JUDGMENT
M.S. Parikh, J.
1. Rule. Service of Rule waived by the learned A.P.P., as well as learned Advocates appearing for the rival parties.
This habeas corpus petition has been filed by the petitioner, father of minor girl (***). He has prayed for calling upon the respondent Nos. 2, 3, 4 and 5 to produce the petitioner’s daughter before this Court and to hand-over her custody to the petitioner, who is her natural guardian (***). He has his wife (*?) and three minor children (**?). He has been cultivating his agricultural land (***). His daughter (***), whose birth date is 7-11-1981 as registered in the records of (***) Gram Panchayat, is his eldest daughter, followed by son (***) aged 14 years and daughter (***) aged 13 years, respectively studying in 9th standard and 8th standard. Minor Girl (***) has failed in S.S.C. Examination and was lured to take up a course of Beautician by respondent No. 4. She was accordingly attending the Beauty Parlor run by the respondent No. 4 (***). Respondent No. 3 (***) happens to be her real brother, residing with respondent No. 4. He was having his refrigerator repairing work shop (***). It has been alleged that on 21-11-1998 petitioner’s daughter (***) was taken away by respondent Nos. 3, 4 and 5, respondent No. 5 being the partner of respondent No. 3 in the aforesaid repair work shop. On a search at every place (***) petitioner and his wife did not find minor girl (***) as also respondent Nos. 3, 4 and 5. The petitioner did not register any complaint about the kidnapping or abduction of his daughter (***) as he hails from (?**) community and his daughter (***) might earn bad name in the society. Ultimately the petitioner had an occasion to inquire of respondent Nos. 4 and 5 about his missing daughter, but he received nothing except abuses and threatening of himself and his relatives being harassed. Respondent No. 4 told him that his daughter might have been killed or she might have committed suicide or might have been sold either at Bombay or Delhi or her brother, respondent No. 3 might be keeping her with him. Petitioner, therefore, approached (***) Police Station, but the police officer on duty did not record the complaint saying that police force was not meant for such complaints being recorded. As more than one month had passed without there being any news of his daughter, the petitioner had to file this petition under Article 226 of the Constitution of India.
2. Notice was issued and on 18-1-1999 respondent Nos. 4 and 5 appeared through M/s. H. L. Patel Advocates. Mr. Asim Pandya, learned Advocate informed the Court that he would contact his clients for informing this Court as to whether minor girl (***) was in their custody. Ultimately, the matter was kept on 26-1-1999; when this Court had an occasion to question minor girl (**?) who was kept present. All the learned Advocates as well as learned A.P.P., as well as parents of minor girl (***) were present. Minor girl (***) specifically expressed that she got herself married with respondent No. 3 (***). Upon being persuaded to accompany her parents, she has been all throughout positive about not accompanying her parents. She, however, expressed that she would be ready and willing to go and stay at Nari Vikas Gruh, Paldi, Ahmedabad. Her custody accordingly was handed over to the Superintendent of Nari Vikas Gruh, Paldi, Ahmedabad.
3. On 29-1-1999 the respondent No. 3 (****) moved Misc. Criminal Application No. 579 of 1999 inter alia alleging that consequent upon love between himself and minor girl (***) both of them married as per Hindu rites at Surat on 24-11-1998 of her free will and without any coercion, pressure or threat from anybody, she having left her parental house voluntarily. After she was produced before this Court as aforesaid and after she was sent to Nari Vikas Gruh, Paldi, Ahmedabad, respondent No. 3, the applicant in the Misc. Criminal Application came to know that on 25-1-1999 at about 1-30 in the afternoon minor girl’s (***) father(***) and her cousin(***) went to the aforesaid institution and tried to meet the girl and influence her against the direction of this Court. He has, therefore, expressed his apprehension that minor girl (***) might be influenced so as to deprive him to cohabit with his legally wedded wife. Under such circumstances, he has prayed for modification of the order dated 22-1-1999 and for directing minor girl (***) being produced before this Court with a substantive prayer of handing over her custody to him.
