Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 463 (MP)

Irfan Khan S/o Hameed Khan v. State of M. P

2016-06-17

P.K.JAISWAL, VIVEK RUSIA

body2016
ORDER : Vivek Rusia, J. Petitioner has filed the present petition seeking the relief in the nature of Habeas Corpus for production of respondent No.5 before this Court. 2. The contention of the petitioner is that petitioner and respondent No.5 belong to the Muslim community and they are governed by the Personal Law i.e. Muslim Law. Petitioner and respondent No.5 performed the marriage by way of joint agreement in the office of Anjuman Nikahul Muslemin, Bhopal. The Kazi of the Anjuman Nikahul Muslemin, Bhopal after verification, performed the marriage between them. At the time of marriage, petitioner was aged about 22 years and the respondent No.5 was aged about 19 years. 3. On 13.02.2016 Police registered a case against the petitioner for the offences punishable under sections 363 & 366-A of the IPC at the instance of respondent No.6 who is the brother of respondent No.5. Petitioner was arrested and sent to jail. Family members of the respondent No.5 filed an application before the Magistrate for custody of respondent No.5. Since she is a minor girl and refused to go with her family members, she was sent to Balika Grah, Police Line, Kotra, Bhopal vide order dated 24.02.2016 passed by the Judicial Magistrate, First Class, Sarangpur, district Rajgarh. Thereafter, petitioner moved an application under section 98 of the Cr.P.C seeking custody of the girl. Vide order dated 08.03.2016, the said application was rejected by the J.M.F.C, Sarangpur against which petitioner preferred a revision under section 397 of the Cr.P.C before the Sessions Court, Rajgarh. Vide order dated 05.05.2016 the said revision was also dismissed. Vide order dated 22.03.2016 Bal Kalyan Samiti, district Rajgarh has rejected the application of the petitioner seeking custody of respondent No.5 on the ground that she is minor. Being aggrieved by the order dated 22.03.2016, petitioner filed the present petition seeking a writ in the nature of habeas corpus to send the respondent No.5 in the company of the petitioner. In support of his contentions counsel for the petitioner has placed reliance over a judgment passed by the Patna High Court in the case of Md. Idris v. State of Bihar and others reported in 1980 Cr.L.J 764 in which the custody of Mahomedan girl aged about 15 years was given to the husband. In support of his contentions counsel for the petitioner has placed reliance over a judgment passed by the Patna High Court in the case of Md. Idris v. State of Bihar and others reported in 1980 Cr.L.J 764 in which the custody of Mahomedan girl aged about 15 years was given to the husband. He has also placed reliance over the judgment of this High Court in the case of Rashid Khan v. State of M.P and others decided on 13.02.2014 reported in 2014 (3) MPHT 268 in which also the writ petition in the nature of habeas corpus was allowed and the custody of wife aged about 15 years was given to the husband. In the light of the aforesaid judgments, Shri Godha, counsel for the petitioner submits that under the Muslim Law, a minor girl can perform marriage, therefore, the marriage between the petitioner and respondent No.5 is valid and he is entitled for the custody of respondent No.5. 4. After notice, respondents filed return submitting that respondent No.5 is a minor as her date of birth is 12.08.1999 and by order of the Judicial Magistrate First Class she was sent to Balika Grah. Under the provisions of Juvenile Justice (Care & Protection of Child) Act, 2015 a person who has not completed the age of 18 years is a child and he/she needs care and protection. Since respondent No.5 is minor she cannot be sent along with the petitioner who is not a “fit person” as per section 2(28) of the Act of 2015 because petitioner is facing trial under sections 363 & 366-A of the IPC. 5. Shri Rohit Mangal, learned GA for the respondent/State has placed reliance over the judgment passed by the Calcutta High Court in the case of Rahul Amin Sekh v. State of W.B reported in 2015 SCC Online Cal 1172 and a judgment of the Division Bench of the Bombay High Court in the case of Daud Hasan Mhalungkar and another v. State of Maharashtra reported in 1993 Mh.L.J 1437. 6. We have heard learned counsel for the parties. 7. After hearing learned counsel for the parties, we are of the view that the present writ petition is liable to be dismissed as it is not disputed at the time of performance of marriage that respondent No.5 was minor. 6. We have heard learned counsel for the parties. 