In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Writ Petition No.351 of 2009 ..... Date of decision:1.4.2009 Satish Kumar .....Petitioner v. State of Haryana and others .....Respondents .... Present: Mr. Sushil Gautam, Advocate for the petitioner. Mr. Ajay Singh Ghangas, Deputy Advocate General, Haryana for the respondent-State. Mr. Vinod Bhardwaj, Advocate for respondent No.4. ..... S.S. Saron, J. Mamta Rani, the detenue has been produced in Court. She is identified by the counsel for the petitioner as well as counsel for respondent No.4. She has stated that she has solemnized her marriage with Ramesh Kumar (respondent No.4) of her own free will and desire and that she wants to live with her husband. Learned counsel for the petitioner submits that her statement may be recorded. Accordingly, her statement has been separately recorded in this regard. Heard learned counsel for the parties. This petition under Articles 226/227 of the Constitution of India has been filed for issuing a writ in the nature of Habeas Corpus directing respondents No.1 to 3 to recover the daughter of the petitioner Cr. Writ Petition No.351/2009 [2] who it is alleged is in the custody of Ramesh Kumar (respondent No.4) and his family members. Besides, FIR No.168 dated 5.3.2009 has been registered against respondent No.4. It is submitted that the petitioner is the father of Mamta Rani- detenue, who is aged about 16 years. A reference has been made to the secondary school examination certificate (Annexure-P.1) issued by the Board of School Education Haryana in which the date of Mamta Rani (detenue) has been recorded as 10.5.1992. Therefore, she is aged about 16 years and 9 months. It is submitted that since the intervening night of 4/5.3.2009 Mamta Rani has been missing from her house and Ramesh Kumar (respondent No.4) had abducted her. Accordingly, FIR No.168 dated 5.3.2009 (Annexure-P.2) has been registered for the offences under Sections 363 and 366 IPC against Ramesh Kumar (respondent No.4). Later, it came to the knowledge of the petitioner that Lal Chand son of Gaje Singh, Bohti Devi widow of Gyan Chand, Komal Devi and Suresh Kumar son of Gyan Chand, all residents of Chandana Gate, Kaithal were also involved in the case as is alleged in the FIR. Accordingly, the petitioner gave an application to the SHO, Police Station City, Kaithal and informed him about the developments. The petitioner being the father of the detenue Mamta Rani is the natural guardian as she is a minor. Therefore, it is prayed that the detenue be released and her custody be given to him. Notice of motion was issued in this case on 17.3.2009 for 26.3.2009. On the said date, Mr. Vinod Bhardwaj, Advocate put in appearance on behalf of respondent No.4. It was stated by Mr. Bhardwaj, Advocate, learned counsel for respondent No.4 that a marriage has been Cr. Writ Petition No.351/2009 [3] solemnized on 10.2.2009 between Mamta Rani-detenue and Ramesh Kumar (respondent No.4) and in this regard, this Court had passed an order dated 2.3.2009 in Criminal Misc. No.M-5773 of 2009 whereby a direction was issued to the Superintendent of Police, Kaithal to look into the representations made by the petitioners in the said petition i.e. Ramesh Kumar and Mamta Rani and if required necessary protection be provided to them. As regards the dispute regarding the age of Mamta Rani a reference was made to the ration card issued on 11.12.2005 wherein the age of Mamta Rani is recorded as 15 years. Therefore, it was submitted that on the date of marriage i.e. 10.2.2009 she was aged 19 years. In order to consider whether Mamta Rani is in illegal detention of respondent No.4, she was directed to be produced in Court today. Mamta Rani-detenue has been produced in Court today. As already recorded in the earlier part of the order, she has stated that she is living with respondent No.4 and she wants to live with him. Her statement has also been separately recorded on oath in which she has stated that she wants to live with respondent No.4. It is stated that she has solemnized her marriage of her own free will with Ramesh Kumar son of Gyan Chand. She is happy with the marriage and it was solemnized without any kind of pressure or undue influence. It is stated that she is aged 18 years. Learned counsel for the petitioner has placed strong reliance on the secondary school examination certificate (Annexure-P.1) and submitted that the date of birth of the petitioner is 10.5.1992. It is submitted that the parties are Hindus and the Hindu Marriage Act, 1955 (`Act' – for short) is applicable to them. In terms of Section 5 of the Act it has been provided that a marriage may be solemnized between two Hindus if the conditions Cr. Writ Petition No.351/2009 [4] envisaged therein are fulfilled. Clause (iii) of Section 5 provides the condition that the bridegroom should have completed the age of twenty-one years and the bride, the age of eighteen years at the time of marriage. Therefore, it is submitted that the marriage being in contravention of Section 5 (iii) of the Act, action is liable to be initiated against respondent No.4 under Section 18 of the Act as also under the provisions of the Child Marriage Restraint Act, 1929. Learned counsel for the petitioner during the course of hearing himself feels quite strongly about the matter and submits that the parents of the girl would be left in a lurch in case their minor daughter is allowed to go with respondent No.4. In