CRM-M 29790 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM-M 29790 of 2009 (O&M) Date of Decision: 27.11.2009 Amnider Kaur and another ..Petitioners. Vs. State of Punjab and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Ranjan Lakhanpal, Advocate for the petitioners. Mr.Ranbir Singh Rawat, AAG Punjab for respondents No.1 to 3. Mr.Nandan Jindal and Mr.D.S.Pheruman, Advocates for respondent No.4. RAKESH KUMAR JAIN, J.
This Court is flooded with the petitions filed by run away couples in which the girls, who have just attained the majority, are filing petitions seeking protection for life and liberty allegedly threatened by their parents, who could be seen wailing helplessly and haplessly chasing their daughters in the corridors of this Court, who out of infatuation, are marrying young boys who could hardly provide them any future.
This is yet another case of a run away couple, who has filed the present petition under Section 482 of the Code of Criminal Procedure, 1973 (for short `Cr.P.C.') seeking direction to respondents No.1 to 3 to protect their life and liberty which is alleged to have been threatened by the parents of petitioner No.1 much less respondent No.4 as they have got married against his wishes.
According to the averments made in the petition, petitioner CRM-M 29790 of 2009 -2- No.1 is a Brahmin whereas petitioner No.2 is a Jatt Sikh. Although no documentary evidence has been placed on record to prove the date of birth yet it is averred in para 5 of the petition that petitioner No.1 was born on 20.8.1991 and petitioner No.2 was born on 22.2.1988. It is further averred that they have got married as per Sikh rites at Guru Nanak Gurudwara (registered Phase VI Mohali) as per Marriage Certificate which is attached as Annexure P-1. The petition is supported by an affidavit of petitioner No.1. Notice of motion was issued on 26.10.2009 for 30.10.2009. In response to the notice, respondents No.1 to 3 have appeared through counsel for the State of Punjab whereas respondent No.4 is represented by Sh.Nandan Jindal, Advocate.
Counsel for respondent No.4 sought time to file reply and on 4.11.2009 alongwith CRM No.55710 of 2009, reply was filed which was taken on record. It is averred in the reply that petitioner No.1 was born on 20.8.1993 and was 16 years and 2 months of age at the time of alleged marriage. A Middle standard examination certificate of Punjab School Education Board, held in February 2006 showing her date of birth was attached as Annexure R-4/1. It is further averred that respondent No.4, father of petitioner No.1 himself got married on 22.7.1992 for which a translated copy of the Marriage Invitation Card is attached as Annexure R- 4/2. It is further averred that answering respondent No.4 has lodged FIR No.235 dated 22.10.2009 under Sections 363/366-A IPC at Police Station Patran, District Patiala against petitioner No.2 Gurbhag Singh, his mother Jasvir Kaur and father Lakha Singh for abducting and alluring his minor daughter for marriage. It is further alleged that petitioner No.1 is a minor and petitioner No.2 is uneducated & unemployed person having no means CRM-M 29790 of 2009 -3- of livelihood. During the course of hearing, another CRM No.54156 of 2009 has been filed by the petitioners in order to place on record some photographs of the marriage as Annexures P-2 and P-3 and CRM Nos.56394 and 56395 of 2009 are filed by respondent No.4 in order to place on record Annexures R-4/3 and R-4/4. Both the applications are allowed and documents (Annexures R-4/3 and R-4/4) are taken on record. It is pertinent to mention here that petitioner No.2 did not place on record any documentary evidence to rebut the documents Annexures R-4/3 and R-4/4 wherein the date of birth of petitioner No.1 is recorded as 20.8.1993.
Thus, from the resume of the afore-stated facts, it is apparent that petitioner No.1 was 16 years and 2 months of age at the time of her marriage, which is alleged to have been performed on 21.10.2009 and a Criminal case has been registered by respondent No.4 against petitioner No.2 and his parents vide FIR No.235 dated 22.10.2009 under Sections 363/366-A IPC at Police Station Patran, District Patiala.