7. After hearing learned counsel for the parties, we are of the view that the present writ petition is liable to be dismissed as it is not disputed at the time of performance of marriage that respondent No.5 was minor. She was sent to Balika Grah by the order of the Judicial Magistrate First Class vide dated 24.02.2016 which the petitioner has not challenged by way of appropriate proceedings. Later on petitioner filed an application under section 98 of the Cr.P.C which was also dismissed and against which a revision petition has also been dismissed by the Sessions Court. Petitioner has further not challenged the order of J.M.F.C dated 03.08.2016 as well as the order passed in the revision but he directly filed the present petition challenging the order dated 22.03.2016 issued by the Bal Kalyan Samiti, district Rajgarh. A writ of Habeas Corpus lies only when the corpus is in a custody which is said to be illegal. In the present case respondent No.5 being a minor girl was sent to Bal Kalyan Samiti by a judicial order and at present she is residing in the Balika Grah, therefore, it cannot be said that she is in illegal custody. On this ground alone present writ petition is liable to be dismissed. So far as the reliance over the judgment given by this Court in the case of Rashid Khan (supra) is concerned the facts of the said case are different from the present case as the petitioner Rashid Khan was not facing any trial under sections 363 and 366A of the IPC, however, the present petitioner is facing criminal trial. Another distinguishable feature is that the said judgment was passed on 13.02.2014 i.e. before the Juvenile Justice (Care & Protection of Child), Act of 2015 came into force. Under the said Act, the custody of a minor girl cannot be given to a person who is not “fit person.” In the present case the petitioner who is facing trial under sections 363 & 366A of the IPC cannot said to be a “fit person” to whom the custody of respondent No.5 can be given because as on today respondent No.5 is a minor girl. Calcutta High Court has considered this issue in its judgment in the matter of Ruhul Amin Sekh (supra) which is reproduced below:- “Having considered the submissions of the parties by this writ petition the petitioner sought for issuance of a writ of habeas corpus for production of the missing daughter Manisha Khatoon, Bishnupur P.S Case No.1288 dated 6th October 2014 was initiated on the basis of a complaint filed by the petitioner under Sections 363/366/34 IPC. As the whereabouts of Manisha, the missing girl was not known and the investigation did not yield any fruitful result, this petition was filed. A report was filed by the I.C Bishnupur P.S before this Court. But it was pursuant to an order, whereby the parents of Arman were directed to be present in Court, that both Arman and Manisha presented themselves in Court and to a query put by Court it was submitted that the missing girl, Manisha was 16 years of age and Arman was 17 years of age. Under the statutory law admittedly both are minors. But according to Counsel for Arman, a Mohammedan girl or boy can contract a marriage on attaining puberty and according to Mulla puberty would mean 15 years of age. It is only ascertain whether Personal Law would prevail over the Statutory Law that Mr. Bikash Ranjan Bhattacharya, Senior Advocate was appointed as amicus curiae and it has been submitted by him that with the enactment of the Prohibition of Child Marriage Act 2006 Statutory Law would prevail over Personal Law in view of the enactments and decisions. The Muslim Personal Law (Shariat) Application Act, 1937 in Section 2 has specifically stated that where both parties are Muslim in case of marriage the Muslim Personal Law shall prevail. It is true that various enactments, namely, the Child Marriage Restraint Act, 1929, the Special Marriage Act and the Prohibition of Child Marriage Act 2006 has fixed the age of a male attaining majority at 21 years and a female at 18 years. A minor is a person of either sex under 18 years of age. The Guardian and Wards Act in Section 4 (1) defined a minor to mean a person who under the Indian Majority Act 1875 has not attained majority. A minor is a person of either sex under 18 years of age. The Guardian and Wards Act in Section 4 (1) defined a minor to mean a person who under the Indian Majority Act 1875 has not attained majority. The Indian Majority Act 1875 in Section 391) has categorically stated that a person of India shall attain the age of majority on completing 18 years. Therefore, under the statute 18 years can be accepted as the minimum age for a person to attain majority. In 2006 the Prohibition of Child Marriage Act was introduced and in Section 2 (a) a child in case of “male” attained majority at 21 years of age and “female” at 18 years of age. Section 2(b) defined a “child marriage” to mean a marriage to which either of the contracting parties is a child and Section 2(f) defined the “minor” to be a person under the Majority Act of 1875. The said enactment was applicable to all citizens of India without and beyond India. Therefore, what has to be considered is that when the statutory law is contra to the Personal Law or vice versa which law shall prevail. Ameer Ali in his commentaries on Mohammedan Law while dealing with the age of a Mohammedan to enter into a valid contract of marriage has stated that the person must be possessed