1. The case called out for virtual hearing as fresh petition.
2. Learned counsel for the petitioner, Sri Janardan Singh, Advocate and learned A.G.A for the State are connected through video conferencing.
3. The instant writ petition is filed seeking issuance of direction in the nature of habeas corpus. Allegedly, the petition is moved on behalf of 'Sadhna Kumari', aged about 18 years, through her next friend on 15.4.2021. The next friend, allegedly the husband namely Shekhar @ Shekhar Pandey aged about 19 years, is resident of District-Gonda. The opposite parties no.4 and 5 (parents of petitioner Sadhna Kumari) are resident of village Mau, with whom her unlawful detention is complained of.
4. Briefly stating the grounds for issuance of direction in the nature of habeas Corpus through the next friend Shekhar @ Shekhar Pandey, as pleaded in the petition are the alleged detenue petitioner 'Sadhna Kumari' and the next friend 'Shekhar @ Shekhar Pandey' were legally wedded and living as husband and wife since after an agreement purported to be of marriage covenanted by them on a notary affidavit dated 31.7.2020 which shall hereinafter be referred as "agreement' only. The photocopy of the said agreement is made Annexure No.2 to the petition.
5. Para 13 of the writ petition pleads, "the detenue petitioner and Shekhar @ Shekhar Pandey solemnized their marriage and the detenue petitioner being major, she is competent to take decision about her future life". It is further pleaded that they were cohabiting in their matrimonial house situated at Village Bakhtawarpurwa, Tehsil Paraspur, District Gonda uninterruptedly, when the opposite party no.5 (father of detenue Sadhna Kumari) some time in the second week of January, 2021 requested for her "vidai" assuring her return after one week. On his assurance, the detenue petitioner was allowed to depart the matrimonial home with her father. Since then, she is detained illegally and improperly against her wish and will by the opposite parties no. 4 and 5 (parents) in their home situated at Village Bhaatkol, Post Dharauhara, Mohammadabad Gohana, District Mau. Consequently, having no option the instant writ petition under Article 226 of the Constitution of India is filed by the next friend on behalf of the detenue, to issue a writ, order or direction in the nature of habeas corpus commanding and directing the opposite parties (State of U.P, Superintendent of Police, Mau, S.H.O., P.S- Kotwali Mohammadabad Gohana, District Mau and parents of the detenue petitioner) to produce the detenue petitioner before the court so that statement as to her willingness may be recorded by the court and to set her free at her liberty.
6. Heard, the learned counsel Shri Janardan Singh Advocate for the petitioner, who emphatically argued to issue notice instantly to the opposite parties, directing them for production of the detenue before the court. Learned A.G.A. is also present on behalf of the State to protest the prayer made by the petitioner. Learned A.G.A. argued, a writ of habeas corpus when presented before the Court, if the court is prima facie satisfied that the prayer deserves to be granted, it may issue rule nisi and call upon the person or authority against whom such writ is sought, on the returnable date to show cause as to why rule should not be made absolute and the detenue should not be released from detention or confinement.
7. Before accepting the prayer made by the learned counsel to issue notice for production of the alleged detenue Sadhna Kumari in the court from the custody of the parents first of all it is to be considered by the court, whether the prima facie case is made up from the facts pleaded in the petition.
8. It is established by law that any detenue or a person acting on his/her behalf can move petition before the court for a writ of habeas corpus, one reason for the writ to be sought by the person other than the detenue is that he/she might be held incommunicado.
9. In the instant case the custody of parents is claimed to be illegal on the ground, the petitioner Sadhna Kumari and her next friend both though legally wedded through the 'solemnization of marriage' and were cohabiting in their 'matrimonial house' since the date of agreement dated 31.7.2020, the petition is taken away by her father and confined in parents home against her wishes.
10. On the basis of agreement dated 31.7.2020, the aforesaid next friend is alleged to be husband of petitioner Sadhana Kumari and as such the learned counsel for the petitioner emphatically requested to issue notice to the opposite parties no. 4 and 5 and other State-opposite parties too, to produce the petitioner detenue in the court for recording her desire and wishes as to her future.
