The question of the custody of the minor girl bride to the husband [if he is not in custody] naturally linked to another question as to whether a minor can be said to have reached the age of discretion and thereby walk away from the lawful guardianship of her parents and refuse to go in their custody.
The position under Hindu Minority and Guardianship Act, 1956
As per the Hindu Minority and Guardianship Act, 1956, in the case of an unmarried girl the father shall be the natural guardian and after him the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
As per sub-section 6(c) of the Hindu Minority and Guardianship Act, in the case of a married minor girl, the husband shall be the natural guardian.
In case of voidable and void marriages
Undoubtedly, in the case of a void marriage under the Hindu Marriage Act, since the same is void ab initio, the parties never attain the status of the husband and wife. Similarly, under section 12 (the marriage of a minor child shall be null and void in cases where the child is “taken or enticed out of the keeping” from the custody of lawful guardian) of the Prohibition of Child Marriage Act, a child marriage in certain circumstances has been declared as void.
Therefore, a child marriage which falls within the ambit of Section 12 of the Act also shall not give the status of husband and wife to the parties to the child marriage. The male who contracts a marriage with a female child falling within the ambit of Section 12 is not a husband of the minor in the legal sense and, therefore, as per The Hindu Minority and Guardianship Act, he will not acquire the status of the natural guardian of such child at all.
But, in the case of a voidable marriage, whether the male contracting party to the marriage will attain the status of husband for the purposes of Section 6 of the Hindu Minority and Guardianship Act needs to be carefully analyzed.
The Hindu Minority and Guardianship Act came into effect from 25.08.1956. The scenario as on the date of coming into force of the said Act was that as per the express provisions contained in section 5(vi)(consented child marriages) and section 6(child marriage by guardian) of the Hindu Marriage Act, the marriage of a child was valid and thus the male spouse of the said marriage undoubtedly acquired the status of the husband.
Therefore, while enacting the Hindu Minority and Guardianship Act, 1956, the Parliament rightly thought it fit to make the husband of the minor wife as the natural guardian. Section 6(c) of the said Act states that the natural guardian of a married minor girl shall be the husband. Thus, on such marriage, the husband would replace the father and the mother from the natural guardianship.
Now the entire scenario has changed after the advent of The Prohibition of Child Marriage Act,2006. As per Section 3 of the Prohibition of Child Marriage Act, since the marriage is voidable, the bridegroom of the female child who had procured the marriage will not attain the status of the husband like that of any other husband of a valid marriage and, therefore, under Section 6(c) of the The Hindu Minority and Guardianship Act, he cannot be the natural guardian.
However, when the Parliament took note of the provisions of the Hindu Marriage Act and amended even Section 18 (punishment for child marriage) of the Act by Act 6 of 2007 it did not think it fit to amend Section 6(c) of The Hindu Minority and Guardianship Act.
In a madras high court decision ‘T. sivakumar v. the inspector of police, 2011’, the court while repealing the section 6(c) of Minority and Guardianship act, said that,
“Though Section 6 (c) has not been repealed and though the same is in the statute book, still, the same is to be re-looked in the present scenario, more particularly, in the context of the Prohibition of Child Marriage Act.
Almost it is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place.
In this totally changed scenario since we are called upon to interpret the law, we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child.”
The question of need to register the complaint
In ‘T. sivakumar case (supra)’, the court also held that,
“since a child marriage as defined in the Prohibition of Child Marriage Act itself is an offence and the same is cognizable, it does not require any complaint to the police to register a case and to investigate. On any information regarding such a child marriage, the Police has got a legal duty to register a case and to prosecute the offender by filing an appropriate final report.
If the contracting party to the marriage of a female child is a male who is not a child undoubtedly, he is an offender punishable under section 9 of the Act. The scheme of the Act would go to show that punishment has been provided only against an adult male marrying a female child but an adult female marrying a male child is not an offender as she does not fall within the ambit of section 9 of the Act.
Sections 10 and 11 provide for punishment for solemnising a child marriage and promoting or permitting solemnisation of child marriages. So, it needs to be underscored that only the male namely the husband is liable to be punished and not the girl whether child or an adult.
This scheme of the Act would also go to support the view that an adult male who marries a female child cannot be allowed to enjoy the fruits of such marriage because the solemnisation of the marriage itself is an offence insofar as the male is concerned. If we have to accept the contention that as per section 6(c)of the Hindu Minority and Guardianship Act, the husband of a female child shall be the natural guardian , it will only amount to giving premium for the offence committed by the male.
When the law aims at eradicating the evil menace of child marriages, declaring the adult male who marries a female child, as her natural guardian would only defeat the very object of the Act. A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act. Thus, by committing an offence punishable under Section 9 of the Act, the adult male cannot acquire the legal status of the natural guardian of the female child.
Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child.”
T. Sivakumar v. the inspector of police, 2011