of understanding this is because the Mohammedan Law does not fix any particular age. Puberty and discretion constitute according to Ameer Ali the essential conditions for a Mohammedan to enter into a valid contract of marriage. A person who is an infant in the eye of law is disqualified from entering into any legal transaction so also contract of marriage. Under the Hanafi and Shia School of Muslim Law 15 years is the age of majority for both male and female. But for Muslim or Mohammedans other than those belonging to the Hanafi School of law or Shia School of law discretion and puberty are the guiding factors. Therefore, a person though a minor under the General Law of the land but who possesses understanding and has reached the age of discretion and can comprehend the consequences of the act will be entitled to contract a marriage and in the event they are not able to do so, the marriage will be nothing but a mere nullity. Therefore, a person though a minor under the General Law of the land but who possesses understanding and has reached the age of discretion and can comprehend the consequences of the act will be entitled to contract a marriage and in the event they are not able to do so, the marriage will be nothing but a mere nullity. In the instant case Arman is 17 years old and Manisha is 16 years of age. Both of them have admittedly reached puberty and the age of discretion. It cannot be said that they do not understand or comprehend the consequences of their act. Mulla in his principles of Mohammedan Law while dealing with the issue of marriage has categorically stated that a Mohammedan boy or girl who has attained puberty is at liberty to marry anyone he/she likes and has explained that the marriage of two Mohammedans of sound mind and who have attained puberty is a valid marriage. Mulla has further fixed puberty to completion of 15 years in the absence of evidence. While dealing with the issue of guardians, Mulla in the same book in Chapter XVIII has stated that the minority for male or female under Mohammedan Law terminates when he/she attains puberty according to Islamic Law and while under the Majority Act of 1875 the age of a minor is fixed at 18 or 21 years, the said statutory age will guide a Mohammedan except in matters of marriage, dower and divorce. This also finds support in the Majority Act of 1875 as amended. Section 2(a) and 2(b) whereof reads as follows: “2. Saving -Nothing herein contained shall affect – (a) the capacity of any persons to act in the following matters (namely),-marriage, dower, divorce and adoption; (b) the religion or religious rites and usages of any class of (citizens of India); (c) xxxxxxxxxxxxxxxxxxxxxxxxxxx” Therefore in cases of marriage, dower and divorce an exception has been culled out. But in 2006 the Prohibition of Child Marriage Act was promulgated. Section 2(f) defines a “minor” to mean a person who is deemed not to have attained majority under the Majority Act, 1875. Section 12 deals with instances of a void marriage but none of these instances is applicable to the instant case. On the contrary it is Section 3 which will be applicable and such a child marriage is voidable at the option of the contracting party. Section 12 deals with instances of a void marriage but none of these instances is applicable to the instant case. On the contrary it is Section 3 which will be applicable and such a child marriage is voidable at the option of the contracting party. Therefore, the marriage of Arma and Manisha is not a nullity in the eye of law but is volidable at the option of the contracting party, and till one of such contracting party initiates a proceeding for annulment of the marriage, the marriage of Mohammedan cannot be nullified. The said petitioner also sought for Manisha being handed over to them. This was another reason for considering the issue. From a consideration of the Mohammedan Law so also the enactments of Parliament, the 1929 Act has been repealed by the 2006 Act. The 2006 Act does not prohibit a child marriage but has recognised a child marriage and in case it does take place, the same may be void under Section 12 of the 2006 Act or voidable under Section 3 of the 2006 Act. In the instant case Arman and Manisha as per the Mohammedan Law applicable to them are married. All that the petitioner sought is issuance of a writ of Habeas Corpus and that Manisha be produced. Manisha was produced. It is when custody was sought that the question arose whether the marriage of Arman and Manisha was any marriage in the eye of law and from the above discussion the marriage as per Mohammedan Law, prima facie, cannot be brushed aside. Therefore, the custody of Manisha cannot be given to the petitioner till such time that proceedings are filed under Section 3 of the 2006 Act by either of the contracting parties. In view of the aforesaid this application merits no further order and is disposed off. In view of the above, we do not find any substance in the writ petition. Accordingly, it is dismissed.