11. The entire pleading is gone through by the court and read over by the learned counsel for the petitioner also, but he failed to show material avernment as to the 'solemnization of marriage', it's date, place and time so as to establish wedding of the petitioner and her next friend the alleged husband, however, the words "solemnization of marriage" is pleaded in the para 12 and 13 vaguely. Both the paras are lacking specific pleading as to the solemnization of marriage with day, date and place of solemnization. Learned counsel when failed to establish by means of pleading and other materials placed by him on record of the petition the solemnization of marriage, he emphatically pressed in alternative on the "agreement" dated 31.7.2020 (Annexure No.2). The said agreement is on notary affidavit. It is purporting to be "Vivah Anubandh Patra" (Rajinama) means "Agreement of Marriage" (Deed of Consent). Obviously on 31.7.2020 the parties to the 'agreement' namely, Sadhna Kumari and Shekhar Pandey consented to live together as husband and wife, claiming they were already cohabiting as such for last 6 months.
12. The 'agreement' dated 31.7.2020 is pleaded as the basis of legal authority of the next friend to seek habeas corpus of petitioner Sadhna Kumari. The purpose of writ is to facilitate the next friend to cohabit with petitioner without interruption of anyone else, even the parents of Sadhna Kumari (opposite parties no.4 and 5) with whom she is presently residing. The pleading on the one hand asserts in para-7 of the petition that since the date of 'agreement' the detenue petitioner and Shekhar @ Shekhar Pandey used to live in common room as husband and wife enjoying their married life, the annexure no.2 (the agreement) on the other hand, to the contrary, claims on 31.7.2020 that they remained in cohabitation with each other as husband and wife for last 6 months. This contradiction is relevant to appreciate the vagueness of assertion of cohabitation. Further, in para 11 of the petition, it is pleaded that in second week of January 2021, Sadhna Kumari, on the request of her father permitted to depart for parental house. No specific date, as to when she went to her parental house, is pleaded in the petition. As such neither the date of solemnization of marriage when they were wedded and started cohabition nor the date when she departed the alleged matrimonial house for going to parental house is pleaded. Keeping aside this vagueness, it can be said with all certainity that the only basis of alleging marital relation as well as the matrimonial cohabitation with the next friend Shekhar Pandey is the 'agreement' (Annexure no. 2) dated 31.7.2020.
13. One other material placed before this Court, the Annexure no.3, is an First Information Report in Case Crime No.524 of 2020 dated 6.9.2020 lodged in Police Station Gautambuddh Nagar, Phase-II at 22.01 p.m. by Smt. Gudiya w/o Mahendra, (opposite party no.4 in the petition). The said F.I.R., lodged by the police under Sections 363, 366 I.P.C. on the complaint of opposite party no.4 discloses that, her daughter Sadhna Kumari left house about 15 days ago with Shekhar @ Shekhar Pandey. Complainant suspected the said Shekhar @ Shekhar Pandey as he was living in rented house in the same locality having telephone no.8588019930 and 7703956814 was also missing at the same time and the said mobile phone numbers were kept switched off. She further apprehended danger to the life of her daughter. In the para-8 of the petition the details of the said incident under F.I.R. is pleaded but no further progress of the case is disclosed.
Legality of agreement dated 31.7.2020.
14. The material information as to the age of the petitioner Sadhna Kumari is given in para-5 of the petition. As per the High School Examination Result-2020, the date of birth of detenue petitioner is 17.3.2003. In view of the aforesaid material fact, the 'agreement' purported to be of marriage when allegedly executed by the petitioner Sadhna Kumari on 31.7.2020 she was a minor of aged about 17 years and 4 months, therefore, at the relevant date of agreement despite the alleged agreement of her consent to cohabit with Shekhar Pandey, the next friend as husband and wife, she could not be supposed to give a valid consent in law. This is pertinent to note that a criminal case under Sections 363, 366 of Indian Penal Code, 1860 is registered pursuant to the complaint of petitioner's mother against the act of the next friend Shekhar @ Shekhar Pandey. He may be criminally liable on trial in due course of procedure. As such the object and considerable for the agreement is undoubtedly unlawful.
15. The learned counsel for the petitioner further vehemently argued that at present when the petition is filed by the petitioner she is major therefore, in law she is competent to take decision on her own in respect of her future life and if the court calls her to record her wishes, she may ratify the agreement. When the learned counsel is asked about the position of law with regard to the agreement executed by minor itself and the capacity of minor to ratify the said agreement on attaining majority, he could not answer.
Agreement of which either party to it is a minor- Legal Status.