Learned counsel for the petitioners has vehemently argued that the petitioners had a love affair being neighbours but as they belong to different castes, could not persuade their parents for their marriage and had to take the extreme step of marrying on their own and are now being hunted by the parents of the girl putting their life and liberty in jeopardy and if State does not provide them adequate security then their fundamental right enshrined under Article 21 of the Constitution of India shall be violated. Learned counsel for the petitioners has argued that even though the petitioner No.1 is alleged to be 16 years and 2 months of age, she has attained the age of discretion and as such, her marriage is neither void nor illegal. In this regard, he has relied upon a Division Bench judgment of the CRM-M 29790 of 2009 -4- Delhi High Court in the case of Ravi Kumar Vs. The State and another 2006(1) RCR (Criminal) 41, a single Bench judgment of this Court in Ridhwana and another Vs. UT Administration and others 2008(4) RCR (Criminal) 242, a decision of the Supreme Court in the case of Lata Singh Vs. State of U.P. and another (2006) 5 SCC 475 and another judgment of this Court in Pardeep Kumar Singh Vs. State of Haryana 2008(3) RCR (Criminal) 376.
On the contrary, counsel for respondent No.4 has submitted that in view of the provisions of The Prohibition of Child Marriage Act, 2006 (for short `the Act') marriage of petitioners No.1 and 2 is void because petitioner No.2 has enticed away petitioner No.1 from the lawful keeping of respondent No.4 and the Court in the garb of providing police protection, cannot declare the void marriage as valid. He further submits that not only petitioner No.2 is liable for punishment under Sections 363/366-A IPC but also the persons, who were party to this marriage are liable for punishment under Sections 10 and 11 of the Act. It is further submitted that none of the judgments cited by the counsel for the petitioners is applicable to the facts and circumstances of this case and this Court should not grant police protection to petitioner No.2, who is an accused of offence under Sections 363/366-A IPC and other provisions of the Act.
I have heard both the learned counsel for the parties and have perused the record with their assistance.
There is no dispute that the petitioner No.1 is a minor. The judgment in the case of Ravi Kumar (supra) has been relied upon by the learned counsel for the petitioners to contend that if the girl is above 16 years and below 18 years, she attains the age of discretion, therefore, her CRM-M 29790 of 2009 -5- marriage is neither void nor illegal. The facts of the case Ravi Kumar (supra) are that Ravi Kumar was 28 years of age. He got married to one Shikha Sharma aged 16 years and 8 months on 8.12.2004 at Arya Samaj Mandir situated at Calcutta Gate, Jamuna Bazar Delhi. Shilpi Sharma, elder sister of Shikha Sharma, unhappy with the alliance, lodged a report on 22.12.2004 on the basis of which FIR No.479/04 under Section 363 IPC was registered. Ravi Kumar and Shikha Sharma were apprehended. Ravi Kumar was arrested for kidnapping and Shikha Sharma being minor was sent to Nari Niketan as she was unwilling to go to her parents' house. Ravi Kumar's uncle sought custody of Shikha. The Metropolitan Magistrate directed her to be kept in Nari Niketan and in the meantime, Ravi Kumar was granted bail on 8.4.2005 who filed WP (Crl.) 942/2005 for Habeas Corpus and release of Shikha Sharma from Nari Niketan. Subsequently another WP(Crl.) No.1446/2005 was filed by Shikha Sharma through Ravi Kumar as parokar. Both the petitions were clubbed together. The complainant Shilpi Sharma made a statement that she had lodged the FIR against Ravi Kumar under the impression that her sister had been enticed and taken away by Ravi Kumar but now she has realised that she has gone of her own accord with Ravi Kumar. In these circumstances Shikha Sharma was released from Nari Niketan and was allowed to accompany her husband. In another case which was also decided with aforesaid matter was Smt.Phoola Devi Vs. State, W.P.(Crl.) 1369/2005, Phoola devi had filed a writ petition for Habeas Corpus alleging that her minor daughter had been kidnapped by respondents No.3 and 4 arrayed in that petition, namely, Santosh Rai and Jhandu Rai who were tenants in the premises of Phoola Devi. One FIR No.482/2005 under Section 363 IPC was registered. Sonia, CRM-M 29790 of 2009 -6- daughter of Phoola Devi was recovered. She made a statement before the Magistrate under Section 164 Cr.P.C. that she had married Santosh Rai on 24.7.2005. Their marriage has been registered on 4.8.2005. Phoola Devi prayed for custody of her minor daughter Sonia but she was sent to Nari Niketan. In this backdrop, the questions arose for consideration before Delhi High Court as to whether on account of the minority of the spouse, their marriage was illegal and void ab-initio; Whether young girls getting married having reached the age of discretion but not attained majority, can be sent in protective custody to a Remand Home against their will. In this case, it was held that the question of marriage being illegal or void ab-initio on account of the