response, learned counsel for respondent No.4 has submitted that the marriage between Mamta Rani and respondent No.4 is a valid marriage as the age of Mamta Rani is more than 18 years. It is submitted that in school certificate generally less age is recorded and in fact her age was 19 years at the time of marriage on 10.2.2009. In any case, it is submitted that Mamta Rani is capable of giving her consent to the marriage. Therefore, it cannot be said that the marriage is, in any manner, void. Learned counsel for the State has submitted that on the application of the petitioner, FIR No.168 dated 5.3.2009 (Annexure-P.2) has been registered at Police Station City, Kaithal for the offences under Sections 363 and 366 IPC. I have given my thoughtful considerations to the contentions of the learned counsel for the parties and have gone through the record. As has already been noticed, Mamta Rani has appeared in Court and has made a statement that she wants to live with respondent No.4 Cr. Writ Petition No.351/2009 [5] as she has solemnized her marriage with him. It is also stated that she is 18 years of age. Besides, an order dated 2.3.2009 has been passed by this Court in Criminal Misc. No.M-5773 of 2009 whereby the Superintendent of Police, Kaithal has been asked to look into the representations made by Mamta Rani and Ramesh Kumar (respondent No.4). The question whether the marriage between Mamta Rani (detenue) and Ramesh Kumar (respondent No.4) is valid or not in view of the dispute in age of Mamta Rani is not to be gone into in exercise of the writ jurisdiction of this Court under Articles 226/227 of the Constitution of India. The age of Mamta Rani (respondent No.4) is a disputed question of fact which would more appropriately be considered and gone into in appropriate proceedings. The age of Mamta Rani would be a relevant factor for consideration of initiation of action against respondent No.4 under Section 18 of the Act or under the provisions of the Child Marriage Restraint Act and for the said purpose it would be required to establish that Mamta Rani is less than 18 years of age. The limited question, therefore, that requires consideration is whether the custody of Mamta Rani (detenue) is to be handed over to the petitioner. In this regard, it may be noticed that the Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942 observed that taking or enticing a minor out of the keeping of her lawful guardian is an essential ingredient of the offence of kidnapping. However, when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and Cr. Writ Petition No.351/2009 [6] finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have “taken” her out of the keeping of her lawful guardianship, that is the father in the said case. It was further observed the fact that the girl in the said case was accompanying the accused all along was quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. In the said circumstances, it was observed that no inference could be drawn that the accused was guilty of taking away the girl out of the keeping of her father. She had willingly accompanied him and the law does not cast upon him the duty of taking her back to her father’s house or even of telling her not to accompany him. In Lalta Prasad v. State of Madhya Pradesh, 1979 Cr. L.J. 867 (SC), the prosecution case was that PW-35 was a minor girl of about 14 or 15 years of age at the time of the occurrence. Her father had died and she was living with her widow mother and with her brother. The appellant in the said case was aged about 36 or 37 years of age and was a widower having two children from his first wife. The appellant started making overtures to the girl which was not liked by her brother. The appellant therein is said to have kidnapped the girl from the lawful guardianship of her mother. It was alleged that he had kidnapped her under threat of causing hurt to her with a knife and he took her to various places in Madhya Cr. Writ Petition No.351/2009 [7] Pradesh and Rajasthan and was roaming with her for a period of about a month and a half. During this period he is said to have committed rape on her. The defence of the appellant therein was that he had committed no offence as the girl was a major of about 18 or 19 years of age and she was in love with him. They were betrothed and were to be married with the consent of the mother and other relations and only her brother was objecting. The trial Court and the High Court found that the girl was of 14 or 15 years of age and, therefore, held the appellant to be guilty. It was observed by the Supreme Court that the girl who was found to have gone with the accused of her free will and with consent of her mother and there was no proof that she was taken by accused to seduce her to illicit intercourse, the accused would not be guilty for the offence under Section 366 IPC. The High Court of Himachal Pradesh in Kamal Singh v. The State of H.P., 1985 (1) Crimes 151 considered the case where there was some intimacy between the prosecutrix and the appellant in the said case and the prosecutrix was willing and active agent in her enticement and she accompanied the accused of her own accord while her parents were asleep, it was held that even though the prosecutrix was below 18 years would not be material. The accused therein was acquitted. The Delhi High Court in Bhagwan Singh and others v. State and another, 2007 (1) RCR (Cr.) 347 (Delhi) considered a