IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.03.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.375/2008 D.Kumar .. Petitioner -Vs.- 1.The Sub-Inspector of Police F-4, Police Station, Kavarapettai Gummidipoondi Taluk, Thiruvallur District. 2.Arivalagan 3.Senthil @ Nilavazhagan 4.Mathivannan 5.Powrnami 6.Thangaraj 7.Kumar .. Respondents PRAYER: Petition under Article 226 of The Constitution of India praying for the issuance of a Writ of Habeas Corpus directing the first respondent to produce the petitioner's daughter Ponnarasi, aged about 16 years before this court and set her at liberty. For Petitioner : Mr.S.Krishnasamy For R1 : Mr.Babu Muthu Meeran, APP For R3 : Mr.K.Subburam O R D E R [Order of the Court was made by D.MURUGESAN, J.] The petitioner by name D.Kumar, S/o.Durai, residing at No.146, S.P.Koil Street, Arni, has approached this court by way of the present Habeas Corpus Petition with the following averments and for consequential relief: [a]He is the Councilor in the 10th Ward of Arni and he belongs to Adi Dravidar community and his daughter by name Ponnarasi is a student of second year in Electronic Engineering in R.M.Durgadevi https://hcservices.ecourts.gov.in/hcservices/ College of Engineering in Kavarapettai. [b]The sixth respondent by name Thangaraj is residing in the opposite house along with his family members. The second and third respondents are his sons. Both the family of the petitioner and respondents 2 to 6 were not in talking terms as there was a strained relationship between the two family members. The strained relationship was due to the eve-teasing of his daughter by the second respondent who is the son of the sixth respondent whenever his daughter used to go to her college. Hence, the petitioner made a complaint before the first respondent on 08.05.2007 and the said complaint was registered in Crime No.18/2007 for the offence under section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002. Pursuant to the complaint, the second respondent was arrested and was remanded to judicial custody. [c]Since the petitioner had lodged the complaint the entire family members of Thangaraj took vengeance against the petitioner and his family members and therefore, they had started harassing the petitioner's daughter, the detenue. While that being so, the detenue was missing from 10.03.2008. On enquiry, the petitioner came to know that the detenue was kidnapped by respondents 2 to 6 by using a car and auto. Therefore, the petitioner had lodged the complaint again on 11.03.2008 before the first respondent which was registered in Crime No.270/2008 for the offence under section 366-A IPC read with section 109 IPC. Inspite of the above complaint, the first respondent police had not taken any serious steps to secure the girl who was illegally detained by respondents 2 to 6. Hence, he is constrained to approach this court by this petition seeking direction to the first respondent police to secure and produce the detenue and set her at liberty. 2.Though this Habeas Corpus Petition came up for admission today, Mr.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the first respondent had submitted that the detenue had been secured and produced. 3.We have heard Mr.S.Krishnasamy, learned counsel for the petitioner and Mr.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the first respondent and Mr.K.Subburam, learned counsel appearing for the third respondent. 4.Though the police claim that the detenue is being produced by the police, on enquiry it revealed that she appears before this court along with her husband, the third respondent on their own. As the detenue appeared before us, we are inclined to dispose of this petition on its own merits. We had enquired the detenue. She stated before us that she and the third respondent fell in love and they had continued their love affairs for a period of more than two years. Though she is studying in an Engineering College, as the love affair between herself and the third respondent was not liked by her parents, she, on her own went along with the third respondent on 10.03.2008 and got married him at a temple in Kalahasthi on 12.03.2008. She had further stated that she and the third respondent had lived together as a husband and wife from that date onwards. Since the marriage was not liked by her parents, both of them decided https://hcservices.ecourts.gov.in/hcservices/ not to return to the village and therefore, they were going from place to place in search of safety. On a specific question put to her, she has firmly stated that she is only willing to go along with the third respondent. Even when this court had questioned her she being a minor and had just crossed 16 years when the marriage had taken place, she has again reiterated that in her own interest only she must be allowed to go with her husband, the third respondent as she has lived with him as his wife for some days. She has also stated that she should not be sent back to her family and particularly to the petitioner, as in view of some constrained feelings between the two families and in view of the complaint given by the petitioner as if she had been kidnapped by the respondents 2 to 6, her life will be in danger. 