In the case of Preeti vs. State of Haryana [CRWP-4181-2020], the Punjab and Haryana High Court held that Children Attain Maturity Long Before They Turn ‘Major’.
The facts of the case were such that, a 17 year old girl and boy were married and the girl approached the court seeking protection as she claimed that her parents were against the marriage and threatening her for the same.
In this case, although the couple did not have their marriage registered, the photos of the saptapadi or ceremonial rounds in front of the fire acted as proof of the marriage.
While giving the judgement, Justice Sanjay Kumar shed light on the discrepancies and conflicting nature of the Hindu Marriage Act and the Child Marriage Act.
The former states that marriage between persons who are not major, would be neither void nor voidable. However, the latter makes child marriages void.
The POCSO Act, makes any sexual act or intercourse by the husband with a girl below 18 years of age would constitute an offence, even if she is his wife. On the other hand, Exception 2 to Section 375 of the IPC states to the effect that sexual intercourse and sexual acts with a wife of over 15 years of age would not amount to rape. This provision was contradicted in the judgement of Independent thought vs. Union of India and another [(2017) 10 SCC 800], where the Supreme Court held that Exception 2 to Section 375 IPC must be construed and applied by substituting ‘eighteen’ for ‘fifteen’ in the context of the age of the wife.
To conclude, the court held that, “a girl who has completed the age of 16 years and 10 months can be said to be of the age of discretion to the extent of at least knowing her own mind and as to what would be in her interest. It cannot direct that custody should be forcibly entrusted to her parents against her wishes or that she should be kept in a Protection home till she attains the age of majority”.
