This article is written by Anushka Thakur, a first-year undergraduate law student at the University of Allahabad.
INTRODUCTION
Today, India is a democratic country. The fundamental rights have been conferred to every Indian citizen. Every citizen of India enjoys the fundamental rights bestowed through the constitution. These rights can not be changed as they are basic legal rights provided to each and every individual. Every individual be it a man, a woman, a major, or a minor, each and every one of them enjoy equal rights on their purview. These encroach on every decision and sphere of an individual, be it their personal, social, or professional life. The rights of a minor i.e. a child or a teen also is not different from them. They too, have their own autonomy of their own, their wishes and all. This also includes the right to choose their own life partner. The law has enabled the minor, wedded in their childhood, to rethink their decision to remain committed and have their own autonomy regarding their marriage aside from parental control and guidance.
MEANING
Repudiation means the formal rejection, refusal, or disownment of something. It means disowning a thing, or disavowing previously held beliefs or relationships. The term repudiation can be used in many contexts especially in contracts, finance, beliefs, or allegiance. Herein, we’ll breach the topic ‘repudiation of marriage’.
In Family Law, ‘repudiation of marriage’ means the right of a minor to formally, reject, dissolve or disown their child marriage before reaching the age of majority. It allows the individuals who were wedded off in childhood to legally walk away from the union of marriage without fault or by mutual consent. Repudiation of marriage enables individuals who are minor and had child marriage to reconsider the decision involving their life partner, essentially their future on their own consideration, terms and conditions. Basically, it protects the interests of a minor who had a child marriage on the convenience, consideration and will of their parents, or simply their guardians. Repudiation of marriage is a legal provision wherein a minor who’s aware of his or her rights and interests can file a petition before reaching the age of majority, with the help of their guardians in the court if they wish to reconsider their child marriage.
There are few conditions which set legal provision of repudiation of marriage in motion. They are:
1. The marriage must have happened before attaining the age of 15, in the witness of, or promised by the father or other legal guardian.
2. The child marriage can be voidable only if the contracting party was a minor at the time of marriage.
3. The petition must be filed by minor oneself and in the company of a guardian, but before and between the two years of the age arriving at majority or adulthood. 4. The marriage has not been consummated, if consummated then it must have happened before the age of 15.
LEGAL FRAMEWORK REGARDING REPUDIATION OF MARRIAGE IN INDIA.
Various legal provisions have been enacted to protect the marriage rights of a minor: ● The Hindu Marriage Act, 1955
The section 13(2)(iv) of the Hindu Marriage Act, 1955, provides a girl her legal right to reconsider her marriage if it was solemnized before the age of 15, whether she had consummated or not. This section also provides that a minor girl can only repudiate her marriage if she has attained the age of 15 years, but must have repudiated the marriage before attaining the age of 18.
● The Dissolution of Muslim Marriage Act, 1939
The section 2(vii) of this act provides for a minor Muslim girl, who has been given in a marriage by her father or other guardian before she attained the age of 15 years; to repudiate her marriage before the age of 18, provided that the marriage has not been consummated.
● The Prohibition of Child Marriage Act, 2006
The section 3 of this act provides that only a contracting party to the marriage who was a minor at that time can file a petition for annulling a child marriage in the district court, and if at the time of filing a petition, the petitioner is a minor, then it may be filed through a guardian or a next friend along with the Child Marriage Prohibition Officer. The petition must be filed before the child filing the petition completes two years of attaining majority.
OPTION OF PUBERTY : KHYAR-UL-BULUGH.
The section 2(vii) of the Dissolution of Muslim Marriage Act, 1939, provides for the right of a wife to repudiate her marriage if she was given in marriage by her father or other guardian before she attained the age of 15. The term ‘bulugh’ basically means puberty. The repudiation can happen only when the wife has annulled the marriage before attaining the age of 18, and that the wife and husband has not cohabited i.e. has not consummated their marriage. This unique provision only provides for a minor wife to reconsider her marriage at her option after attaining puberty.
A suit initiated by the husband on this ground will not be entertained, as held in Shaib Ali Biswas v. Jinnatan Nahar and Ors. (1960). In this case the Calcutta High Court construed that any right of the wife should not be affected in the child marriage as she was promised to the marriage by her father or other guardian, so the husband can not take any action against her.
In Mustafa v. Smt. Khursida (2005), the wife filled all the conditions of the provision i.e. her being promised in the marriage by her father at the age of seven, her filing the petition at the age of 17, and the marriage not being consummated. But her age of entering the marriage and her marriage being non-consummated were challenged vehemently by the husband by hollow grounds of evidence citing the nikaahnama. The Court rejected it citing that the age entered in the nikaahnama are not obtained from the verified sources but mere hearsay. The wife provided evidence of her birth certificate and passport which were approved by the Court. After various investigations and cross examination, it was found that the marriage was not consummated as claimed by the husband.
PRESENTING THE PETITION IN ITSELF AMOUNTS TO THE REPUDIATION.
Repudiation of marriage enabled that the marriage rights of an individual are being considered legally even if they are minor. In Indira v. Balbir Singh (1994), the Punjab-Haryana High Court quoted, “Presenting of the petition by the appellant in itself amounts to repudiation of marriage particularly when no particular form for repudiation of marriage is provided statutorily under the statute or any rules framed thereunder. The marriage being in violation of the Child Marriage Restraint Act, 1929 and being a cognizable offence, the State machinery should have moved in to punish the persons responsible in accordance with law”.
In Smt. Khatiza Tul Qubra v. Iqbal Mohd. (2009), the plaintiff-husband filed for restitution of conjugal rights despite the woman having entered a second marriage. The appellant-wife fulfilled the conditions of the repudiation of marriage so her first marriage was nullified, and had entered a second marriage, cohabiting together with her second husband. The Rajasthan High Court decreed that the plaintiff-husband is not entitled to decree for restitution of conjugal rights against the appellant-wife as she entered the marriage under the age of 15 and repudiated it before attaining the age of 18, thus continuing her life living with her second husband. So, she can not be asked to walk away from her normal second marriage, only to enter a repudiated one. All the four substantial questions of law framed in this judgement were answered in favour of the appellant-wife and against the plaintiff-husband. It can be noted that just fulfilling the conditions of repudiation of marriage enables that marriage to be repudiated.
CONCLUSION.
In ancient times, people used to marry early in their life. But with the advent of new age and era, awareness of people started increasing. They became more and more aware of their rights and interests and started to strive for their betterment. This awareness also encroached in their private life. Before, there were no laws for protecting the rights and interests of minors. Children were said to be the property of their parents or their guardians. They had to act accordingly with the wishes of their elders. While this much involvement is quite necessary for the development and progress of a child, as a child does not have much cognitive values as compared to the elders, they are taught and groomed over time, as elders too wish for the development and well being of their wards but, when this leads to the encroachment of the child’s rights, it creates a problem. When a minor individual is promised in marriage by their guardian, it does not negate the fact that the interests of the child are harmed here. When the same said child attains puberty and develops cognizance, he or she becomes aware of their interests. If they find that their marriage is incompatible with their partner then there must be remedies for the reconsideration of that marriage. In India, child marriage is prohibited as individuals can marry only after attaining legal adult age. There are various provisions to protect the rights of children regarding marriage. Repudiation of marriage allows and enables a minor individual who has attained puberty to take in hand cognizance about their future and take actions for its betterment. The fact that repudiation of marriage can be acted or filed only after attaining the age of 15 denotes the idea that the said minor individual has attained puberty and can think for himself or herself. Especially in matters of marriage wherein the direct consequences are only borne by the two involved individuals i.e. the husband and the wife.
