(Prayer: This Crl.p is filed u/s 482 Cr.pc (filed u/s 528 BNSS) praying to quash the all proceedings (i.e., complaint, fir charge sheet further proceedings) in C.C.No.4782/2022 before ACJ and JMFC Devanahalli in crime no.61/2022 Channarayapatna police station Devanahalli Taluk, so far as the petitioners herein are concerned for the alleged offences p/u/s 9, 10 and 11 of the prohibition of child marriage act 2026.)

Oral Order:

1. The petitioners/accused Nos. 1 to 5 are before the Court calling in question the proceedings in C.C.No.4782 of 2022 pending before the Additional Civil Judge and JMFC, Devanahalli arising out of crime in Crime No.61 of 2021 registered for offences punishable under Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, 2006 (‘the Act’ for short).

2. Heard Sri U. Sadakath, learned counsel appearing for the petitioners and Sri B. N. Jagadeesha, learned Additional State Public Prosecutor appearing for the respondent.

3. Facts in brief, germane, are as follows: -

The petitioners are accused 1 to 5 and complainant is the State. It is a suo motu complaint by the State through the Child Development Project Officer, Devanahalli Taluk on 09-08-2021. It is the case of the prosecution in the complaint that 1st petitioner/accused No.1 had performed the marriage with a minor  by  name  Rakshitha,  daughter  of  petitioners  4  and 5/accused No.2 and 4. On the said complaint investigation is conducted, which revealed that the daughter of petitioners 4 and 5 was given in marriage to accused No.1, who was of 27 years old at the said point in time and the girl was 16 years old and today the girl is 20 years old. On the said investigation, the jurisdictional police filed a charge sheet. The concerned Court takes cognizance of the offence and registers Criminal Case No.4782 of 2022 against the petitioners. Further proceedings are in progress and the matter is at the stage of hearing before charge. At this juncture, the petitioners have approached this Court, in the subject petition, calling in question the said proceedings.

SUBMISSIONS:

PETITIONERS:

4. The learned counsel appearing for the petitioners would vehemently contend that the parents of the 1st accused and the victim are innocent. They were ignorant of law and its consequences. When COVID-19 had engulfed the globe, they wanted to get the daughter married fearing that the pandemic would take away the lives. Therefore, notwithstanding the fact that the daughter was 16 years old at the time of marriage, they got the marriage performed with accused No.1, who was 27 years old at that point in time. The learned counsel would submit that the husband and the wife are living happily, and the marriage is registered after the girl turned 18 years and there are no overt acts committed by any of the persons. The trial undoubtedly will end in acquittal. On these submissions, the learned counsel for the petitioners would submit that this Court may not permit further trial to be conducted for an eventual acquittal. He would seek quashment of proceedings.

STATE:

5. Per contra, learned Additional State Public Prosecutor Sri B N Jagadeesha would refute the submissions by contending that it is an admitted fact that the girl at the time of marriage was 16 years of age and the boy was 27 years of age. The girl could not have been given in marriage by the parents, when she was a minor. Therefore, admitted facts themselves would reveal that there is enough material to proceed against the accused. He would submit that since the matter is at the stage of hearing before charge, this Court should not interfere in the exercise of its jurisdiction under Section 528 of the BNSS.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

CONSIDERATION:

7. The afore-narrated facts are not in dispute, as they are all a matter of record, they are in fact admitted facts. Marriage takes place between accused No.1 and the daughter of accused Nos.2 and 4 on 30-08-2021, at which point in time the girl was 16 years old and the boy/accused No.1 was 27 years old. The other accused are parents of the victim and other members of the family, who sat together and performed the marriage at Sri Thabblingeshwara Temple, Bullahalli Village, Devenahalli Taluk. Based upon the said incident of marriage, which took place on 30-08-2021 a complaint is made to the jurisdictional police by the Child Development Project Officer immediately on 09-08-2021. The complaint reads as follows:

                 

                  The complaint then becomes a crime in Crime No.61 of 2021 for offences punishable under Sections 9, 10 and 11 of the Act. The Police conduct investigation and file a charge sheet. The summary of the charge sheet as obtaining in Column No.17 reads as follows:

                 

                  Further proceedings are in progress. The matter is at the stage of hearing before charge.

