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Allahabad High Court denies granting custody of minor husband to wife, calls it potentially illegal and an offense

By Aishwarya Gairola      22 June, 2021 02:44 PM      0 Comments
Allahabad High Court denies granting custody of minor husband to wife, calls it potentially illegal and an offense

Allahabad High Court refused to give custody of a minor husband to his wife, noting that just as there cannot be the case of a minor Hindu wife being married to a major with the husband regarded as her natural guardian under POSCO Act, similarly the act also prohibits a minor man cohabitating with and under the guardianship of a major wife.

In a Habeas Corpus writ filed by a minor boy’s mother against the boy’s in-laws and wife for illegally detaining him, the bench of Justice J. J. Munir of the Allahabad High Court held that the minor boy would stay in a State Facilities, like a Protection Home or a Safe Home.

The court observed that giving the custody of the minor Husband to the wide would amount to sanctioning cohabitation between a major and a minor and stated 

To entrust the minor Manish Kumar to the custody of his major wife, would not only be patently illegal, but virtually permitting an offence under the Act of 2012, in violation of the interest of the child that the said Statute is designed to protect. If that were done, by application of no principle or yardstick, can it be regarded as an option that would secure the welfare of the minor”, the court said.

Manish Kumar, aged about 16 and half,  is married to Jyoti, a major aged 18 and was staying with Jyoti and her family members, until  Manish’s Mother alleged that Joti and her family enticed her sin and forced him to marry and pleaded for her son to be produced before the court and be entrusted to her care and custody.

The minor boy, Manish, however, refuted the allegations levelled by his mother and made it sufficiently clear that he did not wish to live with his mother.

Additionally, addressing questions of law, the court observed that if the minor wishes to stay away from his parents or natural guardians, he cannot be compelled to be restored to the custody of a parent or a natural guardian and in the case where minor wishes to live with a complete stranger would be decided based on the evidence.

The court addressing the question of whether a minor who decides to stay away from his parents or natural guardian with a stranger of his/her choice can be compelled by the natural guardian to be restored to his custody through writ, the courts observed that the minor cannot be compelled to be restored to the custody of a natural guardian through the writ of habeas corpus.

The court, taking note of the minor’s statement and considering minor’s stand on not willing to live with his mother, ordered that the minor boy would stay in a state facility and shall be set free to go wherever he wants and stay with whomsoever he like upon attain the age of majority on 04.04. 2022.

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