IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.333 of 2009 ANIL KUMAR TIWARY, Son of Jayanand Tiwary, Resident of Mohalla – Chokshikarpur Kabutri Gali, PS City Chowk, District – Patna ……. Petitioner Versus 1.THE STATE OF BIHAR through Home Commissioner, Government of Bihar, Old Secretariat, Patna 2. Home Commissioner, Govt. of Bihar, Old Secretariat, Patna 3. Director General of Police, Bihar, Old Secretariat, Patna 4. DIG, Bihar, Old Secretariat, Patna 5. District Magistrate, Patna 6. The Superintendent of police, Patna 7. The Deputy Superintendent of Police, Patna 8. Officer in Charge of City Chowk Police Station, Patna City 9. Ankit Raj @ Bablu Son of Raju Rai 10. Raju Rai Son of Ram Prasad Rai 11. Mohit Raj Son of Raju Rai 12. Wife of Raju Rai 13. Subodh Choudhary Son of Aklur Choudhary - Serial no.9 to 13 are residents of Mohalla – Kemarikoh, PS Chowk, Distt. Patna 14. Onkar Chourasia Son of Durgacharan Chourashia, Resident of Jangli Prasad Lane, PS Chowk, District Patna ……… Respondents ----------- 06- 23.6.2009 Heard Mr. Anirudh Kumar Singh for the petitioner, and Dr. Kumar Amitesh Chandra, learned Assistant Counsel for Government Advocate No.VI. Shri Shah Nawaj Khan, Inspector of Chowk Police Station, Patna City, is present with the original records. Rita Kumari, respondent no. 9 (Ankit Raj @ Bablu), respondent no.10 (Raju Rai, father of respondent no.9), and the mother of respondent no.9, who has been impleaded as respondent no.12, and described as wife of Raju Rai, are present. 2. The petitioner, father of Rita Kumari, has preferred this writ petition in the nature of habeas corpus for a direction to the - 2 - respondent authorities to produce Rita Kumari who has allegedly been abducted by respondent no.9. On 20.5.2009, Rita Kumari was produced before this Court from the remand home. The first cousin of respondent no.9, and two other ladies of the family of respondent nos. 10 and 12, were also present. Rita Kumari stated before this Court that she has married respondent no.9 of her free will and choice, the marriage has been consummated, and they are living like husband and wife. Her Sasural people acknowledged the position and were willing to take her away to their place. By order dated 20.5.2009, Rita Kumari was released from the remand home and was permitted to go to her Sasural along with the members of her Sasural present in court. They were directed to be present today again. 3. It appears from the statement of Rita Kumari made under Section 164, Cr.P.C. that she and respondent no.9 are residents of Patna City, and they had eloped on 14.3.2009, to Assam, where they married on 19.3.2009. She had then informed her father and brothers who threatened her of dire consequences. She is a student of Class XI, and is aged 19 years. She has also stated that, after she learnt that respondent no.9 has been implicated in a criminal case of abduction at the instance of the petitioner (her father), the couple returned to Patna and she appeared in the concerned Police Station. She was forwarded to the court of learned Chief Judicial Magistrate IInd Class where her statement under Section 164 Cr.P.C., was recorded on 15.5.2009. 4. It is relevant to state that the police ensured her - 3 - medical examination which was conducted on several dates commencing on 13.5.2009. Her x-ray was also obtained. It appears from the medical report that she is aged 20 years, and is accustomed to sexual intercourse. Section 5 of the Hindu Marriage Act 1955 prescribes the conditions for a valid marriage, and is reproduced hereinbelow for the facility of quick reference :- 5. Conditions for a Hindu marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) at the time of the marriage, neither party – (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or © has been subject to recurrent attacks of insanity; (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; It thus appears that the permissible age for marriage amongst Hindus is that the bridegroom has completed 21 years of age, and the bride has completed 18 years of age. In that view of the matter, it appears to us that Rita Kumari is of age, and is free to marry respondent no.9. 5. We must also consider the legal position in the alternative, supposing for the sake of argument, that Rita Kumari was - 4 - aged less than 18 years on 19.3.2009, Section 11 of the Act mandates that any marriage in violation of clause (i), (iv) and (v) of Section 5 would be void. Section 12 prescribes the circumstances in which a marriage between two Hindus would be declared voidable. Section 12 nowhere mentions sub-clause (iii) of Section 5. However, Section 18 of the Act prescribes punishment for every person who procures a marriage of himself or herself to be solemnized this Act in contravention of sub-sections (iii), (iv), and (v) of Section 5. In view of the foregoing discussion, we do not consider it to be a fit case for action under Section 18 of the Act. 6. Another relevant aspect of the matter is that the couple were married out of their free will on 19.3.2009, lived like husband and wife since then, and the marriage has been consummated. Indeed the medical report has discussed the various parameters to show that she is above 18 years of age, and was in fact 20 years of age on the date of her examination, and is accustomed to sexual intercourse. In other words, the couple is lawfully married, a position duly acknowledged by the parents of respondent no.9, and have wilfully accepted Rita Kumari as their daughter-in-law. 7. In view of the foregoing discussion, it would be in the fitness of things that Rita Kumari is allowed to live with respondent no.9 as per her choice. She is accordingly set at liberty and is free to proceed to her matrimonial home to live with her husband. In view of the materials on record, we are convinced that it was not a case of abduction, misrepresentation or the like. - 5 - 8. The writ petition is accordingly dismissed. ( S K Katriar ) ( Kishore K Mandal ) mrl