minority of a Hindu spouse is no longer res-integra for which reliance was placed on decision rendered in the case of Seema Devi @ Simran Kaur Vs. State of H.P. 1998(1) RCR (Crl.) 697 (H.P.) and Gindan and others Vs. Barelal, AIR 1976 M.P.83 to hold that under Section 5(iii) of the Hindu Marriage Act, 1955 (for short `the Act of 1955) the marriage solemnised in contravention of the age mentioned in Section 5(iii) of the Act of 1955 was only punishable under Section 18 of the Act of 1955 but would remain valid and enforceable. In the second case which has been relied upon by the learned counsel for the petitioners is Ridhwana and another (supra), a petition under Section 482 Cr.P.C. was filed before this Court seeking protection to their life and liberty, against the parents of the girl, not to interfere in their peaceful married life. In that case also, one DDR was got registered by respondent No.4 on the basis of which FIR No.97 dated 1.7.2008 was registered at Police Station Industrial Area, Chandigarh on the ground that the girl is minor. However, it has been observed in the order that State had collected evidence in which it was CRM-M 29790 of 2009 -7- found that girl was more than 18 years of age, therefore, they are not proposed to take any action in the FIR. However, the stand taken by the State was challenged by the parents of the girl who had alleged that girl is minor but this Court had held that since there is a positive evidence collected by the State that the girl is major, therefore, the parents were not entitled to interfere in their married life. However, it was also held that, even if it is taken for the sake of arguments, that the age of petitioner No.1 is 16 years and 4 months as claimed by her parents, still in view of the evidence on record shows that she has married with her own sweet will and left the house on her own and as such, no offence is alleged to have been made out. Another case cited by the learned counsel for the petitioners is Lata Singh (supra). A writ petition was filed under Article 32 of the Constitution of India before Supreme Court for issuance of a writ of certiorari and/or mandamus for quashing Sessions trial No.1201 of 2001 under Sections 366 and 368 of the IPC arising out of FIR No.336 of 2000 registered at Police Station Sarojini Nagar, Lucknow and proceedings pending in the Fast Track Court V, Lucknow. In the said case, the facts were that the petitioner Lata Singh (Lata Gupta) was 27 years of age, who got married to one Bramha Nand Gupta, a business man of Delhi with her own free will, at Arya Samaj Mandir, Delhi and had a child from their wedlock. Her brother lodged a missing person report at Sarojini Nagar Police Station, Lucknow which started a tug of war between the two families as marriage was inter caste. In this backdrop, the Supreme Court had held that once a person becomes major then he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage, the maximum they can do is that CRM-M 29790 of 2009 -8- they can cut-off social relations with the son or daughter, but they can not give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. Therefore, direction was given to Administration/police authorities throughout the country to see that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage, with a woman or man who is major, the couple be not harassed by anyone nor is subjected to threats or acts of violence, and if anyone gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings. The last case cited is Pardeep Kumar Singh (supra). In this case, a large number of cases of run away couples were decided by this Court with the following directions:
(i)Whenever any intimation is received by the SSP/SP of concerned District regarding the marriage of a young couple with a threat and an apprehension of infringement of the right of life and liberty by the police at the instance of the family members of one of the spouses, the SSP/SP concerned will consider the representation and will himself/herself look into the matter and issue necessary directions to maintain a record of the said intimation under Chapter 21 of the Punjab Police Rules.
(ii) On receipt of above said intimation of marriage by any police officer, necessary directions will be issued to the concerned Police Station to take necessary steps in accordance with law to enquire into the matter by contracting the parents of both boy and girl. The matter regarding age, consent of the girl and grievance of her family will be determined. In the eventuality of any complaint of kidnapping or abduction having been received from any of the family members of the girl generally the boy (husband) CRM-M 29790 of 2009 -9- will not be arrested unless and until the prejudicial statement is given by the girl (wife). Arrest should generally be deferred or avoided on the immediate receipt of a complaint by the parents or family members of the girl taking into consideration the law laid down by Hon'ble Supreme Court in Joginder Kumar's case (supra);
(iii)If the girl is major (above 18 years), she should not forcibly be taken away by police to be handed over to her parents against her consent. Criminal force against the boy should also be avoided.
