Your Advocate
This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.
Reader's query
My cousin Suhagh 21 is in affair with a girl, 17. Both have agreed to marry. But as she is below 18, Suhagh apprehends that some legal consequences would follow. There is a possibility that the family of the girl would not accept this unison. Some friends are suggesting that Suhagh can marry the girl as she has consent in the matter and the girl's family would not be able to take any action, if she is with Suhgah's side. Though the girl is below 18, as per study record but she is 18 as per the National ID card. What to do?
Confused, Dhaka
Response
I would like to thank you very much for asking me to provide legal Opinion regarding the instant marriage related matter before taking any unwanted decision.
Upon receipt of your query, we have understood that your cousin, Suhagh, who is at his age of 21, is having an affair with a girl of 17. Both of them have agreed to get married to each other. But as she is below 18, Suhagh apprehends that some legal consequences may follow and there is a possibility that the girl's family my not accept the marriage. The girl has consent to the marriage. Though she is below 18 as per her study records, but she is over 18 as per her National ID card.
In the light of the aforesaid facts and circumstances, I would like to elaborate the following legal provisions for your understanding so that you can counsel your cousin in the right way.
Marriage is a Civil Contract and any competent person can enter into such a marriage contract. To be competent for marriage, the person should be of sound mind and must have attained the age of majority. According to the Child Marriage Restraint Act, 1929 a person is a child, if he is below the age of 21 years, in case of male and in case of female a person will be treated as a child below the age of 18 years. So, to be competent to enter into a marriage the male must be at the minimum age of 21 years and the female must be at the minimum age of 18 years.
Suhagh is certainly competent to get married. But, from the facts it is clear that the girl's actual age below 18, though she is above 18 as per her National ID card. National ID card is an important identification document for a resident of Bangladesh. It has special value in the eye of law. But, as the girl is below 18 as per her educational certificate and it is also clear from your statement that her actual age is below 18, the parents of the girl may challenge the correctness of the age mentioned in the National ID card.
If the parents of girl are able to prove that the girl is below 18, even after that the marriage will not become invalid. In that case the girl will be able to exercise the right of “Option of Puberty” after attaining the age of majority. Which is 18 years option of puberty is a right given to the minor to repudiate the marriage after attaining the age of majority where the marriage was not done by her parents. In case where the girl has any sexual intercourse with her husband she will not be able to exercise the right of “Option of Puberty” even after attaining the age of majority.
After the marriage with a minor girl, the marriage will not be invalid but the husband shall be punished. According to section 4 of the Child Marriage Restraint Act, 1929 if a male of above 21 years of age marries a girl, who is below 18 years of age, then the male, shall be punished with one years' imprisonment or with fine of TK. 1000 or with both. It is possible that the girl's parents may get an injunction from the court to restrain the marriage, if they are already aware of such arrangement. It is also possible the parents of girl may bring a case against Suhagh for kidnaping and abduction of their daughter. If they bring the case under the Nari O Shishu Nirjaton Daman Ain, 2000 then under section 7 of this Act, it is mentioned that if any person kidnaps or abducts any child or woman then he shall be punished with life imprisonment or rigorous imprisonment up to 14 years' and he shall also be fined. The parents may also bring a case against Suhagh for rape under the Nari O Shishu Nirjatan Daman Ain, 2000. In such a case, if her parents are able to convince their daughter to agree with their statement then Suhagh will have to go through so much difficulty. According to section 9 of this Act, the punishment is life term rigorous imprisonment and fine.
Though the parents may bring cases against Suhagh under the Nari O Shishu Nirjatan Daman Ain, 2000, there is also a provision under this Act regarding filing false cases, complaint etc. It is clearly mentioned in section 17 of this Act that if anyone knowing that there is no ground for filing a case, files false case or make false complaint, then he shall be punished with seven years rigorous imprisonment and also with fine.
Leaving the pure legal discussion aside, I would like to draw your attention to the fact that even if both are adult, your cousin and his girlfriend both are at the very premature stages of their lives. They think they can take decisions regarding their lives but they don't yet actually know what their best interest is. They are not yet competent enough to face the difficulties of life and take such major decisions solely based on their emotions and ignoring their parents' concerns. Marriage is certainly an important decision of life. They should not take such a decision without consulting their parents at this age. If they really want to marry each other, they should have the strength to wait for some more years. Furthermore, they are strongly advised to complete their educations up to a certain stage so that they can be reasonably established. At that point of their lives, they may be able to take such important decision without consulting the others and may be beyond their patents consents in the extreme circumstances. So, my strong advice for your cousin is to wait for few more years and try to convince the parents.
I hope that the aforesaid guidelines shall help you to convince your cousin to act in a way, which shall be both lawful and secure the best interests of your cousin and his girlfriend.
For detailed query contact omar@legalcounselbd.com
