BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 06/04/2011 Coram The HONOURABLE Mr.JUSTICE S.RAJESWARAN and THE HONOURABLE MR. JUSTICE G.M.AKBAR ALI H.C.P. (MD) No.190 of 2011 G.Saravanan ... Petitioner Vs. 1.The Commissioner of Police, Trichy City, Trichy. 2.The Inspector of Police, Fort Police Station, Trichy. 3.P.Chandrasekar ...Respondents Petition filed under Article 226 of the Constitution of India to issue a Writ of Habeas Corpus to direct the respondents 1 and 2 herein to produce the body of the detenue namely Lakshmi Priya, aged about 18 years, the wife of the petitioner herein before this Court and set her at liberty forthwith. !For Petitioner ... Mr.B.Janath Ahmed ^For Respondents... Mr.P.N.Pandidurai Addl. Public Prosecutor (For R1 & R2) Mr.Ilanchezian (For R3) :ORDER
(Order of the Court was made by S.Rajeswaran, J.)
This Habeas Corpus Petition has been filed by the petitioner to trace his
wife Lakshmi Priya, aged about 18 years.
2. The case of the petitioner is that he has married the detenue on
09.01.2011 at Samayapuram Mariamman Temple and they were living peacefully at
Sangliandapuram, Trichy. On 24.01.2011, when they proceeded to attend a
function at Kumbakonam, the third respondent/father of the detenue/his wife,
came along with a few persons and threatened them with dire consequences.
Immediately they rushed to the Kumbakonam All Women Police Station and lodged a
complaint. On the same day i.e., 24.01.2011, the petitioner/husband received a
phone call from second respondent/Inspector of Police, Trichy stating that his
brother was confined to the Police Station and he should came to Police Station
with his wife. The petitioner and his wife rushed to Polise Station and there
all the persons were present and Assistant Commissioner of Police threatened him
to leave his wife and get away. Fearing for his life, his brother and the
petitioner came out of the Police Station and after consulting their elders,
they went back to the Police Station the next day and enquired second respondent
about his wife. The second respondent informed the petitioner that his wife was
taken away by her family members. On 27.01.2011, his wife Lakshmi Priya/the
detenue herein contacted him over phone and informed him that she was kept in
illegal custody by her parents. On the same day the petitioner gave a complaint
to the second respondent. Since the complaint given to the second respondent
has not been seriously investigated into, the above Habeas Corpus Petition has
been filed.
3. On notice, the third respondent/father of the detenue, brought the
detenue to court today. The petitioner is also present before this Court. The
respective counsel are also present.
4. The learned counsel appearing for the third respondent/father of the
detenue would submit that the detenue is a minor girl and as a father, he is
having the legal and statutory custody.
5. To ascertain the truth, we interacted with the detenue/Lakshmi Priya
who has clearly stated that after marrying the peititoner on 09.01.2011, she
lived with him as his wife for more than 15 days. But, she has been forcibly
taken by her parents against her wish and she is compelled to live in her native
place, a village near Bangalore. She asserts that she would like to live only
with the petitioner/her husband and she prays for setting her at liberty to go
with the petitioner/her husband. When we asked the petitioner, he also claims
that he has married the detenue and lived with her for more than 15 days as her
husband. His adoptive mother, an elderly woman, who is present before this
Court also, admits that they are married and they were living together as
husband and wife in her house. She also leads for appropriate orders to be
passed so that both could be united and made to live as husband and wife.
6. The primary question that arises for consideration in this case is,
whether the detenue, a minor girl could be set at liberty to go along with her
husband/the petitioner herein?
7. In the instant case, as the parties are Hindus, the validity of the
marriage is to be considered in the context of Section 5 of the Hindu Marriage
Act (herein after referred to as HMA).
8. Section 5 of the HMA sets out the conditions for a Hindu Marriage, one
of them, Clause (iii) being the stipulation as to age of the bride-groom and the
bride.
9. According to Section 5.3 of HMA, the bridegroom has to complete the age
of 21 years and the bride the age of 18 years. But, does this mean that a
marriage where this twin condition as to age is violated, would be void or
voidable? Section 11of HMA deals with the void marriages and a perusal of that
Section would show that a marriage solemnised after the commencement of this
Act, shall be null and void on a petition presented by either party thereto
against the other party, is declared by a decree of nullity, if it contravenes
any one of the conditions specified in clauses (i), (iv), (v) of Section 5.
