IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Writ Petition No. 1421 of 2009 Date of decision: 22.2.2010 Shamsher ......Petitioner Vs. U.T. Chandigarh and another ...Respondents CORAM:- HON'BLE MRS.JUSTICE DAYA CHAUDHARY. PRESENT: Mr.C.L.Pawar, Advocate, for the petitioner. Mr.Jasmandeep, Advocate, for U.T. Chandigarh. Ms.Anjali Kukkar, Advocate, for mother of Geeta (detenue) **** ORDER Petitioner Shamsher Singh has filed the present petition under Article 226 of the Constitution of India for issuance of a direction in the nature of Habeas Corpus for releasing of detenue Geeta, the alleged wife of the Petitioner, from Nari Niketan (respondent No.2) as she was kept by the police in Nari Niketan since 9.8.2009. The case of the petitioner is that petitioner got married with Geeta on 5.5.2009 against the wishes of the parents of Geeta and marriage certificate dated 5.5.2009 is attached as Annexure P-1 with the petition. Learned counsel for the petitioner submits that the petitioner and his wife Geeta came to Chandigarh on 8.8.2009 for taking blessing of their respective parents and Geeta was forcibly taken away by the police. Medical examination of Geeta was got conducted and she was found of having 2 months' pregnancy which was got terminated at the instance of Crl.Writ Petition No. 1421 of 2009 [2] mother of Geeta without consent of the petitioner. The local police of Sector 26, Chandigarh, sent Geeta in Nari Niketan and since then she is in the custody of respondent No.2. It is further submitted by the learned counsel for the petitioner that Geeta is 19 years old and the marriage was solemnized with free will and without any pressure. During the pendency of the present case, learned counsel for the U.T.Chandigarh submitted that as per opinion of the Doctor, the age of Geeta was between 14 to 16-1/2 years . Dr. Davinder Kumar and Dr.Karam Singh who conducted medical examination of Geeta were called in the Court and they reiterated the same opinion earlier given and stated her age between 14 to 16-1/2 years. During the pendency of the case, the girl was also given counseling. Ms. Anjali Kukkar, learned counsel appearing for the mother of Geeta has raised objection by stating that both petitioner as well as the detenue are minors and marriage between both the parties is invalid but inspite of giving many opportunities, no document was produced by the learned counsel for the mother to show that the petitioner is minor. Mr.Jasmandeep, learned counsel for the U.T. Chandigarh has submitted that Geeta is creating problem in Nari Niketan and on one occasion, she had tried to commit suicide and the matter was reported to the police. Statement of Geeta was recorded by the Judicial Magistrate Ist Class, Chandigarh on 16.2.2010 and she stated that she consumed phenyl considering it as water. The statement of Geeta dated 16.2.2010 is also on record. Crl.Writ Petition No. 1421 of 2009 [3] Learned counsel for the petitioner submits that in view of the judgment of this Court reported in Balwinder Singh @ Binder v. State of Punjab and others 2008(3) R.C.R.(Criminal) 1, the marriage of a minor girl cannot be said to be void and such wedlock can be punished under Section 18 (5) of Hindu Marriage Act, 1956 and even the minor girl cannot be kept in Nari Niketan against her wishes. Learned counsel for the petitioner further relies upon the Division Bench Judgment of Delhi High Court in Neetu Singh v. State 1999(3) R.C.R.(Criminal) 26 in support of his contention and states that a minor girl cannot be kept in Nari Niketan against her wishes and marriage of minor girl is neither void nor voidable. Learned counsel also relies upon the judgment of Madras High Court in Latori Chamar v. State of M.P.and others 2007 Crl.L.J.1105. I have heard the submissions made by the learned counsel for the parties and have also heard the parties who are present in the Court. The mother of Geeta has stated that she is not happy with this marriage and prays for the custody of the girl to her by stating that Geeta is minor. Inspite of making all efforts, Geeta is not ready to go with her mother. Geeta states that her mother is interested in selling her to some other person for some considerable amount and she is not ready at any cost to accompany her mother. She further states that she has solemnized marriage with the petitioner without any pressure and would like to go to her in-laws house only. The father of the petitioner Babu Khan is also present in Court and has submitted an affidavit to the effect that he undertakes to take Crl.Writ Petition No. 1421 of 2009 [4] care of the safety and security of Geeta in his house. The petitioner has also placed on record the copy of the Certificate issued by the Principal of some College at Muradabad where the age of the petitioner has been stated to be 15.11.1988. Although an abjection has been raised by the learned counsel for mother of Geeta but no such document has been placed on record to show that the petitioner is not major. The present petition is only for release of Geeta from Nari Niketan. Although an argument with regard to validity of marriage has been raised by the leaned counsel for the mother but the same is not part of the present petition. The only question is whether the detenue can be kept in Nari Niketan for a longer time or she can be sent along with her husband? The case of the present petitioner is squarely covered by the judgment of Delhi High Court in Neetu Singh's case (supra) where the minor girl was kept in Nari Niketan by the police and it was held that minor girl cannot be detained against her wishes in the Nari Niketan and such detention would be contrary to law. Against the said judgment of Delhi High Court, a Special Leave Petition (Criminal) 1507 of 2006 has been filed which is fixed for hearing on 26.3.2010 but the judgment of Delhi High Court has not been stayed. The safety and security of the girl is paramount consideration and moreover father of the petitioner has also given an undertaking by way of filing an affidavit to ensure safety and security of Geeta. In view of the judgment of Delhi High Court, the Crl.Writ Petition No. 1421 of 2009 [5] marriage of the petitioner with Geeta is neither void nor voidable and at the most, it can be punishable under Section 18 of Hindu Marriage Act. In view of the facts mentioned above, the present petition is allowed and respondent No. 2 is directed to release the detenue Geeta from Nari Niketan forthwith. Copy of this order be given dasti under the signature of Court Secretary. (DAYA CHAUDHARY) JUDGE February 22, 2010. raghav