case where a Muslim girl aged 17 years 3 months converted to Hinduism and married the accused. The FIR under Sections 363 and 366 IPC registered by the father of the girl was quashed. It was observed that marriage of such a spouse is neither void nor illegal on account of his or her being less than 18 years but Cr. Writ Petition No.351/2009 [8] over 15 years of age. In Rukshana and another v. Govt. of NCT of Delhi and others, 2007 (3) RCR (Cr.) 542 (Delhi) a minor girl around 17 years of age fell in love with a boy. Her father threatened to kill her. She fled away with boy and married him to escape from the onslaught of her father. It was held that no offence was made out. Learned counsel for the petitioner, however, has submitted that the said cases relate to the offences under the provisions of the IPC, however, the provisions of the Child Marriage Restraint Act and Section 18 of the Act clearly provide that the offences are made out in the present case. It is submitted that the offence under the Child Marriage Restraint Act is a cognizable offence in terms of Section 7 said Act. Therefore, it is submitted that Mamta Rani and respondent No.4 are liable to be arrested and prosecuted. It may, however, be noticed that in Manish Singh v. State Govt. of NCT and others, 2006 (1) RCR (Cr.) 653 (Delhi) it was held that a child marriage is not a void or voidable marriage. Marriages which are solemnized in contravention of the age prescribed under Section 5(iii) of the Act i.e. 21 years for male and 18 years for female were neither void nor voidable under Sections 11 and 12 of the Act. Such under-age marriages it was observed were punishable under Section 18 of the Act with imprisonment of 15 days and fine of Rs.1,000/- as also under the Child Marriage Restraint Act. In the said case a girl of 17 years accompanied the boy of her own volition and enticement and married him. It was held that the offence of kidnapping was not made out. It was further observed that the age of 17 years is on the verge of majority and it reached the age of Cr. Writ Petition No.351/2009 [9] discretion. In the circumstances, any marriage which is solemnized in contravention of Clause (iii) of Section 5 of the Act cannot per se be said to be void and neither is such a marriage voidable. The consequences of a marriage solemnized in breach of the said provisions is that the persons concerned are liable for punishment under Section 18 of the Act. Besides, if the requirement of Clause (iv) of Section 13 (2) of the Act, which has been added by the Marriage Laws Amendment Act, 1976, are satisfied, a decree for divorce can be granted at the instance of the wife who was below the age of fifteen years at the time of marriage and she has repudiated the marriage after attaining that age but before attaining the age of 18 years. The provisions of Section 18 of the Act provide for punishment for contravention of certain conditions for Hindu marriage. It is envisaged therein that every person who procures a marriage of himself or herself to be solemnized under the Act in contravention of the conditions specified in clauses (iii), (iv) and (v) of Section 5 shall be punishable. In the case of a contravention of the conditions specified in clause (iii) of Section 5 i.e. with respect to the bridegroom not completing the age of 21 years and the bride the age of 18 years shall be punishable with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both. In terms of Section 7 of the Child Marriage Restraint Act, the Code of Criminal Procedure, 1973 is to apply to offences under the said Act as if they were cognizable offences i.e. (a) for the purpose of investigation of such offences; and (b) for the purpose of matters other than (i) matters referred to in Section 42 of that Code, and (ii) the arrest of a person without a warrant or without an order of a Magistrate. The Cr. Writ Petition No.351/2009 [10] petitioner, in order to establish the commission of offences on the allegations that Mamta Rani was below the age of 18 years at the time of her marriage would require the leading of evidence to show that she was so and that she had thereby breached the condition of Section 5 (iii) of the Act. The same may even require the matter to be investigated and inquired into. This Court in exercise of its inherent jurisdiction under Section 482 Cr.P.C. or its supervisory jurisdiction under Article 226 Constitution of India is not to embark upon an inquiry to consider and hold whether the age of Mamta Rani is less than 18 years or not. The fact that remains is that even if Mamta Rani is less than 18 years, she is capable to give her consent for her valid marriage and she has gone with Ramesh Kumar (respondent No.4) of her own free will. In this regard she has also stated so in the present proceedings. The marriage that has been solemnized, therefore, cannot in the present proceedings be said to be void or voidable. As such no case is made out for issuance of a writ of habeas corpus. Therefore, the petitioner may avail his remedies as available to him under the law. However, an order for handing the custody of Mamta Rani to the petitioner is not warranted in exercise of the inherent or supervisory jurisdiction of this Court under Article 226 of the Constitution. Accordingly, no ground is made out for issuance of a writ in the nature of Habeas Corpus and the criminal writ petition is dismissed. April 1, 2009. (S.S. Saron) Judge *hsp*