The menace of child marriage has been deeply rooted in the Indian society, primarily emanating from male patriarchy and parochialism which considers daughters as ‘paraya dhan’ and a burden on the family. It is discharged by marrying off the daughters at an extremely tender age. The State has, in the aftermath of Phulmonee’s case[i] which pertained to unfortunate death of a 10 year old girl due to brain hemorrhage resulting from forced sexual intercourse, intervened over time to control this societal evil with several legislations including The Hindu Marriage Act, 1955 [HMA], The Child Marriage Restraint Act, 1929 [CMRA], The Prohibition of Child Marriage Act, 2006 [PCMA] but not without umpteen inconsistencies giving rise to various important questions of law, a few of which shall be dealt with during the course of the paper. Court on its own motion ( Lajja Devi) v State[ii] is one such case which not only deals with the issue of Child Marriage but also brings forth certain other complexities which it entails especially when the marriage is against the wishes of the parents.
The case clubs a bundle of similar petitions and was referred to a larger bench of the Delhi High Court. Lajja devi, the mother of the girl who eloped with a man when she was aged thirteen years, wrote a letter to the court after which the court took up as a writ petition. The FIR was lodged based on the information so received and the man, with whom the girl was found living with and married, was arrested for kidnapping. The girl confessed under Section 164 of Crimial Procedure Code, that she left her parental house out of her own free will. Further, she refused to stay with her parents apprehending forced marriage with another man and was accordingly sheltered in Nari Niketan. The husband’s family also wanted her custody while her husband was in judicial custody.[iii]