T. Sivakumar v.

Inspector of Police, Thrivallur Town Police Station, 2011

FACTS:
 The petitioner (Sivakumar’s) daughter Selvi. Sujatha, the detenue, aged 17 years. She
formerly resided at the home of the petitioner’s sister while attending a higher
secondary school in Tiruvallur.
 On 8 June 2011 at about 4:30 p.m. She had visited a nearby temple, but didn’t
returned back thereafter, the petitioner discovered that she had been abducted by the
second and third respondent (father of the second respondent).
 Hence the petitioner on 20 June 2011 filed a complaint with the first respondent in
this respect, prompting the registration of Case No. 309 of 2011for the offence under
S. 366(A) of IPC has been registered. Alleging that the minor detenue was kept
illegally by the kidnappers, the petitioner filed the current habeas corpus petition,
alleging that the kidnappers unjustly detained the minor detenue.
 The daughter testified in an affidavit following the petitioner’s hearing that she had
fallen in love with and had married the second respondent, and neither she nor any of
his family members had abducted her or were holding her against her will. Further she
also claimed that after her parents learned of her feelings, they began making plans to
marry her off to her maternal uncle against her will. As a result, she left home on her
own.
 The girl’s petition to enrol in the engineering institution and reside in housing made
available for her there was submitted by the second and third respondents. The girl
was housed in the government children’s home by the Division Bench of the Madras
High Court because she was not willing to accompany with her legal guardians.
 The Division Bench of Madras High Court put forth certain questions so as to arrive
on the reliable conclusion.

ANALYSIS:
Considering that the bride and groom in this marriage are both Hindus. In order to
understand the history behind legality of child marriages, it is important to note that,
prior to the "Child Marriage Restriction Act, 1929," child marriages were extremely
common among Hindus in India, and there was no system in place to even discourage
 them. All of these unions were acknowledged as legal. Nonetheless, the negative
impacts of child marriage were recognised even during the colonial era, which led to
the "Child Marriage Restriction Act, 1929" being passed into legislation to put a stop
to them. While it rendered a marriage that violated the Act's rules criminal, it did not
instantly annul the union. It must be underlined that voidness of marriages is statutory
and should not be assumed to exist. Because of this, such marriages continued to be
accepted as legal unions even after the passing of the Child Marriage Restriction Act.
Thereafter, on May 18, 1955, the Hindu Marriage Act of 1955 went into effect. 
Section 5 of the Hindu Marriage Act, 1955 contained six crucial clauses for the
solemnization of valid marriage between two Hindus, and specifically clause (iii) of
the aforementioned section states the valid age of the bridegroom [21 years for the
groom] and [eighteen years for the bride]. Violation in any of the clauses of this
section has to be dealt by S. 11 and 12 of the Act.
Voidable marriages are defined in S. 12 of the aforementioned act as per following
conditions put forth by this act. In close examining these two clauses, it becomes very
clear that a marriage that was performed in violation of subsection (iii) of S.5 of the
Hindu Marriage Act has not been deemed void or voidable. According to ‘Yamunabai
Anantrao Adhav vs. Anantrao Shivram Adhav’1, the marriage that is subject to Section
11 has been deemed void from the beginning. A decree of nullity may be issued to
dissolve a marriage that meets the criteria for being voidable under Section 12 of the
Act on any one or more of the grounds specified therein. A child marriage was always
regarded as lawful because neither the Hindu Marriage Act nor the Child Marriage
Restriction Act declare a marriage of a juvenile as void or voidable.
Finally, the Division Bench concluded the issue concerning whether a marriage to a
woman who is under 18 years old can be regarded as a legal union, stating that in
accordance with section 3 of the Prohibition of Child Marriage Act, a marriage
entered into by a man and a woman who is under the age of 18 is voidable and
continues to exist. According to the classification, the marriage in question is not
strictly speaking lawful, but it is nonetheless legal. The male contracting party will
only enjoin a small number of the rights that would normally result from a legitimate
marriage stricto sensu.
To sum one of the fiercely disputed issues in the subcontinent during the early years
of the twenty-first century was the legal prohibition of child marriages. The creators
1
A.I.R. 1988 S.C. 644
 of the rule were confident that both Hindu and Islamic law forbade being married
before a female reached puberty.
According to the Hindu Marriage Act of 1955, child marriage is neither void nor
voidable. It is valid due to the legislature's silence in Sections 11 and 12 and the
express regulation in the form of Section 13 (2) (iv). Child marriage is legal, as
demonstrated in the case of ‘Manisha Singh v. State of NCT2’, due to the legislature's
silence in Sections 5, 11, and 12 and the stated provision in Section 18 of the Hindu
Marriage Act. It was made extremely clear in the ‘Neetu Singh v. the State & Ors. v.
the High Court of Delhi3’ case, where it was decided that a minor's marriage is
criminal rather than void or voidable. But nonetheless, Section 13 (2) (4) grants a
female child the ability to repudiate the marriage by divorce. In ‘Roop Narayan
Verma v. Union of India4’, the High Court ruled that Section 13 (2) (4) of the Hindu
Marriage Act was constitutionally lawful since the government had the right to do so
in accordance with Article 15 (3) of the Indian Constitution.
Whereas, Child Marriage in the Muslim Personal Law Muslim men and women
typically reach majority status at the age of 15. While Hedaya law specifies that the
earliest period for a boy is 12 years and for a girl is 9, the Privy Council stated that the
majority in the case of a girl is acquired at the age of 9 in ‘Nawab Sadiq Ali Khan vs.
Jaya Kishori5’. When the Muslim is a minor and under the aforementioned age, the
marriage is consummated. With the permission of a guardian, a minor may get
married. Although though such a union is legal, the Muslim child has the option to
reject it when they reach puberty. Consummation of marriage before the age of
puberty does not deprive the wife of her option, the court said in ‘Behram Khan vs.
Akthar Begum6’. But, if a person marries after reaching puberty, they are no longer
allowed to use their right to puberty's option or repudiation.

2
AIR 2006 Delhi 37, 126 (2006) DLT 28, I (2006) DMC 1
3
1999 IIAD Delhi 37, 77 (1999) DLT 601, I (1999) DMC 634, 1999 (49) DRJ 70, (1999) 121 PLR 47
4
AIR 2007 Chh 64
5
(1928) 30 BOMLR 1346
6
 (1951) ILR Lahore 656