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2011 DIGILAW 172 (RAJ)

Mohan Lal v. State of Rajasthan

2011-01-24

KAILASH CHANDRA JOSHI, PRAKASH TATIA

body2011
JUDGMENT Hon'ble TATIA, J.—This Habeas Corpus petition has peculiar facts. Though the similar facts may be in several cases, yet we would like term it as a peculiar fact case because of the reason that both the learned counsel are aware that even if any order for the custody of the corpus will be passed by this court it can survive only for only 9 days yet instead of setting out the matter amicably, wants court's order. This type of controversy may be due to changing social set up and can be said to be a bye-product of the so called development ignoring the welfare of the children. 2. The petitioner-the father of the Corpus (girl) has filed this Habeas Corpus petition alleging that the respondent No. 7 with the connivance of his father- respondent No. 6 kidnapped the Corpus, who alleged to be of the age of more than 17 years and as per the Annex. 1 produced by the petitioner himself the age of the girl is 18 years as on 1.1.2011 and as per the second document produced subsequently as Annex. 3 - the age certificate obtained from the competent authority of the Ahmedabad Municipal Corporation, she would attend the age of 18 years on 1.2.2011. The petitioner in petition itself has stated that the Corpus's engagement was performed with the respondent No. 7, but the Corpus had no intention to marry and this was conveyed to the respondent No. 7 through the family members, obviously from the petitioner's side. According to the petitioner because of this break in relationship, the respondent No. 7 become furious and he kidnapped the Corpus on 19.12.2010 at around 5.30 PM by forcibly taking her in the car bearing number-plate of State of Maharastra. It is stated that at the time of kidnapping the corpus, the brother- Rahul (age 14 years) of the corpus was given severe beating by the respondent No. 7. It is also alleged that the corpus herself resisted attempt of her kidnapping, but she failed. It is also stated in the petition that a report was lodged in the police station concerned in writing on 19.12.2010 itself by brother-in-law of the petitioner as the petitioner himself was not available in the town as he was at Ahmedabad at the relevant time. It is also stated in the petition that a report was lodged in the police station concerned in writing on 19.12.2010 itself by brother-in-law of the petitioner as the petitioner himself was not available in the town as he was at Ahmedabad at the relevant time. The petitioner apprehended that the respondent No. 7 may forcibly marry the girl and ultimately he filed this Habeas Corpus petition on 22.12.2010. 3. The Coordinate Bench of this Court entertained the Habeas Corpus petition and directed the Government Advocate/learned Public Prosecutor to bring the Case Diary on next date of hearing to enable the court to appreciate the issue involved in the case and the next date was fixed as 5.1.2011. According to learned counsel for the petitioner on 5.1.2011, without any notice to the respondents Nos. 6 and 7, they brought the corpus in the court, but since they were not directed to appear in the court nor the notices were issued to the respondents, therefore, according to learned counsel for the petitioner, the girl was allowed to go back. It appears that on 5.1.2011 though the case was fixed for listing on 7.1.2011, but it was listed in the court on 10.1.2011. According to learned counsel for the petitioner, the respondents Nos. 6 and 7 again brought the corpus in the court on 10.1.2011. The bringing of the corpus in the court by the respondents Nos. 6 and 7 is admitted by the respondents Nos. 6 and 7 today before us. However, there is no attendance marked of the corpus in the court in the order-sheet dated 5.1.2011 and 10.1.2011 and that can be because of the reason that the corpus was not called by the court nor the notices were issued to the respondents Nos. 6 and 7. However, it has come on record that on 11.1.2011, the corpus was produced before the court of Judicial Magistrate, Sumerpur, District Pali by the police and it was submitted that the corpus whose date of birth is 1.1.1993 and who by the time i.e., by 11.1.2011 attained the age of 18 years on asking, informed that she contacted the marriage on 2.1.2011 at Arya Samaj, Jodhpur with respondent No. 7 Bharat Kumar and she wants to go with said Bharat Kumar. The learned Judicial Magistrate observed that since the girl is major and she has contacted marriage with Bharat Kumar, therefore, she can go with Bharat Kumar and security to be provided by the Police. It appears from the order dated 11.1.2011, certified copy of which has been placed on record as Annex. R/7/2 that at 4.30 PM before further proceedings could have been taken in the court of Judicial Magistrate, Sumerpur, an application was submitted by the petitioner through advocate alleging therein that the date of birth of his daughter is 1.2.1993 and, therefore, the corpus is minor and her custody cannot be given to the respondent-Bharat Kumar. The petitioner also brought to the notice of the court below that the Habeas Corpus petition is pending before the High Court and the next date is fixed is 13.1.2011. The learned Judicial Magistrate observed that since the corpus is not ready to go with the father, therefore, she be sent to the Nari Niketan, Jodhpur as the matter is pending before the High Court also. It was also taken note of by the court below that for sending the corpus to the Nari Niketan, Jodhpur both the parties agreed. In these circumstances, the corpus remained in the Nari Niketan, Jodhpur from 11.1.2011 and today also she was brought from Nari Niketan, Jodhpur. The corpus mother and father met with her, but the respondent Bharat Kumar and his father and other family members did not meet or were not allowed to meet the corpus. 