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Andhra High Court · body

2012 DIGILAW 1291 (AP)

Syed Majid v. District Collector

2012-12-27

C.V.NAGARJUNA REDDY

body2012
Judgment : This Writ Petition is filed for a mandamus to declare the action of respondent Nos.2 and 3 in not considering the petitioner’s representations dated 29-8-2012 and 15-9-2012 for handing over the custody of Mrs.Shama Begum-daughter of respondent No.4 (for short “the girl”), to the petitioner as illegal and arbitrary. The petitioner sought for a consequential direction to respondent Nos.2 and 3 to handover the custody of the girl to him. I have heard Smt.S. Nanda, learned counsel for the petitioner, the learned Assistant Government Pleader for Women Development and Child Welfare and Sri K. Murali Krishna, the learned counsel representing Sri P. Veera Reddy, learned counsel for respondent No.4. The petitioner pleaded that he has married the girl as per the Muslim tradition and culture. He has filed document No.36010, dated 24-6-2012 issued by Nazirul Quazath, APSWB, Hyderabad, in support of this plea. The petitioner further pleaded that while he is 25 years of age, the girl is 19 years old, having been born on 11-11-1992. In support of this plea, the petitioner filed age certificate dated 25-6-2012 issued by the Civil Assistant Surgeon, Government Area Hospital, Khammam. The petitioner has also filed the marriage photographs. The petitioner further pleaded that respondent No.2 has taken the girl into custody on a purported complaint dated 26-6-2012 issued by respondent No.4; that since then the girl is in the custody of respondent No.2; that even though the petitioner made representations to respondent No.2 to release the girl and handover her to him, no action has been taken thereon. When this case came up before the Court on 30-11-2012, this Court directed respondent No.3 to produce the girl before the Court. Accordingly, on 17-12-2012, the girl was produced before this Court. When the girl was questioned in the open Court about her choice of stay, she has stated that she is willing to live with her husband, the petitioner. The respondents have, however, taken the plea that since the girl is below the age of 18 years, her option has no relevance and that the marriage of the petitioner and the girl cannot be recognized in law. The respondents have, however, taken the plea that since the girl is below the age of 18 years, her option has no relevance and that the marriage of the petitioner and the girl cannot be recognized in law. While directing that the girl shall continue to be in the custody of respondent No.3, this Court has adjourned the case to enable the learned counsel for the parties to address on the question whether the marriage between the petitioner and the girl is a nullity. 1. Today, at the hearing, Smt.S. Nanda, learned counsel for the petitioner, while submitting that the girl has crossed 18 years of age and hence she is a major, however, alternatively submitted that the girl has attained the age of puberty; that under the Mohammedan law, the marriage is only voidable at the option of the girl on her attaining the age of 18 years and that she has the option to live with her husband. In support of her submission, the learned counsel placed reliance on the Judgment of the Division Bench of the Patna High Court in Md. Idris Vs. State of Bihar and others (1980 Crl.L.J. 764)and that of the Delhi High Court in Mrs. Tahra Begum Vs. State of Delhi and others (W.P. (Crl) No.446/2012, Crl.M.A.No.3701/2012, dt.9-5-2012 (Delhi High Court). Since there is a serious dispute relating to the age of the girl, this Court is not inclined to delve into this controversial aspect, but it proposes to proceed on the assumption that the girl has not completed the age of 18 years and that she is a minor. According to respondent No.4, the girl was born on 12-11-1997 and that therefore she has completed 15 years of age by 12-11-2012. There is no dispute that the girl has attained puberty. The question is whether the marriage between the petitioner and the girl is legally valid, or not, and if the answer is in the affirmative, whether the girl has the right of option to live with her husband. In Md. There is no dispute that the girl has attained puberty. The question is whether the marriage between the petitioner and the girl is legally valid, or not, and if the answer is in the affirmative, whether the girl has the right of option to live with her husband. In Md. Idris (1-supra), relying upon Article 251 of the Mulla’s Principles on Mohammedan Law, the Division Bench of the Patna High Court held that every Mohammedan of sound mind who had attained the age of puberty may enter into a contract of marriage and that as per the explanation to the said Article, puberty is presumed, in the absence of evidence, on completion of the age of 15 years. It is useful to refer to the relevant portion of the said Judgment hereunder: “Whether respondent No.5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 of the Mulla’s Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, in absence of evidence, on completion of the age of 15 years. Even in Tyabji’s Muslim Law under Article 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla’s Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgement by the man of the woman as his wife. Article 90 of Tyabji’s Muslim Law also says that a marriage Is to be presumed on the acknowledgement of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty i.e., in normal course at the age of 15 years, can marry without the consent of her guardian.” The Division Bench in Mrs. Tahra Begum (2-supra), which referred to and relied upon the Judgment in Mohd. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty i.e., in normal course at the age of 15 years, can marry without the consent of her guardian.” The Division Bench in Mrs. Tahra Begum (2-supra), which referred to and relied upon the Judgment in Mohd. Idris (1-supra) and also of the Delhi High Court in VivekKumar @ Saju and Anjali @ Afsana Vs. The State and another (Crl.M.C.No.3073-74 of 2006, dt. 23-2-2007)held that a Muslim girl who has attained puberty can marry and such marriage would not be a void marriage; and that, however, she has the option oftreating the marriage as voidable at the time of her attaining the age of majority i.e., 18 years. In the light of the above legal position, I am of the opinion that the marriage between the petitioner and the girl is lawful in Mohammedan law as the latter has attained puberty by the time of the marriage in question. The girl has, therefore, a right to live with her husband, the petitioner. Further, as stated herein above, when her opinion was elicited by this Court, the girl has stated that she wants to live with the petitioner. In the light of the above discussion, respondent Nos.2 and 3 are directed to handover the custody of the girl to the petitioner. The Writ Petition is accordingly allowed.