As already recorded in the order dated 24.01.2014, this application has been moved by Sanjeeda who was alleged to be a detenue in the main writ petition which was filed by her father, Yunus Khan. Somehow this application (CRM-M No.930 of 2014), was treated to be a separate petition under Section 482 Cr.P.C., by the Registry of this Court Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:2:- CRWP No.1247 of 2013 and was listed as such, even though the power of attorney annexed with the petition is executed by the said Sanjeeda in favour of her counsel Mr. K.B. Raheja, and there is no power of attorney executed by Yunus Khan who was shown to be the petitioner in the petition/application, i.e. CRM No.930 of 2014.

2. The application, as a matter of fact, seeks modification of the order passed by this Court on 19.12.2013, in CRWP No.1247 of 2013. As such vide the above mentioned order dated 24.01.2014, it had been directed that the petition (CRM-M No.930 of 2014) be treated as an application moved in CRWP No.1247 of 2013 and not as a separate petition, which in any case it could not have been, in view of the fact that the title is shown to be Yunus Khan vs. State of Haryana and Ors. whereas it is moved on behalf of Sanjeeda and consequently cannot be an independent petition by Yunus Khan.

3. Though arguments were heard in detail and judgment was reserved on 29.1.2014, after notice had been issued on 24.1.2014, it is now seen that the application is not supported by an affidavit. The note given at the end of the petition is to the effect that the applicants' affidavit could not be filed as she is in custody.

4. Though obviously she is not in custody having been sent to the protection home vide order of this Court, however, since her affidavit is not on record, it would be necessary to obtain her presence in Court to ascertain the correctness of the contents of the application.

5. Therefore, even though the matter is being adjudicated upon by this order itself, Sanjeeda would be ordered to be released from the Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:3:- CRWP No.1247 of 2013 protection home only upon her appearance before this Court and upon recording of her statement along with that of respondent No.4, i.e. Imran s/o Hameeda, whom she is stated to have married.

6. The reasons for ordering that she be released to the custody of the said Imran are given hereinunder, after discussion of the arguments raised on behalf of all parties concerned.

7. A brief background to the case is that the petition (CRWP No.1247 of 2013) was filed by Yunus Khan seeking a writ in the nature of Habeas Corpus for the production of his daughter, i.e. the present applicant, after securing her release from the allegedly illegal and unlawful custody of respondents No.4 to 6, of whom respondents No.5 and 6 are stated to be the parents and respondent No.4, their son. Connivance of respondents No.7 and 8 was also alleged, in keeping Sanjeeda in the illegal custody of respondents No.4 to 6.

8. Notice in this case had been issued on 14.06.2013 by a co- ordinate Bench and when it came up for hearing on 04.07.2013, this Court had recorded the contentions of counsel for Yunus Khan (petitioner), that respondent No.4 (Imran) and the present applicant (Sanjeeda) had got an order of protection in their favour from this Court on 31.05.2013 in CRM-M No.19094 of 2013, without disclosing that an FIR has been registered against respondent No.4 and others, for the alleged kidnapping of the applicant who was stated to be less than 18 years of age.

9. Subsequently, the Commissioner of Police, Faridabad, had been summoned to Court after the case made no headway with regard to production of the alleged detenue (present applicant) and eventually she was Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:4:- CRWP No.1247 of 2013 produced in Court on 18.11.2013.

10 In the order recorded on that date, it had been observed that since the alleged detenue has been brought to Court it would otherwise have rendered the writ petition infructuous but in view of her status as a minor, who had nevertheless stated that she had married respondent No.4, it would need to be determined as to whether she be released to the custody of the petitioner, i.e. her father, or to the said respondent.

11. Issues on her majority / minority status had been raised on either side and, in addition, it had also been argued by Mr. Rajesh Lamba, learned counsel for respondent No.4, that being a Muslim girl, the marriage would have to be treated as a valid marriage since she was indisputably passed the age of puberty, which fact could not be denied even by her father, Yunus Khan.

12. However, learned counsel for the petitioner had contended that there was no valid 'nikah' performed either, and as such, she could not be treated to be the wife of respondent No.4 and hence the question of giving her in custody to him would not arise.

