IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT PETITION No. 11179 of 2009 Between: Mala Madhukar, S/o. Samson, R/o. Marpally Village and Mandal, Ranga Reddy District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. byits Principal Secretary, Home Department, Secretariat, Hyderabad. 2 The Station House Officer, Marpally Police Station, Ranga Reddy District. 3 The Superintendent, Government Special-cum-Children, Home for Girls and observation Home for Girls H.No. 3-1-818, Niboliadda, Kachiguda, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ order or direction more particularly one in the nature of Writ of Habeas Corpus by declaring the against the action of the respondent No.2 & 3 in keeping the detenue namely M. Mamatha, in the3rd respondent Home as illegal, arbitrary, and against the principles of natural justice and violative of Article 14, 19 and 21 of Constitution of India. Consequently direct the respondents to produce the detenue namely M. Mamatha, before this Hon'ble Court and set him liberty forthwith and pass Counsel for the Petitioner:MR.CHALLA.SRINIVASA REDDY Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.11179 of 2009 ORAL ORDER : (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel for the petitioner as well as the learned Assistant Government Pleader, representing the learned Advocate General, appearing for the respondents. 2. This Writ of Habeas Corpus is filed by the petitioner seeking a direction to the respondents to produce his wife viz., M.Mamatha, who is in the custody of the 3rd respondent-rescue Home, before this Court and set her at liberty. 3. The grievance of the petitioner in this writ petition is that both the petitioner and the alleged detenu fell in love with each other and he married the alleged detenu with her consent and also with the consent of his parents at Are Maisamma Temple in the presence of his friends. Thereafter, basing on the complaint lodged by the father of the alleged detenu, a case in Crime No.130 of 2008 for the offences punishable under Sections 366(A) I.P.C., of Marpally Police Station, Ranga Reddy District, was registered and the petitioner was arrested and remanded to judicial custody. Upon production before the Judicial First Class Magistrate, Vikarabad, since the alleged detenu refused to go along with her parents, she was kept in the custody of the 3rd respondent-rescue Home. Hence, the petitioner seeks a Writ of Habeas Corpus for production of the alleged detenu before this Court and to handover her custody to him. 4. As per the directions of this Court, the alleged detenu has been produced before this Court today. Upon being questioned by this Court, the alleged detenu stated that she born in the year 1990, but erroneously her year of birth was recorded in the School records as 1992. Therefore, she submits that she a major and has every liberty to go anywhere as per will and wish. 5. However, this Court is not convinced with the said submission of the alleged detenu, inasmuch as the school record produced before this Court shows that the alleged detenu had born in the year 1992. When there is no contra and reliable material on record, this Court cannot deviate from the entries made in the school records. 6. It also appears that the alleged detenu had been referred for the opinion of the Doctor, who estimated the age of the alleged detenu as 18 years as on the date of medical examination. But, it is indiscernible as to why and how the alleged detenu was subjected to medical examination when the statutorily acceptable record maintained by the school authorities is available. Such reference could and should have been made to the Doctor to assess the age of a person only when there is no record as regards the age of that person. But, in the instant case, the school record of the alleged detenu is very much available, which shows that she is a minor and as on today she completed only 16 years. Therefore, we can safely arrive at a conclusion that the alleged detenu is a minor and she has no liberty to move as per her will and wish. 7. Further, both the petitioner as well as the alleged detenu asserts that they married each other and the marriage also had been consumated. In tune with the versions of both the petitioner and the alleged detenu, the parents of the petitioner, who are also present before this Court, asserted about the consummation of marriage of the petitioner and the alleged detenu. The parents of the petitioner further stated that the parents of the alleged detenu are distinctly related to them having belonging to the same community and same village and they are prepared to receive the alleged detenu as their daughter-in-law and would extend all cooperation to the alleged detenu in prosecuting her studies. They also asserted that they would treat the girl with all dignity and decency. 8. When the petitioner and his parents themselves had given assurance about the welfare of the alleged detenu, in fact, we cannot have any hesitation to handover the custody of the alleged detenu to the petitioner and his parents. But, the whole controversy is with regard to the age of the alleged detenu, who is a minor. 9. Now, the question is whether a minor can be permitted to marry a person and go along with that person? 10. The answer would be that the marriage cannot be said to be a valid marriage and, at the same time, the same cannot be declared as a void marriage. In fact, when a similar situation had arisen, a Division Bench of this Court in Makemalla Sailoo v. Superintendent of Police, Nalgonda[1] while considering various provisions of the Hindu Marriage Act, 1955 (for brevity “the Act”) had elaborately dealt with the effect of Section 11 of the Act, to be read in conjunction with Section 18 of the Act, which is a penal provision. Section 18 of the Act, in fact, postulates that if the marriage is performed in contravention of the conditions specified in clauses (iii), (iv) and (v) of Section 5 of the Act shall be punished with imprisonment of fifteen days or with fine which may extend to one thousand rupees or with both. It was further pointed out that there is no clear provision, which makes a marriage solemnized in contravention of clause (iii) of Section 5 of the Act as void and, therefore, there was nothing in the Act which would make a marriage illegal, if it is solemnized if the bride had not completed the age of 18 years. Therefore, it was pointed out that in view of the penal provision under Section 18 of the Act, though the marriage performed is not in accordance with the provisions of the Act, the same cannot be declared as illegal. 11. In this context, the Division Bench had further discussed about the effect of the provisions of the Child Marriage Restraint Act, 1929 also. In view of the elaborate discussion and also basing on the decisions of other High Courts in Shankerappa v. Sushilabai - AIR 1984 KARNATAKA 112, which was rendered by relying on a judgment of the Hon’ble apex Court in Smt. Lila Gupta v. Laxmi Narain and others – AIR 1978 SC 1351, and also keeping in view the overriding effect of the Act, their Lordships of the Division Bench held that such marriage of the minor cannot be declared as illegal, but can only be a voidable marriage. 12. After all, the Court also shall think the circumstances in which the minor girl has been placed. Her safety and status as regards mental, physical and social are the absolute necessities till she attains the age of majority. 13. In fact, we reiterate the observations made by a Division Bench of this Court in Makemalla Sailoo’s case (supra), which are as under: “……It is for legislature to look into the serious issues. Let a copy of the judgment be sent to National Women Commission and also to State Women Commission.” 14. In view of the peculiar facts and circumstances of the case on hand, which is absolutely similar to the facts in Makemalla Sailoo’s case (supra), we are of the opinion that in view of the marriage of the petitioner with the alleged detenu, which was accepted by the parents of the petitioner, and also in view of the supportive assurance given by the parents of the petitioner to the alleged detenu in prosecuting her further studies, we feel that it is desirable to give the custody of the alleged detenu to the petitioner-husband, who is living along with his parents. 15. In the result, the writ petition is disposed of, at the stage of admission, directing the respondents to release the alleged detenu viz., M.Mamatha from the custody of the third respondent-rescue Home, forthwith, and handover her custody to the petitioner. There shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 30-06-2009. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO WRIT PETITION No.11179 of 2009 30-06-2009 (Msr) [1] 2006 (2) ALD 290 (DB)