HONOURABLE Mr. JUSTICE R. SUBHASH REDDY Writ Petition No.2494 of 2008 Dated: February 13, 2008 Between: Kola Kesava Kumar, S/o. Ranga Rao, Hindu, aged 22 years, Occ: Co-Director in Cine Field, R/o. Devarapalli village & Mandal, West Godavari District, and another. … Petitioners And The Commissioner of Police, Hyderabad, and five others. … Respondents Order: This writ petition is filed seeking Mandamus to declare the action of respondents 2, 5 and 6 in interfering with petitioners’ life and liberty, and harassing the family members of the first petitioner as illegal, arbitrary and in violation of Articles 19 and 21 of the Constitution of India. A consequential direction is sought to direct respondents 1, 3 and 4 to provide necessary protection to the petitioners. 2. In the affidavit filed in support of the writ petition, it is stated that first petitioner is a resident of Devarapalli village and Mandal, West Godavari District, he completed his Graduation in the year 2006 and has been working as co-director in cinema field. It is stated that the second petitioner is a native of Sanjeeva Reddy Nagar, Hyderabad and is studying her II year Intermediate in Narayana College, S.R. Nagar, Hyderabad. It is the case of petitioners that they have developed friendship from the last two years, fell in love with each other and decided to get married. It is stated that coming to know of the love of the second petitioner with the first petitioner, the father of the second petitioner, i.e. the sixth respondent herein, has been harassing her and as a result of the same, second petitioner left the house on 01-02-2008 and joined the first petitioner and both of them got married on 06-02-2008 in Sri Rama Sahita Satyanarayana Swamy Vari Temple, Kovvur, West Godavari District as per Hindu rights and customs. 3. The grievance of petitioners is that though they got married as per Hindu rights and customs on 06-02-2008, in view of the complaint lodged by the sixth respondent, before the second respondent, Station House Officer, S.R. Nagar Police Station, Hyderabad, there is interference with their life and liberty by the Police. It is their case that on 5th and 6th February, 2008, acting on the complaint of the sixth respondent, Police visited the place of the first petitioner in Devarapalli village and created lot of nuisance and terror in the minds of the members of family of the first petitioner. Pleading that the complaint lodged by the sixth respondent is false, petitioners have questioned the interference by respondents 2, 5 and 6 with their life and liberty. 4. The writ petition has initially come up on 08-02-2008 and it was adjourned to enable the learned Government Pleader for Home to get instructions. 5. Meanwhile, the sixth respondent has filed a petition in W.P.M.P.No.3470 of 2008 seeking directions for registration of a case of kidnap against the first petitioner and also sought custody of his minor daughter, i.e. the second petitioner, alleging that the first petitioner kidnapped her with the assistance of his uncle and other family members. It is his case that the marriage alleged to have been taken place between the first and second petitioners is a void one and the documents, which are alleged to have been issued by the temple in which they are said to have got married, are manipulated, and the first petitioner, by misleading the second petitioner, confined her in his custody. It is stated that as she was missing from 01-02-2008, a complaint was lodged with the Police and the matter is under investigation by the second respondent. It is stated that though initially a case of ‘girl missing’ was registered, but, however, after coming to know that his daughter was kidnapped by the first petitioner, another complaint was lodged alleging kidnap. 6. Heard learned counsel for petitioners, learned Government Pleader for Home for respondents 1 to 5 and also learned counsel appearing for the sixth respondent. 7. It is the case of the petitioners that they fell in love with each other and got married on 06-02-2008 in Sri Rama Sahita Satyanarayana Swamy Vari Temple, Kovvur, West Godavari District as per Hindu rights and customs. In support of their marriage, they filed a marriage receipt said to have been issued by the temple authorities and they have also filed some photographs along with the writ petition. On the complaint of the sixth respondent dated 02-02- 2008 to the effect that his minor daughter was missing, a case in Cr.No.105/08, on the file of the S.R. Nagar Police Station, was registered under the head ‘girl missing’. However, subsequently, another complaint was filed by the sixth respondent before the second respondent stating that his minor daughter was kidnapped by the first petitioner along with his associates. 