HC refuses to give custody of minor 'husband' to 'wife'

The Allahabad High Court has refused to give custody of a minor ‘husband’ to his ‘wife’, holding that their marriage was voidable and doing so would amount to sanctioning cohabitation between a major and a minor.

As the 16-year-old is unwilling to live with his mother, the court did not give his custody to her either. It directed authorities to arrange for the boy’s stay in a state facility like a shelter home till February 4, 2022 when he attains the age of ‘majority’.

It clarified that he can stay with whoever he likes, including his ‘wife’, after that. The judgment, given on May 31, was uploaded on the court’s website on Monday. 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, according to law.

The teen had earlier been produced before the court on September 18, 2020. The court, while recording 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’ has also given birth to the 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 a custody or arrangement made to ensure the welfare of the minor,” it added.