4. At this very stage it might be stated that the respondent No. 3 being the applicant in the aforesaid Misc. Criminal Application is aged around 28 years. He had an occasion to marry someone in the past and he had divorced his wife. The manner in which he gave divorce to his wife is not available on record and that must be within the special knowledge of respondent No. 3. It has also been not in dispute that the applicant’s wife, who is stated to have been divorced, has committed suicide. The submission on behalf of the respondent No. 3 is that the incident occurred after the respondent No. 3 divorced her. However, in the absence of any specific facts which must be within the special knowledge of respondent No. 3, we have accordingly to proceed with the facts in this regard as have not been in dispute.
5. We have heard the learned Advocates appearing for the respective private parties and Mr. S. P. Dave, learned A.P.P., for the State.
6. This is a matter wherein a three-dimensional problem has been presented before this Court. First one is concerning the age, more particularly of the girl whose custody has been sought for. Second is with regard to the conflict between alleged marital status and parental status vis-a-vis custody of the minor girl. And third is welfare of the minor girl.
7. We, therefore, proceed in the first instance to focus our attention on the question of age and relevant legal position revolving round the age of a minor girl.
8. In India age of majority has its statutory recognition. Section 3 of the Indian Majority Act, 1875 prescribes completion of age of 18 years as the attainment age of majority except in case of minor for whose personal property guardian is appointed or declared by any Court of justice in which case such age is prescribed to be 21 years. It can be visualized from the statements and objects that the Indian Majority Act was intended to prolong the period of non-age in the case of Hindus as well as other sections of crown and attain uniformity and certainty respecting the age of majority. This can well be noticed from the Preamble which reads : “Whereas, in the case of persons domiciled in India it is expedient to prolong the period of non-age and to attain more uniformity and certainty respecting the age of majority than now exists; it is hereby enacted as follows”. It is nodoubt true that Section 2 relating to ‘saving’ says that nothing in the Act shall affect (a) the capacity of any person to act in the matters of marriage, dower, divorce and adoption and (b) the religion or religious rites and usages of any class of citizens of India. What is important to be kept in mind is that for attainment of age of majority whether a boy or a girl, he or she has to complete the age of 18 years and till then he or she is to be treated as minor.
8.1 Reference may now be made to the Child Marriage Restraint Act, 1929 (XIX of 1929). This Act applies to the whole of India except the State of Jammu and Kashmir and it also applies to all citizens of India without and beyond India. Definition clauses in Section 2 say that ‘child’ means person who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age and if either of the parties to a marriage is below such prescribed marriage age, it amounts to child marriage. A minor is defined to mean a person who is under 18 years of age. Section 3 prescribes for punishment to the extent of simple imprisonment of 15 days or with fine to the extent of Rs. 1000/-, or both in respect of a male adult below 21 years of age marrying a child. It is to the extent of 3 months and fine in case of a male adult above 21 years of age marrying a child. Section 5 makes it punishable for any one who performs, conducts or directs any child marriage to the extent of simple imprisonment for 3 months and fine, unless he proves that he had reason to believe that the marriage was not a child marriage. Section 6 provides for punishment for parent or guardian concerned in a child marriage. Section 7 says that the offences are to be cognizable for certain purposes. Section 8 vests jurisdiction in the Court of Metropolitan Magistrate or a Judicial Magistrate of the First Class. Section 12 deals with the power to issue injunction prohibiting marriage in contravention of the Act. The Act came to be amended including by Act No. 2 of 1978 under which specified age has been increased to 21 years in place of 18 years for a male person and 18 years in place of 14 years/15 years for a female. This was done with a view to check the growth of population in the country. This is what has been said further in the statement of objects and reasons : Such increase in minimum age of marriage will result in lowering the total fertility rate on account of latter (sic.) span of married life. It will also result in more responsible parenthood and in better health of the mother and child. Thus, the Act clearly displays public policy and public health in the form of the health of a mother and a child and responsible parenthood. This aspect of age in the context of a minor girl taken in marriage or proposed to be taken in marriage has got to be borne in mind.
8.2 Next legislation which is required to be taken into consideration in this case is Hindu Marriage Act, 1955. Reference has been made to these provisions : Sections 2, 4(a), 5, 6, 11, 12 and 18. We might deal with them.
