The Allahabad High Court refused to grant protection to a live-in relationship in a manner that confers legitimacy upon, or facilitates the continuation of, a relationship which in substance operates as a substitute for a marriage that is presently impermissible under the statutory framework governing capacity to marry, particularly where the male party is below 21 years of age and is statutorily classified as a “child” for the purposes of marriage.
At the same time, the Court held that Article 21 continues to protect individuals against harm, illegal detention, abduction, or coercion, but such protection cannot extend to restraining parents, guardians, or statutory authorities from taking lawful steps under the Prohibition of Child Marriage Act, 2006 and other applicable laws.
A Single Judge Bench of Justice Garima Prashad observed that the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006 together reflect a uniform legislative policy that a male who has not completed 21 years of age does not possess the requisite legal capacity to enter into marriage. The Bench noted that under Section 2(a) of the 2006 Act, a male below 21 years is a “child,” and under Section 2(b), a marriage involving such person is a “child marriage.”
The Bench further noted that the 2006 Act creates a preventive and penal framework through provisions relating to annulment, maintenance and custody consequences, punishment for persons promoting or permitting child marriage, injunctions to prevent such marriage, cognizable and non-bailable offences, and the appointment of Child Marriage Prohibition Officers. It observed that this statutory structure shows that Parliament intended not merely to classify child marriages after the event, but to prevent and discourage them through an institutional enforcement mechanism.
The Bench then observed that the age requirement under Section 5(iii) of the Hindu Marriage Act and Section 4(c) of the Special Marriage Act is a basic statutory condition, and under the Special Marriage Act, non-fulfilment of that condition affects the validity of the marriage itself. It also held that Muslim personal law did not assist the petitioners because they did not claim to have solemnized a nikah and instead expressly asserted a live-in relationship outside marriage. On that basis, the Bench treated the case as one where the live-in arrangement was consciously being adopted because the law did not currently permit marriage, and observed that such cohabitation, involving shared domestic life and intimacy, was in practical substance a relationship in the nature of marriage. The Bench therefore held that a judicial order protecting its continuance would not remain a bare protection order, but would operate as an indirect sanction for a presently impermissible marriage-like arrangement.
The Bench significantly observed that the doctrine that what cannot be done directly cannot be permitted to be done indirectly applies “with full force” in such a case. It held that if the law withholds permission to marry until the male completes 21 years, the Court cannot achieve substantially the same result by treating the functional equivalent of that marriage as entitled to judicial support merely because it is described as a live-in relationship.
Additionally, the Bench explained that Section 3 of the 2006 Act preserves to the child party the option to avoid the marriage later, and therefore permitting continuation of a marriage-like live-in relationship could expose the adult female to legal and social insecurity while the male child retained a later option of repudiation or annulment. The Bench also drew a parity-based reasoning that just as consent cannot be used to bypass legal restrictions in the case of a girl below 18 years, the concept of consent cannot be used to bypass the marriage-specific statutory incapacity of a male below 21 years.
On parental intervention, the Bench drew a distinction between unlawful conduct and lawful preventive action. It held that while parents or family members cannot resort to threats, violence, coercion, illegal confinement or abduction, they also cannot be restrained from taking lawful steps where the statute itself places responsibility upon them to prevent child marriage. Referring to Sections 11 and 13 of the 2006 Act, the Bench observed that the law expects active responsibility from parents and guardians, including approaching the police, informing the Child Marriage Prohibition Officer, or initiating proceedings before the competent Magistrate. Thus, a writ court cannot pass an order which effectively restrains them from performing those statutory responsibilities.
Applying these principles to the facts, the Bench held that petitioner no. 2 was statutorily a “child” for marriage purposes and that the writ petition disclosed no specific incident, date, time, or identifiable act of threat, abduction, detention, or coercion by the parents or guardians. The allegations were described as wholly general and unsupported by particulars, and no contemporaneous complaint to the police or other authority had been placed on record. For that reason, the Bench held that no general order of restraint against the parents or guardians could be issued in writ jurisdiction. The Court clarified, however, that the petitioners remained at liberty to approach the police authorities regarding any specific unlawful acts such as threats, violence, coercion, or illegal restraint, in which case the authorities were to act expeditiously.
Briefly, the petition has been filed seeking protection of their life and liberty under Article 21 on the basis that they were residing together in a live-in relationship. The petitioner no. 1 was a 20-year-old woman from the Muslim community and petitioner no. 2 was a 19-year-old male from a Scheduled Caste Hindu family. The petition alleged that the father of petitioner no. 1 was threatening them and pressuring them to end the relationship, while the parents of petitioner no. 2 had no objection. The petitioners specifically stated that they could not solemnize a marriage under the Special Marriage Act, 1954 because petitioner no. 2 had not completed 21 years of age. They therefore sought directions restraining family members from interfering in their cohabitation and for police protection.
The State opposed the petition by relying upon the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Prohibition of Child Marriage Act, 2006. The State’s submission, as noted by the Court, was that petitioner no. 2, being below 21 years of age, fell within the statutory definition of a “child” for marriage purposes, and therefore the Court ought not to indirectly permit a marriage-like relationship under the label of a live-in arrangement. The Court framed the central issue as whether, in writ jurisdiction, protection could be granted to a live-in relationship where the male party was below 21 years of age and statutorily classified as a child for the purposes of marriage, and whether parents or guardians could be restrained from interfering or from taking lawful steps under the statutory framework.
Appearances:
Mahipal Singh, for Petitioner
C.S.C., for Respondent
