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2016 DIGILAW 1578 (GUJ)

Veljibhai Bhanabhai Prajapati v. State of Gujarat

2016-08-01

BIREN VAISHNAV, HARSHA DEVANI

body2016
JUDGMENT : Harsha Devani, J. 1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks a writ of habeas corpus directing the second respondent Police Inspector, Palanpur city (West) Police Station to produce the corpus of the minor daughter of the petitioner, namely, Manisha aged about 16 years from the custody of the respondents No. 3 and 4. 2. The facts, as averred in the petition, are that the petitioner is a very poor person doing the job of a mason and earning his livelihood as a daily wager. Manisha is the elder of the petitioner's two daughters and was studying in Smt. Rajiba Kalidas Patel H.S. Kanya Vidhyalaya, however, she was required to leave her studies on 4.5.2015 on account of misbehaviour and harassment by the third respondent. It is the case of the petitioner that on 28.4.2016 in the morning at about 10.00 a.m., his minor daughter Manisha had been abducted by the third respondent and, therefore, he had lodged a first information report against the third respondent under sections 363 and 366 of the Indian Penal Code and sections 4 and 10 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act". The first information report came to be registered as Palanpur City (West) Police Station I-C.R. No. 47 of 2016. It is the case of the petitioner that despite the fact that he had approached the second respondent on several occasions and made oral requests to search out his minor daughter, unfortunately no action has been taken in that regard. It is in these circumstances that the petitioner has filed the present petition seeking a writ of habeas corpus to produce the corpus of his minor daughter Manisha. 3. Pursuant to the notice issued by this court, on 22.7.2016 the petitioner's daughter Manisha remained present before the court. The court, in the chamber, had inquired from Manisha as to exactly what had transpired and she had informed the court that she had willingly left her parental home and had gone with the third respondent and that they had entered into matrimony. She has categorically refused to go home with the petitioner and had stated that she would like to reside with her husband, namely the third respondent herein. She has categorically refused to go home with the petitioner and had stated that she would like to reside with her husband, namely the third respondent herein. Manisha being a minor, the court did not deem it fit to hand over her custody to the third respondent. Mr. Bhatt learned advocate for the third respondent, however, submitted that he would like to make submissions on the merits of the petition to point out that pursuant to her marriage with the third respondent, the third respondent being the husband of minor Manisha was her natural guardian and requested for some time. Accordingly, the matter was adjourned to 27th July, 2016 and in the meanwhile, by way of an interim arrangement, Manisha was permitted to reside with the third respondent's maternal grandmother at Ahmedabad. 4. In response to the averments made in the petition, the third respondent Dipak alias Ashwin Karsanbhai Patel has filed an affidavit in reply which makes it apparent that it is the case of the said respondent that there was a love affair between him and minor Manisha for the last two years, due to which on 26.10.2015, 13.01.2016 and 20.03.2016 Manisha had left her parental home and come to his house and on each occasion he, his widowed mother and other relatives had persuaded her to go back to her home but after coming to his house, Manisha would lock herself in the room and would refuse to go back. However, he, as a law abiding citizen had informed her parents as well as the police officers of the Palanpur City Police Station, West. It is further averred in the affidavit-in-reply that Manisha's parents were willing to forcibly get her married to someone other than the third respondent and that he had sent a fax message in this regard to the DSP, Banaskantha on 18.01.2016 but no action was taken thereon. It is further stated that Manisha was forced to stop her education after completing her studies upto the tenth standard and was forcibly confined to one room and was severely beaten by her father and other relatives and ultimately she left her parental home forever with a view to get married to him (the third respondent). It is further stated that Manisha was forced to stop her education after completing her studies upto the tenth standard and was forcibly confined to one room and was severely beaten by her father and other relatives and ultimately she left her parental home forever with a view to get married to him (the third respondent). It is also stated that hereafter he had got married to Manisha as per Hindu religious rites on or about 13.05.2016 and that such decision was his as well as Manisha's, and was taken after due deliberation and that not only has the marriage been performed with a view to give legal sanctity and to provide her an armor and shield in the society, he knows and understands his responsibilities as a husband of Manisha. That not only he, but his mother has also accepted Manisha as a daughter in law and is equally desirous of her welfare. 5. From the averments made in the affidavit-in-reply filed by the third respondent, it appears that previously on three occasions, Manisha had left her parental home and gone to the third respondent's house and that lastly on 28.4.2016, Manisha once again left her parental home, whereafter the third respondent married her on 13.5.2016 as per Hindu religious rites. Manisha's birth date being 21.2.2000, it is evident that she is about sixteen years and five months of age and hence, it is an admitted position that she was a minor on the date of the marriage and that even as on date she is a minor and would attain the age of majority only after more than one and a half years. On the other hand, the third respondent is about 25 years of age, and therefore, is about nine years older than Manisha. According to him, there was a love affair since the last two years, which means that as a 23 year old, he had an affair with a fourteen year old girl and thereafter on various dates, that is, 26.10.2015, 13.1.2016 and 29.3.2016, Manisha left her parental home and went to the house of the third respondent, on which occasions, as per the third respondent he and his mother and other relatives persuaded her to return to her parental home and upon her refusing to do so, he had informed the police as well as her parents. However, it appears that on this occasion when she left her home on 28.4.2016, the third respondent did not persuade her to return home, but married her on 13.5.2016 despite the fact that she was a minor and was not of marriageable age. 6. As noticed earlier, upon ascertaining the facts from Manisha, she had informed the court that she had willingly left her parental home and had married the third respondent of her own free will and had expressed the desire to reside with him. She had also categorically refused to return to her parental home. 7. It may be noted that the petitioner herein is Manisha's father, who seeks a writ of habeas corpus to the second respondent to produce his minor daughter Manisha from the custody of the respondents No. 3 and 4. On the other hand, the third respondent now seeks to contend that he being the legal and natural guardian of his minor wife Manisha, her custody should be handed over to him or to his mother, who would ensure that Manisha is taken care of and would not permit the third respondent to meet Manisha till she attains the age of majority. 