Section 2 deals with the application of the Act to a Hindu by religion as per the particulars set out in the provision. Section 4 speaks about overriding effect of the Act over any text, rule or interpretation of Hindu Law or any custom or usage in force immediately before the commencement of the Act. Section 5 deals with conditions for a Hindu Marriage and Clause (iii) in the context says that a marriage may be solemnized between any two Hindus, if the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage. Section 6 regarding guardianship in marriage has been omitted by Act No. 2 of 1978. Section 11 dealing with what marriages are null and void does not include condition No. (iii) of Section 5 concerning marriageable age. Section 12 provides for the circumstances under which a marriage will be voidable and may be annulled and although it does not include condition No. (iii) of Section 5, it provides following ground in Clause (c):
That the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under Section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent.
Sub-section (2)(a), however, prescribes for the limitations against entertaining a petition on the ground set out in aforesaid Clause (c).
Sections 17 and 18 are the penal provisions and Section 18 provides for punishment for violation of condition No. (iii) of Section 5 prescribing age-limit for a Hindu marriage. This provision clearly appears to be in tune with the similar provision in the Child Marriage Restraint Act and as stated above this provision also endorses similar public policy and public interest.
8.3 Reference has also been made to some of the provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890. Insofar as age is concerned, Section 4 provides for completion of 18 years as the age of attaining majority.
8.4 Some other provisions which will have bearing on the ‘age’ aspect of the matter may also be referred to:
These are some of the penal provisions contained in the Indian Penal Code : Section 359 says that one of two kinds of kindnapping is kidnapping from lawful guardianship. Age of minor girl referred to in the definition of the offence of kidnapping as contained in Section 361 is 18 years. The words ‘lawful guardian’ and ‘lawful custody’ appearing in the provision also assume importance. Thus, taking or enticing of a minor girl from the lawful guardianship or lawful custody without the consent of such lawful guardian forms the offence of kidnapping from lawful guardianship. Section 363 provides for punishment of imprisonment of either description for a term extending to 7 years and fine. Section 366 speaks about one of the aggravated forms of the offence of kidnapping. Section 366-A deals with the offence of inducing a minor girl under the age of 18 years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, punishable with imprisonment extending to 10 years and fine. Section 366-B speaks about a girl under the age of 21 years and importation of such a girl from a foreign country or from the State of Jammu and Kashmir with requisite intention or knowledge that she will be forced or seduced to illicit intercourse with another person is similarly made punishable. All these provisions clearly appear to have ‘public policy’ and ‘public moral’ inbuilt in themselves.
9. Now, the second aspect : this is concerning the conflict between alleged marital status and parental status vis-a-vis custody of the minor girl. It has been submitted that a marriage between a boy and a girl not having attained required age is neither void nor voidable. We may, however, qualify that such marriage cannot be said to be performed by the law of the land. Bearing in mind this proposition, Section 6 of the Hindu Minority and Guardianship Act, 1956 has been canvassed. It would read as under:
6. Natural guardians of a Hindu minor :- The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are:
(a) in the case of a boy or an unmarried girl – the father, 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,
(b) in the case of an illegitimate boy or an illegitimate unmarried girl – the mother, and after her, the father;
(c) in the case of a married girl – the husband;
10. Thus, reliance has been placed upon Clause (c), which speaks about husband being natural guardian of a married girl. This is on the assumption that a marriage between the two spouses one of whom is a minor girl is legal and valid. There might be cases wherein prior to the 1978 amendment parents might have given a minor girl in marriage quite within the validity criteria as appearing in Section 5 of the Hindu Marriage Act, 1955. Obviously, therefore, Clause (c) might in a given case, be invoked for accepting the husband as a guardian of a married girl. As stated in the foregoing paragraphs merely because a marriage stated to have been performed as per Hindu rites possibility of a minor girl challenging the marriage upon attaining the age of majority cannot totally be ruled out. Such circumstances can be noticed from various provisions of the Hindu Marriage Act, more particularly provision contained in Section 12, Clause (c), which has been reproduced hereinabove. Even in this case, for example the respondent No. 3 has been described as ‘unmarried’ instead of ‘divorced’ which might give rise to taking up proceedings under the Hindu Marriage Act, more particularly under Section 12(c) thereof. That apart, there are other circumstances revolving round the respondent No. 3’s status as having been noticed in the opening part of this judgment. The facts concerning his divorce, validity thereof, commission of suicide by his previous wife and his place in life and society might have or might not have been brought to the knowledge of the minor girl either entirely or