IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.329 of 2011 Saheba Nigar w/o Abdur Razique d/o Md. Awais Alam, resident of village Bandob, P.S. Bairgachhi, District- Araria. Versus 1.The State Of Bihar. 2. The Superintendent of Police, Araria. 3. Thana Adhyakshak, Palasi, District- Purnea. 4. The Investigating Officer, P.S. Palasi, District- Araria. 5. Thana Adhyakshak, Bairgachhi, District- Araria. 6. The Superintendent, Govt. Uttar Asksha Grih Gaihat. 7. Md. Awais Alam s/o late Sayeedur Rahman r/o Kakarwa, P.S. Palasi, District- Araria. ------------ For the Petitioner : M/s Sanjay Singh and Firoz Ahmad. For the State : Mr. Shailendra Kumar Jha,A.C. to S.C.14. 5 23/08/2011 This writ petition is by a muslim girl, who has been lodged in the After Care Home (Nari Niketan), Gaighat, Patnacity. She claims that she has married muslim boy out of her free will and is a major and as such she cannot be kept at After Care Home at Gaighat, Patnacity and as she does not intend to return to her parents , she must be released to the custody of her husband. This writ application is supported by affidavit sworn by the father-in-law of the petitioner. By order of this court, the father of the petitioner was made respondent no.7. Twice notices have been issued to him but he has chosen not to appear. A counter affidavit has been field by the State. We have heard the parties and with their consent this writ application is being disposed of at this stage itself. Let it be noted that the father–in-law of the petitioner, who has sworn affidavit, is personally present in the 2 Court as well. He states that he has come to take/receive the girl if she is released by this Court. He further states that he and his son have sufficient means to comfortably support the petitioner in her matrimonial tie. The petitioner’s father had lodged an FIR with the police, inter alia, alleging that he found petitioner missing from his house and suspected that she has eloped. Subsequently, the petitioner was recovered from Purnea and produced before the learned Chief Judicial Magistrate, Araria. She was taken to Judicial Magistrate where her statement under Section 164 Cr.P.C. was recorded. In the said statement she claims her age to be 19 years whereas the Magistrate assessed her age to be 17 years. It may be noted that in the FIR the father disclosed her age to be 12 years. In her statement under Section 164 Cr.P.C. she states that having eloped, she has married by proper muslim rites a boy with whom she wants to live and she does not intend to go back to her parents. Looking to the tender age, the learned Chief Judicial Magistrate ordered for constitution of a Medical Board. The Medical Board examined and opined her age to be between 18 -19 years. When this is being considered by the learned Chief Judicial Magistrate, the father filed proper papers to show that she was studying in Madarsa and as per certificate granted by the Madarsa Board she is about 15 years of age. Upon this, the learned Chief Judicial Magistrate considering the petitioner to be a minor, sent her to the After Care Home, Gaighat, Patnacity. It is from there that this writ 3 application is filed. Mr. Sanjay Singh, learned counsel for the petitioner submits that the authorities including the Court have confused by trying to ascertain her age. He submits with reference to the report of the Medical Board that it cannot be disputed that she has attained puberty quite some time back. He states that as per Muslim Personal Law , a muslim girl is competent to marry the moment she attained puberty, which, normally, is between 14-16 years. He submits that if it is undeniable that she had attained puberty, she is competent to marry . If she was competent to marry, she was competent to choose to stay with her husband who had a legal right to maintain her. In such a situation, notwithstanding the fact that she may be a minor, she has to be released to the care of her husband. Having considered the matter, in our view, learned counsel for the petitioner, Mr. Sanjay Singh, is correct. A muslim girl, as per Muslim Personal Law, is competent to marry on attaining puberty .The fact that the petitioner has attained puberty cannot be disputed in view of the report of the Medical Board. That being so, the petitioner was competent to solemnize a muslim marriage. She claims to have solemnized muslim marriage and wants to be with her husband. The question of petitioner being a minor loses all legal significance in view of the fact aforesaid. Thus, this Court has no option but to hold that her continued detention in the After Care Home would not be in accordance with law. She being a 4 muslim having attained puberty, is entitled to choose whether she would live with her parents or with her husband. She has chosen her husband. We cannot stop her. In that view of the matter, we direct the petitioner to be released into the care of her husband or the father-in-law, who would receive her after due identification from the After Care Home. With the aforesaid observation and direction, the writ petition is disposed of. Let a copy of this order be sent to the Criminal Court where the case is pending. Singh ( Navaniti Prasad Singh, J.) (Ashwani Kumar Singh,J)