WHETHER MINORS CAN ENTER INTO AN AGREEMENT OF MARRIAGE – AN EXAMINATION BY ALLAHABAD HIGH COURT

INTRODUCTION

An extremely important question that had to be interpreted was whether Minors can enter into agreements or not has been remarkably answered by the Allahabad High Court in its recent judgment of the case of Sadhna Kumari v. State of U.P[1]. The court was of the view that any agreement between minors especially that which is related to marriage and cohabiting together is void. Further, the court added that the said minor was completely free to marry the person of her own choice given she attains majority and ratifies the earlier agreement through a validly solemnized marriage.

FACTS

The instant petition was filed on behalf of the petitioner Sadhna Kumari by her next friend who in this case is allegedly her husband too aged 19 years at the time of filing. In the petition, it was pleaded that she was unlawfully detained by her parents at their village even though they had legal wedlock and they were cohabiting as husband and wife since after an agreement dated 31.7.2020 purported to be of marriage.

The petitioner pleaded that after her marriage she was asked to visit her father’s home as a ritual after marriage. Since then, she has been illegally detained by her parents and has not been allowed to revisit her matrimonial home. Hence. The current writ petition was filed by the next friend, her husband under Article 226 of the Indian Constitution to issue a writ, order, or direction in the nature of habeas corpus to present the petitioner in the court of law to take her statement as to her willingness of setting herself free at liberty.

THE LEGALITY OF THIS AGREEMENT

By law, any detainee or person acting on his or her behalf can petition the court for a writ of habeas corpus; one reason for the writ being sought by someone other than the detainee is that he or she may be detained ‘incommunicado’. In this case, the custody of her parents became illegal because it is being pleaded that she is confined in her own parent’s house against her free will and consent. Moreover, she was legally married through the solemnization of her marriage and they were already cohabiting together.

There was no proof or material averment as to the solemnized marriage and its date, time, and venue. The counsel vaguely pleaded for these words “solemnization of marriage” and failed to produce any authentic wedlock certificate other than the Agreement of consent known as Rajinama. The only basis of this petition being filed was the agreement and their cohabitation of few months. There is no specific date as to when she left with her father. In the procedure, the court also found out that a First Information Report had been lodged against the husband, Shekhar Pandey by the petitioner’s mother under Sections 363 and 366 of I.P.C. The material information provided to the court was of the Examination Result of the petitioner which reflected her age to be less than 18 years hence, being a minor. The object and consideration of their marriage are undoubtedly unlawful given the fact that they are minors and a criminal case was lodged against the husband. It was also pleaded that she is a major at the time when the case is filed and hence, she is competent to make her own decisions and ratify the agreement as per her wish.

THE LEGAL POSITION

The Court stated that in accordance with the writ petition if the detenue is called to the court for her statement it will lead to giving effect to the agreement which in this case is not enforceable by law. Contracts that are enforceable by law are provided in Section 11 of The Indian Contract Act, 1872 that 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.”[2]

It is of utmost importance to keep a check on the age of the majority of the person who wishes to enter into a contract especially that of marriage. As stated in her mark sheet, her date of birth was 17/03/2003 therefore she was not a major on the date of her marriage agreement. An agreement or contract must not conflict with any law prevailing in India. According to Section 5(iii) of the Hindu Marriage Act, 1955[3], the marriageable age, according to which a marriage can only be solemnized between any two Hindus if the bridegroom has completed the age of twenty-one years and the bride has completed the age of eighteen years at the time of the marriage. As per this, in neither of the above-mentioned laws was the petitioner competent to enter into an agreement of marriage. Even her husband was not legally competent to enter into the contract of this marriage.

WHO CAN RATIFY A CONTRACT?

By the law of the land, a minor is not allowed to enter into marriage contracts as child marriages were outlawed in 1929. According to the Indian Law, “if the lady is under the age of 18 or the man is under the age of 21, the marriage, if solemnized by the guardians, becomes voidable upon the request of the minor under Section 5 of the Hindu Marriage Act. They also hold the option of ratifying the marriage.” In the present case, the marriage was neither solemnized by the guardians nor was it performed according to the law. Hence the critical question that arose was whether the minor in such a case where only cohabiting together for some months will amount to solemnized marriage leading to a ratified contract by the minor on attaining majority.

The legal position in this regard is that:

  • contract with minor is void and no legal obligation can ever arise on him/her therein,
  • the minor party cannot ratify the contract upon attaining majority unless the law specifically allows this, and
  • no court can allow specific permission of a contract with a minor because it is void altogether.

When a contract is entered on behalf of a minor by a person with the legal authority on their behalf, the minor has only the choice of ratifying or rescinding the contract once they have reached the age of majority. The argument that the petitioner has now become a major and is willing to enforce her contract is not tenable for the reasons stated.

The court also mentioned Sections 10, 11 and 23 of The Indian Contract Act, 1872 in this regard as to whether who is competent to contract, what agreements are contracts, and lawful object and consideration. In furtherance to that, the Court recalled the judgment of the case Privi Council in Mohori Bibee v. Dharmodas Ghose[4], where it was held that all contracts with minors are not merely voidable but completely void. When a contract is made by a guardian for it to be binding on the minor and also for the advantage of the minor, it is an enforceable contract in law, and the minor can enforce it attaining the age of majority.

CONCLUDING REMARKS

The agreement purporting to be of marriage and cohabiting together dated 31.07.2020, was declared to be void by the Court, and hence, the petitioner was not required to be brought before the Court. She could not ratify her contract of marriage when she attained majority because for the same reason that her agreement was itself void. The instant petition was dismissed and the Court stated that “this decision shall not impede the petitioner to enter into marital relations with a person of her choice on attaining marriageable age through a lawfully solemnized marriage or otherwise.”[5]

Author(s) Name: Alka Sharma (Amity University)

References:

[1] Sadhna Kumari v. State of U.P 2021 SCC OnLine All 276

[2] The Indian Contract Act, 1872, s 11.

[3] The Hindu Marriage Act, 1955, s 5(iii)

[4] Privi Council in Mohori Bibee v. Dharmodas Ghose (1903) ILR 30 Cal 539 (P.C.)

[5] Sadhna Kumari v. State of U.P 2021 SCC OnLine All 276

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