8. It is not in dispute that the second petitioner is a minor. Though it is the case of the petitioners that theirs is a valid marriage, but, however, the same is disputed by the sixth respondent. While, on one hand, it is the case of the first petitioner that second petitioner joined him at her own will and married him, on the other hand, it is the complaint of the sixth respondent, i.e. the father of the second petitioner, that his minor daughter was kidnapped by the first petitioner. It is also the case of the sixth respondent that the alleged marriage is a void one and he is entitled for custody of his daughter. Though the second petitioner is a minor, assuming that even if marriage has taken place, the same is not a void marriage in view of the provisions under the Hindu Marriage Act, 1955 and also the provisions under the Child Marriage Restraint Act, 1929. A Division Bench of this court, in the case of Makemalla Sailoo Vs. Superintendent of Police, Nalgonda District[1], held as follows: “ Section 5 of the Hindu Marriage Act, 1955, lays down the conditions which must be fulfilled before the marriage was solemnized between two Hindus. One of the conditions contained in Section 5(iii) lays down, “the bridegroom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage.” Section 11 deals with void marriages and it lays down, “Any Marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section5.” Section 18 of the Act makes marriage, in contravention of the conditions specified in clauses (iii), (iv) and (v) of Section 5, an offence and in case of contravention of condition (iii) of Section 5 the person who procures a marriage can be punished with imprisonment of fifteen days or with fine which may extend to one thousand rupees or with both. Going by these provisions of law, a marriage solemnized in contravention of Section 5(iii) of the Act is not a void marriage. Therefore there is nothing in the Hindu Marriage Act, 1955 which would make a marriage illegal if it is solemnized if the bride has not completed the age of 18 years. Although it is an offence under Section 18 of the Act, but in our view, it does not make the marriage an illegal marriage.” The Division Bench, while following the ratio laid down by the Supreme Court in the case of Smt. Lila Gupta Vs. Laxmi Narian and others[2], further held as follows: “Under the Child Marriage Restraint Act, 1929, “Child” is defined under Section 2(a) as a person who, if a male, has not completed 21 years of age and if a female, has not completed 18 years of age. Child marriage is defined under Sec.2(b) as a marriage to which either of the contracting parties is a child. Then the Act provides for punishment to a male adult below 21 years of age marrying a child under Section 3. Under Section 4 it provides for punishment to male adult above 21 years of age marrying a child. Section 5 provides for punishment for solemnizing a child marriage and Section 6 provides for punishment to parent or guardian concerned in a child marriage. Offences under the Act are made cognizable and there is a power to issue injunctions under Section 12 prohibiting marriage in contravention of the Act. This Act also does not make the marriage void even if one of the spouses or both the spouses are minors. Therefore the marriage contracted by a minor neither under the Child Marriage Restraint Act nor under the Hindu Marriage Act is void and nullity.” 9. As much as the sixth respondent has disputed the very marriage alleged to have been taken place between the petitioners and in view of the pendency of investigation in Cr.No.105/08, it is not for this court to record any finding on merits of the case. When it was submitted by the sixth respondent that second petitioner was forcibly and illegally confined by the first petitioner and when the second petitioner, who was present in the Court Hall, was questioned she stated that she was not confined by anybody and she expressed her willingness to go along with the first petitioner. 10. Learned Government Pleader for Home submits that there is no interference by the Police with the life and liberty of petitioners, but however, it is stated that based on the complaint of the sixth respondent, a case in Cr.No.105/08 was registered and investigation is in progress. Though it is contended by learned counsel for the sixth respondent that first petitioner is not allowing the second petitioner to write her examinations and as such her academic career would be spoiled, but, however, during the course of arguments, learned counsel for petitioners filed a memo in which it is stated that first petitioner will not interfere with the studies of the second petitioner and he will cooperate with her to appear for examinations, which have already commenced. The said undertaking is placed on record. Though it is the case of the petitioners that there is interference by the Police, but, however, in view of the investigation taken up on the complaint of the sixth respondent, it cannot be said that there is interference. Further, as it is the claim of the petitioners that they were married and the second petitioner has expressed her willingness to go along with the first petitioner, I dispose of the writ petition directing respondents 1 to 5 not to interfere with the life and liberty of the petitioners. However, it is made clear that it is open for the respondent-Police to proceed with the investigation in Cr.No.105/08 on the file of the S.R. Nagar Police Station, Hyderabad, which was registered based on the complaint of the sixth respondent about the alleged kidnapping of the second petitioner by the first petitioner and his associates. The said investigation shall be proceeded with on its own merits uninfluenced by any of the observations made in this order and final report shall be filed as expeditiously as possible. No order as to costs. __________________________ JUSTICE R. SUBHASH REDDY. February 13, 2008 MRR [1] 2006 (2) ALT 383 (D.B.) [2] AIR 1978 SC 1351