8. On these admitted facts, whether further proceedings should be permitted to be continued or to be obliterated, on the score that the accused were ignorant of law and accused No.1 and the victim are living happily? The answer would be, an unequivocal and an emphatic ‘no’.

STATUTORY MANDATE:

9. The offence that is alleged is the one punishable under Sections 9, 10 and 11 of the Act. They read as follows:

                  “9. Punishment for male adult marrying a child.—Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.

                  10. Punishment for solemnising a child marriage.—Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

                  11. Punishment for promoting or permitting solemnisation of child marriages.—(1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees:

                  Provided that no woman shall be punishable with imprisonment.

                  (2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.”

                  9.1. Sections 9, 10 and 11 of the Act form the statutory bulwark against the solemnisation and perpetuation of child marriage. They are not merely penal provisions, they are legislative declarations that childhood shall not be prematurely surrendered at the altar of matrimony. Section 9 addresses the principal protogonist - the adult male. It mandates that any male adult above 18 years of age, who contracts a child marriage shall be liable to rigorous imprisonment which may extend to 2 years or fine. The offence is complete upon the act of contracting marriage with a child. The statute does not condition culpability upon intention beyond the knowledge of age.

                  9.2. The expression ‘child marriage’ is defined under Section 2B, as a marriage to which either of the contracting parties is a child. A ‘minor’ under Section 2F is a person who has not attained majority within the meaning of the majority Act. In the case at hand, it stands admitted that the girl was 16 years of age at the time of marriage. The statutory definition leaves no room for interpretative elasticity. The marriage, therefore, answers squarely to the description of child marriage.

                  9.3. Section 10 widens the net of culpability. It does not confine responsibility to the contracting adult, but upon whoever performs, conducts, directs or abets a child marriage becomes equally liable. The priest who solemnises the ceremony, the relative who arranges it, the organizer who facilitates it, all stand within the sweep of this provision. The punishment prescribed is again a rigorous imprisonment, which may extend up to 2 years. The only statutory escape is a demonstrable and reasonable belief that the marriage was not a child marriage, a defence which will have to be established by evidence and not presumed by sympathy, as projected in the case at hand.

                  9.4. Section 11 is the statute's vigilant sentinel. It penalises those who promote, permit or negligently fail to prevent the solemnisation of child marriage. The reach of this provision is intentionally expansive. It encompasses parents, guardians, persons having lawful or even unlawful charge of the child, and members of organizations or associations. The provision recognises that child marriage is seldom the act of a single individual, it is often enabled by collective participation.

                  9.5. Sub-section 2 of Section 11 introduces a significant legal presumption, where a minor child has contracted a marriage, it shall be presumed unless to the contrary proved, that the person having charge of the child, has negligently failed to prevent the marriage. This reverse burden reflects the legislative intent to shield children from exploitation. Section 11, thus operates as a ‘catch-all’ safeguard.

                  9.6. Collectively read, these provisions manifest clear legislative intent. Child marriage is not a private family engagement beyond scrutiny, but a social wrong, demanding accountability at every level of participation. The  statute,  therefore,  stands  not  merely  as  a  punitive measure, but as a declaration that rights of the child would always outweigh the convenience of the custom.

10. Sections 9, 10 and 11 of the Act has borne consideration by a three Judge Bench of the Apex Court, in SOCIETY   FOR   ENLIGHTENMENT   AND   VOLUNTARY ACTION v. UNION OF INDIA (2024 SCC OnLine 2922) , considers the purport of the afore-quoted provisions of the Act in the following paragraphs:

                  “…. …. ….

                  57. Section 10 of PCMA stipulates that a person who performs, conducts, directs or abets any child marriage shall be punished with rigorous imprisonment which may extend to two years and shall be liable to a fine which may extend to one lakh rupees. The provision, unlike Section 9, does not allow the court to choose the option of imposing a fine or sentencing a term of imprisonment or both. A court adjudicating under Section 10 is mandated to impose a sentence of imprisonment as well as impose a fine.

