THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.7644 of 2010 Date: 20.04.2010 Between: Darpally Mallikharjuna Goud … Petitioner and The Government of Andhra Pradesh, Rep.by its Principal Secretary, Home Department, Secretariat, Hyderabad and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.7644 of 2010 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for respondents. 2. This Writ of Habeas Corpus is filed by the petitioner declaring the action of respondent Nos.2 and 3 in keeping the detenu, namely V.Nageshwari in the 3rd respondent Rescue Home as arbitrary and illegal, and further sought a direction to the respondents to produce the alleged detenu before this Court and set her at liberty, forthwith. 3. The petitioner allegedly married the alleged detenu, namely V.Nageshwari, who is a minor girl, aged about 17 years. It appears that basing on the complaint lodged by the father of the alleged detenu, a case in Crime No.199 of 2009 of Mahabubnagar Rural Police Station for the offence under Section 366 IPC has been registered. In connection with the said crime, the petitioner was arrested and remanded to judicial custody and subsequently he was acquitted on 17.2.2010. Upon production of the alleged detenu before the Judicial First Class Magistrate, Mahabubnagar, since the alleged detenu refused to go along with her parents, she was kept in the custody of the 3rd respondent-Rescue Home i.e., Government Special Children Home for Girls, Girl Sadanam and Observation Home for Girls, H.No.3- 1-818, Nimboliadda, Kachiguda, Hyderabad, on 1.7.2009. Hence, the petitioner seeks a Writ of Habeas Corpus for production of the alleged detenu before this Court and set her at liberty. 4. As per the directions of this Court, the alleged detenu has been produced before this Court today. The petitioner, his mother and brother are also present before this Court. 5. Upon being questioned by this Court, the alleged detenu stated that she married to the petitioner and she is willing to join him. 6. Admittedly, the alleged detenu is a minor. Since she is a minor, in normal course, her custody cannot be given to the petitioner. However, in view of the fact that there was a marriage between the petitioner and the alleged detenu, which was admitted by the mother of the petitioner, and also the strong desire and willing on the part of the alleged detenu to join the petitioner, we deem it appropriate to give the custody of the detenu to the petitioner. It appears that the alleged detenu is known to the parents of the petitioner very much, because the parents of the petitioner as well as the alleged detenu belongs to the same village and neighbours as well. The mother of the petitioner, who is present before this Court, asserted that they will receive the alleged detenu as their daughter-in-law and will take care of the welfare of the alleged detenu. 7. When the petitioner and his parents themselves had given assurance about the welfare of the alleged detenu, in fact, we cannot have any hesitation to handover the custody of the alleged detenu to the petitioner and his parents. But, the whole controversy is with regard to the age of the alleged detenu, who is a minor. 8. The legal dimension that is to be looked into is that the alleged detenu, who is a minor, cannot be given custody to anyone except the parents. 9. In this regard, it is to be seen that the marriage between the petitioner and the alleged detenu is not a void marriage, but only a voidable marriage. In similar circumstances, in W.P.No.11179 of 2009, this Court had dealt with the matter following the judgment rendered by a Division Bench of this Court in MAKEMALLA SAILOO v. SUPERINTENDENT OF POLICE, NALGONDA[1] and gave custody of a minor girl to her husband. 10. In this context, the said Division Bench had further discussed about the effect of the provisions of the Child Marriage Restraint Act, 1929 also. In view of the elaborate discussion and also basing on the decisions of other High Courts in Shankerappa v. Sushilabai - AIR 1984 Karnataka 112, which was rendered by relying on a judgment of the apex Court in Smt. Lila Gupta v. Laxmi Narain and others – AIR 1978 SC 1351, and also keeping in view the overriding effect of the Hindu Marriage Act, 1955, their Lordships of the Division Bench held that such marriage of the minor cannot be declared as illegal, but can only be a voidable marriage. 11. After all, the Court also shall think the circumstances in which the minor girl has been placed. Her safety and status as regards mental, physical and social are the absolute necessities till she attains the age of majority. 12. In view of the over all facts and circumstances of the case on hand, which is absolutely similar to the facts in Makemalla Sailoo’s case (supra), we are of the opinion that in view of the marriage of the petitioner with the alleged detenu, which was accepted by the parents of the petitioner, and also in view of the supportive assurance given by the parents of the petitioner, we deem it appropriate to give the custody of the alleged detenu to the petitioner with whom her marriage was performed. 13. In the result, the writ petition is disposed of, at the stage of admission, directing the respondents to release the alleged detenu, namely V. Nageshwari from the custody of the third respondent-rescue Home, forthwith, and handover her custody to the petitioner. There shall be no order as to costs. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE RAJA ELANGO 20.04.2010. NOTE: Operative portion by wire at party’s cost. (B/O) Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE RAJA ELANGO WRIT PETITION No.7644 of 2010 20.04.2010 (Msr) [1] 2006 (2) ALD 290 (DB)