Constitution of India, 1950
Article 226—Writ of habeas corpus—Custody of minor—Depending on the totality of circumstances of a given case and expression of his intelligent choice by a minor, who is on the verge of attaining majority, the court may, in a given case, permit a minor to stay with a person of his choice in preference to his parents or other natural guardians—Where a minor decides to stay away from his parents or natural guardian with a stranger of his choice, he cannot be compelled to be restored to the custody of a natural guardians through a writ of habeas corpus, subject to the condition that the court comes to conclusion that welfare of minor is better secured with stranger, in comparison to natural guardian—Court before entrusting custody of a minor to an utter stranger, should be clearly and unequivocally satisfied on evidence in the case, that minor's welfare is decidedly better secured in the stranger's hands, than the natural guardians.
Held : Court must add a postscript to the answers rendered to these three questions that are all substantially to the same effect. It is this that while it may be permissible for the Court in a given case to choose an utter stranger over a natural guardian, that choice must be exercised with utmost sagacity, care and circumspection, and upon a careful evaluation of the bona fides and circumstances of the stranger; and the decisive and marked poorer prospects of welfare for the minor in the hands or the company of a natural guardian. It should be done in very rare cases.
[Paras 56 to 59]
Article 226—Writ of habeas corpus—Custody of minor—A wife, who is a major, cannot be entrusted the custody of her minor husband, where the marriage is voidable for reason that entrusting a minor husband's custody to a major wife, would be sanctioning cohabitation between an adult/major and a child - an offence under Section 3/4 or 7/8 of the Protection of Children from Sexual Offences Act—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 POCSO Act, cannot be regarded as a custody or arrangement made to ensure the welfare of the minor.
[Para 76]
Hindu Marriage Act, 1955
Section 5(iii) & S. 3(1) of the Prohibition of Child Marriage Act—Marriage of minor in contravention of provisions—Whether void ab initio—Marriage of a minor in contravention of Section 5(iii) of the HMA and Section 3(1) of the PCMA is not void ab initio for a rule, but voidable at the option of the minor—But, if any of the contingencies contemplated under Section 12 of the PCMA exist and can be proved, the marriage would be void.
[Para 23]