13. In view of the above contention, the Commissioner of Police was directed to enquire into the matter and file an affidavit with regard to the age of the alleged detenue (present applicant), detenue after obtaining proof in that regard from the school which she attended.

14. Consequently, an affidavit had been filed by the Commissioner of Police, Faridabad, dated 25.11.2013, that as per record of the Maharishi Parsu Ram Vidhya Mandir, Ballabgarh, the date of birth of the applicant was found to be 10.08.1998, thus making her slightly above 15 years of age. Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:5:- CRWP No.1247 of 2013 This was controverted by the counsel for respondent No.4 as also by the applicant herself, to the effect that she had actually studied in Shiv Shakti Public School, Sector 18, Faridabad and her correct date of brith should be verified from there.

15. The matter was again ordered to be enquired into and direction was also given to determine from the Wakf Board, or other competent authority, as to whether the Qazi who performed the nikahnama was authorized to do so or not.

The girl herself was ordered to be taken to the Protection Home, in Sector 19, Chandigarh.

Ossification and dental tests were also ordered to be conducted upon her, from the Government Medical College & Hospital, Sector 32, Chandigarh.

The above directions were given vide order dated 28.11.2013.

16. On 17.12.2013, the Additional Superintendent of Police, Central, Faridabad, had filed an affidavit again reiterating the date of brith as per record of Maharishi Parsu Ram Vidhya Mandir, Ballabgarh, with no reference to the Shiv Shakti Public School, Sector 18, Faridabad, at all. It was also stated in the said affidavit that one ration card given by the petitioner to the Police authorities, which was issued in the year 2005, showed her to be 9 years of age, thus making her about 17 years of age in 2013. However, another ration card was produced by respondent No.4, also of the same year, showing her to be 10 years of age, thus making her about 18 years of age now. It was further stated in the affidavit that on the Aadhar Card of the applicant, her date of brith was shown as 1.1.1995 but proof Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:6:- CRWP No.1247 of 2013 thereof was still to be provided by the Unique Identification Authority of India.

17. As regards the "nikahnama", the affidavit further stated that the Nikah was solemnized by one Qazi Nemat Ullah, Imam, Mosque Inayat Ullah, near Dargah Islam Colony, Mehrauli, New Delhi. As per information obtained from the Delhi Wakf Board, it was stated that Nemat Ullah, Imam, Mosque Inayat Ullah, had been issued an identity Card by the said Wakf Board, the implication being that he was a duly authorized person. Mr. Sarfarj Hussain, learned counsel for the petitioner, could not thereafter, refute that the nikah was not performed by a duly authorized person. This Court had, consequently, arrived at a prima facie opinion, that the nikah seemed to have been validly performed, unless something to the contrary could be produced in the Court, or before an appropriate forum.

18. This was recorded in the order dated 19.12.2013. The said order also records that as per the ossification test conducted in the Government Medical College and Hospital, Sector 32, Chandigarh, Sanjeedas' age was shown to be between 17 to 18 years.

19. Sanjeeda, her father, as also respondent No.4, had been called to chambers separately and together, along with their counsel, and Sanjeeda had expressed her desire to go with respondent No.4.

A request had been made by learned counsel for the petitioner that since the girl was otherwise a minor, even though above the age of puberty, since this Court was of the prima facie opinion that the nikah had been performed by a competent person, therefore, if she was to be released from the protection home, then it should be only on Respondent No.4 Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:7:- CRWP No.1247 of 2013 depositing `5 lacs as security, in her name, by way of a fixed deposit for a period of 5 years.

20. At that point, respondent No.4, albeit reluctantly, had agreed to deposit the said amount. Consequently, the petition had been disposed of with a direction, that upon respondent No.4 depositing `5 lacs in the applicants' name, in a fixed deposit in a nationalized bank, she would be restored to his custody. It was also recorded in the said order that the said order was being passed in view of the fact that she is a minor in terms of the Prohibition of Child Marriage Act 2006 and since respondent No.4 was alleged to have been married earlier also, once / twice, the money was to be deposited by way of security for her.