(iv)So far as the threat to the young couple of the criminal force and assault at the hands of the private persons is concerned, it would always be open to the police to initiate action if any substantive offence is found to have been committed against the couple;
(v)In case of any threat to the breach of peace at the hands of the family members of the couple it will always be open to the State authorities to take up the security proceedings in accordance with law;
(vi)It will not be open to the "run away couple" to take law in their hands pursuant to the indulgence shown by the police on the basis of their representation sent to the SSP/SP of the concerned District;
(vii)If despite the intimation having been sent to the SSP/SP there is an apprehension or threat of violation of right of personal life and liberty or free movement, the remedy of approaching the High court should be the last resort;
(viii)In case there is an authority constituted for issuance of marriage certificate as per the law laid down by Supreme Court in Seema's case (supra) in the concerned districts, the couple of so called `run away marriage' should get the marriage registered in compliance with the directions of the Supreme Court and a copy of the same should also be forwarded to the police along with the representations or any CRM-M 29790 of 2009 -10- time subsequent thereto.
(ix)Nothing said here-in-above will prevent the immediate arrest of a person who fraudulently entices a girl with false promises and exploits her sexually as per the statement of the girl."
On the other hand, learned counsel for respondent No.4 has vehemently argued that in none of the cases referred to above, the provisions of the Act have been taken into consideration. It is argued that petitioner No.1 was 16 years and 2 months of age at the time of her marriage and is a child in view of the definition provided in Section 2(a) of the Act and a minor in view of Section 2(f) of the Act. It is further submitted that if a child, who is minor, is taken or enticed away out of the keeping of the lawful guardian, such marriage shall be null and void. It is submitted that there is a complaint lodged by the father of the girl with the police on the basis of which FIR No.235 dated 22.10.2009 has already been registered under Sections 363/366-A IPC, which on translation reads as under :
"At this time the statement of Ram Gopal son of Roop Chand Caste Pandit resident of Farid Nagar Patiala Road P.S.Patran aged about 42 years has been brought by HC Harbans Singh 2543 sent by SI Subeg Singh, P.S. Patran for the registration of the FIR. The detail of the statement is as under : It is stated that I am resident of above mentioned address and working on the private bus i.e. Garg Bus service as Conductor. I have two children, eldest is my daughter Amninder Kaur whose date of birth 20.8.1993. Younger to her is my son Balwinder Singh. My wife Kirna Rani is working as a teacher in Happy Public School, Daftriwala. In the said school my daughter Amninder CRM-M 29790 of 2009 -11- Kaur is also studying in 10+2 class. Gurbagh Singh s/o Lakha Singh, Caste Jat, resident of Mohalla Faquir Nagar, Patiala Road, Patran is residing opposite to my house alongwith his parents, who are settled here for the last about one year after selling their land in their village Noch District Kaithal (Haryana). During the intervening night of 20/21.10.2009, after taking dinner, the whole family went to their bedroom and slept there. At about 4 a.m. I got up and was getting ready for my duty. I found my daughter Amninder Kaur was not present in the bed. I wake my wife up and enquired from her regarding the whereabouts of my daughter. We checked our household goods and found that my daughter Amninder Kaur has taken away the gold ornaments including gold rings, gold chain, ear rings and Rs.13,000/- cash along with her birth certificate. On inquiry, I came to know that Gurbhag Singh, Jat resident of village Faquir Nagar, Patiala Road, Patran has enticed away my daughter with the intention to marry her, in connivance with his mother Jasbir Kaur and father Lakha Singh. All the above three persons are not present in their house. When my daughter could not be found, I made inquiry and verify that my daughter Amninder Kaur has been taken by above said Gurbagh Singh in connivance with her parents with the intention to marry her. In this regard I was going to lodge the report to the police station accompanying by Suresh Kumar s/o Dalip Chand Aggarwal, the owner of the Bus that you met me in Bhagat Singh Chowk Patran, Action be taken. Statement heard which is correct. Sd/-CRM-M 29790 of 2009 -12-
Ram Kumar attested by Suresh Kumar further attested Sd/-
Subegh Singh PS.Patran dated 22.10.2009"
Counsel for respondent No.4 has also argued that not only the marriage is void but also the persons who have performed or abetted this marriage, which comes within the definition of Child marriage, are also liable for punishment in accordance with the provision of the Act.
