The Calcutta High Court has held that the mere allegation of a child marriage does not empower a court hearing a mutual consent divorce petition to direct the registration of a case under the Protection of Children from Sexual Offences (POCSO) Act. Setting aside a trial court's order, the Division Bench said the court deciding a divorce petition under Section 13B of the Hindu Marriage Act must remain within the limits of its jurisdiction.
Background of the Case
The appeal arose after the Additional District Judge dismissed a joint petition for divorce by mutual consent filed by Goyram Barman and Madhumita Barman. The trial court held that the marriage had been solemnized in violation of the Prohibition of Child Marriage Act, 2006. It went a step further by directing the Officer-in-Charge of Bhagwanpur Police Station to treat the order as information under Section 19 of the POCSO Act and register a criminal case.
Before the High Court, both spouses agreed that the trial court's order deserved to be set aside and requested that their divorce petition be decided in accordance with law.
Court's Observations
A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya observed that a court hearing a mutual consent divorce petition is required only to examine whether the statutory conditions under Section 13B of the Hindu Marriage Act have been fulfilled.
The bench observed,
"The Court was only to ascertain whether the yardsticks and tests laid down therein are satisfied and, upon such satisfaction, to pass a decree of divorce by mutual consent."
The High Court further noted that the Hindu Marriage Act does not empower a court hearing a divorce petition to declare an underage marriage void or voidable. It also pointed out that under the Prohibition of Child Marriage Act, a child marriage is only voidable at the option of the child party, and neither spouse had sought such a declaration. Instead, both had sought dissolution of their marriage.
The Bench also found that the divorce petition contained no allegation suggesting the commission of any offence under the POCSO Act. Therefore, it held that the trial judge had no authority to direct registration of a criminal case on that basis.
The Court observed,
"In the absence thereof, the learned Trial Judge acted de hors jurisdiction" in directing the police to register a POCSO case.
The judges additionally expressed concern that the trial judge, who was also functioning as the designated POCSO Court in the district, would effectively become both the complainant and the adjudicating judge if such a prosecution proceeded.
The bench remarked,
"A person cannot be the judge of his or her own cause."
Decision
Allowing the appeal by consent, the High Court set aside the trial court's order dated December 23, 2025, and remanded the mutual consent divorce petition for fresh adjudication in accordance with law.
It also revoked any action taken pursuant to the earlier order, including the registration of any criminal case or complaint based on the impugned judgment.
Case Details
Case Title: Goyram Barman v. Madhumita Barman
Case Number: FA 46 of 2026 (IA No. CAN 1 of 2026)
Judge: Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya
Decision Date: 20 July 2026