Clause (iii) of Section 5 is conspicuously missing in Section 11. Thus, a Hindu
marriage solemnised in contravention of clause (iii) of section 5 of the HMA
cannot be regarded as void or invalid marriage. Therefore the petitioner’s
marriage with the detenue is not a void marriage.
10. Now let us consider whether it is a voidable marriage under Section 12
of HMA. A perusal of Section 12 in its entirety makes it very clear that the
violation of sub clause (iii) of Section 5 is conspicuously absent in Section 12
also, which means, the petitioner’s marriage with the detenue is also not
voidable.
11. In this connection, it is useful to refer to Section 18 of the HMA,
which prescribes punishment for contravention of certain conditions of Hindu
marriage. It specified that violation of conditions psecified in clauses (iii),
(iv), (v) of Section 5 is punishable and in particular it contemplates a simple
imprisonment which may extend to 15 days or with fine which may extend
toRs.1000/- or both in the case of violation of condition specified in Clause
(iii) of Section 5. Therefore, it is clear that the marriages conducted in
contravention of the age stipulation is no longer a void or voidable or invalid
marriage and it is punishable under Section 18 of the Hindu Marriage Act.
12. Further Section 13(2)(iv) of HMA enables a wife to petition for
desolution of her marriage on the ground that he marriage was solemnised before
she attained the age of 15 years and she has repudiated the marriage after
attaining that age, but before attaining the age of 18 years. Thus, it shows
that even a marriage of a minor girl is regarded as valid one and can only be
dissolved on her petition provided she repudiates the marriage between the time
she is 15 years old and 18 years old.
13. Further, in respect of the provisions of The Prohibition of Child
Marriage Act, 2006, a specific provision deals with void and voidable marriage.
Section 12 deals with the circumstances, under
which, the marriage of a minor child would be void. The minor child refers to a
person under 18 years of age.
14. Section 12 of the Prohibition of Child Marriage Act, 2006 reads as
under:
“12. Marriage of a minor child to be void in certain circumstance. Where
a child, being a minor
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place;
or
(c) is sold for the purpose of marriage; and made to go through a form of
marriage or if the minor is
married after which the minor is sold or trafficked or used for immral purposes,
such marriage shall be null and void.”
15. A Hindu marriage which is not a void marriage under HMA would continue
to be such, provided the provisions of Section 12 of the Prohibition of Child
Marriage Act, 2006 are not attracted. In the case in hand, none of the
circumstances specified in Section 12 arises.
16. Therefore, the marriage between these two is not void or voidable or
invalid and it would also be unaffected by the provisions of the Prohibition of
Child Marriage Act, 2006.
17. Now let us consider the voidability of marriage under Section 3 of The
Prohibition of Child Marriage Act, 2006 also. Section 3 is extracted below for
better appreciation.
“3. Child marriages to be voidable at the option of
contracting party being a child. (1) 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;
Provided that a petition for annulling a child marriage by a decree of nullity
may be filed in the district court only by a contracting party to the marriage
who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition
may be filed through his or her guardian or next friend along with the Child
Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the
child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court
shall make an order directing both the parties to the marriage and their parents
or their guardians to return to the other party, his or her parents or guardian,
as the case may be, the money, valuables, ornaments and other gifts received on
the occasion of the marriage by them from the other side, WP(CRL) 1003/10 Page
12 of 24 or an amount equal to the value of such valuables, ornaments, other
gifts and money:
Provided that no order under this Section shall be
passed unless the concerned parties have been given notices to appear before the
district court and show cause why such order should not be passed.”
18. The above provision makes it very clear that irrespective of whether
the child marriage is voidable or not under Personal Law, makes every child
marriage voidable at the option of a party to the marriage, who was a child at
the time of marriage. The important aspect of this provision is that a petition
for annulling a child marriage by a decree of nullity can be filed only by a
party to the marriage, who was a child at the time of marriage. Nobody other
than a party to the marriage can petition for annulment of the marriage.
19. In the instant case, the marriage of the detenue with the petitioner
is neither void nor voidable nor invalid undr both Acts, HMA and the Prohibition
of Child Marriage Act, 2006, as no petition was filed under Section 3 of
Prohibition of Child Marriage Act, 2006 by the detenue who is still a minor.
