Arshita Anand
The Allahabad High Court, under the POCSO Act, recently refused to give the custody of a minor husband to his major wife.It was held that the marriage was voidable and that such
a custody would amount to “sanctioning cohabitation between a major and a minor”.
In this case, Manish Kumar, a minor was married to Jyoti, a major and was living with her. Manish’s mother alleged that Jyoti’s family had enticed away him and that such a marriage was illegal.
She also alleged that her son was being illegally detained and filed a Habeas Corpus Writ Petition. However, Manish had expressed his desire to not be with his mother.
The Court observed that “just as there cannot be the case of a minor Hindu wife being married to a major and the husband regarded as her natural guardian under Section 6(c) of the Act of 1956, the POCSO Act, similarly works to prohibit sex between a man, who is a minor and a woman, who is a major.”
The court also said that a female major on consummation of marriage with child would be liable under Section 3/4 of the Act of 2012. Thus, this arrangement cannot ensure the welfare of the minor.
However, the marriage was not held to be void ab initio, but voidable at the option of the minor.
It was also said that if any contingencies under section 12 of the PCMA (Prohibition of Child Marriage Act, 2006) can be proved, the marriage can be declared void.
The Court ordered the boy to be made to stay in State Facilities till he attains 18 years of age and would then be free to go and stay with whomsoever he likes, be his mother or his wife.
By Team SLC