21. With this detailed background, we come now to the present application filed by Sanjeeda. Upon notice having been issued, Mr. Sarfaraj Hussain and Mr. Rajesh Lamba appeared, along with the petitioner and respondent No.4 respectively and detailed arguments were addressed on the issue of the release of Sanjeeda from the protection home, by all counsel.

22. Mr. Raheja, learned counsel for the applicant, submitted that she had been in custody within 4 walls without any fault of hers, even though she had performed a valid marriage under Muslim Personal Law.

He further argued that Section 12 of the 2006 Act would not be applicable because the applicant was not enticed away and had left as per her own will and had got married as per Muslim Rites, well after having attained the age of puberty. As such it was not a void marriage.

He further submitted that as per Section 3 of the Prohibition of Child Marriage Act 2006, the marriage was only voidable at the instance of Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:8:- CRWP No.1247 of 2013 the minor / child, upon her attaining majority.

He next argued that it being otherwise a valid marriage, the petitioner, i.e. the applicants' father, has no right to challenge the same.

He still further argued that in view of the validity of the marriage, the natural custody of a married female would be that of her husband and not of her father.

On the issue of restoration of the applicant to the custody of respondent No.4, he cited the judgment of a learned Single Judge of the Delhi High Court in Rukshana vs. Government of NCT of Delhi 2007(3) RCR (Criminal) 542.

On the issue of validity of marriage of a minor Muslim girl, he cited a judgment of a Division Bench of the Delhi High Court, in Mohamad Nihal vs. State , 2008 (4) RCR (Criminal) 477 and a Division Bench of the Patna High Court, in Noor Saba vs. State of Bihar 2013(3) PLJR 460. On the issue of keeping a minor Muslim girl, who married a Muslim boy against the wishes of her parents, in a protection home, he cited another judgment of a Division Bench of the Delhi High Court in Bholu Khan vs. State of NCT of Delhi 2013(1) RCR (Criminal) 980. On the general principle of detention of a minor girl against her wishes in a protection home, a judgment of a Co-ordinate Bench of this Court in Shamsher vs. U.T. Chandigarh 2011(5) RCR (Criminal) 677, was cited by him.

On the issuance of a writ of Habeas Corpus by this Court and a direction therein to a girl to accompany her parents, he relied upon a judgment of a Co-ordinate Bench of this Court, in Satnam Singh vs. State of Punjab 2011(3) PLR 722.

Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:9:- CRWP No.1247 of 2013

23. Mr. Rajesh Lamba, appearing for respondent No.4, supported the above arguments of Mr. Raheja and also prayed that the applicant be restored to the custody of respondent No.4.

24. Per contra, Mr. Sarfaraj Hussain learned counsel for the petitioner non-applicant, first raised a preliminary objection with regard to the maintainability of the application on 2 grounds:-

In this regard, he relied upon a judgment of the Hon'ble Supreme Court in State of Kerala vs. M.M. Manikantan Nayar 2001(2) RCR (Criminal) 657 and another judgment of a learned Single Judge of the Calcutta High Court, in Izharun Khatoon @ Nesha vs. Maqsood@ Muksud Alam 2006 (3) Crimes 646.

On merits, he again argued that the natural guardian of a minor would be her father, i.e. the petitioner, and therefore, her custody had to be handed over to him.

He next argued that respondent No.4 having backed out of his promise and having not complied with the order of this Court dated 19.12.2013, by not depositing `5 lacs, was escaping his liability and as such had no right to the custody of Sanjeeda.

Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:10:- CRWP No.1247 of 2013

25. After having considered all the detailed submissions made by learned counsel, in principle, I am inclined to agree with the submissions made on behalf of the applicant, subject to the rider already given at the beginning of the judgment, that she appears in person before this Court and states that she wishes to return to the household of respondent No.4, whom she is stated to have married.

Though an application from a minor would otherwise not be maintainable, however, in view of the fact that it involves the liberty of the minor, I am of the opinion that her statement in Court, with regard to with whom she wishes to go, would determine the issue, in the light of what is being discussed hereinafter, with regard to her marriage being valid, at least by virtue of the fact that she has entered into it by her own consent, after attaining puberty.