In order to appreciate the submissions of the counsel for respondent No.4, which is primarily based upon the provisions of the Act, it needs to be highlighted that initially The Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnisation of child marriages. However, subsequently it was amended in 1949 and 1978 in order to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint Act, 1929 though restrains solemnisation of child marriages yet it did not declare them to be void or invalid. Since there was a hue and cry in the Society to prevent and provide more deterrent solutions by making stringent provisions to eradicate the evil practice of solemnisation of child marriages, the present Act i.e. The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. The relevant provisions of the Act are as under :
Definitions - In this Act, unless the context otherwise requires-
(a) "child" means 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;
(b) "child marriage" means a marriage to which either of the contracting parties is a child;
(f) "minor" means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority."CRM-M 29790 of 2009 -13-
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 which may extend to two years or with fine which may extend to one lakh rupees or with both.
10.Punishment for solemnising a child marriage - Whoever performs, conducts or directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
11.Punishment for promoting or permitting solemnisation of child marriages - (1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend upto one lakh rupees.
12.Marriage of a minor child to be void in certain circumstances - Where a child, being a minor -
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, Interestingly the question that has been raised by the counsel CRM-M 29790 of 2009 -14- for respondent No.4 was conspicuous by its absence in all the judgments which have been cited by the learned counsel for the petitioners.
Therefore, the questions which arise for consideration of this Court are :
(i)In a case of run away marriage where the girl is admittedly minor, who has been enticed away from the lawful keeping of a guardian by her alleged husband against whom a case under Sections 363/366-A IPC is also registered, whether such a marriage is void in terms of Section 12 of the Act?
(ii)Whether the persons who are in someway party to the such child marriage, are also liable for punishment under Sections 10 and 11 of the Act?
(iii)Whether a person who has enticed/taken away minor from the keeping of lawful guardian and against whom a case under the provisions of IPC has already been registered can claim police protection in the name of his life and liberty?
In this case the facts are not in dispute. Petitioner No.1 was a minor girl being 16 years and 2 months of age at the time of alleged marriage. According to Section 3 of The Majority Act, 1875 every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. According to Section 2 (f) of the Act "minor" means a person who, under the provisions of the Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority. According to Section 2 (a) of the Act, "child" means 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 and according to Section 2 (b) of the Act, "child marriage" means a marriage to which either of the contracting parties is a child. Then according to Section 12(a), the marriage of petitioner No.1 which falls within the definition of child and within the definition of minor CRM-M 29790 of 2009 -15- being the age of 16 years and 2 months who has been enticed away out of the keeping of the lawful guardian cannot contract the marriage and her marriage shall be null and void.
In view of those provisions, I have no other choice but to hold that marriage of petitioners No.1 and 2 which is alleged to have been performed on 21.10.2009 as per Marriage Certificate (Annexure P-1 undated) as void marriage and none of the judgments which have been cited by the learned counsel for the petitioners in support of their case, is applicable to the facts and circumstances of the present case because in the case of Ravi Kumar (supra), the Division Bench had considered only the provisions of Sections 5 and 18 of the Act of 1955 to observe that in case of violation of 5 (iii) of the Act of 1955, the punishment is only 15 days simple imprisonment with fine of Rs.1000/- or both but the marriage is not illegal or void. However, much water has flown thereafter and now for the contravention of Section 5(iii)of the Act of 1955, the punishment under Section 18 (a) has been enhanced to 2 years rigorous imprisonment and/or with fine upto Rs.1 lac or with both. Moreover, the case of Ravi Kumar (supra) was decided on 5.10.2005. At that time, the Act was not in force as it did not receive the accent of President of India and has been notified w.e.f 1.11.2007. Therefore, the learned counsel for the petitioners cannot take the advantage of the observations made in the case of Ravi Kumar (supra). Insofar as the case of Ridhwana and another (supra) is concerned, in that case also this Court had prima-facie found that there is evidence collected by the police that girl was more than 18 years of age but still while parting with the judgment for the sake of argument, it was decided that even if girl is 16 years and 2 months age and has married with her own sweet will, no CRM-M 29790 of 2009 -16- offence is said to have been committed. This Court had no occasion to refer to the provisions of Section 12 of the Act. Therefore, the ratio laid down in these cases is not applicable. The case of Lata Singh (supra) itself talks about the persons who were major at that time when they got married and on that premise, it was held that if the persons are major and have got married on their own, their life and liberty should not be threatened by the persons who are against their marriage. Hence, the said judgment is also of no help to the present petitioners. In the case of Pardeep Kumar Singh (supra) this Court had laid down as many as nine directions but in none of the directions it has been provided that if the girl is minor and has been enticed away for the purpose of marriage by alleged husband, the said marriage is valid. Hence, I have found that provisions of Section 12 of the Act would apply with full rigour in the present case and the marriage which has been solemnised by petitioner No.2 with petitioner No.1, who is child and a minor, is unsustainable in the eyes of law and is thus, declared as void.