4. Today we tried to impress the parties through their counsel in open court to sort out the possibility of settlement in view of the order passed by the Coordinate Bench of this court dated 18.1.2011. On 18.1.2011 the Coordinate Bench of this court clearly observed that without going into the legal contro-versy at this stage we requested the parents of both parties to see that matter is sorted out amicably in the best suitable manner so that future of boy and girl who claim to have married is secured and maintained. On 18.1.2011 the Coordinate Bench of this court clearly observed that without going into the legal contro-versy at this stage we requested the parents of both parties to see that matter is sorted out amicably in the best suitable manner so that future of boy and girl who claim to have married is secured and maintained. It will be worthwhile to mention here that the Coordinate Bench clearly observed as under:- "Though apparently in court proceedings both were fighting like a loggerhead of each other because of strained relations which have developed due to this issue, we impress upon all family members including the lawyers representing them to see that some sort of compromise is arrived at between the parties. The parents therefore requested for some time to sit together in their community and see if it is possible for them to come to any terms." 5. Today the corpus alone but in the presence of learned counsels for the parties and learned Public Prosecutor unequivocally given her wish to go with the respondent Bharat Kumar. Then corpus's mother and father were called and they were permitted to talk with the corpus in the presence of counsel and thereafter, the respondents Nos. 6 and 7 were called in chamber and they were asked if there is possibility of settlement. Even after making all efforts, the parties could not amicably settle the dispute and it is undisputed fact that there is involvement of the community members in large number which may be adding fuel in the controversy rather than sorting it out. 6. Be it as it may be, in this unfortunate situation when there is a dispute of age of the corpus in a matter where the corpus either attained the age of majority as per Anex. 1 or his going to attain the age of majority in 9 days from today, the dispute has not been settled by the parties knowing it well that the life of the order which can be passed by this court in Habeas Corpus petition shall be not beyond 1.2.2011 i.e., the order will survive only for 9 days and this fact also failed to impress to the parties in spite of the efforts made by the court and learned counsel appearing for the parties. 7. In these circumstances, we heard learned counsel for the parties and learned Public Prosecutor. 8. 7. In these circumstances, we heard learned counsel for the parties and learned Public Prosecutor. 8. Learned for the petitioner vehemently submitted that the contacting marriage with the child is in clear violation to the provisions of Child Marriage Restraint Act, 1929. However, learned counsel for the petitioner frankly drew our attention to the provisions of the Hindu Marriage Act, particularly sub-clause (iii) of Section 5, which provides that marriage may be solemnized between any two Hindus if the conditions prescribed under various clauses of Section 5 are fulfilled and as per condition No. (iii) it can be done when the bridegroom has completed the age of 21 years and bride has completed the age of 18 years at the time of marriage. Learned counsel for the petitioner very rightly pointed out that though there is a provision for minimum age for the marriage between the Hindu male and female but if said marriage is performed in violation to the clause (iii) of Section 5 then such marriage is not void nor voidable as per Sections 11 and 12 of the Hindu Marriage Act, 1955, but such marriage is punishable under Section 18 and, therefore, according to learned counsel for the petitioner, the marriage may not be void and voidable, but yet it is illegal and is an offence punishable under Section 18 of the Hindu Marriage Act. In the light of this submission, learned counsel for the petitioner submitted that the illegality cannot be encouraged by granting any relief to the person who has committed offence wherein he is liable to be punished. It is also submitted that the minimum age for the marriage has been prescribed in the light of the National Policy of controlling the population and more particularly to obtain the healthy citizen by marriage of the persons of a mature age. In view of the above reasons if any relief is granted to the respondents on any grounds, that will be neither in consonance with the National Policy nor in consonance with the object for which the age limit has been prescribed under sub-clause (iii) of Section 5 of the Hindu Marriage Act. 9. Learned counsel for the petitioner relied upon the judgment of the Gujarat High Court delivered in the case of Patel Verabhati Kalidas vs. State of Gujarat & Ors. 9. Learned counsel for the petitioner relied upon the judgment of the Gujarat High Court delivered in the case of Patel Verabhati Kalidas vs. State of Gujarat & Ors. reported in All India Law Reporter 2000(2) 202 and judgment of the Karnataka High Court delivered in the case of C. Chenna Basappa vs. Smt. Lingamma & Ors. reported in AIR 2007 (Karnataka) 130. 