HARDEV SINGHversusHARPREET KAUR & ORS.

120                       [2019]
               SUPREME COURT     14 S.C.R. 120
                              REPORTS                     [2019] 14 S.C.R.


A                              HARDEV SINGH
                                        v.
                         HARPREET KAUR & ORS.
                       (Criminal Appeal No. 1331 of 2013)
B                            NOVEMBER 07, 2019
                 [MOHAN M. SHANTANAGOUDAR AND
                          ANIRUDDHA BOSE, JJ.]
             Prohibition of Child Marriage Act, 2006 – s.9 – Interpretation
C     of – High Court directed registration of FIR for criminal offence u/
      s. 9 of the Act, 2006 against the appellant – It was alleged that
      appellant was only 17 years, when he married respondent no.1 –
      However, it is not disputed that respondent no.1 (wife of the
      appellant) was a major at the time of marriage – Held: A literal
      interpretation of ss.2(a), 2(b) and 9 would mean that if a male aged
D
      between the years of eighteen and twenty-one contracts marriage
      with a female above eighteen years of age, 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 – However,
      such interpretation goes against the object of the Act – The intention
E     was to punish the male adults contracting child marriages to protect
      minor young girls – This is also supported by the marginal note of
      the s.9, which reads “Punishment for male adult marrying a child”
      – Thus, the words “male adult above eighteen years of age, contracts
      a child marriage” in s.9 should be read as “male adult above
      eighteen years of age marries a child” – In the instant case, the
F
      High Court committed error on the face of record as appellant was
      17 years old i.e. below eighteen years when he married respondent
      no.1 – Hence, s.9 was not applicable to the appellant – Accordingly,
      the direction of the High Court to register FIR quashed and the
      impugned order set aside – Interpretation of statutes.
G            Interpretation of statutes – Marginal note of section – Held:
      It is well settled that where any ambiguity exists with regard to the
      interpretation of a legislative provision, the marginal note can be
      used in aid of construction, having regard to the object of the
      legislation and the mischief it seeks to remedy.
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                                       120
        HARDEV SINGH v. HARPREET KAUR & ORS.                           121


      Allowing the appeal, the Court                                   A
      HELD : 1. Section 2(a) of the Prohibition of Child Marriage
Act, 2006 defines child as a person who, if a male, has not
completed twenty-one years of age, and if a female, has not
completed eighteen years of age. Under Section 2(b) of the Act,
“child marriage” means a marriage to which either of the               B
contracting parties is a child. Thus, even if the husband is between
eighteen and twenty-one years of age, it can be treated as a child
marriage. [Para 3.1] [124-C]
      2. It is not in dispute that Respondent No.1 (wife of the
Appellant) was a major at the time of marriage. The 2006 Act           C
does not make any provision for punishing a female adult who
marries a male child. Hence, a literal interpretation of the above
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          D
contracting a child marriage, though he himself is a child.
[Para 3.2] [124-D-E]
       3. Section 9 of the 2006 Act must be viewed in the backdrop
of the gender dimension to the practice of child marriage. Thus,
it can be inferred that the intention behind punishing only male       E
adults contracting child marriages is to protect minor young girls
from the negative consequences thereof by creating a deterrent
effect for prospective grooms who, by virtue of being above
eighteen years of age are deemed to have the capacity to opt out
of such marriages. However, it cannot be gleaned that the              F
legislators sought to punish a male between the age of eighteen
and twenty-one years who contracts into a marriage with a female
adult. Instead, the 2006 Act affords such a male, who is a child for
the purposes of the Act, the remedy of getting the marriage
annulled by proceeding under Section 3 of the 2006 Act. Hence,
male adults between the age of eighteen and twenty-one years of        G
age, who marry female adults cannot be brought under the ambit
of Section 9, as this is not the mischief that the provision seeks
to remedy. [Para 3.8] [126-E-G]

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122            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


A            4. This view is supported by the marginal note of Section
      9, which reads “Punishment for male adult marrying a child”. It
      is well settled that where any ambiguity exists with regard to the
      interpretation of a legislative provision, the marginal note can be
      used in aid of construction, having regard to the object of the
      legislation and the mischief it seeks to remedy. In view of the
B
      above, 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”. [Para 3.9] [126-H; 127-A]
            The 205th Report of the Law Commission of India on
C           the Proposal to Amend the Prohibition of Child
            Marriage Act, 2006 and Other Allied Laws at pages
            15-23 – referred to.
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1331 of 2013.
D
            From the Judgment and Order dated 26.11.2010 of the High Court
      of Punjab & Haryana at Chandigarh in Crl. Misc. No. 23881 of 2010 in
      Crl. Misc. No. 11850-M of 2010 (O&M).
            Rishi Malhotra, Utkarsh Singh, Advs. for the Appellant.
E         Bankey Bihari Sharma, Ram Nath, Ms. Ranjeeta Rohatgi, Satish
      Kumar, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            MOHAN M. SHANTANAGOUDAR, J.
F            1. By the impugned order passed under Section 482 of the Code
      of Criminal Procedure, 1973 (Cr.P.C.), the High Court has recalled its
      earlier order dated 26.04.2010 giving protection to the Appellant and his
      wife (Respondent No. 1).
            The records reveal that the Appellant and Respondent No. 1
G     married each other on 17.4.2010 without the consent of their parents. It
      seems that the parents of Respondent No. 1 were creating problems for
      the couple and consequently, the latter made an application (Criminal
      Misc No. 11850-M/2010) before the High Court of Punjab and Haryana
      at Chandigarh to grant police protection. By the aforesaid order dated
      26.04.2010, police protection was granted. Subsequently, the couple filed
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         HARDEV SINGH v. HARPREET KAUR & ORS.                                    123
            [MOHAN M. SHANTANAGOUDAR, J.]

