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Madhya Pradesh High Court · body

2014 DIGILAW 201 (MP)

Rashid Khan v. State of M. P.

2014-02-13

SUJOY PAUL

body2014
ORDER 1. In this petition filed under Article 226 of the Constitution, the petitioner has prayed for issuance of writ of habeas corpus for seeking custody of his wife from the mother of the wife. 2. Brief facts necessary for adjudication of this matter are as under :- (i) Petitioner and Gulafsa (corpus) solemnized marriage in accordance with Muslim customs on 2.3.2013 at the office of Sharivah Kaza Khanugaon, Bhopal ( M.P.). 'Nikahnama' is filed as Annexure P/1. The corpus executed an affidavit on 2.4.2013 at Bhopal admitting the factum of marriage with petitioner. This affidavit is filed as Annexure P/2. (ii) The stand of the petitioner is that he and corpus are major and therefore, they were entitled to decide as to with whom they would marry. In support of contention regarding age, the voter ID and voter list are filed. 'Aadhar' registration slip is also relied upon for this purpose. (iii) It is submitted that the mother of the corpus, respondent No.4, lodged FIRs against the petitioner and forcibly and illegally took away the corpus from the petitioner's custody. Petitioner was enlarged on bail and then filed this petition. 3. It is contended that as per the provisions of Mulsim Law marriage is in accordance with law and respondent No.4 is keeping the corpus without her will, which amounts to wrongful detention of corpus. 4. Per Contra, respondent No.4 submitted that the date of birth of corpus is 15th July, 1997. Thus, she is about 16 years and 1 and ½ months old. Marks sheet Annexure R/1 for this purpose is relied upon. However, factum of marriage is not denied. It is contended that marriage was solemnized illegally without permission of respondent No.4. It is contended that since corpus is minor, the marriage without the consent of respondent No.4 is impermissible. 5. This Court on various occasions asked the corpus as to with whom she wants to reside. On every occasion, including on the last date of hearing on 10.2.2014, she in no uncertain terms stated that she on her own volition got married and wants to reside with the husband. 6. The Marriage in the present case is solemnized under the customs of Mahomedan Law. In AIR 1932 Lahore 280 (Munshi v. Mt. On every occasion, including on the last date of hearing on 10.2.2014, she in no uncertain terms stated that she on her own volition got married and wants to reside with the husband. 6. The Marriage in the present case is solemnized under the customs of Mahomedan Law. In AIR 1932 Lahore 280 (Munshi v. Mt. Alam Bibi) the Division Bench of the High Court opined that under Mahomedan Law even a girl under fifteen is competent to enter into a marriage contract if she has attained puberty. In AIR 1950 Lahore 45 (Mt. Gulam Sakina v. Falak Sher Allah Bakhsh) it was opined that “Puberty” under Muhammadan law is resumed, in the absence of evidence, on completion of the age of 15 years. It would, therefore, necessarily follow that the minor should exercise the option after the age of 15 years unless there is evidence to the contrary that puberty has been attained earlier and the burden of proving this shall lie upon the person so pleading. Anything done by the minor during the minority would not destroy the right which can accrue only after puberty. 7. The Division of Patna High Court in case of (Md. Irdis, v. State of Bihar and others) reported in (1980 CRI L J 764) opined that 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. This Court in 1991 MPLJ 503 (Noor Mohammad v. Mohammad Jiauddin and others) opined that marriage solemnized under Mahomedan Law is purely a civil contract. The essentials of a valid Muslim marriage are offer and acceptance at the same sitting, by the parties to the marriage,of the proposal, in the presence and hearing of two male or one male and two female witnesses. 8. The Delhi High Court in W.P. (CRL( 446/ 2012, Crl. M.A. 3701/012 (Mrs. Tahra Begum v. State of Delhi and Others.) posed with a situation where the mother of the corpus was seeking the writ of habeas corpus for getting custody from the husband of the corpus. In the said case, the corpus was a minor (age 15 years). She married with one Mehtab. Question was whether the mother can seek custody because corpus was minor / below 18 years of age. In the said case, the corpus was a minor (age 15 years). She married with one Mehtab. Question was whether the mother can seek custody because corpus was minor / below 18 years of age. After considering various judgments, including the judgment of Patna High Court in case of Md. Idrish (supra), Delhi High Court opined that Mulsim girl, who has attained puberty, i.e. 15 years can marry and such marriage would not be a void marriage. However, it was held that she has an option of treating the marriage as voidable at the time of her attaining the age of majority, i.e. 18 years. It was held as under :- “The girl in this case, Shumaila, clearly expressed her choice of residing with her husband, this Court is of opinion that she ought to be allowed to exercise her option. This Court has today recorded her statement in that regard. We direct the presence of Mehtab, Shumaila and either of her in-laws once in six months, in order to ascertain her will being, till she attains the age of majority before the Child Welfare Committee. The Committee shall take necessary steps including obtaining the necessary undertaking from Mehtab in that regard Subject to completion of these steps, ( which shall be within a week) Shumaila shall be allowed to live with Mehtab, in the matrimonial home. 9. Different authors have taken the same view regarding age of marriage of muslim girl which have been taken in the aforesaid judgments. This view is taken in “Principles of Mahomedan Law” by Mulla, “Mohammedan Law” by Aqil Ahmad and “Mohammedan Law” by B. R. Verma. 10. In the present case, admittedly the corpus has married after attaining the age of 15 years. Thus, her marriage cannot be said to be a void marriage. She on more than one occasion has expressed her wish to reside with her husband Rashid Khan. In this view of the matter, she has a right to reside with her husband. In view of option exercised by her to live with her husband, I deem it proper to direct the respondent No.4 to permit the corpus to go and live with her husband. However, in the facts and circumstances of this case, I deem it proper for the welfare of the corpus to give similar directions which were given by the Delhi High Court in the above case. However, in the facts and circumstances of this case, I deem it proper for the welfare of the corpus to give similar directions which were given by the Delhi High Court in the above case. 11. Resultantly, it is directed that corpus and her husband Rashid Khan shall present themselves once in six months before the Child Welfare Committee constituted under Juvenile Justice (Care and Protection) Act at Gwalior. This is necessary in order to ascertain her well being till she attained age of majority. Committee shall take necessary steps including obtaining the necessary undertaking from the husband Rashid Khan in this regard. Subject to completion of these steps, corpus shall be allowed to live with her husband Rashid Khan, in the matrimonial home. 12. Petition is disposed of with the aforesaid directions.