Case Title: Nitish Kumar v. State of Bihar and others
Case No: Criminal Writ Jurisdiction Case No. 880 of 2023
Decided on: 16th January, 2024
CORAM: THE HON’BLE MR. JUSTICE PB BAJANTHRI AND HON’BLE MR. JUSTICE RAMESH CHAND MALVIYA
Facts of the Case
The petitioner approached the court through a Habeas Corpus petition, seeking an order for the release of a minor girl from a shelter home. The Child Welfare Committee, acting under the Juvenile Justice (Care and Protection of Children) Act, 2015, had directed the girl to be placed in the shelter home. The petitioner contended that the girl had willingly married him, given birth to a child, and expressed a desire to live with him instead of her parents. He urged the court to release her from the shelter home.
In response, the State’s counsel argued that as the girl was under 17 years of age, her marriage constituted child marriage, which is prohibited by law. The counsel emphasized that even if the girl had consented to the marriage, such consent would not be legally significant in light of the prohibition on child marriages.
The state’s position was that it would be in the best interest of the girl and her child to remain in the shelter home until she reached the age of majority. During her interaction with the court, the minor girl asserted that she was legally married to the petitioner and claimed to be around 18-19 years old. When asked about her preferred residence, she expressed a desire to live with her husband (petitioner) and adamantly refused to accompany her father.
However, conflicting information arose as her school’s admission register and birth certificate indicated her date of birth as March 17, 2008. Faced with this inconsistency, the court grappled with the question of whether a girl below 18 years of age, who has entered into marriage with her consent, should be compelled to stay in a shelter home against her wishes to be with her parents.
Issue
Whether a girl who is less than 18 years of age gets married to a boy with her consent can be compelled to stay at State Girls Care Home, Gaighat, Patna while she refuses to accompany her parents or not?
Court’s analysis and decision
The Patna High Court has stated that if a girl is not yet a legal adult and expresses concerns about her safety while in the custody of her parents, the court has the authority to intervene and place her in an appropriate shelter for women until she reaches adulthood. The court emphasized that a husband does not have an inherent right to claim custody of such a girl through a writ of habeas corpus, alleging unlawful detention. In a recent case, a bench comprising Justice PB Bajanthri and Justice Ramesh Chand Malviya denied the custody request of a minor girl, who is currently residing in a shelter home, by her alleged husband.
Additionally, the High Court considered the Supreme Court’s ruling in the 2017 case of Independent Thought vs. Union of India. The Supreme Court emphasized that a child remains a child, and therefore, a person below 18 years of age cannot provide consent, whether express or implied, for sexual intercourse. The court further ruled that if a marriage occurs in such circumstances, it is not in the best interest of the girl child, and the solemnization of such a marriage would violate the provisions of the Prohibition of Child Marriage Act, 2006.
Given the minor girl’s refusal to accompany her father, the Court determined that her stay at the shelter home was not detrimental to her well-being or that of her child. Consequently, the court concluded that she could not be directed to be released into the custody of her husband (petitioner) until she attains the age of majority.
As a result, the Court issued the following directives:
- The Child Welfare Committee established under the Juvenile Justice (Care and Protection of Children) Act, 2015, is mandated to oversee the well-being of the minor girl through periodic inspections of the State Girls Care Home. The Committee must adhere to all statutory obligations imposed on it by the Juvenile Justice (Care and Protection of Children) Act, 2015.
- The petitioner is instructed to open a bank account in the name of the newborn child and consistently deposit a substantial amount of money for the welfare of the newborn.
- If, at any point before reaching the age of 18, the minor girl expresses her wish to be with her father or parents, the Child Welfare Committee (CWC) shall authorize her to do so. This permission will be granted in the presence of her father or parents, and the CWC will issue a suitable order to facilitate this arrangement.
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Written by- Afshan Ahmad