8. In the above backdrop, the moot question that arises for consideration is whether the third respondent is entitled to claim custody of minor Manisha on the ground that she is his legally wedded wife and that he being her husband is her natural and legal guardian. 9. Mr. Asif Khan I. Pathan, learned advocate for the petitioner submitted that the petitioner being the father of minor Manisha is her natural guardian and is, therefore, entitled to her custody. It was submitted that Manisha being a minor, the marriage between the third respondent and Manisha is not valid in the eyes of law, inasmuch as section 5 of the Hindu Marriage Act, 1955 provides for the conditions which are required to be fulfilled for a marriage to be solemnized between any two Hindus, one such condition being that the bride has completed the age of eighteen years at the time of the marriage. It was submitted that admittedly Manisha has not completed eighteen years and hence such marriage has no sanctity in law. It was submitted that admittedly Manisha has not completed eighteen years and hence such marriage has no sanctity in law. 9.1 In support of his submissions, the learned counsel placed reliance upon the decision of this court in the case of Kapildev Balusa Verma v. State of Gujarat, 2011 (1) GCD 96 , wherein the court had observed that it could not permit the corpus to go with the respondent No. 4 therein even though she was his lawfully wedded wife, as her marriage with the respondent No. 4 was void in the eye of law. In the facts of the said case, the corpus had shown her willingness to stay with the petitioner, her father, and the court had further observed that the petitioner would permit her to go with the respondent No. 4 on completion of 18 years, that is, on attaining the age of majority. The petitioner therein was present before the court and had assured the court that he would not take any undue step against her daughter and against her will and he would permit the corpus to go with the respondent No. 4 on completion of eighteen years, that is, on attaining the age of majority. 9.2 Reliance was also placed upon the decision of this court in the case of Devendra Devo S/o Muttuvel Adidravid v. State of Gujarat, 2010 JX (Guj) 1225, wherein the corpus had shown her unwillingness to go with her father who was the natural guardian. The court directed that the third respondent Women's Protection Home to retain her custody with it till she completes the age of eighteen years. The court further directed that the corpus should not be allowed to meet the petitioner and should not be allowed to go anywhere till she completes the age of eighteen years. Mr. Pathan submitted that the third respondent has no legal right to hold custody of his minor daughter and hence, the court may direct that the custody of Manisha be handed over to the petitioner. 10. Vehemently opposing the petition, Mr. Mr. Pathan submitted that the third respondent has no legal right to hold custody of his minor daughter and hence, the court may direct that the custody of Manisha be handed over to the petitioner. 10. Vehemently opposing the petition, Mr. D.R. Bhatt, learned advocate for the third respondent invited the attention of the court to the averments made in the affidavits-in-reply of the third respondent and his mother Jashodaben Karsanbhai Patel, to submit that Manisha was ill-treated by her parents and was not permitted to pursue further education, and that the third respondent would take good care of her and ensure that she studies further. It was further pointed out that the financial position of the third respondent was sound and that he was in a position to take proper care of Manisha. Mr. Bhatt further submitted that the marriage between the third respondent and Manisha has been solemnised in accordance with Hindu rites and rituals and Manisha is his legally wedded wife. Reference was made to the provisions of section 6 of the Hindu Minority and Guardianship Act, 1956 which bears the heading "Natural guardians of a Hindu minor" and enumerates the categories of persons who are natural guardians of a Hindu minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) and more particularly to the category specified under clause (c) thereof, which provides that in the case of a married girl -the husband. It was submitted that in view of the provisions of section 6(c) of the Hindu Minority and Guardianship Act, the third respondent being the natural guardian of minor Manisha is entitled to her custody, more so, considering the fact that Manisha herself desires to live with the third respondent and is unwilling to return to her parental home. Besides, in view of the averments made in the affidavit-in-reply of the third respondent, the welfare of the minor lies with the third respondent. Besides, in view of the averments made in the affidavit-in-reply of the third respondent, the welfare of the minor lies with the third respondent. 10.1 In support of his submissions the learned counsel placed reliance upon the decision of the Andhra Pradesh High Court in the case of Kokkula Suresh v. State of Andhra Pradesh, AIR 2009 Andhra Pradesh 52, wherein the court held that as per section 6(c) of the Hindu Minority and Guardianship Act, the husband is the natural guardian in respect of the minor's person as well as in respect of the minor's property and, accordingly, allowed the minor girl to go with her husband. 10.2 Reliance was also placed upon the decision of the Delhi High Court in the case of SH. Jitender Kumar Sharma v. State and another rendered on 11.08.2010 in WP (CRL) 1003/2010, wherein the court held that the validity of a marriage is primarily to be adjudged from the standpoint of the personal law applicable to the parties to the marriage. The validity of a marriage between Hindus is to be considered in the context of the Hindu Marriage Act. The court observed that a Hindu marriage in contravention of clause (iii) of section 5 of the Hindu Marriage Act is not void. But, by virtue of section 12 of the Prohibition of Child Marriage Act, 2006, which is a secular provision cutting across all religious barriers, a marriage which is not void under the personal laws of the parties to the marriage may yet be void if the circumstances specified therein are attracted. However, the other side of the coin is that where the circumstances listed in section 12 do not arise, the marriage of a minor child would still be valid unless it is a void marriage under the applicable personal law. So, a Hindu marriage which is not a void marriage under the Hindu Marriage Act would continue to be such provided the