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A Minor Husband’s Custody Can’t be Given to his Wife, As It Would Be A Cohabitation Between Adult and A Child: Allahabad HC

Team SoOLEGAL 17 Jun 2021 3:20pm

A Minor Husband’s Custody Can’t be Given to his Wife, As It Would Be A Cohabitation Between Adult and A Child: Allahabad HC

A custody of a minor boy can’t be given to his wife, as it would permit an offence under the POSCO Act. Allahabad High Court has refused to give the custody of minor husband to his wife. Justice J. J. Munir's bench stated that their marriage was voidable, and that placing the young child in his wife's custody would amount to approving cohabitation between an adult and a child.

Manish Kumar, about 16 years, who was married to Jyoti about above 18years. Manish was residing with Jyoti and her family members following his marriage to Jyoti, but Manish's mother claimed that Jyoti and her family members lured away her minor son (Manish) and coerced him into a marriage of sorts, which was illegal due to the juvenile's lack of legal capacity.She further claimed that Jyoti and her family members had illegally imprisoned her young son, prompting Manish's mother to initiate the current Habeas Corpus Writ Petition.

However, before the Court, Manish Kumar, a minor, said clearly that he did not want to live with her mother. The Court stated, there can’t be case of a minor Hindu wife being married to a major and husband act as a natural guardian under Section 6 (c) of the Act of 1956. In accordance to the POSCO Act, the Court stated that, “A major female would be liable under Section 3/4 of the Act of 2012 if she was allowed to marry, and more specifically, consummate marriage with a minor, subject, of course, to the charge being proven at the trial, once a prosecution is started.”The Court decided that placing Manish, who is still under the age of 18, in his wife's custody would effectively condone the impending commission of the act under Section 3/4 of the Act of 2012, or the other penal provisions of the said Statute.

The court also observed that the, “custody of a minor, that creates or has the potential to make the minor a victim and his adult guardian an offender under the Act of 2012, can’t be considered a custody or arrangement designed to safeguard the minor’s welfare.”

The Court Order that the minor boy will stay at the State Facilities which is like a Protection Home, until he attains the age of 18years. On 4th February, 2022, he will attain the age of 18 years then he may be set free to go wherever he wants to stay. This arrangement was made in consideration of Manish's position that he does not want to return to his mother; however, the Court stated that if he wishes to return to his mother for any reason before February 4, 2022, he may do so through an official of the Home where he is housed by submitting an application to the Child Welfare Committee, which was appointed under the POSCO Act of 2012.

 “He will next appear before the Child Welfare Committee, which will determine his position in the case by recording his viva voce statement. If Manish expresses a clear desire to return to his mother during his minority and the Child Welfare Committee determines that this is a voluntary declaration, Manish will be allowed to return to his mother and remain there until he reaches the age of eighteen. Manish would then be free to go anywhere he pleased and stay with whoever he pleased, including his wife,” the Court concluded.



Tagged: Allahabad HC   POSCO Act   Justice J. J. Munir   Child Welfare Committee  
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