                  58. The provision is expansive and would govern any accomplice to the commission of child marriage. This would include the priest who performs the marriage, any family member, relative or person at whose direction the marriage takes place or anyone who abets it. The provision stipulates a defence available to any accused under Section 10 which is that a person must demonstrate that he had reasonable belief that the marriage was not a child marriage. The inbuilt defence stipulated in the provision is to safeguard any person who may unwittingly become a part of the commission of the offence of child marriage.

                  59. Section 11 of the PCMA is a catchall provision against the promotion or permitting of child marriage by those in charge of a minor party to the marriage. The provision reads as follows:

                  “11. Punishment for promoting or permitting solemnisation of child marriages.—

                  (1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees : Provided that no woman shall be punishable with imprisonment.

                  (2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnised.”

                  60. Section 11 stipulates that any person having charge of the child - who promotes or permits a child marriage or fails to prevent it - is liable to rigorous imprisonment which may extend to two years and a fine which may extend to one lakh rupees. Similar to the provision under Section 10 of the PCMA, Section 11 also prescribes a mandate to the sentencing court to impose a sentence of imprisonment as well as a fine. The provision uses the word ‘and’ between the two punishments and the judge does not have the liberty to pick a certain punishment to the exclusion of the other. The person liable under Section 11 may be the parents of the child or a guardian or any other person or organisation. Further, the means by which a person may have the charge of the child is immaterial as the provision stipulates that the charge may be ‘lawful or unlawful’. The section seeks to penalise any person or organisation involved in a child marriage. Its expansive scope allows for the prosecution of any person who may have unlawfully taken the custody of a child and thereafter promoted, permitted or failed to prevent the child marriage. Section 11 also deals with organisations, such as orphanages or schools or hostels, which may have the charge of a child and under whose watch the child is married off.

                  61. The intention of the provision is to place an obligation on any person who has the charge of a child to ensure that the offence of child marriage is not committed. The provision not only penalises the active participation of the person having charge of a child but also penalises the omission on the part of such a person to prevent child marriage. The provision recognises that children lack the ability to form intelligent consent and may not necessarily know the full ambit of the activity which they are about to commit. Further, children may lack the ability and grit to defend themselves and refuse to participate in the marriage against the pleasure of their custodians or parents.

                  62. Clause (2) of Section 11 raises a presumption. It stipulates that any person, who is in charge of a child who was married off, is presumed to have negligently failed to prevent the child marriage. The presumption is a rebuttable one and may be defended if the person proves that he could not have prevented the marriage or failed at preventing it, having tried to do so to the best of their ability. This principle is only applicable to an offence under Section 11.”

                  (Emphasis supplied)

                  The Apex Court holds that any person, be it produced in a temple who perform the marriage or Authorities of the temple to permit marriage or any place where the marriage takes place and the place belongs to someone, they would aid and fall within the ingredients of Section 11. The Apex Court has clearly held that any person involved in the said marriage, who does not stop the conduct of such marriage, will become open to prosecution.

11. Further, it becomes apposite to refer to the judgment of the High Court of Kerala, in identical circumstances, where the appellants pleaded ignorance of law and also pleaded that marriage was performed in those facts and circumstances. The Kerala High Court in MOIDUTTY MUSLIYAR v. SUB- INSPECTOR  VADAKKENCHERRY  POLICE  STATION (2024 SCC OnLine Ker 4188) ,  has held as follows:

                  “…. …. ….

                  30. The prohibition of child marriage is important in the modern society. Child marriage denies children their basic human rights, including the right to education, health and protection from exploitation. Early marriage and pregnancy can lead to health problems such as infant mortality, maternal mortality and sexually transmitted infections. Child marriage often forces girls to drop out the school, limiting their education and future opportunities. Child brides are more vulnerable to domestic violence and abuse. Child marriage can perpetuate poverty and limit economic opportunities for individuals and communities. Child marriage can lead to emotional and psychological trauma, including depression and anxiety to the children. Child marriage can lead to social isolation and disconnection from the family and community. Moreover, child marriage is a violation of international human rights law and conventions as well. Let the children study according to their wishes. Let them travel, let them enjoy life and when they attained maturity, let them decide about their marriage. In the modern society, there cannot be any compulsion for marriage. Majority of the girls are interested in studies. Let them study and let them enjoy their life, of course with the blessings of their parents. When they attain majority and decided that a partner is necessary in their life, let it happen at the appropriate stage so that child marriage can be eradicated from the society. As I mentioned earlier, it is the duty of every citizen to see that there is no child marriage. It is also the duty of the nongovernmental organizations to inform the Child Marriage Prohibition Officer, if any information is received about the likelihood of taking place of solemnization of child marriage. The Judicial First-Class Magistrate of the State   also   should   be   alert   and   should take suomotu cognizance, if any reliable report or information is received about child marriage. Let the print and visual media also take initiative to see that there is no child marriage in the State in future at least. I am sure that, all of them will do their job to see that our girls are protected from child marriage.”