provisions of section 12 of the Prohibition of Child Marriage Act are not attracted. The court found that in the case before it, none of the circumstances specified in the said section 12 arose. The court, accordingly, held that the marriage between the petitioner and Poonam was not void or invalid, and would be unaffected by the Prohibition of Child Marriage Act, 2006. The court found that in the case before it, none of the circumstances specified in the said section 12 arose. The court, accordingly, held that the marriage between the petitioner and Poonam was not void or invalid, and would be unaffected by the Prohibition of Child Marriage Act, 2006. On the issue of custody, the court observed that Poonam was a minor Hindu girl who was married. Her natural guardian was no longer her father but her husband. The court held that a husband who is a minor can be the guardian of his minor wife. The court further observed that no other person could be appointed as the guardian of Poonam, unless they found Jitender (her husband) was unfit to act as her guardian for reasons other than his minority. After giving due weightage and consideration to the preference indicated by Poonam, who had refused to live with her parents and had categorically expressed her desire and wish to live with her husband, Jitender, the court was of the view that her welfare would be best served if she was to live with her husband. The court further observed that she could not be forced or compelled to continue to reside at Nirmal Chhaya or some other such institution as that would amount to her detention against her will and would be violative of her rights guaranteed under Article 21 of the Constitution. The court found that sending her to live with her parents was not an option as she feared for her life and liberty. The court, ultimately, observed that Poonam was free to go with her husband Jitender and reside with him in his home. 10.3 Mr. Bhatt submitted that apart from the fact that the above decision would be squarely applicable to this case, in the facts of the present case, the parties stand on a stronger footing, inasmuch as, in this case the third respondent is a major. In the present case also, Manisha fears for her life and liberty if her custody is restored to her parents and that in view of the affidavit of the third respondent's mother, the Manisha's welfare lies in handing over her custody to the mother of the third respondent. In the present case also, Manisha fears for her life and liberty if her custody is restored to her parents and that in view of the affidavit of the third respondent's mother, the Manisha's welfare lies in handing over her custody to the mother of the third respondent. 10.4 Reliance was also placed upon the decision of a Full Bench of the Delhi High Court in Court On Its Own Motion (Lajja Devi) v. State rendered on 27.07.2012 in W.P. (Crl.) No. 338/2008 and allied matters, wherein the court held that the marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but a voidable one, which would become valid if no steps are taken by such "child" within the meaning of section 2(a) of the Prevention of Child Marriage Act, 2002 under section 3of the said Act seeking declaration of the marriage as void. The court was of the opinion that simply because the marriage was not void, it should not automatically follow that the husband is entitled to the custody of the minor girl. The court noted in detail the serious repercussions of child marriage. Before the court it was submitted that in the case of a minor married girl, the husband is the guardian and in case of an unmarried minor girl father or the mother, is her guardian. It was, accordingly, submitted that the husband, even if a minor, would be the guardian of his wife. The court repelled such argument by holding that the overriding and compelling consideration governing custody of guardianship of the child is the child's welfare and claim to the status as a guardian under the said section is not a right. The court held that while deciding the question of custody of a minor child, it is the interest of the child, which is paramount and important. The court was of the view that allowing the husband to consummate a marriage may not be appropriate, more so, when the purpose and rationale behind the Prevention of Child Marriage Act, 2006 is that there should not be a marriage of a child at a tender age as he or she is not psychologically or medically fit to get married. The court further observed that another important aspect was to be borne in mind that such a marriage, after all, is voidable and the girl child still has right to approach the court seeking to exercise her option to get the marriage declared as void till she attains the age of 21 years. If in the meantime because the marriage is consummated when she is not even in a position to give consent which also could lead to pregnancy and child bearing she would not be able exercise her right. The court was of the view that such marriages, if they are made legally enforceable will have deleterious effect and shall not prevent anyone from entering into such marriages. Consent of a girl or boy below the age of 16 years in most cases a figment of imagination is an anomaly and a mirage and, and will act as a cover up by those who are economically and/or socially powerful to pulverize the muted meek into submission. The court was of the view that these are the considerations which are to be kept in mind while deciding as to whether custody is to be given to the husband or not. It was further observed that many other factors which are required to be kept in mind by the court, particularly where the girl, though minor, eloped with the boy (whether below or above 21 years of age) and she does not want to go back to her parents. A question may arise as to whether in such circumstances, the custody can be given to the parents of the husband with certain conditions including the condition that husband would not be allowed to consummate the marriage. The court took note of the fact that in many cases, such girls severely oppose and object to their staying in special homes, where they are not allowed to meet the boy or their parents. The stay in the said special homes cannot be unduly prolonged as it virtually amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her freedom and her wishes should not get negated as if she has no voice and her wishes are of no consequence. The stay in the said special homes cannot be unduly prolonged as it virtually amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her freedom and her wishes should not get negated as if she has no voice and her wishes are of no consequence. 10.5 It was submitted that in the facts of the present case, Manisha is quite mature and is in a position to think of her own welfare and as such, she should not be denied her freedom and her wishes should not be ignored. Therefore, the custody of minor Manisha is required to be handed over to the mother of the third respondent who would file an undertaking to the effect that the third respondent would not be permitted to consummate the marriage till Manisha attains the age of majority. It was, accordingly, submitted that the petitioner herein is not entitled to the custody of minor Manisha and that having regard to the welfare of the minor, her custody is required to be handed over to the mother of the third respondent on such terms and conditions as the court may deem fit. 11. Before adverting to the merits of the submissions advanced by the learned counsel for the respective parties, it may be germane to refer to certain statutory provisions. 