IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.654 of 2008 NAHIDA PARVEEN Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Shakil Ahmad Khan, Senior Advocate Mr. Sajid Salim Khan, Advocate Mr. Ashraf Ansari, Advocate For the respondents : Mr.Kumar Udai Bhanu Rai, Government Advocate-IV ------- P R E S E NT Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 12th August, 2008 Nahida Parveen is the petitioner before us. She is daughter of Mukhtar Ansari ( respondent no.6). She claims to have married Md. Sahrukh on 29th of May, 2008 in accordance with muslims rites. Her father lodged the first information report being P.S.Case No.225 of 2008 at Police Station Bhabhua on 10th June, 2008 alleging that one lady wife of Md. Sabbir, resident of Ward No.16 came to his house on 27th of May, 2008 at about 9 A.M. and took his daughter Nahida Parveen (aged about 14-15 years) on the pretext that some guests were to come to her house. When she did not return until evening, he went to Sabbir’s house. At that time, Sabbir’s wife told him that she had already left Nahida Parveen about half an hour back. He kept on searching his daughter, but failed. Then he came to know that Md. Sahrukh son of Md. Sabbir after abducting his daughter intended to - 2 - marry her. Based on the said first information report, a criminal case under Section 366A read with Section 34 IPC was registered against Md. Sabbir, Md.Sahrukh, Md. Yusuf, Md. Sajid, Ramjan Ansari and the wife of Md. Sabbir. 2. During the course of investigation, Nahida Parveen was produced before the court of Judicial Magistrate, Ist Class, Bhabhua and her statement was recorded under Section 164 Cr.P.C. In her statement before the court, she stated that she has married Sahrukh on 29th May, 2008 and since then she has been staying with him as his wife. She denied having been abducted by the accused persons as alleged in the FIR. She stated before the court that she did not want to go to her parents’ house as they have been torturing her. Nahida Parveen was produced for medical examination and on radiological findings, her age was found to be between 17-19 years. 3. The Investigating Officer made an application seeking an order of the Court as to whom the custody of Nahida Parveen was to be given, particularly in view of the fact that she has refused to go to her parents’ place. On the said application, the Chief Judicial Magistrate, Bhabhua passed an order on 13th June, 2008, that she be kept at After Care Home, Gaighat, Patna. 4. From the material placed on record it appears that two applications came to be filed before the Chief Judicial Magistrate, Bhabhua; one at the instance of Md. Sahrukh and the other by the petitioner. In both these applications, the prayer has been made that Nahida Parveen be released from After Care Home, Gaighat Patna - 3 - and permitted to reside with Md. Sahrukh. 5. No order seems to have been passed by the Chief Judicial Magistrate, Bhabhua on these applications. Nahida Parveen has approached this court now under high prerogative jurisdiction praying that she be released from After Care Home as she is entitled to live with her husband at her matrimonial home. 6. The respondents no.1 to 5 has not filed any counter affidavit. We do not deem it necessary to issue notice to the respondent no.6 as the petitioner has repeatedly made statement that she did not want to stay with her parents. As a matter of fact, Nahida Parveen was produced before us on 4th of August, 2008 and on that date she made a categorical statement that she has married Md. Sahrukh and that she wanted to go to her husband’s place. On that day, the matter was adjourned as the senior counsel for the petitioner prayed for time to study the matter and show us the law with regard to custody of a muslim girl, although not major as per Indian Majority Act, but has married after having attained puberty without the consent of her parents. 7. Article 251 of Mull’s Mahomedan Law is a statement of law in respect of capacity for marriage. It reads thus: 251. Capacity for marriage-(1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians, (3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Explanation.- Puberty is presumed, in the absence of - 4 - evidence, on completion of the age of fifteen years.” 8. A Division Bench of this Court in the case of Md. Idris Vs. State of Bihar & others, reported in 1980 Cr.L.J. 764, considered the matter with regard to custody of a muslim girl allegedly abducted and produced before the Magistrate. The Division Bench considered the matter thus: “4. Whenever a minor is produced before a Court, the Court has to consider the question as to who should be the guardian of such minor during the pendency of the proceeding, keeping in view the interest of the minor. But while considering that question, the Court has also to consider as to who has the right in law to be the guardian of such a minor. Section 98 of the Code vests power in the Magistrate whenever any complaint is made to him of abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, to make an order of immediate restoration of such woman to her liberty, or of such female child to “her husband, parent, guardian or other person having the lawful charge of such child”. Problem arises when there is conflict between the parent and the husband of such female who is below 18 years. Then Court is called upon to decide the question as to who should be the guardian of such female child, the parent or the husband. Now in the instant case, admittedly when the offence of kidnapping is alleged to have been committed, respondent no.5 was not married to respondent No.4. According to the statement of respondent No.5 herself, she married him on 11.12.1979. Whether respondent No.5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Art. 251 of Mulla’s Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, in absence of evidence, on completion of the age of 15 years. Even in Tyabji’s Muslim Law under Art. 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Art.268 of - 5 - Mulla’s Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgement by the man of the woman as his wife. Article 90 of Tyabji’s Muslim Law also says that a marriage is to be presumed on the acknowledgement of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian.” 9. Under the Mahomedan Law, a girl having attained puberty (15 years is presumed to be the age when puberty age is attained) could marry without the consent of her parents and enter into a contract of marriage. That petitioner is above 15 years of age is clearly seen from the radiological findings. As a matter of fact, there is nothing on record which shows otherwise. The factum of marriage between her and Md. Sahrukh seems to be beyond doubt. In her statement u/s 164 Cr.P.C. before the court of Magistrate, Ist Class, she stated about her marriage with Md. Sahrukh. This fact is supported by Nikahnama ( Annexure-1) placed on record. As a matter of fact, when she appeared before us on 4th of August, 2008, she reiterated her marriage with Md. Sahrukh. 10. Marriage under the Mahomedan Law is a civil contract and Nahida Parveen having entered into that contract of marriage with Md. Sahrukh, which she had capacity to do, in our view, there is no justification in keeping her at After Care Home. Since she has, in unequivocal terms, stated that she is not desirous of staying with her parents, there is no impediment in giving custody of Nahida Parveen to her husband Md. Sahrukh with whom she has contracted marriage - 6 - and she desires to reside with her husband. Her liberty does not deserve to be jeopardized by keeping her in After Care Home merely because she has entered into a contract of marriage with a boy of her choice against the wishes of her parents and because of the pendency of the criminal case lodged by her father against the husband and the other members of the in-laws family. 11. Consequently we dispose of this writ petition by the following order: (i) The order dated 13th of June, 2008 passed by the Chief Judicial Magistrate, Bhabhua, is quashed and set aside. (ii) The Superintendent After Care Home, Gaighat, Patna shall produce Nahida Parveen in the court of Chief Judicial Magistrate, Bhabhua forthwith. The concerned court will pass an appropriate order for her custody in the light of observations made above. R.M. Lodha, CJ Kishore K. Mandal, J. Sunil