Crl. Writ Petition No. 563 of2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Writ Petition No. 563 of 2008 Date of Decision: 4th August, 2008 Jaivir Singh .....Petitioner VERSUS State of Haryana etc. .....Respondents Crl. Writ Petition No. 616 of 2008 Mahabir Singh ......Petitioner VERSUS State of Haryana and others .......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present:- Mr. Vikram Singh, Advocate for the petitioner. Mr. S.S.Goripuria, DAG, Haryana.. Mr. N.R.Dahiya, Advocate for the parents of detenue Jyoti. RAKESH KUMAR JAIN, J. This order will dispose of Crl. Writ Petition Nos. 563 of 2008 and 616 of 2008. Both these petitions have been filed under Article 226 of the Constitution of India for issuance of writ in the nature of Habeas Corpus for release of Jyoti, detenue from the illegal custody of respondent no. 4 namely Incharge, Nari Niketan, Karnal, District Karnal. The prayer made in Crl. Writ Petition No. 563 of 2008 is as under:- “In view of the above, it is, respectfully prayed that this petition may kindly be allowed and a writ in the nature of Habeas Corpus for release the Jyoti wife of Yesvir (detenue) from the illegal custody of respondents no. 4 may kindly be issued. AND It is further prayed that a Warrant Officer for the search of Nari Niketan Karnal or any other place as pointed out by the petitioner for the release of Jyoti (detenue) from illegally custody of Crl. Writ Petition No. 563 of2008 2 the respondents No.4 may kindly be appointed. AND Any other appropriate order or direction as it may deem fit and proper in the facts and circumstances of the present case.” The prayer made in Crl. Writ Petition No. 616 of 2008 is as under:- “In view of the above, it is respectfully prayed that this petition may kindly be allowed and a writ in the nature of Habeas Corpus for release of Jyoti the minor daughter of petitioner from the illegal custody of respondent no. 4 may kindly be issued. It is further prayed that a Warrant Officer for the search of Nari Niketan Karnal or any other place as pointed out by the petitioner for the release of Jyoti minor from illegal custody of the respondents No.4 or any other person, may kindly be appointed. AND Any other appropriate order or direction as it may deem fit and proper in the facts and circumstances of the present case” Crl. Writ Petition No. 563 of 2008 has been filed by Jaivir Singh, alleged Devar of detenue Jyoti whereas Crl. Writ Petition No. 616 of 2008 has been filed by Mahabir Singh, father of Jyoti. The facts as stated in Crl. Writ Petition No. 563 of 2008 are that Jyoti aged 18 years having been born on 9.1.1990 and Yesvir, aged more than 23 years of age, having been born on 26.1.1985 got married on 5.6.2008 as per Hindu Rites with their free will but against the wishes of parents of Jyoti. In view of the constant threat to their life and liberty, at the hands of parents of Jyoti, both made representation to Superintendent of Police, Bhiwani and thereafter filed Crl . Misc. Petition No. 15610-M of 2008 for seeking necessary protection. According to the petitioner, the aforesaid Crl. Misc. was disposed of on 24.6.2008 by this Court in which the following order was passed:- Crl. Writ Petition No. 563 of2008 3 “Heard. Both the petitioners are present in Court. Learned counsel for the petitioners submits that the petitioners have married against the consent of family members of petitioner No.1 and for that reason, they apprehended danger to their lives. They have also moved an application to the Superintendent of Police., Bhiwani In case, an application is submitted the Superintendent of Police., Bhiwani, may look into the same and in case, the facts stated therein are found to be correct and any danger to the life and liberty of the petitioners is found, he shall provide necessary protection to the petitioners. The petition is disposed of.” According to the counsel for the petitioner, after obtaining the order dated 24.6.2008 both Jyoti and Yesvir approached respondent no.2 on 26.6.2008 who had directed respondent no.3 to produce them before the Judicial Magistrate Ist Class,Charki Dadri as a FIR no. 84 dated 7.6.2008 under Sections 363, 366,34, 376 IPC was registered at Police Station, Charki Dadri, District Bhiwani at the instance of father of Jyoti. It is further stated that on 26.6.2008 statement of Jyoti was recorded under Section 164 Cr.P.C. In which she had desired to go with her husband Yesvir but considering the safety of Jyoti she was not sent to her parents rather she was sent to Nari Niketan, Karnal. The order dated 26.6.2008 reads as follows:- “Jyoti D/o Mahabir S/o Hawa Singh has been produced before me by the IO concerned with a request of recording her statement under Section 164 