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Makemalla Sailoo v/s Superintendent of Police: Legal Complexities in Child Marriage and Guardianship

A child's inability to take care of himself, his body, and his belongings during an early period of life stems from his or her minor age. A youngster is incapable of taking care of themselves. Even the concept of good and evil is beyond the comprehension of a child. Thus, in order to adequately take care of himself, he needs assistance from someone else. Lawmakers created special legislation that provide children with some relaxation and assistance in their life, all for the sake of their minority status.

The Hindu Minority and Guardianship Act, 1956, governs current legislation pertaining to minorities and guardianship. The father assumes the role of child's natural guardian and if he passes away then the guardianship is assumed by the mother. Three types of guardian are defined in the act these include natural, testamentary and court appointed guardian.

The case deals with the section 6 of The Hindu Minority and Guardianship Act, 1956. Section 6 explains the natural guardian of a child. According to this section the father is the natural guardian of a legitimate minor boy or a girl and in case if the child is illegitimate then the natural guardianship is bestowed with the mother.

The present case discusses the issue related to marriage of a minor girl and her guardianship rights which are bestowed on her husband. Despite, courts opinion that something should be done regarding this issue, they had to rule in favour of the husband and subsequently giving her guardianship rights to her husband, treating him as her natural guardian. The analysis discusses the relevance of this judgement in today's evolving era and the need for legal and societal reforms.[i]

Brief Facts of the Case
In this unique instance, a thirteen-year-old girl purports to have wed respondent. Arpitha, the girl who was a seventh-grader, is the daughter of the petitioner. In this writ petition, her father said that on 26.4.2005, when he was sleeping outside of his home, the accused ran away with his daughter. He subsequently filed a police complaint about this. The complaint was filed on 4.6.2005 as Cr. No.116 of 2005. The child eluded the police's search. Hence, on November 7, 2005, writ petition was filed.

It is claimed that the accused as well as the petitioner's daughter were lodging in Chennai when the police received details regarding this on November 11, 2005. A police squad went there and tracked down both of them. It was noted what they said. According to the accused's allegation, he wed Laxmi against his own choice two years ago. He then became romantically involved with Arpitha, and on 26.4.2005, they eloped.

On November 12, 2005, they arrived in Devarakonda and appeared before the magistrate. She claimed that she got married to the accused and she was not ready to go and live with her parents. The magistrate transferred her to the State Home for Child Care Centre in Hyderabad because she would not go with her parents. The directive said that she would remain there until she reached adulthood or until the court issued additional instructions.

Now being held at Sub-Jail, Devarakonda, the accused person in question has been sent to judicial custody. Throughout the sessions, accused & detainee were called from the Child Care Centre. According to her statement, she is a 13 yr. old girl in 8th class, and had married the respondent eight months prior and she wanted to live with her husband. [ii]

While keeping in mind these facts certain certain legal issues arose in the court.
Legal Issues:
  1. Whether the minor girl can be forced to live with her parents?
  2. Whether it is possible to let a minor girl who claims to be married to accompany her spouse?
  3. Whether the husband can be considered as the natural guardian of a minor married girl?
  1. Section 6 (c) of The Hindu Minority and Guardianship Act, 1956� This section explains that the natural guardian of a minor married Hindu girl will be her husband. The exception is that person will no longer be treated as a natural guardian, if he ceases to be a Hindu or if he renounces the world.
  2. Section 5 of the Hindu Marriage Act, 1955
  3. Child Marriage Restraint Act, 1929

Petitioner's Arguments
The petitioner first claimed that the girl is just 13 years old and hence the father would be considered as natural and rightful guardian. Then they argued that one needs to look at the validity of marriage under section 5 of the Hindu Marriage Act, 1955. Section 18 of the act states that any marriage not considering the clause (iii), (iv) and (v) of section 5 will be punishable. They also relied on the Child Marriage Restraint Act, 1929. It explains the definition of child and also provides punishment for a man above 21 years of age marrying a minor girl.

Respondent's Argument
In this instance, the respondents contended that, notwithstanding Arpitha's age of just 13, the marriage between her and the third respondent was lawfully recognised. They used a number of legal statutes and court rulings to support their arguments.

First, the respondents emphasised that the marriage would not be ruled null and invalid based on the interpretation of pertinent legal requirements, even if it could be illegal under the Hindu Marriage Act, 1955, and the Child Marriage Restriction Act, 1929, it would not be void.

Second, they emphasised the sections of the Hindu Minority and Guardianship Act, 1956, which acknowledged the spouse as a married minor girl's natural guardian. It was emphasised that the Act demonstrated legislative purpose with respect to guardianship of married underage girls, so confirming Arpitha's marriage and the third respondent's rightful care over her.

Moreover, the respondents contended that the lack of explicit clauses nullifying such unions suggested a legislative intention to regard them otherwise. They drew attention to the fact that, despite certain marriages being expressly declared illegal, others were not, pointing to a conscious legislative decision.

Cases referred:
  1. Smt. Lila Gupta v. Laxmi Narain and Ors[iii]: The Hindu Marriage Act, 1955 is interpreted in this case with an emphasis on the legality of marriages that break particular requirements. Although Section 11o f the Act declares some violations void, it remains quiet on other violations, such as the time-bound limitation included in Section 15. The court deduced-reflecting legislative intent-that not all violations render a marriage invalid. Children from invalid or voidable marriages are granted legitimacy under Section 16, while children who violate Section 15 are not granted the same status, implying a discrepancy. The ruling emphasises the need to interpret the Act's marital validity provisions in a way that takes legislative purpose and societal ramifications into account.
  2. Shankerappa v. Sushilabai [iv]: It was decided in this case that a marriage performed outside of the age requirements specified in Section 5(iii) HMA would not be void, and that the only law that would penalise such an act would be Section 18 of HMA.
Judgement's Analysis:
  1. In this case, the court primarily dealt with three legislations- the Hindu Marriage Act, 1955, the Child Marriage Restraint Act, 1929, and the Hindu Minority and Guardianship Act, 1956.
  2. In this case, firstly, the marriage's validity under Hindu marriage act was analyzed. Under section 5 of the act, conditions related to a valid Hindu marriage are discussed. The court came to the conclusion that not fulfilling only certain conditions render marriages void while not following rest of the conditions have certain other effects. The court took into account the history and the intent behind the act, concluding that law did not declare marriages in breach of certain conditions void. It was highlighted that there is absence of penalties for violating certain clauses.

