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2003 DIGILAW 585 (KER)

Remani T. T. v. Narayanan Kutti

2003-09-03

K.K.DENESAN, S.SANKARASUBBAN

body2003
Judgment :- Sankarasubban, J. This writ petition has been filed by one Remani to produce the body of Miss. Salini, who is in the custody of respondents 1 to 4. The case of the petitioner is as follows: 2. The daughter of the petitioner Miss. Salini, aged 17 years, is a student of R.K. College at Cherukunnu doing +2 Course. On 19.05.2003, as usual, Miss. Salini went to the said R.K. College. But she did not return in the evening. The petitioner enquired about her. But she could not get any idea about her. The following day, i.e., on 20.5.2003, the petitioner lodged a complaint before Kunnupuram Police. Copy of the complaint is produced as Ext.P1. 3. The Kannupuram Police registered a crime as crime No.168/03 as girl missing. On further enquiry, it is learnt that Miss.Salini was forcefully kidnapped by the first respondent with the support of one C.Sumesh and A. Pradeepan and she is unlawfully detained at the house of respondents 2,3 and 4. By the unlawful detention, the personal liberty of the daughter of the petitioner is curtailed and she is not allowed to contact the petitioner. It is in these circumstances that the writ Petition is filed. 4. The first respondent – Narayanan Kutty has filed a counter affidavit. According to him, the marriage between him and Salini was solemnized on 19.5.2003 at Sreekrishna Temple, Kadalayi in Kannur District. The allegation that the first respondent forcibly kept Salini under his custody is false and denied. It is admitted that on the date of marriage the bride was only 17 years old. According to him, contravention of age restriction does not make the marriage void or voidable. Hence, according to him he is entitled to retain the custody of the girl. An additional affidavit has been filed by the first respondent, wherein he has produced certain photographs of the marriage. 5. The girl was produced on 4.7.2003 before us. On that day we allowed the girl to go with her mother and stay with her and directed to produce the girl as and when required by the court. 6. The main question that is argued was that the since the detenu is a minor, the custody cannot be given to the husband. On that day we allowed the girl to go with her mother and stay with her and directed to produce the girl as and when required by the court. 6. The main question that is argued was that the since the detenu is a minor, the custody cannot be given to the husband. Learned counsel for the petitioner brought to our notice Section 5 (iii) of the Hindu Marriage Act, which states that the bridegroom must have completed the age of 21 years and the bride, the age of 18 years at the time of the marriage. The first respondent violated this. This does not lead to any termination of the marriage because the Act does not say anything about this. Under the Guardians and Wards Act, it is stated that the natural guardian of a girl is her husband. Section 12 (3) of the Guardians and Wards Act says as follows: “Nothing in this section shall authorize- (a) the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or..” 7. Learned counsel for the first respondent submitted that in as much as actually, the marriage has taken place, there is no question of going back and the custody should be given to the husband. In this context, we wish to note that Sec.361 of Indian Penal Code, which says thus: “Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship”. 8. According to us, Section 12 (3) of the Guardians and wards Act is very relevant. Here is a case where consent of the parents was not obtained by the first respondent and hence, the first respondent is entitled to have the custody of the minor girl till she attains majority. 9. In the above view of the matter, we allow the petitioner to have the custody of the minor girl till she attains majority. Here is a case where consent of the parents was not obtained by the first respondent and hence, the first respondent is entitled to have the custody of the minor girl till she attains majority. 9. In the above view of the matter, we allow the petitioner to have the custody of the minor girl till she attains majority. On attaining majority, the detenu is free to take her own decision under the Act. Writ petition is disposed of.