Allahabad High Court Examines Whether Minors can Enter into an "Agreement of Marriage"?

The Allahabad High Court in its recent judgment pointed out that any agreement between minors, especially purporting to be of marriage and consent to cohabit together, is void in nature. The Court clarified that upon reaching the age of majority, the said minor is free to marry the person of their choice through a validly solemnised marriage or any other form prescribed by law relating to marriage.

Thu Jul 01 2021 | Family Law | Comments (0)

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The Allahabad High Court in its recent judgment in the case of Sadhna Kumari v. State of U.P. examined whether minors can enter into an agreement to marry and whether such contracts/ agreements can be ratified upon attaining majority. The Court examined Section 11 of The Indian Contract Act, 1872 (Contract Act), which provides that everyone who is of legal age to contract, is of sound mind, and is not prohibited from contracting by any legislation to which they are subject is competent to contract. At the same time, the age of majority is an important criterion to consider while entering into a contract, especially pertaining to marriage.

A Brief Background to the Facts of the Case:

The petitioner, who was 18 at the time of filing, had filed a writ petition complaining of unlawful detention against her parents. The petition was moved on behalf of her through her next friend and allegedly her husband too who was 19 at the time of filing.

In the petition, they pleaded that the detenue petitioner was legally wedded to her alleged husband and they were living together as husband and wife since after an ‘agreement purported to be of marriage’ covenanted by them on a notary affidavit (hereinafter be referred to as ‘agreement'). The detenue petitioner and her alleged husband were both major and had solemnized their marriage. In the petition, she claimed that she was competent enough to make a decision about her future life. It was further pleaded that they were cohabiting in their matrimonial house uninterruptedly when the father of detenue requested her to return home to visit them once. She claimed that she was detained illegally and improperly against her wish by her parents upon her visit. Consequently, her husband filed a writ petition under Article 226 of the Constitution of India on behalf of the detenue, to issue an order or direction in the nature of habeas corpus commanding and directing the opposite parties to produce the detenue petitioner before the court so that statement as to her willingness may be recorded by the court and to set her free at her liberty.

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 the instant case the custody of parents is claimed to be illegal on the ground that the petitioner and her husband were both legally wedded through the 'solemnization of marriage' and were cohabiting in their 'matrimonial house' since the date of the agreement dated 31st July 2020. Moreover, they also claimed that the petitioner was taken away by her father and confined in her parents’ home against her wishes.

The petitioner, on the other hand, failed to produce any significant evidence of their wedding, including the'solemnization of their marriage,' its date, place, and time. The petitioners had failed to show the solemnization of marriage through pleadings and other papers filed on the petition's record. They, on the other hand, were adamant about producing the 'agreement’ instead. It was purported to be a ‘Vivah Anubandh Patra’ (Rajinama) which means ‘Agreement of Marriage’ (Deed of Consent). The parties to this said 'agreement' had consented to live together as husband and wife, claiming they were already cohabiting as such for last 6 months.

The legality of this Agreement of Marriage:

The legality of the 'agreement' was pleaded as the basis of the legal authority of the ‘alleged husband’ to seek habeas corpus of the petitioner. The purpose of this writ was to facilitate the ‘alleged husband’ to cohabit with the petitioner without interruption of anyone else, including her parents with whom she is presently residing. The pleading on the one hand asserted that since the date of 'agreement' the detenue petitioner and her ‘alleged husband’ used to live in a common room as husband and wife enjoying their married life, and on the other hand, to the contrary, they also claim that they remained in cohabitation with each other as husband and wife for last 6 months. This inconsistency is important in understanding the ambiguity of the claim of cohabitation.

In the petition, no precise date was pled as to when she went to her parents' house. Similarly, neither the date of the solemnization of marriage, when they were married and began cohabiting, nor the date when she left the purported matrimonial home to return to her parents' home were pleaded. Leaving aside the ambiguity, it may be argued with certainty that the 'agreement' was the sole basis for alleging this married relationship as well as matrimonial cohabitation.