Cr.P.C. Statement of Jyoti has been recorded separately. It be sealed after supplying a copy thereof to the IO concerned as per Crl. Writ Petition No. 563 of2008 4 rules. In her statement, she has desired to go with her husband, Yashbir, who has been remanded to judicial custody. Considering the safety point of Jyoti she has not been sent to her parents and there being no way for her to go. She be sent to Nari Niketan Karnal with a direction to the authority to produce her to the court of Ld. Illaqa Magistrate on 10.7.2008.” The petitioner has prayed in this petition that Judicial Magistrate Ist Class has wrongly and illegally sent Jyoti to Nari Niketan when she has categorically stated in her statement that she is major and has performed the marriage with Yesvir with her free will. Therefore, her detention with respondent no.4 is illegal and violative of Article 21 of the Constitution of India. In the Writ Petition No. 616 of 2008 filed by the father of detenue Jyoti, it is alleged that in the evening of 4th June, 2008, Yesvir son of Chand Singh had illegally lured and abducted his minor daughter that resulted into the registration of FIR No. 84 dated 7.6.2008 under Sections 363, 366, 34, 376 IPC. On 26.6.2008 Jyoti was produced before the Judicial Magistrate Ist Class, Charki Dadri. After recording her statement she was sent to Nari Niketan and Yesvir has been sent to police custody. It is alleged that Jyoti was born on 5.1.1991 and is a minor and not of marriageable age. It is alleged that Jyoti was never married to Yesvir. On these premises, the counsel for the petitioner has prayed that daughter of the petitioner be released from Nari Niketan. Mr. Vikram Singh, counsel for the petitioner in Crl. Writ Petition No. 563 of 2008 has argued that Jyoti is more than 18 years of age and has sworn an affidavit (Annexure P-5) to the effect that she has got married with Yesvir without any pressure or coercion and is living with him as his wife. Counsel for the petitioner has vehemently argued that it has come on record in the order dated 26.6.2008 passed by Judicial Magistrate Ist Class, Chakri Dadri, that Jyoti wanted to go with her husband Yesvir and is apprehending danger to her life from her Crl. Writ Petition No. 563 of2008 5 parents. Therefore, her detention in Nari Niketan against her wishes is illegal. The Counsel for the petitioner has relied upon a Division Bench judgement of Delhi High Court in the case of Neetu Singh versus State 1999 (1) PLR (Delhi) 47 (DB), a Single Judge judgement of this Court in the case of Balwinder Singh @ Binder versus State of Punjab and others 2008 (3) RCR (Civil) 1 and a judgement of the Himachal High Court in the case of Seema Devi alias Simaran Kaur versus State of Himachal Pradesh 1998 (1) RCR (Crl) 697. On the other hand, Sh. N.R.Dahiya, counsel for the petitioners in Crl. Writ Petition No. 616 of 2008 has argued that Jyoti is minor as per the certificate Annexure P-1 and secondly that there is no proof of marriage on record. He has also argued that in any case, Jyoti cannot be detained in Nari Niketan against her wishes. Although it is not prayed in the petition but during the course of arguments, it was submitted that in view of the provisions of Guardians and Wards Act and Hindu Minority and Guardianship Act, the custody of the detenue should be handed over to her parents. I have heard both the counsel for the parties and have perused the record in detail. Basically, the prayer in both the cases is similar i.e. for the issuance of writ in the nature of Habeas Corpus for release of Jyoti from illegal custody of respondent no.4. Thus, I shall deal with this prayer at the first instance. The law which has been cited by Mr. Vikram Singh, counsel for the petitioner leaves no doubt that even a minor girl cannot be kept in Nari Niketan against her wishes. In the case of Neetu Singh (supra) the facts are that the girl had married against the wishes of her parents and had left her parents house on her free will. However, mother lodged a complaint against her husband leading to registration of FIR under Section 363 IPC. The girl was sent to Nari Niketan by an order passed by the Metropolitan Magistrate. In this case, although it was alleged by the detenue that she is major, but the Court had held that even if it is assumed that Neetu Singh Crl. Writ Petition No. 563 of2008 6 was minor on the date of marriage, she cannot be detained in Nari Niketan against her wishes. Secondly, in the case of Balwinder Singh's case (supra) detenue Sarabjit Kaur got married to Balwinder Singh against the wishes of her parents. Her mother lodged FIR under Section 363, 366, 376 IPC in which husband and his family members were arrested and Sarabjit Kaur was sent to Nari Niketan