12. Section 5 of the Hindu Marriage Act, 1955 provides for the conditions for a Hindu marriage and postulates that a marriage may be solemnized between any two Hindus, if the conditions enumerated therein are fulfilled. One such condition being that the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage. Section 11 of the Hindu Marriage Act makes provision for "void marriages" and lays down that any marriage solemnised after the commencement of the Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5. Section 12 of the Hindu Marriage Act makes provision for "voidable marriages" and lays down that any marriage solemnised, whether before or after the commencement of the Act shall be voidable may be annulled by a decree of nullity on any of the grounds enumerated therein. It may be noted that contravention of clause (iii) of section 5 of the Hindu Marriage Act is not specified either under section 11 or section 12 of the Hindu Marriage Act and hence, a marriage which has been solemnised between two Hindus wherein the age of the bride is less than eighteen years at the time of marriage, is neither void nor voidable. 13. However, subsequently, the Legislature enacted the Prohibition of Child Marriage Act, 2006 which has a material bearing on the issue. At the outset it may be germane to refer to the statement of objects and reasons behind the said enactment, which reads thus: "STATEMENT OF OBJECTS AND REASONS The Child Marriage Restraint Act, 1929 was enacted with a view to restraining solemnisation of child marriages. The Act was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of marriage. The Act, though restrains solemnisation of child marriages yet it does not declare them to be void or invalid. The solemnisation of child marriages is punishable under the Act. 2. There has been a growing demand for making the provisions of Act more effective and the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of solemnisation of child marriages in the country. This will enhance the health of children and the status of women. The National Commission for Women in its Annual Report for the year 1995-96 recommended that the Government should appoint Child Marriage Prevention Officers immediately. It further recommended that- (i) the punishment provided under the Act should be made more stringent; (ii) marriages performed in contravention of the Act should be made void; and (iii) the offences under the Act should be made cognizable. 3. The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. 3. The National Human Rights Commission undertook a comprehensive review of the existing Act and made recommendations for comprehensive amendments therein vide its Annual Report 2001-2002. The Central Government, after consulting the State Governments and Union territory Administrations on the recommendations of the National Commission for Women and the National Human Rights Commission, has decided to accept almost all the recommendation and give effect to them by repeating and re-enacting the Child Marriage Restraint Act, 1929, 4. The salient features of the Bill are as follows:- (i) To make a provision to declare child marriage as voidable at the option of the contracting party to the marriage, who was a child. (ii) To provide a provision requiring the husband or, if he is a minor at the material time, his guardian to pay maintenance to the minor girl until her remarriage. (iii) To make a provision for the custody and maintenance of children born of Child marriages. (iv) To provide that notwithstanding a child marriage has been annulled by a decree of nullity under the proposed section 3, every child born of such marriage, whether before or after the commencement of the proposed legislation, shall be legitimate for all purposes. (v) To empower the district court to add to, modify or revoke any order relating to maintenance of the female petitioner and her residence and custody or maintenance of children, etc. (vi) To make a provision for declaring the child marriage as void in certain circumstances. (vii) To empower the courts to issue injunctions prohibiting solemnisation of marriages in contravention of the provisions of the proposed legislation. (viii) To make the offences under the proposed legislation to be cognizable for the purposes of investigation and for other purposes. (ix) To provide for appointment of Child Marriage Prevention Officers by the State Governments." 14. Section 2(a) of the Prohibition of Child Marriage Act defines the expression "child" to mean a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age. Section 2(b) of the said Act defines "child marriage" to mean a marriage to which either of the contracting parties is a child. Section2(c) thereof, defines the expression "contracting party" in relation to a marriage, to mean either of the parties whose marriage is or is about to be thereby solemnised. 15. Section 2(b) of the said Act defines "child marriage" to mean a marriage to which either of the contracting parties is a child. Section2(c) thereof, defines the expression "contracting party" in relation to a marriage, to mean either of the parties whose marriage is or is about to be thereby solemnised. 15. Section 3 of the Prohibition of Child Marriage Act bears the heading "Child marriages to be voidable at the option of contracting party being a child" and to the extent the same is relevant for the present purpose, provides that every child marriage whether solemnised before or after the commencement of the Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage. Section 12 of the Prohibition of Child Marriage Act provides for the circumstances in which marriage of a minor child shall be null and void, one such circumstance is where a child, being a minor is taken or enticed out of the keeping of the lawful guardian. Section 9 of the Prohibition of Child Marriage Act bears the heading "Punishment for male adult marrying a child" and provides that whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Thus, contracting a child marriage is an offence under the Prohibition of Child Marriage Act. 16. It is in the backdrop of the above statutory provisions that the controversy in issue is required to be examined. 