a contempt petition, which was disposed of by the High Court vide order          A
dated 18.5.2010, based on an assurance given by the police that no harm
would visit the petitioners at the behest of Respondent No. 1’s family
members.
       However, subsequently, upon application made by the father of
Respondent No. 1, the High Court vide the impugned order dated                   B
26.11.2010 recalled the protection order dated 26.04.2010, and directed
registration of an FIR for criminal offence under Section 9 of the
Prohibition of Child Marriage Act, 2006 (‘2006 Act’) against the
Appellant. This was on the ground that the Appellant had stated in the
aforesaid application Criminal Misc No. 11850-M/2010 seeking police
protection that he was 23 years of age at the time of marriage, whereas          C
he was only 17 years of age, as is apparent from the school record,
where his date of birth is recorded as 30.6.1992.
      We note from the order sheets maintained by this Court that the
impugned order was stayed by this Court vide interim order dated
14.12.2010 and the said interim order has continued till present.                D

      2. Having gone through the material on record and having heard
learned counsel for the parties, we are of the considered opinion that:
      (a) The High Court could not have recalled its earlier order under
Section 482, Cr.P.C, inasmuch as there is no provision for recalling or          E
reviewing an order passed by it in criminal matters.
      (b) The order that was set aside was only a protection order and
there was no exceptional circumstance calling for an exercise of the
High Court’s inherent powers.
      (c) The High Court was not justified in directing initiation of criminal   F
proceedings against the Appellant under Section 9 of the 2006 Act. Section
9 reads as under:
       “Section 9. Punishment for male adult marrying a child.-
       Whoever, being a male adult above eighteen years of age, contracts
       a child marriage shall be punishable with rigorous imprisonment           G
       which may extend to two years or with fine which may extend to
       one lakh rupees or with both.” (emphasis supplied)
       The High Court has relied upon the school record of the Appellant
in directing prosecution against him under Section 9. We find that the
High Court has committed a grave error on the face of the record                 H
124             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A     inasmuch as if the date of birth as given in the school certificate is
      accepted, the Appellant was 17 years old, i.e. below eighteen years of
      age when he married Respondent No. 1. Hence, Section 9 cannot be
      applied to him.
             3. In any case, even assuming that the Appellant was aged eighteen
B     years or above on the date of his marriage, we are of the considered
      opinion that Section 9 does not apply to the facts and circumstances of
      this case. It is pertinent to refer to the overall scheme of the 2006 Act in
      determining whether an offence under Section 9 is made out.
             3.1. Section 2(a) of the 2006 Act defines child as a person who, if
C     a male, has not completed twenty-one years of age, and if a female, has
      not completed eighteen years of age. Under Section 2(b) of the Act,
      “child marriage” means a marriage to which either of the contracting
      parties is a child. Thus, even if the husband is between eighteen and
      twenty-one years of age, it can be treated as a child marriage.
D            3.2. It is not in dispute that Respondent No.1 (wife of the
      Appellant) was a major at the time of marriage. The 2006 Act does not
      make any provision for punishing a female adult who marries a male
      child. Hence, a literal interpretation of the above 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
E     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.
             3.3. We are of the view that such an interpretation goes against
      the object of the Act as borne out in its legislative history. Undoubtedly,
F     the Act is meant to eradicate the deplorable practice of child marriage
      which continues to be prevalent in many parts of our society. The
      Statement of Objects and Reasons declares that prohibition of child
      marriage is a major step towards enhancing the health of both male and
      female children, as well as enhancing the status of women in particular.
G     Notably, therefore, a significant motivation behind the introduction of
      this legislation was to curb the disproportionate adverse impact of this
      practice on child brides in particular.
            3.4. After being passed by the Rajya Sabha, when the Prohibition
      of Child Marriage Bill, 2006 was introduced for discussion in the 14 th
      Lok Sabha by Smt. Renuka Chowdhury, the then Minister of State for
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         HARDEV SINGH v. HARPREET KAUR & ORS.                                  125
            [MOHAN M. SHANTANAGOUDAR, J.]