10. Learned counsel for the respondent vehemently submitted that the girl is of the age of majority and she contacted the marriage when she became major as well as become eligible under sub-clause (iii) of Section 5 of the Hindu Marriage Act, 1955. It is also submitted that a marriage which is not void or even which is not voidable cannot be illegal nor can be discarded on any of the grounds. It is also submitted that none of the law provides for discarding a marriage which is not void or voidable. It is also submitted that the respondents emphatically stated that the age of the girl was of the age of 18 years when she contacted marriage and the certificate produced by the petitioner appears to be fabricated document because of the reason that in the birth certificate obtained from the Ahmedabad Municipal Corporation, there is the name of the girl who alleged to had born on 1.2.1993 and her birth has been registered on 2.2.1993 i.e., on next date then how her name could have been shown in the certificate. It is also submitted that there are catena of judgments which allowed the custody of the minor wife to husband and learned counsel for the respondent relied upon the Division Bench judgment of the Delhi High Court delivered in the case of Manish Singh vs. State Government of NCT & Ors. reported in 2006(1) RCR (Criminal) 653 and another Single Bench judgment of Delhi High Court delivered in the case of Rukshana vs. Govt. of NCT of Delhi reported in 2007(3) Recent Criminal Reports (Criminal) RCR 542 and yet another judgment delivered by the Andhra Pradesh High Court delivered in the case of Makemalla Sailoo vs. Superintendent of Police, Nalgonda Dist. & Ors. reported in 2006(2) Civil Court Cases 639 (appellant) (DB) wherein even the minor wives were given in custody of the husband even after taking note of the provisions of law relating to the age of the girl. 11. & Ors. reported in 2006(2) Civil Court Cases 639 (appellant) (DB) wherein even the minor wives were given in custody of the husband even after taking note of the provisions of law relating to the age of the girl. 11. We considered the facts of the case and after hearing at length and after perusing the judgments referred above are of the considered opinion that as per the Hindu Marriage Act, 1955 though there is a condition prescribed for marriage of age of 21 years for the bridegroom and the age of 18 years for the bride but conspicuously in Section 11 the marriage in violation to the clause (iii) of Section 5 has not been declared void nor has been made voidable under Section 12. At this juncture, we would like to refer sub-clause (iv) of sub-section(2) of Section 13 which says that a wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. It appears that a right has been given to the wife for getting the marriage dissolved under Section 13 in circumstances referred above only. 12. However, at this juncture, we may observed that in the Habeas Corpus petition and in the facts of this case it is not possible nor necessary to decide about the validity of the marriage and we are also not proposing to search the validity of the marriage in any manner directly or indirectly because of the reason that the corpus as per the Annex. 1 has already attained the age of 18 years on 1.1.2011 and if not, then she would be attaining the age of 18 years in 9 days, on 1.2.2011. In the peculiar facts of the case when there is a difference of days now from the age of 18 years of the corpus as per the best case of the petitioner himself, we have no intention to go into the issue whether the date of birth of the corpus is 1.1.1993 or 1.2.1993 because that will make no much difference. The minority of the girl, even as per the father of the girl, will continue only upto 1.2.2011 and it is settled law that a major person has right to take his/her own decision and his/her decision cannot be regulated by the order of the court unless some conditions exist like of unsound mind etc. Here in this case, we may also observe that the 18 years is not a magic age attaining of which markes a person wise and not attaining the age of that 18 years by few days will make a person not of that mental state who can take care of her own interest. In the facts and circumstances of the case and most particularly the fact, which has been taken note of by the court on 18.1.2011 and the facts which we have observed in chamber in the presence of the counsel when interacting with the parties as well as interacting with the petitioner it is better to avoid all the conflicts and disputes by not giving custody to anybody at this stage and we constrained to order that the corpus be kept in the Nari Niketan, Jodhpur upto 2.2.2011 and she may be brought in the court on 2.2.2011 and by that time, the corpus will be of the age as per the requirement of the law, which will be sufficient for the satisfaction of the parties and particular because of the reason that in spite of the best efforts and making known to those persons that the order of this Court may be avoided as it will be in the interest of the parties and their family members, therefore, they may avoid to get any order from the court only for 9 days. We also persuaded to take this view because of the decision given by the Division Bench of the Gujarat High Court in the case of Patel Verabhati Kalidas (supra) wherein a girl was sent to the Nari Niketan for a quite long period of about 4 months in the circumstances when there was a claim of marriage of a minor girl with the person facing the allegation of committing crime. 13. In view of the above, the girl to sent to Nari Niketan Jodhpur and be brought before this court on 2.2.2011. 14. List this matter on 2.2.2011.