Excepting the detenue, nobody has the locus-standi to question the validity or
otherwise of the marriage with the petitioner. In this case, not only she does
not want to exercise this right conferred on her under Section 3 of Prohibition
of Child Marriage Act but also she wants to reinforce and strengthen,
consolidate and preserve their marital bond by living together as she married
the petitioner on her own will and volition.
20. Now, the question of custody calls for discussion. The detenue is a
minor. She does not want to go to any home. She has also refused to live with
her parents for fear of her life. She wants to go with her husband/the
petitioner and resume her married life with him. In fact, her case is that she
was separated from her husband and taken to the native place by her parents and
kept her in illegal custody against her wish and desire. She was not allowed to
even contact any one and her husband was also not able to contact her.
Therefore, she prefers to live with her husband where she will be looked after
with love and affection. From this it is very clear that the detenue is
interested in going with her husband and considering the settled law that it is
the welfare of the minor which is the paramount consideration of this Court, she
has to be allowed to join her husband provided there is no bar for her husband
to act as her guardian.
21. In this connection, Section 17 of the Guardian and Wards Act is also
relevant and Section 17 reads as under:
“17. Matters to be considered by the Court in appointing guardian. (1) In
appointing or declaring the guardian of a minor, the Court shall, subject to the
provisions of this section, be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to be for the welfare
of the minor.
(2) In considering what will be for the welfare of the minore, the Court shall
have regard the age, sex and religion of the minor, the character and capacity
of the proposed guardian and his nearness of kin to the minor, the wishes, if
any, of a deceased parent, and any existing or previous relatiions of the
proposed guardian with the minor or his property.
(3) If the minor is old enough to form an intelligent preference, the Court may
consider that preference.***
(4) The Court shall appoint or declare any person to be a guardian against his
will.”
22. The above provision makes it very clear that what is relevant is the
welfare of the minor and what is very significant as if the minor is old enough
to form an intelligent preference, then the Court could consider that
preference. Therefore the wishes of a minor need to be seriously considered by
the Court, where the minor is old enough. In the present case, the detenue was
born on 17.11.1994 as seen from her birth certificate which means she is above
16 years of age. Hence her preference should definitely be considered in the
interest of her welfare.
23. Section 19(a) of the Guardians and Wards Act is also relevant to be
considered in this case, and accoridng to Section 19(a), only when the husband
is unfit to be a guardian of a married female then only the other persons could
be considered. Here the petitioner/husabnd is not only a major but he has also
not suffered any disqualification to act as her guardian. In fact he is the
natural guardian of the detenue as per provisions of Hindu Minority and
Guardianship Act, 1956.
24. Thus, a compendus reading of the provisions of these Acts would make
it clear that a natural guardian of a minor Hindu girl who is married, is her
husband. Furthermore, no guardian of the person of a minor, married female, can
be appointed when her husband is not, in the opinion of the court, unfit to be
the guardian of her person. The preferences of a minor who is old enough to
make an independent preference are to be considered by this Court. Most
importantly the welfare of the minor is to be the paramount consideration.
25. In the instant case, the detenue is a minor girl who is married to the
petitioner. Her natural guardian is no longer her father, but, her husband and
he shall be a guardian of the minor wife. The detenue has refused to live with
her parents and has categorically expressed her desire and wish to live with her
husband/the petitioner. Sending her to a home against her will is also not in
the interest of the welfare of the minor. If she is sent to the home against
her will, it is tantamount to her detention against her will and it would be
violative of her life guaranteed under Section 21 of the Constitution of India.
26. Therefore, considering the detenue’s welfare which is the paramount
importance, we are of the view that her welfare would be best served if she has
to live with her husband, who has promised to give her the love and affection.
Further, she would have support of her adoptive mother-in-law who has already
welcomed her. Sending her to her parents place is not advisable as the minor
herself says that her liberty is curtailed and her movements are restricted
there.
27. Therefore, considering the above facts and circumstances and with
particular references to laws on the subject, we are of the considered opinion
that the interest of the minor would be best served if she is set at liberty to
go and live with her husband/the petitioner. Accordingly, the H.C.P. is allowed
setting the detenue at liberty and permitting her to go with her husband.
cse/asvm
To
1.The Commissioner of Police,
Trichy City, Trichy.
2.The Inspector of Police,
Fort Police Station,
Trichy.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.