17. At this juncture reference may be made to the decision of a Full Bench of the Madras High Court in the case of T. Sivakumar v. Inspector of Police, AIR 2012 (Mad) 62 , wherein a similar issue came up for consideration and the court, after taking into consideration the relevant provisions of the Constitution of India, the Indian Penal Code, the Hindu Marriage Act, the Guardian and Wards Act, the Hindu Minority and Guardianship Act and the Prohibition of Child Marriage Act as well as various earlier decisions in this regard, held thus:- "18. A close reading of the above objects and reasons of the Prohibition of Child Marriage Act, would keep things beyond any pale of doubt that the Prohibition of Child Marriage Act is a special enactment for the purpose of effectively preventing the evil practice of solemnisation of child marriages and also to enhance the health of the child and the status of women, whereas, the Hindu Marriage Act is a general law regulating the Hindu marriages. Therefore, the Prohibition of Child Marriage Act, being a special law, will have overriding effect over the Hindu Marriage Act to the extent of any inconsistency between these two enactments. In view of the said settled position, undoubtedly, Section 3 of the Prohibition of Child Marriage Act will have overriding effect over the Hindu Marriage Act." "25. For better understanding of the legal position, at this juncture, we may have a look into the scheme of the Hindu Marriage Act. The expressions 'husband' and 'wife' have not been defined anywhere in this Act. But, in Sections 9 and 13 of the Act these two expressions have been used. Incidentally, we may notice that, reliefs under sections 9 and 13 of the Act are available only to parties to a valid marriage. It is by virtue of such valid marriage, the parties to the marriage acquire the status of husband and wife. Obviously, this is the reason why, in sections 9 and 13 of the Act, the legislature used the expressions 'husband' and 'wife'. But, the legislature has intentionally omitted to use these expressions viz., husband and wife in sections 11 and 12 of the Act. In section 11, the expression used is 'either party thereto against the other party'. In section 12, the expressions used are 'petitioner' and 'respondent'. There can be no doubt that parties to a void marriage do not acquire the status of husband and wife at all since the marriage is ipso jure void. It is because of this reason, in section 11 of the Act, the legislature has consciously omitted the expressions 'husband' and 'wife' and instead has used the expressions either party thereto against the other party. Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions 'husband' and wife'. Similarly, in section 12 of the Act, had it been the intention of the legislature to give the parties to a voidable marriage, the full status of husband and wife, the legislature would have used the expressions 'husband' and wife'. The omission to use these two expressions in section 12 perhaps, would only reflect the intention of the legislature not to give the full status of the husband and wife to the parties to a voidable marriage, like the spouses of a valid marriage. Sections 9 and 13 are in pari materia in so far as the expressions referable to the parties to the marriage are concerned, whereas sections 11 and 12 are in pari materia in terms of the expressions referable to the parties to a voidable marriage. If we look into the provisions of the Prohibition of the Child Marriage Act, it is obvious that here also, the legislature has consciously omitted the expressions 'husband' and 'wife'. In particular, in section 3 of the Act, the expression 'contracting party' has been used. The term 'contracting party' is defined in section 2 (c) of the Act which states that a contracting party, in relation to a marriage means either of the parties whose marriage is or about to be thereby solemnized. Thus, to some extent, Section 3 of the Prohibition of Child Marriage Act is in pari materia with Sections 11 and 12 of the Hindu Marriage Act insofar as the expressions referable to the parties to the marriage are concerned. This would again go to strengthen our conclusion that the male who contracts a child marriage of a female child cannot attain the full status of a husband like a husband of a full fledged valid marriage. To repeat, by the said marriage, though he burdens himself with legal liabilities arising there from, he acquires only limited rights as we have illustrated above." "28. As per the Hindu Minority and Guardianship Act, 1956, in the case of an unmarried girl the father shall be the natural guardian and after him the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. As per sub-section 6(c) of the Hindu Minority and Guardianship Act, in the case of a married minor girl, the husband shall be the natural guardian. 29. As per sub-section 6(c) of the Hindu Minority and Guardianship Act, in the case of a married minor girl, the husband shall be the natural guardian. 29. Undoubtedly, in the case of a void marriage under the Hindu Marriage Act, since the same is void ab initio, the parties never attain the status of the husband and wife. Similarly, under section 12of the Prohibition of Child Marriage Act, a child marriage in certain circumstances has been declared as void. Therefore, a child marriage which falls within the ambit of Section 12 of the Act also shall not give the status of husband and wife to the parties to the child marriage. The male who contracts a marriage with a female child falling within the ambit of Section 12 is not a husband of the minor in the legal sense and, therefore, as per the Hindu Minority and Guardianship Act, he will not acquire the status of the natural guardian of such child at all." "33. Almost it is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place. In this totally changed scenario since we are called upon to interpret the law, we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child. 34. We may also state that since a child marriage as defined in the Prohibition of Child Marriage Act itself is an offence and the same is cognizable, it does not require any complaint to the police to register a case and to investigate. On any information regarding such a child marriage, the Police has got a legal duty to register a case and to prosecute the offender by filing an appropriate final report. If the contracting party to the marriage of a female child is a male who is not a child undoubtedly, he is an offender punishable under section 9of the Act. On any information regarding such a child marriage, the Police has got a legal duty to register a case and to prosecute the offender by filing an appropriate final report. If the contracting party to the marriage of a female child is a male who is not a child undoubtedly, he is an offender punishable under section 9of the Act. The scheme of the Act would go to show that punishment has been provided only against an adult male marrying a female child but an adult female marrying a male child is not an offender as she does not fall within the ambit of section 9 of the Act. Sections 10 and 11 provide for punishment for solemnising a child marriage and promoting or permitting solemnisation of child marriages. So, it needs to be underscored that only the male namely the husband is liable to be punished and not the girl whether child or an adult. This scheme of the Act would also go to support the view that an adult male who marries a female child cannot be allowed to enjoy the fruits of such marriage because the solemnisation of the marriage itself is an offence insofar as the male is concerned. If we have to accept the contention that as per section 6(c) of the Hindu Minority and Guardianship Act, the husband of a female child shall be the natural guardian, it will only amount to giving premium for the offence committed by the male. When the law aims at eradicating the evil menace of child marriages, declaring the adult male who marries a female child, as her natural guardian would only defeat the very object of the Act. A law cannot be interpreted so as to make it either redundant or unworkable or to defeat the very object of the Act. Thus, by committing an offence punishable under Section 9 of the Act, the adult male cannot acquire the legal status of the natural guardian of the female child. In view of these discussions, we hold that Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly repealed by the Prohibition of Child Marriage Act. Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child. 35. Therefore, we conclude that an adult male who marries a female child in violation of section 3 of the Prohibition of Child Marriage Act shall not become the natural guardian of the female child. 35. With the aforesaid conclusion, let us now move on to the question of custody of a female child whose marriage has been procured in violation of the provisions of the Prohibition of Child Marriage Act. As per section 2 of the Hindu Minority and Guardianship Act, the provisions of the same shall be in addition to and not in derogation of the Guardians and Wards Act, 1890. There is no specific provision made in the Hindu Minority and Guardianship Act in respect of custody of a wife, who is a child. But, under section12(3) of the Guardians and Wards Act, the court namely, the District Court shall not 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 consent of her parents, if any. This provision makes it abundantly clear that even assuming that as per section 6(c) of the Hindu Minority and Guardianship Act, the husband is the natural guardian, even then, temporary custody of the minor wife cannot be given to him unless she is already in his custody with the consent of her parents. Thus, unless these twin conditions namely, the consent of her parents and being in the custody already are satisfied, even the temporary custody of a female child cannot be entrusted to her husband. After the advent of the Prohibition of Child Marriage Act, the vigor of Section 12(3) is more. When the competent court namely, the District Court itself has not been authorised to entrust the custody of a minor wife to her husband, unless the twin conditions are satisfied, it is needless to point out that after the advent of the Prohibition of Child Marriage Act, until the female child of such child marriage elects to accept the marriage on attaining the age of 18 years, her custody cannot be entrusted to the male party to the marriage more so because he is not the natural guardian of the female child." "45. A Division Bench of this court in N. Babu v. Sub Inspector of Police, 2000 (3) MWN Crl 69, had occasion to consider the question of custody of a minor girl as between the husband and the parents. While exercising the jurisdiction under Article 226 of the Constitution of India, in a habeas corpus proceeding, the Division Bench presided over by Hon'ble Mr. Justice V.S. Sirpurkar [as he then was] held as follows:- Again the question of marriage and the plea of marriage at this stage has no meaning for the simple reason that it is not known under what circumstances the consent for the marriage has been given. There is no question of a consent by the minor. For all practical purposes in law, the father and the mother who are the natural parents of the minor would alone be the natural guardian and at this stage when it is not decided as to whether the second respondent was justified in taking the girl along with him. If the girl is allowed to stay with the second respondent it would be giving an advantage to the second respondent of his own wrong which may not be possible for this court. The question as to who is the natural guardian, as to whether the marriage is proper or not, as to whether the second respondent was justified in taking the minor along with him, are not questions in the purpose of this court present. Presently, it is to be seen as to whether the minor girl should be allowed to stay with a person who is facing a charge of her abduction or kidnapping as the case may be. We are of the opinion that it may not be possible for us to allow the minor girl to stay with a person who is facing the charge under Section 366-A and or 363 of IPC for taking away of that very person. We therefore, direct the girl Amudha who is secured and is present in the court shall be put in the custody of her parents, if necessary with the aid of the police. At this stage, the learned counsel for the second respondent expresses, an apprehension that the parents may harm the minor and might act against her own interests. We therefore, direct the girl Amudha who is secured and is present in the court shall be put in the custody of her parents, if necessary with the aid of the police. At this stage, the learned counsel for the second respondent expresses, an apprehension that the parents may harm the minor and might act against her own interests. The learned Additional Public Prosecutor assures us that a close monitoring will be made by the police for the welfare of the girl. The parents are specifically warned not to treat the minor girl in any manner prejudicial to her welfare including getting her married against her wishes. 49. A close reading of the above judgments would clearly go to indicate that before the introduction of the Prohibition of Child Marriage Act, the courts were almost uniform in their opinion that the husband of a minor child is entitled for the custody of the minor wife. In the post Prohibition of Child Marriage Act scenario we are able to see considerable change in the approach of various High Courts. As we have referred to above a Division Bench of the Karnataka High Court has gone to the extent of declining to grant custody of the minor wife to the husband on the ground that the husband is an offender. In view of the said position, we are of the view that it will be very safe to hold that after the advent of the Prohibition of Child Marriage Act since the male contracting party to a child marriage does not attain the full status of the husband until the child attains the eligible age, like a husband of a full-fledged valid marriage and consequentially since he is not the guardian of the female child of such child marriage, he is not entitled for the custody of the minor. If a different interpretation is adopted to say that such husband is entitled for the custody of minor wife will only defeat the very object of the Act. 51. The aforesaid rule is almost in pari materia with Section 17 of the Guardians and Wards Act, 1890. Therefore, if the child, who has capacity to determine, expresses her wish not to go with her parents, it may not be appropriate for the court to compel her to go to the custody of her parents. 