*THE HON’BLE Ms. JUSTICE G. ROHINI + WRIT PETITION No.19782 OF 2008 % 20/10/2008 # Kokkula Suresh … Petitioner Vs. $ 1. The State of Andhra Pradesh, Rep. by its Secretary, Home Department, Secretariat, Hyderabad and 2 others. .. Respondents < Gist > Head Note: ! Counsel for the petitioner : Sri V. Hari Haran ^ Counsel for the respondents : G.P. for Home Cases referred : [1] AIR 1978 SC 1351 (1) 2 2006 (2) ALT 383 (DB) IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 19782 of 2008 Between: Kokkula Suresh, S/o. Sri Narayana, R/o. Battapalli Village, Sarangapur Mandal, Karimnagar District. ..... PETITIONER AND 1 The State of Andhra Pradesh, Rep. by its Secretary, Home Department, Secretariat, Hyderabad. 2 The State Home for Girls, Rep. by its Director, Nimboliadda, Chaderghat, Hyderabad. 3 Gaddam Gangaram, S/o. Sri Yellaiah, R/o. Potharam Village, Sarangapur Mandal, Karimnagar District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ order or direction, more in the nature of writ of mandamus declaring the order dated 4-7-2008 of the Learned First Class Judicial Magistrate, at Jagitial as illegal, arbitrary and liable to be set aside and consequently direct the respondent No.2 to release the Petitioner's wife Smt. Sandhya from the 2nd Respondent, as otherwise the petitioners Would suﬀer irreparable loss and injury, in the interest of justice. Counsel for the Petitioner : MR. V.HARI HARAN Counsel for the Respondents : GP FOR HOME The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.19782 OF 2008 ORDER : This writ petition is ﬁled seeking a declaration that the order dated 4.7.2008 passed by the learned Judicial Magistrate of First Class, Jagtial, directing to send the petitioner’s wife by name Gaddam Sandhya to State Home for Girls, Nimboliadda, Chaderghat, Hyderabad as arbitrary and illegal. The petitioner states that he married Gaddam Sandhya, the daughter of the 3rd respondent herein, on 19.06.2008 as they liked each other. However, since the marriage was against the wishes of the 3rd respondent, he lodged a complaint in P.S. Dharmapuri on 20.06.2008 alleging that his daughter Sandhya was kidnapped by the petitioner. On the basis of the said complaint FIR No.130 of 2008 was registered, and the petitioner and his wife Gaddam Sandhya were called by the Police for enquiry. Though Gaddam Sandhya categorically stated before the Police that she married the petitioner on her own and wanted to lead a happy married life with him and refused to go with her parents, the Police produced her before the learned Judicial First Class Magistrate, Jagtial, on 4.7.2008. When her statement was recorded by the learned Magistrate, again she expressed her unwillingness to go to her father’s house and reiterated that she voluntarily left her father’s house along with the writ petitioner and that they got married. Having recorded the said statement, the learned Magistrate passed the impugned order dated 4.7.2008 sending her to the State Home for Girls, Nimboliadda, on the ground that she is a minor. The said order dated 4.7.2008 is under challenge in this writ petition contending inter alia that though she is a minor, being the natural guardian, the petitioner/husband alone is entitled to her custody and therefore sending her to State Home is unwarranted. Despite notice, the 3rd respondent did not choose to appear before this Court either in person or through duly instructed counsel. As per Section 5 (iii) of the Hindu Marriage Act, 1955, one of the conditions to be fulﬁlled for a Hindu marriage is that the bridegroom has completed the age of 21 years and the bride has completed the age of 18 years at the time of the marriage. However, the marriage, if any, solemnized in contravention of the said condition is not a void marriage under Section 11 of the Hindu Marriage Act. It is not even a voidable marriage under Section 12 of the Hindu Marriage Act. However, every person who procures a marriage of himself or herself to be solemnized in contravention of the said condition shall be punishable under Section 18 of the Hindu Marriage Act with simple imprisonment which may extend to 15 days or with ﬁne which may extend to Rs.1,000/- or with both. In SMT. LILA GUPTA v. LAXMI NARIAN AND OTHERS [1] having considered the object and intendment of the Hindu Marriage Act, the Supreme Court held that when the minimum age of bride and the bridegroom for a valid marriage is prescribed in Condition (iii) of Section 5, it would only mean personal incapacity for a period because every day the person grows and would acquire the necessary capacity on reaching the minimum age and that before attaining the minimum age if a marriage is contracted it is not rendered void under Section 11 even though Section 18 makes it punishable. Thus, it is clear that the petitioner’s marriage with the daughter of the 3rd respondent cannot be held to be a nullity merely on the ground that the girl is a minor by the date of the marriage. Coming to the provisions of the Hindu Minority and Guardianship Act, 1956, it is true that a person who has not completed the age of eighteen years is a minor and as per Section 6 (a) of the said Act, the father is a natural guardian of a Hindu minor unmarried girl. However, as per Section 6(c) of the said Act, in the case of a Hindu minor married girl, the husband is the natural guardian in respect of the minor’s person as well as in respect of the minor’s property. On a combined reading of Section 5 (iii) read with Sections 11, 12 & 18 of the Hindu Marriage Act and Section 4(a) and Section 6 (a) & (c) of Hindu Minority and Guardianship Act, 1956, I ﬁnd force in the submission of the learned counsel for the petitioner that the petitioner who is the husband of 3rd respondent’s minor daughter is her natural guardian and consequently her custody shall be with the petitioner. A Division Bench of this Court in MAKEMALLA SAILOO v. SUPERINTENDENT OF POLICE, NALGONDA DISTRICT[2] in identical circumstances held that the 3rd respondent therein was entitled to the custody of his wife, who was a minor girl of 13 years, since he was the natural guardian under the provisions of the Hindu Minority and Guardianship Act, 1956, and accordingly directed that the minor girl who was sent to State Home for Child-care Centre by the Magistrate shall be handed over to her husband, the 3rd respondent therein. The ratio laid down in the above decision squarely applies to the present case. The petitioner’s wife (daughter of the 3rd respondent) though a minor at the time of the marriage, in her statement before the learned Magistrate she had categorically stated that she voluntarily left her home along with the petitioner and that they got married and that she was not willing to go with her parents. As expressed above, since the marriage between the petitioner and the 3rd respondent’s daughter is not a void marriage or voidable marriage under the provisions of the Hindu Marriage Act, 1955, and since the writ petitioner being the husband is her natural guardian under the provisions of the Hindu Minority and Guardianship Act, 1956, the petitioner alone is entitled to have the custody of the 3rd respondent’s daughter. Hence, the impugned order dated 4.7.2008 passed by the learned Judicial First Class Magistrate, Jagtial, sending the minor girl to the State Home for Girls is erroneous and cannot be sustained. Accordingly, the impugned order dated 4.7.2008 is hereby set aside and the Writ Petition is disposed of directing the respondents 1 and 2 to allow the minor girl namely Smt. Gaddam Sandhya to go with her husband, the Writ Petitioner. No costs. ______________ G. ROHINI, J. Dt. 20.10.2008 gbs [1] AIR 1978 SC 1351 (1) [2] 2006 (2) ALT 383 (DB)