Pema Ram @APPELLANT@Hash State of Rajasthan

This petition seeking writ of habeas corpus has been filed by the petitioner Pema Ram for release of her minor daughter Ms. Rekha, alleged to be in

illegal detention of the respondent no.4 herein.

On 22.1.18, the corpus Ms. Rekha was produced before this court. We had conferred with her in camera as also in presence of her parents. She

declined in unequivocal terms to go with her parents. She stated to have entered into marriage with Mahendra Kumar s/o Keraram (‘Motilal s/o

Keraram’ has wrongly been impleaded as party respondent no.4). However, noticing the fact that in her attempt to make statement before the

court, she got emotionally disturbed, it was considered appropriate to give her some breathing time to collect her composure. Accordingly, she was

directed to be kept at Balika Grah, Jodhpur for a few days.

On 5.2.18, the corpus was again produced before us. A dispute was raised regarding the age of the corpus.

As per mark sheet of the corpus Ms. Rekha of class VIII as also the Transfer Certificate issued by the Principal, Shri Chamunda Mataji

Government Primary School, Mundara, her date of birth being 6.8.2000, she is minor. However, Mr. Mahendra Kumar arrayed in the writ petition as

Motilal, produced the Medical Report issued by the Medical Jurist, Bangar Hospital, Pali, showing the age of the corpus to be 18-20 years.

In view of the discrepancy regarding the age of the corpus, the Principal, Dr. S.N.Medical College, Jodhpur was directed to constitute Medical

Board for determination of age of corpus Ms. Rekha.

As per the report submitted by the Medical Board constituted by the Principal, Dr. S.N.Medical College, Jodhpur, the age of the corpus is

determined as 17-18 years.

A reply to the petition has been filed on behalf of Mahendra Kumar stating that the corpus Ms. Rekha has entered into marriage with him out of her

own will on 6.1.18 at Pune. In this regard, a certificate issued by Joshi Mangal Karyalay, Pune and declaration made in this regard before the

Executive Magistrate, Pune City are placed on record.

On 6.3.18, the corpus was again produced before us, who reiterated her desire to stay with her husband Mahendra Kumar and declined to go with

her parents.Â

Learned counsel appearing for the petitioner contended that the date of birth of the corpus as mentioned in the School first attended has to be

treated as final and conclusive. In this regard, learned counsel relied upon a decision of the Supreme Court in the matter of ‘Jarnail Singh vs. State

of Haryana’, 2013 (2) WLC SC Cri.189. While drawing the attention of this court to the provisions of Section 12 of the Prohibition of Child

Marriage Act, 2006, learned counsel contended that the marriage of the minor taken or enticed out of keeping of the lawful guardian is void and

therefore, the petitioner being natural guardian of her minor daughter, is entitled for her custody.

On the other hand, the counsel appearing for respondent no.4 submitted that Ms. Rekha is major, who has of her own free will and volition married

the respondent no.4 Mahendra Kumar. It is submitted that even otherwise, the husband cannot be deprived of the custody of the minor wife and thus,

there being no illegal detention, the petition seeking writ of habeas corpus deserves to be dismissed. Learned counsel would submit that even in case

of minor, her welfare is of paramount consideration and thus, the corpus Ms. Rekha, who is mature and intelligent enough to take her own decision,

deserves to be permitted to go with her husband. In support of the contention, learned counsel relied upon a Bench decision of this court in the matter

of ‘Prathvi Singh vs.The State of Rajasthan & Ors.’ (D.B. Habeas Corpus Petition No.236/12, decided on 6.12.12). Learned counsel submitted

that the decision of the Supreme Court in Jarnail Singh’s case (supra) which relates to the determination of the age of juvenile under the provisions

of Juvenile Justice (Care & Protection of Children) Rules, 2007 (for short “the Act of 2007â€) cannot be applied to the proceedings before the

court other than those under the Act of 2007.

We have considered the rival submissions and perused the material on record.

It is pertinent to note that the marriage of a girl below the age of 18 years in contravention of the provisions of Section 5(iii) of the Hindu Marriage

Act, 1955 (in short “the Act of 1955â€) is neither void u/s 11 nor voidable u/s 12 of the Act of 1955. Thus, the effect of the marriage, if entered

into between the parties, cannot be wiped out for the reason that at the time of marriage, the girl was below the age of 18 years. That apart, under the

provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, husband is the natural guardian of person of the wife, who is minor. Be that

as it may, in the matter of custody of minor child, his overall welfare is of paramount consideration.