The date of birth of the detenue petitioner was 17-3-2003. Given the aforementioned material fact, the petitioner was a minor of about 17 years and 4 months when the 'agreement' purported to be of marriage was allegedly executed on 31-7-2020, and thus, despite the alleged agreement of her consent to cohabit with her alleged husband, she could not be expected to give valid consent in law at the relevant date of the agreement. At the same time, the petitioner’s mother had also filed a criminal case under Sections 363, 366 of Indian Penal Code, 1860 (IPC) for which he may be criminally liable on trial in due course procedure. As such the object and considerable for the agreement is undoubtedly unlawful.

It was however argued before the Court that at present when the petition was filed by the petitioner, she was major therefore, in law she was competent to take decision on her own in respect of her future life and if the court called her to record her wishes, she could have ratified the agreement. The question about the position of law with regard to the agreement executed by a minor and the capacity of a minor to ratify the said agreement on attaining majority are yet to be answered.

Legal Status of an Agreement of Which Either Party to it is a Minor:

The issuance of a notice on the petitioner's production, as requested by the court in the writ of habeas corpus, through her alleged husband is entirely based on the agreement (consent deed) dated 31-7-2020. Giving effect to the agreement by issuing a notice to produce the alleged detenue on the basis of this 'arrangement’. For the stated goal, the agreement must be legally enforceable. Contract Act, specifies the types of agreements that are legally binding.

Section 11 of the Contract Act provides that everyone who is of legal age to contract, is of sound mind, and is not prohibited from contracting by any legislation to which they are subject is competent to contract.

When considering the enforceability of an agreement in light of the aforementioned sections of the Contract Act, three considerations should be borne in mind:

  • the person needs to be a major;
  • the person needs to be of sound mind; and
  • the person is not prohibited by law to enter into a contract.

The age of majority is an important criterion to consider while entering into a contract.  Because the petitioner in the case is an Indian citizen, the Indian Majority Act, 1875 (Majority Act)  will be used to determine her age of majority. Section 3 of the Majority Act discusses the age of majority of persons domiciled in India:

  • The age of majority for every person residing in India is when they turn eighteen years old, not before.
  • The day on which a person was born is considered as a whole day in calculating their age, and they are judged to have reached majority at the start of the eighteenth anniversary of that day.

The petitioner's date of birth mentioned in the 'agreement' is a clear indicator that she was undoubtedly a minor while entering into the contract. The petitioner was admittedly a minor and a child when she purportedly engaged in the marriage contract. She is also a party to a marriage contract. An agreement must not be in conflict with the law. The law applicable to her being a Hindu, is The Hindu Marriage Act, 1955 (HMA). Section 5 (iii) of the said Act provides 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.

Under both HMA and The Contract Act, the petitioner had no legal capacity and competence to enter into the agreement to marry her alleged husband. Even her alleged husband was not of marriageable age under the law.

Can a person upon attaining majority ratify an agreement executed in the age of minority?

Child marriages in India were outlawed in the year 1929. According to Indian law, if the lady is under the age of 18 or the man is under the age of 21, the marriage, if solemnised 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.

The marriage in this case was not solemnised under the HMA or otherwise entered into by the parties in accordance with the law, but it is being claimed as an agreement to cohabit as husband and wife under the terms of the agreement submitted. As a result, the question is whether a minor is competent to ratify an agreement made while still a minor when he or she reaches the age of majority. The legal position with 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.

In the case of Privi Council in Mohori Bibee v. Dharmodas Ghose, the Privi Council, on the wording of The Contract Act had held that all contracts of minors were void and not merely voidable. When a contract is made by a guardian of a minor in order 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.

Concluding Remarks from the Allahabad High Court:

For the reason that the agreement dated 31-7-2020 purporting to be of marriage and consent to cohabit together is void, the Court held that it cannot be given effect so as to issue notice to opposite parties for petitioner's production in court for the purpose of recording her desire to ratify her alleged agreement to marry/consent deed.

The petition was therefore dismissed. The Court further stated that their ruling would not prevent the petitioner from marrying the person of her choice, whoever that person may be, after reaching marriageable age through a validly solemnised marriage or any other form prescribed by law relating to marriage.

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