as she did not want to go with her mother. In this case, it was held that even if the girl is minor, she cannot be kept in Nari Niketan against her wishes. In the case of Seema Devi (supra) Seema Devi got married to Ajmer Singh, which led to registration of FIR under Sections 363, 366, 368, 376, 120-B IPC and she was detained in Nari Niketan by the order of the Additional Chief Judicial Magistrate. It was claimed by the parents of Seema Devi that she was only 15 years of age. Therefore, the marriage was illegal. The Hon'ble Himachal Pradesh High Court held that even if the girl is minor who has wished to go with her husband, the Court had no jurisdiction to detain her in Nari Niketan against her wishes. No judgment has been cited by Mr. N.R.Dahiya, Advocate, appearing on behalf of petitioners in Crl. Misc. No. 616 of 2008 in this regard. But as observed earlier, he has also made the same prayer that the detenue Jyoti should be released from Nari Niketan. Secondly, counsel for the petitioner, Mr. N.R.Dahiya has further argued that there is no proof of marriage, much less a valid marriage and since, the detenue is a minor, therefore, as per the Guardians and Wards Act and Hindu Minority and Guardianship Act, the father has a right to get the custody of his minor daughter. Therefore, on the release of the detenue from the Nari Niketan, her custody be handed over to the father. So far as the question of valid marriage and custody of the detenue is concerned, it has been held in the case of Seema Devi (supra) as under:- “It is not in dispute that the parties are Hindus and they are governed by the Hindu Marriage Act, 1955. Section 5(iii) provides Crl. Writ Petition No. 563 of2008 7 that a marriage may be soleminised between any two Hindus if the conditions set out in the Section are fulfiled and the conditions in Sub-section (iii) (sic) is that the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of the marriage. For the purpose of this petition, I will assume that the complaint of the 2nd respondent that the petitioner herein was aged only 15 years is true. Even so, the marriage has not been invalidated by the provisions of the Hindu Marriage Act. Section 11 of the Act deals with void marriages. That section relates only to marriages held in contravention of Clauses (i), (iv) and (v) of Section 5. That section does not refer to Clause (iii) of Section 5. Section 12 refers to voidable marriage. That section deals only with marriages in contravention of the conditions specified in Clause (ii) of Section 5. That section does not also deal with clause (iii) of Section 5. Thus the marriage in contravention of clause (iii) of section 5 is neither void nor voidable under the provisions of the Hindu Marriage Act. The only other relevant provision is Section 18 of the Act, which provides for punishment for contravention of the conditions specified in Sec. 5 that includes Section 5(iii) also. The punishment will be imprisonment, which may extend to 15 days or with fine, which may extend to Rs. 1,000/- or both. Thus, the only provision, which will come into play in the event of contravention of Sec. 5(iii) is Sec. 18 of the Hindu Marriage Act and nowhere does the Act declare the marriage to be illegal or invalid or void.” If the 2nd respondent being the father wants to have the custody of his daughter on the ground that she is a minor, he should approach the appropriate Civil Court and file appropriate petition under the provisions of the Guardians and Wards Act and the Hindu Crl. Writ Petition No. 563 of2008 8 Minority and Guardianship Act. Without doing so in the criminal proceeding, he cannot get an order for custody with himself.” Since in both the petitions there is a common prayer that the detenue should be released from custody of respondent no.4 as she cannot be detained in Nari Niketan against her wishes, I am of the view that in view of the decision rendered by the Division Bench in the case of Neetu Singh (supra), Single Judge in case of Balwinder Singh (supra) and Seema Devi (supra), detention of the detenue Jyoti in Nari Niketan is patently illegal. Thus, for the reasons recorded hereinabove, the instant petition is accepted and respondent no.4 is directed to release the detenue forthwith. So far as her custody is concerned, in the facts and circumstances of this case, where the girl has categorically stated before the Judicial Magistrate, Ist Class that she wanted to go with her husband and it was found by the learned Magistrate that she would not be safe, if the custody is handed over the parents, I deem it appropriate to allow her to go anywhere as per her wish. The petitions, thus, stand disposed of in the above said terms. August 04, 2008 (Rakesh Kumar Jain) rekha Judge