1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 674 OF 2008 Manik Dinkar Jagtap. ...... Petitioner. Versus The State of Maharashtra.. ...... Respondent. Mr. P. M. Havnur for the Petitioner. Mrs. U. V. Kejariwal, Addl.P.P. for the State. -: ALONG WITH :- CRIMINAL WRIT PETITION NO. 849 OF 2008 Gautam Sameer Dasgupta. ...... Petitioner. Versus The State of Maharashtra & Ors... ..... Respondents. Mr. A. S. Khandeparkar, Sr. Counsel with Mr.Mohan Tekavde, Mrs. Swati M. Tekavde and Mr.Sachin Dere for the Petitioner. Mrs. P. H. Kantharia, Addl.P.P. for the State. CORAM: BILAL NAZKI and A. P. BHANGALE, JJ. DATED : 30TH APRIL, 2008. P. C.: The Writ Petition No. 674 of 2008 is filed by a person, who is father of a girl Tejashree, who has been sent to Childrens Home by an order of this Court earlier in Criminal Writ Petition No. 395 of 2008. The father wants custody of the girl and also wants that he should be allowed to have 2 a child aborted which the girl Tejashree has conceived. 2. The Writ Petition No. 849 of 2008 is filed by the boy, who claims to be the husband of Tejashree, seeking her custody. 3. When the earlier writ petition No.395 of 2008 came up before this Court, the statement of the girl was recorded. She stated before the Court that she had married Gautam Sameer Dasgupta and she was desirous of staying with Gautam only. However, the Court did not grant her custody to her husband on the ground that she was not 18 years of age and therefore the Court said, “She is desirous of staying with him. However, having found that she has not completed 18 years of age, we cannot accept her desire to go along with Gautam. Nevertheless, she has expressed her desire not to return to her father and mother and taking into consideration her said desire, we find it appropriate to keep Tejashree in the Childrens Home, Dongri, till she attains the age of 18 years. On completion of 18 years of age, Tejashree is free to go, according to her will, either with Gautam and/or with her father and mother and/or anywhere else as she desires.” 4. After this girl was sent to Childrens Home, the present petition came to be filed by the father on the ground that the statement she had made before the Court while earlier writ petition was pending, was the result of duress and pressure. Therefore, we again directed the Childrens Home to 3 produce the girl. She was produced on 28th April, 2008. We examined her in Chamber in the absence of everybody and we also examined her in the presence of her parents. She was adamant not to go to her parents and she accepted that she had married out of her own free will with Gautam. She also stated that she was carrying 4 months and that her parents were adamant to get her aborted which she was not prepared to do. She was desirous that we should allow her to go with her husband on the same day. She expressed that she was also not happy to stay in the Childrens Home. Then we adjourned both these cases for two days to hear the arguments of the learned Counsel for the parties. 5. In this background, the cases have been heard today. We have heard learned Counsel for the parties. Learned Counsel for the husband of Tejashree has drawn our attention to a Judgment of the Andhra Pradesh High Court in the case of Makemalla Sailoo & Anr. V/s Superintendent of Police, Nalgonda Dist. & Ors., reported in II (2006) DMC 4 (DB), in which it is laid down that the marriage of the minor under the Hindu Marriage Act was an offence but is not an invalid marriage. While dealing with the case, the Division Bench of the Andhra Pradesh High Court observed in para 8 as under: "When minimum age of the bride and the bridegroom for a valid marriage is prescribed in Condition (iii) of Section 5 it would only mean personal incapacity for a period because every day the 4 person grows and would acquire the necessary capacity on reaching the minimum age. Now, before attaining the minimum age if a marriage is contracted Section 11 does not render it void even though Section 18 makes it punishable. Therefore, even where a marriage in breach of a certain condition is made punishable yet the law does not treat it as void. The marriage in breach of the proviso is neither punishable nor does section 11 treat it void.” The Division Bench of the Andhra Pradesh High Court also referred the case in Shankerappa v/s Sushilabai, AIR 1984 Kar. 112, wherein