26. However, before giving reasoning on the issue of validity of marriage of a Muslim girl below the age of 18 years, the maintainability of this petition in view of the bar under Section 362 of the Cr.P.C, also needs to the discussed.

The provision is reproduced hereinunder:-

In my view the bar would not apply at all, for the reason that the statutory prohibition is with regard to review of any order or judgment passed in proceedings instituted under the provisions of the Code of Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:11:- CRWP No.1247 of 2013 Criminal Procedure, 1973. Obviously it cannot apply to proceedings not held under that Code. The modification that has been sought by the applicant, even though through an application filed under Section 482 thereof, is in an order passed in a petition filed under Article 226 of the Constitution of India, seeking the issuance of a writ in the nature of Habeas Corpus for securing "release" of the applicant and her production in this Court. Thus the order sought to be modified was passed in proceedings instituted under Article 226 of the Constitution, not under Section 482 of the Code.

27. The judgment cited by Mr. Sarfaraj Hussain, State of Kerala vs. M. M. Manikantan Nayar, was in relation to proceedings instituted before the High Court of Kerela under Section 482 of the Code of Criminal Procedure, seeking the quashing of criminal proceedings instituted against the respondent before the Supreme Court, under the Prevention of Corruption Act 1988. While referring to an earlier judgment of the Apex Court in Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors. 2001(1) SCC 169, their Lordships held that no Court would alter or review its judgment or any order, except to correct a clerical or an arithmetical error as, once a matter is finally disposed of, the Court becomes functous officio and is disentitled to entertain a fresh prayer for the same relief.

Thus , the said judgment of the Hon'ble Supreme Court is misapplied by learned counsel for the petitioner, since the basic proceedings in question there, were instituted under the Code of Criminal Procedure and not under Article 226 of the Constitution.

The judgment of the learned Single Judge of the Calcutta High Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:12:- CRWP No.1247 of 2013 Court (supra), was also passed in relation to proceedings instituted under Section 125 of the Cr.P.C., hence it also would have no application to the present petition.

28. As regards general principles on modification of an order, no doubt, a review of an order or a judgment can only be made with regard to errors patent on the face of the record. However, in the present case the matter involves the liberty of an individual who otherwise cannot be detained even in a protection home against her wishes, once it is established that she is to be given to the custody of either of the two persons who contend for such custody, i.e. her father (the petitioner in the criminal writ petition) and respondent No.4, i.e. Imran, the person whom she is stated to have married.

Secondly, the order directing respondent No.4 to deposit `5 lacs by way of security of in view of the fact that the applicant, i.e. the alleged detenue in the writ petition, is a minor, could not have been passed once this Court had come to a conclusion that, prima facie at least, she seemed to have performed a valid 'nikah' with respondent No.4, after having attained the age of puberty, i.e. the age of consent for marriage, as per Mohammedan person law. The order for such deposit was passed on a prayer made by the petitioner, i.e. father of the minor girl, to which, though it is not so recorded, respondent No.4 at that time had reluctantly agreed. The fact that he had so agreed is not denied by any counsel, in whose presence the consent for deposit was given. As such, if the person who would otherwise not be bound to make such a deposit, if this Court comes to the conclusion that he is her lawfully wedded husband, but had consented to Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:13:- CRWP No.1247 of 2013 do so on the insistence of this Court, even as a security measure for the protection of the minor, then such an order, in my opinion, would need to be modified to protect the liberty of the individual who seeks its modification and whose custody is rightfully to be given to the person whom she had married.

29. This then bring us to the question again raised by Mr. Sarfarj Hussain on merit, i.e. whether the custody of a minor, in the face of the Prohibition of Child Marriage Act 2006, can be given to the person she is stated to have married, or not.

Therefore, we first need to examine as to whether the marriage is void or only voidable, in terms of the Act of 2006. Sections 3 & 12 of the said Act are reproduced hereinunder:-

30. Thus, it is seen that as per Section 3 , the marriage is voidable at the instance of the minor, provided that such petition for declaring the marriage to be void is filed by the child, upto 2 years of having attained majority.

That situation, obviously, has not come about as yet.