                  The High Court of Kerala holds that child marriage denies the child its absolute rights including the right to education, health and protection from exploitation. Several other problems that the young girl would face is also taken note of. The Court refuses to quash the proceedings even on the submission of the religion permitting such marriage. I am in respectful agreement with what the High Court of Kerala has held.

12. In the case at hand, accused No.1 was not a child. He was 27 years old adult and was working at that point in time. All the male members of the family who participated in the marriage were all working. Ignorance of law is no excuse. Therefore, the petitioners must face trial for the offences under the provisions of the Act. The defence cannot be considered by this Court under Section 528 of the BNSS.

13. This Court is increasingly confronted with the growing stream of litigation arising either under the provisions of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’ Act for short) or under the Prohibition of Child Marriage Act, 2006. A disturbing pattern emerges from these cases. Parents of both the boy and the girl, acting in concert and often under the mistaken cloak of social propriety, solemnize marriages of girls before they attain the age of 18 years. What is presented as a familial consent, is in truth a surrender of childhood.

14. As poignantly observed by the Apex Court, child marriage is not a benign cultural practice, but a denial of basic human rights. It curtails education, imperils health and exposes child to exploitation - emotional, social and economic. The formative years for learning, self discovery and intellectual blossoming are permanently burdened with adult responsibilities.

15. A girl married before 18 does not merely enter matrimony, she exits opportunity. The promise of education fades into abstraction. The dream of academic or professional advancement remains precisely that, a dream. The submission that the couple is presently living in harmony, does not efface the illegality committed at the time of solemnisation. Criminal liability is measured at the moment of commission, not neutralised by the subsequent domestic peace. To accept otherwise would be to convert penal law into a matter of retrospective validation through sentiment. Parents who ought to bless their daughters with encouragement, education and empowerment, instead bless them with premature matrimony. If such conduct were to receive judicial indulgence, the eradication of child marriage would remain an illusive aspiration. This Court, therefore, cannot and will not extend its protective arm, to those who indulge in marriage of a child.

16. The pernicious practice of child marriage must be decisively uprooted. It must also be observed that responsibility does not rest solely on contracting parties. Where a marriage is solemnized in a temple, the management of a temple and the officiating priest who performs the ceremony may fall within the sweep of liability under the Act. Where the marriage is conducted in a marriage hall, or other venue, its management and facilitators cannot claim insulation. The statutory design, particularly under Section 11, contemplates accountability for those who promote, permit or fail to prevent such solemnisation. The burden of proving whether a child had attained majority lies in appropriate cases at the stage of trial, especially, in view of the presumption under Section 11(2) of the Act. The reverse burden underscores the seriousness with which Parliament views the protection of minors. The message, therefore, must ring clear and unequivocal, child marriage must be eradicated in its entirety.

17. Wherefore, the Child Development Project officers shall ensure that awareness of criminal liability is displayed at every venue, where marriages are ordinarily performed. Temple Authorities, marriage halls, and similar establishments shall display notices stating that marriage of a person below the 18 years of age is prohibited, by law and attracts criminal consequences. The print and electronic media, as vital instruments of public consciousness, must also play their role in sensitizing society. Eradication of child marriage is not merely a statutory goal, it is a Constitutional imperative. The law protects childhood, so that it may blossom into informed adulthood. This Court will not permit this protection to be diminished.

18. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected.

                  Consequently, pending I.A.No.1 of 2026 also stands disposed.