the Division Bench of the Karnataka High Court held that the marriage solemnized in violation of the conditions concerning age of eligibility of Section 5(iii) would not be a nullity and such a violation is only made punishable under Section 18. Paras 10 and 11 of the Makemalla Sailoo (Supra) read as under: "10. Now the question remains whether the girl who has married, according to her, 3rd respondent and who is not willing to go with her parents can be allowed to live with the 3rd respondent. In this connection, we can rely on the provisions of the Hindu Minority and Gaurdianship Act, 1956. This Act has an overriding effect under Section 5 which lays down: "5. Overriding effect of Act. - Save as otherwise expressly provided in this Act- (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions 5 contained in this.” 11. Minor is defined under Section 4(a) as a person who has not completed the age of 18 years. Section 6 defines the natural guardians of a Hindu minor and it lays down that the natural guardians of a Hindu minor, in respect of his person and property would be the father in case of a boy or an unmarried girl and then it mentions other guardians who can be guardians after the father. Under Section 6(c) it lays down that in the case of a married girl, the husband would be a natural guardian. So this Act in a way recognizes the marriages of minor girls. The Act deals with minors and mentions the husband as a guardian of a married girl. This itself conveys the intention of the Legislature that for a married minor girl, guardian would be the husband. There cannot be any guardian for a major under the Hindu Minority and Guardianship Act, 1956. Therefore, the only meaning which has to be given to Section 6(c) is that if a minor girl is married, her natural guardian is the husband” The Andhra Pradesh High Court while concluding in para 12 observed as under: "We have no option, but to allow this girl who is only 13 years old to go with her husband, but we feel that the Legislatures have not done much to stop the child marriages which are a menace. We cannot expect healthy growth of the society if a child of 12 years is allowed to be married. There are so many Acts, to which a reference has been given by us hereinabove, which make the child marriage an offence, but which do not make the child marriage a void marriage. Since the marriage which has taken place between the alleged detenue and the 3rd respondent is a valid marriage in the eye of law, though it may be an offence under various provisions of various statutes, yet the marriage cannot be nullified and under the Hindu Minority and Guardianship Act, 1956 the 3rd respondent becomes a natural guardian of the detenue.” Even the Supreme Court has held the same view in Lila Gupta (Smt. V/s Laxmi Narain & Ors., reported in AIR 1978 SC 1351, finding a child 6 marriage not to be an illegal marriage. On the question of custody the Hindu Minority and Guardianship Act, 1956 provides that a husband is natural guardian of a minor wife. 6. As such we have no other alternative but to allow the girl, namely, Tejashree to go with Gautam Sameer Dasgupta, who is her husband. Learned Counsel for the petitioner in Writ Petition No. 674 of 2008, however, submitted that there is nothing in the petition to show that the marriage between Gautam and Tejashree was performed according to Hindu Rites. That is a question which we will not be able to address in this petition of habeas corpus. Prima facie, both boy and girl are husband and wife as both of them claim such a relationship. 7. Considering the desire of Tejashree to go with her husband Gautam Sameer Dasgupta, who is also ready to give undertaking that he will take utmost care of his wife Tejashree, according to law he is natural guardian of his minor wife Tejashree till she attains the age of majority i.e. 18 years, he is entitled to claim her custody. 8. In the circumstances, both the writ petitions are disposed of with a direction that the Officers of the Childrens Home to handover custody of the girl Tejashree to Gautam Sameer Dasgupta, who is her husband forthwith. Gautam Sameer Dasgupta, who is present in Court, shall give written undertaking, in the form of an affidavit to be filed in this Court 7 within ten days from today, that he will take utmost care of his wife Tejashree. Sd/- (BILAL NAZKI, J.) Sd/- (A. P. BHANGALE, J.)