JUDGMENT 1. - Heard learned counsel for the parties.This criminal miscellaneous petition is directed against the order dated 27.9.2008 and 17.10.2008 passed by the Additional Chief Judicial Magistrate, Bheenmall in CR No. 228/08. 2. The respondent No.2 Hata Ram filed a complaint on 14.8.2008 and alleged that his daughter Sita aged 121/2 years old has not returned to her home since last three months and now he has come to know that Bhagaram, Kanaram, Valaram has forcibly taken away Seeta for her marriage with Bhagaram. This complaint was sent to Police Station under Section 156(3) Cr P.C. and on this complaint offence under Section 363, 366A and 3442 was registered and Investigation commenced. 3. Sita was recovered and Investigating Officer moved an application for seeking direction regarding handing over of Sita and by order dated 27.9.2008 learned ACJM directed Sita to be sent to Nari Niketan Grah. Later on the petitioner Bhaga Ram moved an application for taking custody of Sita being her married wife but that application was rejected by order dated 17.10.2008 against which orders this petition has been filed. 4. Learned counsel for the petitioner argued that Sita is petitioner's married wife and she is major hence, custody of Sita may be handed over to him. He further argued that even if Sita is minor, petitioner being her husband is entitled to her custody, so her custody may be handed over to him whereas learned counsel for the respondent No.2 and learned Public Prosecutor submit that Sita is minor as per school report, hence, orders passed by the courts below are in accordance with law so the petition may be dismissed. 5. Sita was called from Nari Niketan Grah today in the court and on enquiry she revealed that she is 18 years old and she has been married to the petitioner and she wants to reside with petitioner Bhaga Ram. 6. Perusal of the record reveals that statement of Sita was recorded in lower Court in some other case under Section 200 Criminal Procedure Code in which she narrated on 8.7.2008 that she was married to Bhagaram before 2 years and in exchange petitioner's sister Seeta was married to recovered Seeta's uncle Khetram. 6. Perusal of the record reveals that statement of Sita was recorded in lower Court in some other case under Section 200 Criminal Procedure Code in which she narrated on 8.7.2008 that she was married to Bhagaram before 2 years and in exchange petitioner's sister Seeta was married to recovered Seeta's uncle Khetram. Later on there was divorce between Khetram and Sita and Sita married with some other person and on account of this enmity her father respondent No.2 wanted to get her married at some other place. In her statement, she disclosed her age to be 21 years. Sita's statement were recorded under Section 164 Criminal Procedure Code on 27.11.2008 in which she stated that she was married to the petitioner before two years and she wants to live with the petitioner. In this statement she disclosed her age to be of 18 years. She further disclosed that on account of aforesaid enmity her father wants to live her to some other person. 7. Perusal of case diary reveals that Sita's parents have denied marriage but other witnesses, Sukhi and Sajno have stated in their statement under Section 161 Criminal Procedure Code that Sita was married to petitioner. School transfer certificate dated 2.7.2008 annexed in the case diary reveals that Sita's date of birth was 5.4.1996 and the FIR was lodged on 14.8.2008. Apparently, there was no occasion to take transfer certificate on 2.7.2008. Medical examination reveals that Sita's age was between 161/2 to 17 years and Sita has stated that she is 18 years old. In such circumstances, apparently it cannot be believed that Sita is 121/2 years old particularly when in appearance she appears to be about 18 years old. 8. Learned counsel for the respondent No.2 has cited a judgment reported in All India Rejuanul Hoque alia Mithun v. State of West & Anr., Criminal Law Reporter 2008(4) 585 (Calcutta) in which it was held that certificate of birth issued by the statutory authority (Board of Secondary Education) would prevail over medical report. This citation does not help respondent as in this case certificate has not been issued by statutory authority. Not only this, this certificate has been issued on 2.7.2008 and on that day there was no occasion to obtain this transfer certificate. This citation does not help respondent as in this case certificate has not been issued by statutory authority. Not only this, this certificate has been issued on 2.7.2008 and on that day there was no occasion to obtain this transfer certificate. On the contrary she appears to be of 18 years and she has also stated in her two statement to be of more than 18 years and medical examination also reveals that she is between 161/2 and 17 years. Even if it is assumed that the age of girl Sita is between 161/2 to 17 years as opined by medical examination then to, there is no provision under law which empowers the Magistrate to pass the order of detention of girl in Nari Niketan Grah without her consent for indefinite period particularly when she wants to reside with her husband the petitioner. 9. It is pertinent to note that 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 is neither void under Section 11 nor voidable under Section 12 of the Act. Thus, the effect of the marriage cannot be wiped out for the reason that at the time of the 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. Therefore, there was no occasion for the learned trial court to issue the direction that the girl may be kept in Nari Niketan till she attains the age of majority. 10. In this view of the matter, the impugned order passed by the learned trial court is not sustainable in eye of law. 11. Accordingly, the petition is allowed. The impugned orders dated 27.9.2008 and 17.10.2008 passed by the learned trial court are quashed. The girl is set at liberty to go with her husband the petitioner herein. However, police protection may be provided to her until she reaches home.Petition allowed. *******