in their true perspective. Besides, there is a marked difference between guardianship and custody. In a petition for relief of habeas corpus custody whether for a short period or for a longer period will assume importance as distinct from guardianship. Ordinarily, the remedy for custody of minor lies under the provisions of the Hindu Minority and Guardianship Act, 1956 read with the provisions of the Guardians and Wards Act, but in exceptional cases right of parties to the custody of minor might be determined in a petition for habeas corpus. It would be clear to say that in dealing with the problem with regard to custody of a minor girl in the context of rival claim by an alleged husband, all the facts and circumstances, more particularly the age of the girl and the position of law revolving round the age of the girl as noticed above, will have to be borne in mind. The considerations required to be kept before the mental eye while dealing with such a problem revolve round the welfare of the minor girl also. That apart, if the position of law as hereinbefore stated is kept present before the eyes under the circumstances of the present case, obviously it would be either parent who would ordinarily be entitled to the custody of the minor girl. Simply because the husband is named as a natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, he cannot be ipso-facto said to be entitled to the custody of a married minor girl. His claim has got to be decided on the facts and circumstances of his case. Besides, a marriage of a minor girl cannot be said to be legally permitted marriage, although as between the parties to marriage it might not be void or voidable, as the case may be. Finer aspects of public policy, public health and public moral flowing from the aforesaid provisions of law have to be borne in mind while dealing with the problem like the present one.
11. Reference has been made to some of the provisions of the Guardians and Wards Act, 1890 and before we deal with the same, we may state here itself that Section 12 of the said Act confers power on the Court to make interlocutory order for production of minor and interim protection of person and property. Sub-section (3) thereof says that nothing in the section shall authorise the Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of he being her husband, unless she is already in his custody with the consent of her parents, if any. It might be seen that the legislature has been conscious about the place and position of parent qua a minor girl who is alleged to be married. Thus, even if there were a proceeding under the Guardians and Wards Act initiated by the respondent No. 3, he would not have been entitled to the custody of the minor girl. This is apart from the position of law revolving round the age of a girl as noted hereinabove. In our opinion, that will have its own impact in a custody proceeding or in a petition of habeas corpus like the present, for a Court cannot be called upon to directly or indirectly promote the cause which is prohibited by law and made punishable.
We may now refer to the provisions of this Act, which have been canvassed. Reference has first been made to Section 19 and then to Section 41. Section 19 reads as under:
Guardian not to be appointed by the Court in certain cases :- Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards, or to appoint or declare a guardian of the person:
(a) of a minor who is married female and whose husband is not, in the opinion of the Court, unfit to be guardian of her person, or
(b) xxx xxx xxx xxx
(c) xxx xxx xxx xxx.
12. In a given case whether a husband of a minor married female is fit or unfit will be a matter of adjudication upon evaluation of the material placed before the Court. The Chapter in which this provision has been enacted deals with the appointment and declaration of a guardian in a proceeding under the Guardians and Wards Act, 1890. Hence, this provision will not have any impact on the petition for habeas corpus of a minor girl, who is alleged to be married keeping her parents in dark. Section 41 which is contained in Chapter 3 dealing with duties, rights and liabilities of guardian speaks about the cessation of authority of guardian and Clause (d) of Sub-section (1) provides for a contingency regarding marriage of a female ward. Upon occurrence of such a contingency the powers of a guardian of her person would cease in case it is found that the husband is not unfit to be a guardian of her person. Here also fitness or unfitness of the husband to act as a guardian would be a question for upholding the cessation of authority of guardian prior to marriage of a minor girl. This provision will also hardly have any application in the present case.
13. Reliance at the bar has been placed upon a decision of this Court in the case of Chamar Vashram Chhaganbhai v. Parmar Suresh Ramji and Ors. reported in 1985 (1) GLR 47. In this case father of Deval @ Devuben, a minor girl, moved a petition challenging judgment and order rendered by the Chief Judicial Magistrate awarding her custody to her husband. It was urged that although Devuben was 16 years of age, she was yet a minor being below 18 years of age hence the father – the petitioner was entitled to her custody. This stand of the father was rejected because although Devuben was a minor, she was the wife of respondent No. 1 and she having attained the age of 18 years, was entitled to join her husband. We see no reason for applying this decision of a learned single Judge of this Court to the facts of the present case, more particularly when we do not have before us the facts regarding fitness or unfitness of the husband, who was given the custody of Devuben, who had then attained the age of 18 years.
