IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.375 of 2009 1. SUNDAR LAL @ SUDHIR KUMAR GUPTA , son of Ram Babu Gupta, resident of Village – Dhanuchuya, PS Chauri, District Bhojpur, Ara 2. Aradhana Kumari @ Alpana Kumari, daughter of Sri Manoj Kumar Sharma, resident of Village – Dhanchuya, PS Chauri, District Bhojpur at Ara…… Petitioners Versus 1. THE STATE OF BIHAR 2. The Superintendent of Govt. North Care Home (Rajkiya Uttar Racha Griha) Gayghat, Patna -7 3. Manoj Kumar Sharma, son of Sri Ram Vinod Sharma, resident of Village – Dhanchuya, PS Chauri, District Bhojpur 4. Ram Babu Gupta, Son of Not known, resident of Village – Dhanchuya, PS Chauri, District Bhojpur, Ara ……. Respondents ----------- 04- 23.6.2009 Heard Mr. T N Maitin, Sr. Advocate, for the petitionrs, Mr. Anant Kumar Bhaskar, learned Assistant Counsel to Standing Counsel no.2, and Mr. Ashutosh Kumar for respondent no.3. The two petitioners have joined together for a direction to the respondent authorities to release petitioner no.2 from the Remand Home and may be permitted to live like husband and wife. 2. The petitioners are residents of the township of Ara. They fell in love with each other and decided to marry. They eloped on 29.12.2008, and married at Buxar whereafter went to Delhi and lived in a hotel for some time. They lived like husband and wife and the marriage was consummated. It is further relevant to state that, on 29.12.2008 itself, respondent no.3, the father of petitioner no.2, lodged an F.I.R., alleging abduction of his daughter. Apprehending trouble, petitioner no.2 appeared in the court of the learned Chief Judicial Magistrate, Ara, on 7.2.2009, on which date her statement under - 2 - Section 164, Cr. P.C. was recorded. She was remitted to the Remand Home, Patna City. Apprehending arrest, petitioner no.1 applied for anticipatory bail which was granted by the learned Sessions Judge, Bhojpur, Ara, in ABP No. 184 of 2009, on 21.3.2009. 3. By order of this Court, petitioner no.2 was produced before this Court on 12.5.2009. In pursuance of the order, the two petitioners as well as their fathers are present in court. Learned counsel for the petitioners has submitted that the petitioners were married as per the Hindu rites on 29.12.2008, and the marriage has been consummated. On the other hand, learned counsel for respondent no.3 (father of petitioner no.2) submits that petitioner no.2 has not attained 18 years of age and, therefore, the marriage is prohibited in terms of sub-Section (iii) of Section 5 of the Hindu Marriage Act. He also submits that, in view of the position that petitioner no.2 is not of age, she should be sent to the Remand Home and should be allowed to take final decision after she attains 18 years of age. We had on 12.5.2009 interviewed both the petitioners separately in camera as well as jointly along with the father of petitioner no.1. 4. We have given our thoughtful consideration to the matter. It appears on the basis of the materials available on record that the petitioners were married on 29.12.2008, and on their own showing the marriage has been consummated. From her appearance she looks more than 18 years of age. It further appears to us that respondent no.3 is opposing the marriage of the two petitioners mainly on the ground that it has shocked their conservative feelings and the boy is of a - 3 - different caste. We think it to be unwise exercise of discretion to accede to the submission of learned counsel for respondent no.3 to send petitioner no.2 to the Remand Home. In fact, it appears to us, in view of the physical appearance of petitioner no.2, that she is more than 18 years of age. We are equally mindful of the position that, in view of the provisions of Sections 11 and 12 of the Act, the marriage between two Hindus in violation of Section 5(iii) of the Act is not void or voidable. Section 18 provides for punishment if the marriage is in contravention of Section 5(iii) of the Act. In the facts and circumstances of the case, it appears to us that it would be unwise exercise of discretion to subject petitioner no.1 to a proceeding under Section 18 of the Act. In that view of the matter, petitioner no.2 is set at liberty and is released from the Remand Home. The two petitioners are permitted to live together in their matrimonial home. 5. The writ petition is accordingly allowed. ( S K Katriar ) ( Kishore K Mandal ) mrl