5.As we have enquired the girl in the forenoon, at the request of the learned counsel for the petitioner to permit the petitioner to talk with the girl, we allowed them to talk to each other and directed the matter to be called in the afternoon. Even when the matter was called after the lunch recess, the detenue girl is firm in her stand to go and live with the third respondent. We had also enquired the third respondent and he has stated that neither he nor the other respondents, viz., respondents 2 and 4 to 6 have not kidnapped the detenue and the detenue had voluntarily went along with him and both of them got married in a temple as they liked each other. 6.We have also enquired the petitioner. He would reiterate all the averments made in the affidavit. From the enquiry with the petitioner, we could find that he could not reconcile still with the respondents' family. 7.Having regard to the above averments as well as the submissions of the respective learned counsel, we are inclined to consider this petition on its merit. The date of birth of the detenue is 09.03.1992. On the date when the marriage took place on 12.03.2008, admittedly the girl had just completed 16 years and she is a minor. The question as to whether the minor girl could be sent along with her husband, the third respondent herein is a further question to be considered. In our opinion and in the given facts and circumstances which we have narrated above, the paramount interest would be the safety and security of the detenue. 8.The question as to whether a minor girl who got married on her own volition could be sent to her husband came up for consideration before a Division Bench of this Court in the Judgment reported in 2003 [2] L.W.[Crl.] 89 J.S. [KUMARI REP.BY THE REGISTRAR GENERAL, HIGH COURT, MADRAS V. THE INSPECTOR OF POLICE, VYSARPADI, CHENNAI-39 AND THE INSPECTOR OF POLICE, GUMMIDIPOONDI]. That was a case where admittedly, a minor girl got married one Kumaresan. She was not allowed to live with the said Kumaresan and her husband was detained contrary to his wish and therefore, she sent a telegram to the Registrar seeking for a direction for the release of her husband. Though this court had considered that she was only a minor, nevertheless this court had directed both the petitioner who was a minor and her husband to live together on the ground that after the marriage she had lived with the said Kumaresan for some time and she was also pregnant by 20 weeks and therefore, the said Kumaresan is https://hcservices.ecourts.gov.in/hcservices/ her legal guardian. 9.We had also had an occasion to consider a similar question in HCP No.206/2008. That was also a case of a minor girl who got married and the father had given a complaint that the husband of the minor girl by name Kathiravan had kidnapped her and had kept her illegally. Though it was argued that a minor girl cannot be sent along with her husband, considering the firm stand taken by the detenue, minor girl, as to her willingness to go only with her husband and also considering the paramount interest of the detenue girl, this court had permitted the detenue to go along with her husband though she was a minor at that time. 10.Recently, in Madurai Bench of Madras High Court, in HCP [MD] No.643/2007 dated 07.01.2008, the relief sought for by the father to secure and produce the minor daughter, born on 08.4.1992, having regard to the stand taken by the minor girl as to her marriage with the second respondent therein had declined to grant the prayer though the detenue was a minor. 11.In matters like this, in law, a`marriage of a minor girl is impermissible. But for the purpose of custody, in our opinion, the consideration would be different, viz., the consideration of the paramount interest of the detenue, the minor girl. As we have referred to the statement made by the minor girl herein, the following things appear before us:- [i]The girl voluntarily went along with the third respondent herein and there was no kidnapping. [ii]There was a marriage between the detenue and the third respondent in a temple. [iii]After the marriage both the second respondent and the detenue has lived as husband and wife for some time. [iv]The girl had expressed firmly that she is willing to go only with the third respondent and she has declined to go with her father, the petitioner herein. [v]The detenue has also stated that there is life threat at the hands of her family members due to the enmity between the members of the petitioner's family and the respondents family. [vi]Lastly, the third respondent is also very firm to live only with the detenue and he will lead a happy family life and he ensures the safety of the detenue. 12.Having regard to the persistent stand of the detenue to go along with the third respondent and there is an apprehension of threat to her life at the hands of her family members, though she is a minor, we are not inclined to order this Habeas Corpus Petition by permitting the detenue to go along with the petitioner, as she has to take a decision on her own to go along with the third respondent. The observations made in this order are only for disposal of Habeas Corpus Petition and without prejudice to the investigation. https://hcservices.ecourts.gov.in/hcservices/ 13.With the above observation, this petition is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap To 1.The Sub-Inspector of Police F-4, Police Station, Kavarapettai Gummidipoondi Taluk, Thiruvallur District. 2.The Public Prosecutor High Court, Madras. + 1 CC To Mr. S.Krishnasamy, Advocate SR NO.16131 + 1 CC To Mr. K.Subburam, Advocate SR NO.16517 H.C.P.No.375/2008 ma[co] gp/1.4. https://hcservices.ecourts.gov.in/hcservices/