A male who has not reached the age of 21 is a “child” as per the Prohibition of Child Marriage Act, 2006. However, a male aged between 18 and 21 marrying a female above 18 years will not be punishable under the Act for contracting a child marriage, the Supreme Court has ruled.
The judgment came from a bench of Justices Mohan M Shantanagoudar and Aniruddha Bose, which set aside a December 2010 order of the Punjab and Haryana High Court directing registration of FIR under Section 9 of the Act against a man for allegedly concealing his age of 17 years as per his birth certificate while seeking police protection to marry.
He had approached the High Court seeking police protection as the family of the girl — who was above 18 at the time — was not agreeing to their union. The HC granted protection on April 26, 2010. However, on November 26, 2010, the HC while hearing a plea by the girl’s father recalled the earlier order and directed registration of the FIR. This was on the ground that in the application seeking police protection, he had stated his age as 23, whereas he was 17 according to his school record.
Section 9 lays down “punishment for male adult marrying a child” and says that “whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.”
The SC, however, said that Section 9 would not apply even if his age was 17 as the said provision clearly states that it will only apply where the “male adult” is “above eighteen years of age”. The court also went into the history and intent of the lawmakers to rule that the action would not attract the rigour of Section 9 even if he was above 18 and below 21.
The ruling noted that “the 2006 Act does not make any provision for punishing a female adult who marries a male child. Hence, a literal interpretation of the… provisions of the 2006 Act would mean that if a male aged between the years of eighteen and twenty-one contracts marriage with a female above eighteen years of age, the female adult would not be punished, but it is the male who would be punished for contracting a child marriage, though he himself is a child”, the bench said, and added that “we are of the view that such an interpretation goes against the object of the Act as borne out in its legislative history”.
The judgment noted how the law was intended more as protection for girls, given the social realities, and said “Section 9 of the 2006 Act must be viewed in the backdrop of this gender dimension to the practice of child marriage”.
The court ruled that the words “male adult above eighteen years of age, contracts a child marriage” in Section 9 of the 2006 Act should be read as “male adult above eighteen years of age marries a child”.
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