16. In the instant case, the prima facie case to issue a notice with regard to the production of petitioner Sadhna Kumari as prayed from the court in the writ of habeas corpus, through her next friend the alleged husband is absolutely based on the agreement (consent deed) dated 31.7.2020. Issuing a notice to produce the alleged detenue on the basis of said 'agreement' will amount to give the effect to the agreement. The agreement must have enforceability in law for the said purpose. The agreements which are made enforceable in law are provided under the Indian Contract Act, 1872. Section 11 of the Indian Contract Act states "every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
17. In view of the aforesaid provisions of Contract Act, three points are to be kept in mind when enforceability of an agreement is considered-
(i) the person needs to be a major;
(ii) the person needs to be of sound mind; and
(iii) the person is not prohibited by law to enter into a contract.
18. What would be the age of majority which capacitates a person to contract is important to be kept in mind. The petitioner being a citizen of India, his/her age of majority would be considered under the Indian Majority Act, 1875, Section 3 of the said Act provides as below:
"3. Age of majority of persons domiciled in India.-
(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day."
19. The petitioner's date of birth is admittedly 17.3.2003, as such on the date of 'agreement' dated 31.7.2020, she undoubtedly was a minor. The definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such person is termed as child. Admittedly, the petitioner was minor as well as a child also when she allegedly entered into the agreement to marry on 31.7.2020. Further, she is party to an agreement of marriage. An agreement must not be opposed to law. The law applicable to her being a Hindu, is "The Hindu Marriage Act, 1955". Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled:-
"(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage."
20. Under both the Acts viz. The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry with Shekhar @ Shekhar Pandey. Even Shekhar @ Shekhar Pandey was not of marriageable age under the law.
21. The minors agreement is declared in law void, child marriage was outlawed in 1929. According to the Indian law, in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriages, if solemnized by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage also.
22. Here in the present case, the marriage is not solemnized under the Hindu Marriage Act or otherwise entered by the parties thereto according to the law, but is being claimed as an agreement to cohabit as husband and wife by virtue of agreement dated 31.7.2020. Therefore, the question is whether on attaining the age of majority a minor is competent to ratify his/her agreement executed in the age of minority. The legal position with this regard is that:
(i) contract with minor is void and no legal obligation can ever arise on him/her therein,
(ii) the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and
(iii) no court can allow specific permission of a contract with minor because it is void altogether.
When a contract is entered on behalf of a lawful authority of a minor then only the option is available attaining majority to the minor either to ratify or to rescind the contract entered by the person having lawful authority on his behalf. On the basis of aforesaid reasons, the argument of learned counsel that the petitioner has now become a major and she is willing to enforce her contract is not tenable.
23. Since legal capacity to enter into contract is a creation of law, when the law expressly declares a minor incompetent to contract. The agreement dated 31.7.2020 of which one of the party namely petitioner Sadhna Kumari a minor, is void, as the same is in violation of Sections 11 and 23 of the The Indian Contract Act, 1872. Sections 11 and 23 of the Indian Contract Act are quoted hereunder for easy reference:-
"11. Who are competent to contract.--Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject.
23. What consideration and objects are lawful, and what not.--The consideration or object of an agreement is lawful, unless--The consideration or object of an agreement is lawful, unless--" it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
It is further provided in Section 10 of the Indian Contract Act, 1872 as to what agreement are enforceable to assume the shape of a valid contract. Section 10 of the Indian Contract Act, 1872 runs as under:-
"10. What agreements are contracts.--All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. --All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
24. The law as applicable in India on the issue of contract with minor can be stated to have derived from the decision of the Privi Council in Mohori Bibee Vs. Dharmodas Ghose (1903) ILR 30 Cal. 539 (P.C.). In that case the Privi Council, on the wording of The Indian Contract Act, 1872 held that all contracts of minors were void and not merely voidable. The position of law would be different when a contract is made by a guardian of a minor so as to be binding on a minor and is also for the benefit of the minor, then is an enforceable contract in law and the minor can enforce it.
25. It is therefore held that the agreement dated 31.7.2020 purporting to be of marriage and consent to cohabit together, cannot be given effect so as to issue notice to opposite parties for production of petitioner in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed, for the reason of the same being a void agreement.
26. In view of the above discussions, the petition at the very threshold is dismissed.
27. However, this decision shall not impede the petitioner to enter into marital relations with person of her choice, whosoever may be, on attaining marriageable age through a lawfully solemnized marriage or otherwise by any mode prescribed by law relating to marriage.
Order Date :- 15.4.2021 Gaurav/-
[Vikas Kunvar Srivastav,J.]