Published: 15th June 2021
Allahabad High Court refuses to give custody of minor husband to wife
The petitioner mother's plea was that the minor boy did not have the legal competence to marry the girl and the marriage was void, as per law
The Allahabad High Court has refused to give the custody of the minor husband to his wife holding that the marriage was voidable and allowing so would amount to sanctioning cohabitation between a major and a minor. But as the boy/husband, who is 16 years of age, was not willing to live with his mother, the court also did not give his custody to her either.
The court directed the authorities concerned to arrange for the boy's stay in a state facility like a shelter home till February 4, 2022, till he attains the age of majority. It clarified that after February 4, 2022, he can stay with whomsoever he likes, including his wife. Justice J J Munir passed the order while allowing the petition filed by the boy's mother, a native of Azamgarh, who had claimed her son's custody.
The petitioner mother's plea was that the minor boy did not have the legal competence to marry the girl and the marriage was void, as per law. Earlier, the boy was produced before the court on September 18, 2020, in the matter. The court, while recorded his statement, had then observed, "No doubt that the boy was never under any kind of coercion to stay with his wife or the other respondents, who are claimed to be detaining him illegally. He also does not appear to have been enticed away."
However, the court went on to refuse the request of the minor boy to allow him to remain in the custody of his wife. The wife had also given birth to a child of the minor boy.
The court said, 'The POCSO Act makes cohabitation of a minor boy with a major girl an offence, which would certainly be committed, if the boy is in the custody of his wife.
The custody or care of a minor, that inherently makes or has the potential of making the minor the victim of an offence and his adult guardian an offender under the Act of 2012 (POCSO Act), cannot be regarded as custody or arrangement made to ensure the welfare of the minor, it added. The court gave the latest judgment on May 31, 2021, and it was uploaded on its website on Monday.