31. Coming next to Section 12 of the said Act, which declares marriage of a minor child to be void in certain circumstances, what is argued by Mr.Sarfarj Hussain is with regard to clause(a) of the said Section, which stipulates that a marriage would be void when a child/minor, is taken or enticed out of the keeping of the lawful guardian.

The question therefore is, was the present applicant, Sanjeeda, taken or enticed out of the keeping of her father, i.e. the petitioner? In my opinion, she cannot be said to have been either taken, or enticed away from her father for two reasons; one based on the general principle of enticing away and the second on the principles of Mohammedan Law, governing marriage.

On the first, reference must be made to the judgment of the Supreme Court in the case of S.Varadarajan vs. State of Madras , AIR 1965 SC 942:

Kumarasami, 2 Mad HCR 331 which, was a case under Sections 498 of the Indian Penal Code. It was held, there that if whilst the wife was living with her husband, a man knowingly went away with her in such a way as to deprive the husband of his control over her with the intent stated in the section, it would be a taking from the husband within the meaning of the section.

9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Sections 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the mirror out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:19:- CRWP No.1247 of 2013 the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the manor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

Though the present situation is not identical to the one before their Lordships, however, one thing is certain that Sanjeeda had accompanied Respondent No.4 voluntarily, performed a 'nikah' and lived with him in his home of her free will, even as per her own positive assertion to that effect, before this Court.

In the light of the above, where the applicant admittedly has herself willingly gone with respondent No.4 and has even performed a 'nikah' with him, it is not possible to hold that she was enticed to do so, especially in the face of the customary and personal law governing the parties.

32. This brings us to the next part of the reasoning as to why she cannot be said to have been enticed away and / or taken away by respondent No.4, even though she is a minor. Even if by some inference, it be taken that the enticing away of a minor or a child, in terms of the Prohibition of Child Marriage Act 2006, is presumed, on the ground that she is not capable of giving consent, such interpretation, in my opinion, cannot be, in any case, given in the case of a Muslim girl, whose legally marriageable age, with her own consent alone, is puberty or 15 years. It is not anybodys' case that Sanjeeda is below 15 years of age, though of course the doubt expressed is as to whether she is above or below 18. Taking it that she is below 18 but definitely above 15, in the absence of any evidence at all to the contrary Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:20:- CRWP No.1247 of 2013 and, in fact, her age being below 15, is not even suggested by her father, can it be said that she was enticed to enter into marriage in terms of the Act of 2006 so as to make the marriage void as per Section 12(a) thereof?

In my opinion this cannot be the interpretation thereto. Firstly, the Act of 2006 does not repeal the Muslim Personal Law (Shariat) Application Act 1937, Section 2 whereof is reproduced hereinunder: -

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

33. As such, the marriage of a Muslim girl continues to be governed by the personal law of Muslims. In this regard, it would be useful to reproduce what is stated in the Principles of Mohammedan Law by Sir Dinshah Fardunji Mulla, in Article 195 thereof, (10th Edition of 1933): -

( 2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is sound mind and has attained puberty, is void, if it is brought about without his consent.

Explanation.- Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

(This Article is shown as Article 251 in Mullas' Principles of Mahomedan Law, 19th Edition, by M.Hidayatullah).

The same principle is also reproduced in Article 27 of Muslim Law by Faiz Badruddin Tyabji, which is also reproduced hereinunder:-

34. Keeping in view the above, it is obvious that even taking 15 years to be the age of puberty and not prior to that, the present applicant, i.e. Sanjeeda is well above the said age by appearance and even by admission of all parties concerned. As such, unless her marriage can be shown to have been not validly performed for any other reason, she has, even ex-facie, without any evidence to the contrary having been shown, performed a valid marriage with her consent.

35. The wishes of her father would be, therefore, inconsequential, Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:22:- CRWP No.1247 of 2013 in law.

The judgment of the Division Bench of the Delhi High Court, as has been referred to by Mr. Raheja, can be usefully referred to in this regard, in the case of Mohamad Nihal vs. State . In that case, after referring to Section 2 of the 1937 Act, the Division Bench referred to a judgment of the Supreme Court in Mohamad Younis vs. Sayedunnisa AIR 1961 SC 808, to state that it had been construed in Mohamad Youniss' matter that Section 2 of the 1937 Act is an injunction directed against each and every Court, thereby enjoining a Judge to apply Sharaiat Law in all cases concerning Muslims, notwithstanding any custom or usage to the contrary.