Women and Child Development, she emphatically highlighted how child            A
marriage reinforces gender discrimination in the country:
      “…Unfortunately, here in India today gender is a matter of life
      and death. Boys live and girls die and that is the tragedy of our
      times.
        These girls are then denied access to schools, they are made to        B
      look after their younger siblings, they have no access to food
      security, much less to immunization, they are anemic, they are
      subjected to untold exposures of infections and horrors and as
      soon as they enter their reproductive years, irrespective of the
      fact that they live in a tropical country like ours where onset of       C
      reproductive years is much earlier than in some other countries,
      these children are then sent off to be married and they become
      mothers at that age, at that stage of malnutrition, at that stage of
      denial of food security and at that stage of incubating disease
      whereby they, in turn, give birth to malnutrition children.
                                                                               D
               …After that these children are then vulnerable to domestic
      violence, alcoholic husbands who come home and beat them, abuse
      of different kinds, trafficking, taken away and exposed to horrors
      of such type that we cannot even begin to imagine. Although, the
      Child Marriage Restraint Act 1929 was brought into force nearly
      77 years ago, it only brought restraint. It did not talk of prevention   E
      or removal.”
      3.5. Further, the Law Commission of India has also noted that
child marriage is far more prevalent amongst girls, whose husbands are
often much older than them, therefore compromising their development.
(See The 205 th Report of the Law Commission of India on the                   F
Proposal to Amend the Prohibition of Child Marriage Act, 2006
and Other Allied Laws at pages 15-23)
      3.6. It is also pertinent in this regard to refer to the Prevention of
Child Marriage Bill, 2004 (‘2004 Bill’) which preceded the 2006 Act.
Clauses 2(a), 2(b), and 9 of the 2004 Bill are in pari materia with the        G
corresponding Sections of the 2006 Act, except insofar as Clause 9 of
the 2004 Bill prescribed simple imprisonment, whereas Section 9 of the
2006 Act prescribes rigorous imprisonment for the offence. The
Parliamentary Standing Committee on Personnel, Public Grievances, Law
and Justice, in its Thirteenth Report, on the 2004 Bill, notes that although
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126             SUPREME COURT REPORTS                           [2019] 14 S.C.R.


A     both men and women are deemed to have attained majority at eighteen
      years of age under other laws, a differential metric has been adopted for
      the purposes of defining child marriage. A higher age is prescribed for
      men, based on the prevailing societal notions that the age of eighteen
      years is insufficient for a boy to attain the desired level of education and
      economic independence, and that an age gap ought to be maintained
B
      between the groom and the bride.
             3.7. However, the 2004 Bill, as also the 2006 Act, treats men who
      are above the age of 18 as having sufficient maturity to be held responsible
      for marrying a female child. The Report also notes that the purpose of
      Clause 9 of the 2004 Bill is to provide adequate penal consequences for
C     a male adult who marries a child. However, an adult woman is exempt
      from punishment for marrying a male child as, in a society like ours,
      decisions regarding marriage are usually taken by the family members
      of the bride and groom, and women generally have little say in the matter.
      We hasten to emphasise that we do not wish to comment on the
D     desirability of maintaining the aforesaid distinction in culpability. However,
      the context in which this distinction was considered appropriate by the
      legislature must be taken into account.
             3.8. Section 9 of the 2006 Act must be viewed in the backdrop of
      this gender dimension to the practice of child marriage. Thus, it can be
E     inferred that the intention behind punishing only male adults contracting
      child marriages is to protect minor young girls from the negative
      consequences thereof by creating a deterrent effect for prospective
      grooms who, by virtue of being above eighteen years of age are deemed
      to have the capacity to opt out of such marriages. Nowhere from the
      discussion above can it be gleaned that the legislators sought to punish a
F     male between the age of eighteen and twenty-one years who contracts
      into a marriage with a female adult. Instead, the 2006 Act affords such
      a male, who is a child for the purposes of the Act, the remedy of getting
      the marriage annulled by proceeding under Section 3 of the 2006 Act.
      Hence, male adults between the age of eighteen and twenty-one years
G     of age, who marry female adults cannot be brought under the ambit of
      Section 9, as this is not the mischief that the provision seeks to remedy.
             3.9. Our views are supported by the marginal note of Section 9,
      which reads “Punishment for male adult marrying a child”. It is well
      settled that where any ambiguity exists with regard to the interpretation
H     of a legislative provision, the marginal note can be used in aid of
         HARDEV SINGH v. HARPREET KAUR & ORS.                                    127
            [MOHAN M. SHANTANAGOUDAR, J.]

construction, having regard to the object of the legislation and the mischief    A
it seeks to remedy.
      In view of the above, 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”.
      4. Having regard to the above discussion, Section 9 of the 2006            B
Act does not apply to the present case at all. By way of abundant caution,
we wish to clarify that we are not commenting on the validity of marriages
entered into by a man aged between eighteen and twenty-one years and
an adult woman. In such cases, the man may have the option to get his
marriage annulled under Section 3 of the 2006 Act, subject to the conditions     C
prescribed therein.
       5. Be that as it may, it is brought to our notice by the advocates
for the parties herein, that the couple has been living happily, and are not
facing any threat from their family members. Hence, we are of the
opinion that police protection is no more required in the present case.          D
       6. In view of the above, the directions issued by the High Court to
get the First Information Report lodged (FIR No. 122 dated 24.12.2010)
are quashed, and the impugned order is set aside. The appeal is allowed
accordingly.
                                                                                 E
Ankit Gyan                                                     Appeal allowed.




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