51. The aforesaid rule is almost in pari materia with Section 17 of the Guardians and Wards Act, 1890. Therefore, if the child, who has capacity to determine, expresses her wish not to go with her parents, it may not be appropriate for the court to compel her to go to the custody of her parents. The court may keep her in appropriate custody like, custody in a welfare home for children in need of care and protection set up under the Juvenile Justice [Care and Protection] Act. Here, it should not be misunderstood that the child could be sent either to a special home or an observation home which are meant for juveniles in conflict with law under the Juvenile Justice [Care and Protection of Children] Act. We make it clear that a female child who is a victim of child marriage, if expresses her wish not to go with her parents, the court may direct such female child be kept in a separate home for children in need of care and protection established under the Juvenile Justice [Care and Protection Act] and not in a special home or observation home meant for juveniles in conflict with law." 18. On the question as to whether a minor child can be kept in protective custody of the State, the court in the above decision, was of the considered opinion that if the welfare of the minor child will be well protected if she is kept in the protective custody of the State, the court can resort to such course of action. The court, accordingly, recorded the following conclusions:- "57. In conclusion, to sum up, our answers to the questions referred to by the Division Bench are as follows:- i. The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a competent court under section 3 of the Prohibition of Child Marriage Act. The said marriage is not a valid marriage stricto sensu as per the classification but it is not invalid. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights. ii. The said marriage is not a valid marriage stricto sensu as per the classification but it is not invalid. The male contracting party shall not enjoin all the rights which would otherwise emanate from a valid marriage stricto sensu, instead he will enjoin only limited rights. ii. The adult male contracting party to a child marriage with a female child shall not be the natural guardian of the female child in view of the implied repealing of section 6(c) of the Hindu Minority and Guardianship Act, 1956. iii. The male contracting party of a child marriage shall not be entitled for the custody of the female child whose marriage has been contracted by him even if the female child expresses her desire to go to his custody. However, as an interested person in the welfare of the minor girl, he may apply to the court to set her at liberty if she is illegally detained by anybody. iv. In a habeas corpus proceeding, while granting custody of a minor girl, the court shall consider the paramount welfare including the safety of the minor girl notwithstanding the legal right of the person who seeks custody and grant of custody in a habeas corpus proceeding shall not prejudice the legal rights of the parties to approach the civil court for appropriate relief. v. Whether a minor girl has reached the age of discretion is a question of fact which the court has to decide based on the facts and circumstances of each case. vi. The minor girl cannot be allowed to walk away from the legal guardianship of her parents. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition. vii. But, if she expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court cannot compel her to go to the custody of her parents and instead, the court may entrust her in the custody of a fit person subject to her volition. vii. If the minor girl expresses her desire not to go with her parents, provided in the opinion of the court she has capacity to determine, the court may order her to be kept in a children home set up for children in need of care and protection under the provisions of the Juvenile Justice [Care and Protection] Act and at any cost she shall not be kept in a special home or observation home meant for juveniles in conflict with law established under the Juvenile Justice [Care and Protection] Act, 2000 viii. A minor girl whose marriage has been contracted in violation of section 3 of the Prohibition of Child Marriage Act is not an offender either under Section 9of the Act or under Section 18 of the Hindu Marriage Act and so she is not a juvenile in conflict with law. ix. While considering the custody of a minor girl in a habeas corpus proceeding, the court may take into consideration the principles embodied in Sections 17and 19(a) of the Guardians and Wards Act, 1890 for guidance." 19. This court is in complete agreement with the above view adopted by the Full Bench of the Madras High Court in the case of T. Sivakumar v. Inspector of Police (supra). In the facts of the present case, as noticed earlier, the third respondent has married Manisha, who is a minor. Such act on the part of the third respondent of entering into matrimony with a minor is an offence in terms of section 9 of the Prohibition of Child Marriage Act which provides that whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Therefore, in the first place, the marriage of the third respondent with Manisha is in contravention of the provisions of the Prohibition of Child Marriage Act. Therefore, in the first place, the marriage of the third respondent with Manisha is in contravention of the provisions of the Prohibition of Child Marriage Act. Secondly, as held by the Madras High Court in the above referred decision, in view of the provisions of the Prohibition of Child Marriage Act, till the minor child attains the age of majority, the parties are merely contracting parties and not husband and wife. Moreover, in view of the provisions of the Prohibition of Child Marriage Act, section 6(c) of the Hindu Minority and Guardianship Act stand impliedly overruled, inasmuch as, a person cannot take advantage of his own wrong. When a statute makes a marriage with a minor an offence, the husband who is an offender, cannot be permitted to take advantage of his own wrong and seek custody of the minor on the ground that she is his legally wedded wife as the same would result in defeating the provisions of the Act which have been enacted with a laudable object of eradicating or effectively preventing the evil practice of solemnisation of child marriages in the country. In these circumstances, the third respondent cannot claim to be a natural guardian of minor Manisha under section 6(3) of the Hindu Minority and Guardianship Act inasmuch as, the law does not recognise him to be a husband of the minor. Besides, the first aspect to be decided in the case of a marriage of this kind is whether it is void as contemplated under section 12 of the Prohibition of Child Marriage Act or whether it is voidable at the option of the contracting party who was a child at the time of the marriage as envisaged under section 3of that Act. It may be noted that one of the circumstances in which a marriage is said to be null and void under section 12 of the said Act is where a child, being a minor is taken or enticed out of the keeping of the lawful guardian. The Supreme Court in Thakorlal D. Vadgama v. State of Gujarat, (1973) 2 SCC 413 , was, in the context of section 361 of the Indian Penal Code, called upon to interpret the words takes and entices. The Supreme Court in Thakorlal D. Vadgama v. State of Gujarat, (1973) 2 SCC 413 , was, in the context of section 361 of the Indian Penal Code, called upon to interpret the words takes and entices. The court held that the statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be said to have committed the offence as defined in section 361 IPC. