IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.1016 of 2011 Maheru Khatoon @ Maheru Fatma w/o Md.Salam, resident of village- Makurjan, P.S. Dandkhora, District- Katihar. …………..Petitioner. Versus 1. The State Of Bihar through its Home Secretary, Bihar, Patna. 2. The Superintendent, After care Home, Gaighat, Patna. 3. Md. Ibrahim Raja s/o Abdul Latif, resident of village- Purana Derua, P.S. Dandkhora, District- Katihar. ……….Respondents. ----------- For the Petitioner : M/s Ranjeet Kumar Singh and Pawan Kumar Singh. For the State : Advocate General, Bihar, Patna 3 20.10.2011 By the present writ application, the petitioner has sought for a writ of habeas corpus for her release from illegal confinement in the After Care Home (Nari Niketan, Gaighat, Patnacity) on the ground that she is a major and the learned Chief Judicial Magistrate, Katihar could not have remanded her. A supplementary affidavit has been filed bringing on record the order dated 23.5.2011 of the learned Chief Judicial Magistrate, Katihar, by which she has been remanded. We are indeed surprised by the order specially because the petitioner is neither an accused of an offence or wanted in connection with an offence. At best she was a victim herself. The facts are not in dispute. On 10.5.2011,Dandkhara P.S.Case no.41 of 2011 was lodged under Sections 366A, 120B and 34 of the Indian Penal Code by the father of the petitioner, inter alia, alleging that the petitioner, who was alleged to be 16 years old was kidnapped in the night of 2.5.2011 by Md. Salam and others, who were named in the FIR. The police - 2 - investigated the matter. In course of investigation, the petitioner was recovered and produced before the learned Chief Judicial Magistrate, Katihar, who forwarded her for recording her statement under Section 164 of the Code of Criminal Procedure , which was recorded on 23.5.2011. In her statement, she disclosed her age at about 19 years though the Court assessed her at 18 years. She disclosed that she had married Md. Salam out of her own will, who happens to be the son of sister of her aunt and she wanted to stay with her husband and her in laws. On the same day she was sent for medical examination as well. Medical examination was done by the Medical Officer of Sadar Hospital, Katihar, who opined that she was about 18-19 years of age. On that day, application for her release was filed by her father.Apparently her father annexed her certificate granted by the Bihar State Madarsa Board, which showed her date of birth to be 5.4.1994 by which she would be slightly above 17 years of age. Apparently considering this fact that she was still below 18 years and thus a minor and that she had expressed her unwillingness to go to her parents rather preferred to go to her in-laws, the Chief Judicial Magistrate remanded her to After Care Home where she has been languishing . It cannot be disputed that in view of the certificate issued by the Bihar State Madarsa Board by now she is more than 17 ½ years of old. It appears that considering the medical report and other evidences, the police had concluded the investigation and filed a final report in the shape of mistake of fact on 31.5.2011. The question is - 3 - whether the learned Chief Judicial Magistrate was right in remanding her to the After care Home. Having heard learned counsel for the petitioner and the learned Advocate General, Bihar, Patna, we are of the view that the order of learned Chief Judicial Magistrate cannot be sustained. The first thing that has to be kept in mind is we are dealing with a muslim boy and muslim girl, who are governed by their own Muslim Personal Law. The second thing is that the medical report showed the girl to be 18-19 years and the Court also while recording her statement under Section 164 of the Code of Criminal Procedure assessed her age to be 18 years. The importance of being muslim is that under Muslim Personal Law a girl is entitled to be married once she attains the age of puberty, which unless contrary is shown is taken to be 15 years. Once a muslim girl even though is a minor is entitled to marry and she admits her marriage then arises the question of her guardianship till she attains majority. Until the time she is married it would be her parents that would be the guardian but once she is married and the marriage is accepted, it would be her husband who become the guardian. The parents loses the guardianship right unless she is abandoned by her husband. If this is kept in mind then by no stretch of imagination, the order of learned Chief Judicial Magistrate can be sustained. Even if we go by the certificate granted by the Bihar State Madarsa Board, she was above 17 years of age. She is a muslim, she admitted her marriage and as such the learned Chief Judicial Magistrate had no jurisdiction to order her remand to After Care Home. She had - 4 - clearly evinced her wish to go to her in-laws rather than her parents. In view of the aforesaid, we have no option but to quash the order of learned Chief Judicial Magistrate, Katihar, and direct the Superintendent of After Care Home (Nari Niketan, Gaighat, Patnacity) to immediately release the petitioner to the care of her husband or her father-in-law upon proper identification. We may also note one fact that once a girl is found to be above 18 years of age, she cannot be remanded to After-Care-Home. She is competent to decide where she will go and with whom she will live. She being an adult, her decision may be contrary to what her parents or others wanted, but no law can prevent her in exercising her option in that regard. In view of the aforesaid, the writ petition is allowed. Let a copy of this order be sent to the Superintendent of After Care home (Nari Niketan, Gaighat, Patnacity) by FAX at the cost of the petitioner. SINGH (Navaniti Prasad Singh.J) (Ashwani Kumar Singh,J)