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Can't Give Custody Of Minor 'Husband' To 'Wife' As It Would Be Sanctioning Cohabitation Between Adult & A Child: Allahabad High Court

02:47 PM Jun 16, 2021 | FPJ Web Desk

Noting that if a minor boy would be placed under the custody of his wife, it would be permitting an offence under the POCSO Act, the Allahabad High Court recently refused to give custody of 'minor' husband to the wife

According to LiveLaw, the Bench held that their marriage was voidable and if the minor boy is placed under the custody of his wife, it would amount to sanctioning cohabitation between a major and minor.

Manish Kumar, aged about 16 years and a half and he married Jyoti, a major and an adult in the cognizance of law, who is just above the age of 18 years. Manish, after his marriage to Jyoti, was staying with Jyoti and her family members, however, Manish's mother alleged that Jyoti and her family members enticed away her minor son (Manish) and forced him into a marriage of sorts, which was illegal for want of the minor's competence under the law.

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She also alleged that her minor son was illegally detained by Jyoti and her family members and thus Manish's mother filed the instant Habeas Corpus Writ Petition.

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She asked the Court to order Manish Kumar, her minor son, to be produced before this Court and upon production, set at liberty in the manner that Manish Kumar be entrusted to her care and custody.

However, Manish Kumar made it clear to the court that he did not wish to live with her mother.

The Court noted that just as there cannot be the case of a minor Hindu wife being married to a major and the husband regarded as her natural guardian under Section 6(c) of the Act of 1956, the POCSO Act, similarly the law works to prohibit sex between a man, who is a minor and a woman, who is a major.

Referring to the facts of the case, the Court ruled that if Manish, who is still below the age of 18, were to be placed in the custody of his wife, it would be virtually sanctioning the imminent commission of the offence under Section 3/4 of the Act of 2012, or the other penal provisions.

The Court ordered that the minor boy would stay in a State Facilities, like a Protection Home or a Safe Home or a Child Care Institution until he turns 18. However, on February 4, 2022 (when he attains 18 years of age), he shall be set free to go wherever he wants and stay with whomsoever he likes.

This arrangement has been made considering Manish's stand that he does not want to go back to his mother. However, the Court said that if for any reason, before February 4, 2022, he desires to go back to his mother, it will be open to him.

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