    Clause (iii) of the section 5 states that a bride should be of 18 years of age and the groom should be of 21 years of age. Section 18 states that if this condition is not fulfilled penalty will be of 2 years of imprisonment or fine. Section 11 explains void marriages and it states that any marriage which contravenes clause (i), (iv) & (v) of section 5 are void. It is logical to conclude that clearly a marriage with a minor (mentioned under clause (iii) of section 5) does not render a marriage void.
  3. The Child Marriage Restraint Act, 1929, defines a child as any person below 18 years of age. Where any of the two parties in marriage is a minor then such a marriage comes under the purview of child marriage. The act stipulates penalty for an adult man marrying a minor girl and punishment is also stipulated for parents or guardians who facilitate child marriages. Despite these provisions, nowhere does the acts mentions that such a marriage is void. The same has been illustrated by the Supreme Court in the case of Smt. Lila Gupta vs. Laxmi Narain and Others.
  4. According to section 6 of the Hindu Minority and Guardianship Act, 1956, husband is considered as the natural guardian of a married girl. This provision clearly indicates the legislative intent that clearly child marriages are not void.
  5. Based on the careful analysis of these three legislations, court held that Arpitha's marriage might be in violation of certain provisions but was clearly not void. Court also accepted husband as the natural guardian and explained the effect of Hindu Minority and Guardianship Act. Lastly, arpitha's wish to stay with her husband was granted.

Court's opinion
In simple terms, there was no dissenting opinion but the court felt compelled to allow the 13-year-old girl to stay with her husband because, legally, their marriage is considered valid. Further, the court also expressed their concern regarding the situation of child marriages and how presence of certain provision penalizing such marriages is not enough. The provisions only make such marriages illegal and not void.

The court accepts the fact that the girl's marriage cannot be undone as it has legally binding value. As previously discussed, the husband is a natural guardian under Hindu Minority and Guardianship Act, 1956. The court had to make a reluctant decision, giving arpitha's custody to her husband. The court suggested legislature to look in this issue. They also informed National and state commission's for women.

Critical Analysis
In the author's opinion, the judgement highlights the significance of treating family law issues carefully and thoughtfully. Further, the court should have considered the social implication of upholding the validity of such marriages. Child welfare and protection should have been the primary consideration of court. The judgement perfectly aligns with legislative provisions but the adequacy of legislations in addressing child marriages is questioned. Only relying on legislative intent may hamper with advancement of societal reforms which are desperately needed.[v]

Relevance of the Judgement in the current era
The judgment's relevance in today's context may be questioned due to several reasons:
  1. Changing Societal Norms: Societal attitude towards child marriage is different now. It is not widely accepted. There is now sufficient recognition of the ill effects of child marriage such as limited education, early pregnancies, health risks, poverty etc. Today there are worldwide campaigns against child marriage through protests for legislative reforms, awareness campaigns, and community interventions. The court missed out on addressing these changing norms of the society.
  2. International Commitments: India is now a signatory to a lot of international conventions, such as the Convention on the Rights of the Child (CRC)[vi] and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[vii]. All these conventions lay down the desperate need to protect children from evil of child marriages. They shed light on the need for stricter laws.
  3. Legal Reforms: After dealing with this problem for so many years, the governments have tried to enforce more effective and stricter laws and special legislations to deal with this issue. For instance, in India, the Prohibition of Child Marriage Act, 2006, replaced the outdated Child Marriage Restraint Act, 1929, and introduced more stringent provisions to prevent and punish child marriage.
  4. Focus on Child Rights: With developing times, now there is a greater need for looking after the rights and welfare of children in policymaking. Courts should be more vigilant while dealing with such issues and should interpret laws in such a way that would help to safeguard interests of children. Children should receive protection and support from state and society likewise.
  5. Gender Equality: The judgements take on gender equality is also questioned. Recognizing husband as natural guardian may be viewed as outdated in today's world, where gender equality and women empowerment are considered important in society. There is a need for gender neutral provisions which do not provide access and arbitrary power to one gender.

In conclusion, the case revolves under the question that whether a husband can be considered as the natural guardian of a minor married girl. The court carefully considered three legislations- the Hindu Marriage Act, 1955, the Child Marriage Restraint Act, 1929, and the Hindu Minority and Guardianship Act, 1956. Ultimately, the court held that husband is a natural guardian.

The relevance of the judgement is criticized on several grounds such as child rights, gender equality, legal reforms, international commitments and lastly changing societal norms. It is lastly suggested that provisions should be interpreted in such a way that they lead to betterment of society and does not hamper welfare of people.

  1. Mulla, Sir Dinshah Fardunji, Principles of Hindu Law (18th ed., 2010).
  2. Makemalla Sailoo vs. Superintendent of Police & Ors., 2006 SCC OnLine AP 81.
  3. Lila Gupta v. Laxmi Narain (1978) 3 SCC 258
  4. Shankerappa v. Sushilabai AIR 1984 Karn. 112
  5. Paras Diwan & Peeyushi Diwan, Family Law (18th ed., 2021)
  6. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3
  7. Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979, 1249

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