In the case before the Division Bench of the Delhi High Court, i.e. Mohamad Nihal (supra), their Lordships had also gone into the issue of marriage of a Muslim girl who had not attained puberty and had held in such a case, that the marriage would still be valid, provided it is with the consent of her guardian (Wali).

In the present case, of course, the issue of the marriage being void on account of the opposition thereto by her Wali, would not arise, in view of the fact that the present applicant has attained the age of puberty.

36. It also needs mention here, that even in the intervening period of almost 2 months, despite Mr. Sarfaraj Hussains' earlier assertions to the effect that the marriage had not been performed by a person (Qazi) not competent to do so, nothing to substantiate that allegation has been shown, to refute the statement made in the affidavit of the Additional Superintendent of Police, dated 17.12.2013, that the identity card issued to the Qazi concerned, by the Delhi Wakf Board, still disentitled the Qazi to Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:23:- CRWP No.1247 of 2013 perform 'Nikah'.

However, the observations of this Court with regard to a valid 'nikah' having being performed, would be subject to, if any proceedings are brought by a competent person before a competent forum, any decision to the contrary, by such competent forum, in the light of any evidence led before it.

37. Thus in view of the fact that the marriage has been shown to have been validly performed between the applicant and respondent No.4, with no evidence to the contrary presently, can this Court order her to be retained in a Protection Home, upon imposing a condition that she will not be released to the custody of her husband until he deposits `5 lacs? I think it would be needless to say that such an order cannot be passed by this Court and, save for the reluctant consent of respondent No.4 to depositing such an amount, it could not have been passed by this Court.

It is also necessary to mention here that Mr. Raheja, learned counsel for the applicant, submitted that `5 lacs which was ordered to be deposited in the name of the applicant, even though as a welfare measure for her security, has not been so deposited, as respondent No.4, being a taxi driver by profession, is unable to afford the said sum. Therefore, just because he is unable to afford the said sum, he cannot be deprived of the company of his wife. Obviously, in view of what has been discussed hereinabove and held by this Court, this contention of learned counsel cannot be heard to be negated by anybody.

As such, this Court cannot direct further detention of the applicant in the Protection Home and, on the principal issue, it is held that Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:24:- CRWP No.1247 of 2013 upon a nikah having been performed by a Muslim female, on her own willingness and consent, after attaining puberty, such a marriage would not be void in terms of Section 12 of the Prohibition of Child Marriage Act 2006, though it may be voidable at the instance of the minor ("child") in terms of Section 3 thereof.

Therefore, though the present order would amount to modifying the earlier order to that extent, however, as already stated earlier, the liberty of an individual cannot be curtailed by this Court, against the provisions of law.

38. The issue of the present application not being maintainable, having been filed by a minor would also lose significance in view of the fact that such minor has been held to have performed a nikah as per her consent, permissible by the personal law which governs the community to which she belongs. As such, since the application only seeks that the minor be restored to the custody of the person she has married by her own consent, she cannot be refused such permission on the technicality of the application not having been moved by respondent No.4, in view of the fact that he is denied access to her in the protection home.

Otherwise also, this order also arises out of a petition seeking a writ of habeas corpus, and the alleged "detenue" not actually having been found to be illegally detained by respondent No.4, her custody would naturally be returned to him, in case the so called "detenue" expresses her wish to go back with him.

39. Still, in view of the fact that the present application (CRM No.930 of 2014) is not accompanied by an affidavit, the presence of the Sorot Gaurav 2014.02.21 15:35 I attest to the accuracy and integrity of this document CRM No.930 of 2014 in -:25:- CRWP No.1247 of 2013 applicant, as also of Respondent No.4, would be necessary. The matter be listed for that limited purpose, on 17.02.2014.

In case the applicant states in Court that she wishes to accompany respondent No.4 to his home and respondent No.4 also states to the effect that he wishes to take her to his home, she would be ordered to be released to his custody immediately thereafter.