Crl. Misc. no.M-19705 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. no.M-19705 of 2011 (O&M) Decided on : 15-07-2011 Savita ....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Rajesh Arora, Advocate for the petitioner Mr. Rajat Gautam, AAG, Haryana MAHESH GROVER, J This petition has been filed by the petitioner invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure praying for appropriate directions to direct respondent no.2 to release her from the custody home of Nari Niketan, Karnal as she has been detained there against her wishes. Petitioner alleges that her date of birth is 13.12.1993 and the same was reflected in the school certificate which is attached as Annexure P-1. Accordingly, she states that she has attained the age of discretion wherein she can express her wishes clearly and she having married to respondent no.2 wants to stay with him. Since the marriage was against parental consent, respondent no.4 lodged an FIR 101 dated 22.6.2010 under the provisions of Section 363, 366, 376 IPC against respondent no.3. He was arrested in the said case but was enlarged on bail by this Court while noticing the fact that during the course of proceedings in the FIR, the petitioner had been produced before the Trial Court wherein she suffered a statement that she does not wish to go with her father and rather she was interested in staying with respondent no.3. The proceedings Crl. Misc. no.M-19705 of 2011 (O&M) 2 of the Trial Court which reflect the desire of the petitioner to live with respondent no.3 are extracted hereunder:- “You are directed to retain above referred prosecutrix in Nari Niketan in view of order dated 24.7.2010 passed by the undersigned (copy attached). FIR no. 101 dated 222.6.2010 P.S.Bhondsi. Statement of Savita d/o Billu, 19 years, R/o Hakdarpur on S.A. My father Billu got my relation fixed in village Dugarbas and I am not happy from that relation and I do not want to marry there. My father wanted me to marry forcibly. I want to marry Jitender son of Hukam, resident of Hariya Hera. He has not taken me forcibly and I have gone with him at my own. I do not want to say anymore. Savita Sd/- JMIC 24.7.2010 Certified that contents of the statement were read over the Savita who admitted the same to be correct. The statement contains true and full account of version made by her. It seems that the statement has been voluntarily made by her. Sd/- JMIC 24.7.2010 Statement of Savita D/o Billu, age 19 years, r/o Hakdarpur, Tehsil Pataudi, District Gurgaon. Statement given. I want to go with boy. There is no fault of boy. I went with boy on my own. I do not want to go with parents. Crl. Misc. no.M-19705 of 2011 (O&M) 3 Sd/- JMIC/G/10.9.2010” The Trial Court when confronted with this situation where the interest of the minor was involved had directed the petitioner to be lodged in the Nari Niketan at Karnal. On 5.7.2011 this Court had directed that the petitioner be produced before this Court under due cover of protection. She is thus present in Court pursuant to the said orders. The Hon'ble Supreme Court in Smt. Lila Gupta versus Laxmi Narain and others reported as AIR 1978 Supreme Court 1351 observed as follows: “A marriage contracted in contravention of or violation of the proviso to Section 15 is not void but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage. Even though the proviso is couched in a language prohibiting a certain thing being done, that by itself is not sufficient to treat the marriage contracted in contravention of it as void. A mere glance at Section 15 of the Act and Section 57 of the Indian Divorce Act would clearly show that the provisions are not in pari materia. The relevant provisions are so materially different, that the decisions interpreting Section 57 cannot be bodily followed to hold that the same consequences should follow if the proviso to Section 15 is contravened. Examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having Crl. Misc. no.M-19705 of 2011 (O&M) 4 been provided for in respect of the marriage in contravention of the proviso to Section 15 it cannot be said that such marriage would be void.” Likewise a Division Bench of Delhi High Court in the case titled as Neetu Singh vs. State, reported as 1999 (1) PLR (Delhi) 47 observed that even a minor girl cannot be kept in protective homes against her wishes and the marriage of a minor girl is neither void nor voidable but can attract punishment under Section 18 (5) of Hindu Marriage Act. Likewise a Division Bench of Allahabad High Court in Smt. Raj Kumari versus Superintendent, Women Protection House, Meerut and others, 1998 Crl, L.J. 654 observed similarly to say that a minor girl cannot be detained against her wishes. Having regard to the aforesaid facts that the petitioner is just less than 18 years of age but noticing the fact that she is capable of expressing her wishes and also keeping in view the observations of the Division Bench of Delhi High Court and other related judgments referred to above, I am of the considered opinion that detention of the petitioner in custody home (Nari Niketan) against her wishes is impermissible. Consequently, the instant petition is allowed and it is directed that the petitioner be set free from the custody of Nari Niketan forthwith to enable her to join the company of respondent no.3 with whom she is said to have married. July 15, 2011 (Mahesh Grover) rekha Judge