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody of keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating or encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The question truly falls for determination on the facts and circumstances of each case. Adverting to the facts of the present case while Manisha has stated before this court that she had gone with the third respondent of her own free will, from the facts as emerging from the record there was a love affair between the third respondent and minor Manisha for the last two years. Since Manisha is born on 21.2.2000, she must have been about fourteen years of age when the love affair is stated to have commenced and the third respondent must have been about twenty three years old. In this background, the marriage between the third respondent and minor Manisha is either void as envisaged under section 12 of the Prohibition of Child Marriage Act or voidable as envisaged under section 3 of the said Act. In these circumstances, the question of handing over the custody of minor Manisha to the third respondent does not arise. 20. The vexed question that then arises for consideration is as to who should be given the custody of minor Manisha? In these circumstances, the question of handing over the custody of minor Manisha to the third respondent does not arise. 20. The vexed question that then arises for consideration is as to who should be given the custody of minor Manisha? From the averments made in the affidavit-in-reply of the third respondent as well as upon ascertaining from Manisha in the chamber, it appears that she is not ready and willing to reside with her parents and has alleged that they have been trying to get her married to someone else and that she has been ill-treated at her parental home. Whereas on the other hand on behalf of the third respondent, it has been urged before this court, that he is in a good financial position and that his mother would take due care of minor Manisha and would also ensure that she is able to pursue further education. According to the learned counsel for the third respondent, the welfare of the minor lies in her being handed over to the custody of the mother of the third respondent. 21. In this regard, it may be noted that as per the report submitted by the Police Inspector, Palanpur city (West) Police Station, the third respondent is an accused in the first information report registered vide Palanpur City (West) Police Station I-CR No. 47 of 2016 for the offence under sections 363 and 366 of the Indian Penal Code. However, he is absconding and is not traceable. Nonetheless, the third respondent has put in appearance through Mr. D.R. Bhatt, learned advocate and has also filed an affidavit-in-reply dated 26.7.2016. However, it appears that the third respondent is absconding in connection with the first information report registered against him. This is an additional aspect which is required to be taken into consideration while considering as to whether the third respondent is a fit person to be handed over the custody of minor Manisha, inasmuch as, when he is evading the police, it is difficult to believe that he would be in a position to take care of the minor. It cannot be gainsaid that for the purpose of taking over the custody on the minor, the third respondent would have to be present before the court and a mere assurance from the learned counsel appearing on his behalf is not sufficient. 22. It cannot be gainsaid that for the purpose of taking over the custody on the minor, the third respondent would have to be present before the court and a mere assurance from the learned counsel appearing on his behalf is not sufficient. 22. Insofar as the question of handing over the custody of minor Manisha to the mother of the third respondent is concerned, it is true that the third respondent as well as his mother Jashodaben Karshanbhai Patel have filed affidavit indicating that the third respondent and his mother are financially well settled and that Manisha would have no problem if she is kept in the custody of the third respondent's mother. Moreover, the third respondent's mother has also stated that she would undertake not to allow her son to have access to Manisha till she completes eighteen years of age. However, in the light of the view that the court has taken above, namely, that till the minor Manisha attains the age of majority, she and the third respondent are merely contracting parties and not husband and wife, at this stage it cannot be said that there is any legal relationship between minor Manisha and the third respondent's mother. Besides, as discussed hereinabove, in view of the provisions of section 12 of the Prohibition of Child Marriage Act, it is also possible that the marriage between the third respondent and minor Manisha may be declared void. It would, therefore, not be in the fitness of things to hand over her custody to the third respondent's mother. 23. In the above view of the matter, having regard to the grievance voiced by Manisha against her parents, the court does not deem it fit to hand over her custody to her parents. However, at the same time, for the reasons recorded hereinabove, the court also does not deem it proper to hand over the custody of the minor either to the third respondent or to any of his family members. The only option then left with the court is to order that the minor be kept in a home set up for children in need of care and protection under the provisions of the Juvenile Justice (Care and Protection) Act. 24. The only option then left with the court is to order that the minor be kept in a home set up for children in need of care and protection under the provisions of the Juvenile Justice (Care and Protection) Act. 24. In the aforesaid premises, it is ordered that minor Manisha shall be kept in the custody of the Nari Sanrakshan Gruh at Paldi, Ahmedabad, where she shall be kept till she attains the age of majority. The Counsellor, District Child Protection Unit, Ahmedabad and District Social Defence Officer, Ahmedabad are hereby directed to monitor the well-being of Manisha at the Nari Sanrakshan Gruh, at Paldi, Ahmedabad and to ensure her safety. Upon attaining the age of majority, Manisha shall be free to go wherever she likes. At present, in view of the earlier order passed by this court, Manisha is residing with the maternal grandmother of the third respondent. The second respondent shall do the needful for taking over the custody of minor Manisha from the maternal grandmother of the third respondent and hand over the custody to the Nari Sanrakshan Gruh at Paldi, Ahmedabad. 25. The petition stands disposed of in the above terms. Rule is discharged with no order as to costs.