The second question involved in this case is that whether the persons, who have performed the marriage are also liable for punishment. In this regard Sections 10 and 11 of the Act provides for punishment for such persons and Section 15 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence shall be cognizable and non-bailable. Therefore, I hold that the person who has performed or abetted the child marriage of petitioner No.1, is also equally liable and for that purpose, I direct the state to take appropriate action by lodging the case against the persons who are responsible for the performance of the child marriage in the present case. In respect of the third question, the petitioners cannot be allowed to take the benefit of the CRM-M 29790 of 2009 -17- constitutional remedy of protection of their life and liberty on the pretext of their void marriage. The life and liberty of petitioners No.1 and 2 is only endangered and is being threatened by respondent No.4 so long their marriage legally subsists but once their marriage is declared to be void, there is no threat left to their life and liberty. Moreover, such a case where the allegation against the husband is of enticing away minor girl from the lawful keeping of guardian/parents and a case has been registered under Sections 363/366-A IPC, no protection under Section 482 Cr.P.C. can be granted by this Court because in that eventuality police protection has to be granted to a fugitive of law.
As a last resort learned counsel for the petitioners has argued that Act is not applicable because according to Section 1(3), the Act has not been notified by the State of Punjab. In this regard, counsel for respondent No.4 has vehemently argued that the Act is a Central Act which received the assent of President of India on 1.11.2007 and has been notified by the Ministry of Women and Child Development by notification No.S.O.1850(E) dated 30.10.2007 which reads as under:
"In exercise of the powers conferred by sub-section (3) of Section 1 of the Prohibition of Child Marriage Act, 2006 (6 of 2007), the Central Government hereby appoints Ist November 2007 as the date on which the said Act shall come into force.
The notification was published in the Gazettee of India, Extraordinary Part II, Section 3(i) No.479 dated 31.10.2007.
In order to appreciate the argument raised by the learned counsel for the parties, Section 1 of the Act in this regard needs to be noticed which is reproduced as under:CRM-M 29790 of 2009 -18-
1. Short title, extent and commencement -(1) This Act may be called the Prohibition of Child Marriage Act, 2006. (2)It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India without and beyond India:
Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry. (3)It shall come into force on such date as the Central Government may, by notification in the Official Gazettee, appoint; and different dates may be appointed for different States and any reference in any provision to the commencement of this Act shall be construed in relation to any State as a reference to the coming into force of that provision in that State."
Counsel for the respondent No.4 has submitted that a similar provision finds mentioned in the Motor Vehicle Act, 1988 which is reproduced as under :
"1. Short title, extent and commencement -(1) This Act may be called the Motor Vehicles Act, 1988.
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazettee, appoint; and different dates may be appointed for different States and any reference in any provision to the commencement of this Act shall be construed in relation to any State as a reference to the coming into force of that provision in that State."
He further relies upon decision of the Madhya Pradesh High Court in United India Insurance Co. Vs. Mahila Ramshree and others II (1997) Accident and Compensation Cases 586 in which the similar controversy had arisen and it was held that :CRM-M 29790 of 2009 -19-
"It may be seen that the Motor Vehicles Act is a Central Act. It is stated in the Act that the Act will come into force on such date as the Central Government may, by notification in the Official Gazettee, appoint. The power vests in the Central Government to issue notification in relation to the subject matter and not to the State Government. The Central Government had issued notification for all the States with no different dates for the commencement of the Act. No separate notification is further required to be issued in that regard."
In view of the aforesaid, I am also of the view that Act which has come into force w.e.f. 1.11.2007 and extends to the whole of India except the State of Jammu and Kashmir shall mean that it is applicable to the State of Punjab being a Central Act and no separate notification is further required to be issued in this regard. Thus, the argument raised by the learned counsel for the petitioners in this regard is also repelled.
In view of the above discussion, the present petition is found to be without any merit and the same is hereby dismissed.
(Rakesh Kumar Jain) 27.11.2009 Judge Meenu Refer to Reporter - Yes.