In Prathvi Singh’s case (supra), a Bench of this court while dealing with similar issue relating to the corpus produced before the court who had

not attained the majority, held:

“6. Before adverting to the rival contentions raised by the learned counsels for the parties, it may be stated that the petitioner by way of present

petition has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India seeking corpus of his daughter Pratibha

Kumari on the ground that the respondent No.4 had abducted and kept under illegal detention his minor daughter Pratibha Kumari. In this petition

serious disputes have been raised as regards the age and validity of marriage of Pratibha Kumari, daughter of the petitioner, with the respondent No.4.

However, it cannot be gainsaid that the jurisdiction of Habeas Corpus Petition under Article 226 of the Constitution of India is extraordinary in nature

where the High Court could not be expected to decide the disputed questions of facts as regards the age or validity of marriage of the detenue girl.

The paramount consideration before the court would always be the welfare and well being of the girl, whose custody is being sought by the petitioner.

In deciding such petitions, the court though is expected to keep in mind the relevant statutes and the rights flowing therefrom, cannot decide the

petition solely by interpreting the legal provisions. The court is required to consider the wishes of the girl also, if the girl is found to be old and matured

enough to form an intelligent preference as to with whom she would be more happy. The instant case is also one of such cases, which is required to

be decided with a human touch, without strictly construing the rights of the parties flowing from statutory provisions, more particularly while exercising

extraordinary jurisdiction under Article 226 of the Constitution of India.

Though both the sides have submitted number of documents in support of their respective contentions as regards the age of Pratibha Kumari, as

also the marriage of Pratibha Kumari with the respondent no.4, this court does not propose to enter into any such disputed questions of facts. The

decisions relied upon by the learned counsel Mr. Upman for the petitioner pertain to the cases where the dispute had arisen with regard to the age of

the concerned accused so as to treat him juvenile or not, and the provisions contained in Rule 12 of the Juvenile Justice Rules were relied upon. Such

is not the case in the instant petition. Of course, such provision could be taken into consideration by way of a guideline, but it need not be strictly

followed while deciding the Habeas Corpus Petition. Further, though there is some substance in the submission of Mr. Upman that the marriage with a

minor girl would be an offence under Prohibition of Child Marriage Act, the said question also could not be examined by this court in the present

petition. Whether the alleged marriage of Pratibha Kumari with the respondent no.4 is a valid marriage under the Hindu Marriage Act or not is not the

issue to be decided by the court in the present petition. There are Special Forums and remedies available to the parties under such Acts for ventilating

their grievances and getting adjudications.

Since there were two sets of documents, one produced by the petitioner showing the date of birth of his daughter to be 5.5.97, and the other

produced by the respondent No.4 showing her age to be 14.2.93, the court had directed for the medical examination of Pratibha Kumari for

determination of her age, and as per the report of the Medical Board of SMS Medical Hospital, Jaipur, the age of Pratibha Kumar was found to be

above 18 years and below 20 years. In order to ascertain the level of maturity and intelligence of the girl Pratibha Kumari, the court had also asked

many questions to her in the open court as well as in the chambers in presence of her parents and the respondent No.4, and had found that she had

good academic career so far and was studying in the Second Year of B.Sc. at Bikaner College. We had also found that she was matured and

intelligent enough to take her own decisions. She had categorically stated before us that she would prefer to go with the respondent No.4 than her

parents, and that she would be more happy, and feel secured if she is sent with the respondent No.4. She had also stated that she had willfully married

the respondent No.4, and was staying with him at Trivendrum since last two months. Thus, though two contradictory sets of documents as regards the

age of Pratibha Kumari are available on record, considering the peculiar facts and circumstances of the case, we are inclined to allow her to go

with the respondent No.4 as per her wishes.â€​ (emphasis supplied)

In the instant case, though the age of the corpus Ms. Rekha has not been clearly established, but then, even according to her school record, she

will attain the age of majority within a few months. Moreover, having conferred with the corpus Ms. Rekha twice, we are of the opinion that she is of

mature understanding and intelligent enough to take her own decision and thus, her preference to go with her husband cannot be ignored by this court.

Thus, keeping in view the facts and circumstances noticed above and overall welfare of the corpus Ms. Rekha, we are of the opinion that as per

her desire, she should be permitted to stay with her husband.

Ordered accordingly.

The petition stands disposed of. Needless to say that we have not pronounced on actual age of the corpus Ms. Rekha as also the legality of her

marriage with Mahendra Kumar. The parties are at liberty to avail the remedies available to them in this regard under the law. That apart, on account

of disposal of this petition seeking writ of habeas corpus in the terms indicated above, the police shall not be precluded from proceeding with the

investigation of the case registered for commission of an offence, if any.Â