14. We may now proceed to deal with a decision in the case of Seema Devi alias Simaran Kaur v. State of H.P. reported in 1998 (2) Crimes 168. In that case, a complaint was filed before the Additional Chief Judicial Magistrate alleging that the complainant’s daughter Seema Devi was taken from his house by his mother-in-law Vidya Devi who in conspiracy with the three accused Ajmer Singh, Leela Devi and Amar Singh gave his daughter in marriage to the said Ajmer Singh, the first accused. Thus, the complaint was filed under Sections 363, 366, 368, 376 and 120B of the Indian Penal Code. Although the accused came to be enlarged on bail on 20-8-1996, on 13-8-1996 when the girl, the petitioner, was produced before the Additional Chief Judicial Magistrate, he passed an order directing her to be kept in Nari Niketan, at Bilaspur primarily on the ground that she was minor and not competent to opt for marriage. A learned single Judge of H. P. High Court dealing with the petition by the girl has referred to the above provisions of the Hindu Marriage Act and the Child Marriage Restraint Act while mainly dealing with the jurisdiction and power of the Additional Chief Judicial Magistrate of directing custody of the minor girl to Nari Niketan. In that process, reference has been made to the decisions of Gindan and Ors. v. Barelal . Mrs. Kalyani Chaudhari v. State of U.P. and Ors. reported in 1978 Cri. LJ 1003, Smt. Lila Gupta v. Laxmi Narain and Ors. and Shankerappa v. Sushilaba reported in AIR 1984 Karnataka 112. There is no difficulty with regard to the proposition that a marriage in contravention of the provisions regarding minority age is neither void nor voidable, but that obviously would touch the status as between the parties to the marriage if otherwise the marriage is valid. As will be noticed hereafter factum of validity of marriage is a matter of enquiry on evidence in a given case. In Seema Devi’s case (supra) the matter proceeded on the assumption that her marriage was valid in law and that the Magistrate lacked jurisdiction to entrust the custody of the minor girl to Nari Niketan. We may reproduce what the learned single Judge has observed in para 20 of the decision and in our considered opinion that would make the decision distinguishable apart from distinct facts and nature of the proceeding before us:
20. I may point out that the proceedings before the Additional Chief Judicial Magistrate is only in relation to the offences alleged to have been committed by the three accused therein under Sections 363, 366, 368, 376 and 120B of the Indian Penal Code. That will have nothing to do with the guardianship or custody of the petitioner herein. If she is found to be a minor the question of guardianship and custody of the petitioner can be decided only by a competent Civil Court in appropriate proceedings.
It might be noted that in Seema Devi’s case (supra) reference has been made to the observations of the Hon’ble Supreme Court as appearing in para 6 of the citation (Lila Gupta’s case . We might also reproduce the same for a clear reading of the decision and the ratio therein:
6. A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnized in contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six conditions for valid marriage. Section 11 renders marriage solemnized in contravention of conditions (i), (iv) and (v) of Section 5 only, void. Two incontrovertible propositions emerge from a combined reading of Sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a prerequisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the Act is conspicuously silent of the effect on a marriage solemnized in contravention or breach of the time-bound prohibition enacted in Section 15. A further aspect that stares into the face is that while a marriage solemnized in contravention of Clauses (iii), (iv), (v) and (vi) of Section 5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos. (i), (iv) and (v) are expressly declared void and marriages in breach of conditions Nos. (iii), (v) and (vi) of Section 5 are specifically made punishable by Section 18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriages punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage being void though not covered by Section 11 such as in breach of proviso to Section 15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to make it punishable.
(Emphasis supplied)
It will be noticed that the observations in the last four lines clearly relate to the provision of Section 15 and its proviso of the Hindu Marriage Act. To make it abundantly clear we may reproduce para 3 of the decision in the first instance:
3. Even though the appeals were argued on a wider canvas, the short and narrow question which would go to the root of the matter is: Whether a marriage contracted in contravention of or violation of the proviso to Section 15 of the Act is void or merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing from the marriage ?
Then dealing with the provision of Section 15 and its proviso it has been observed in para 5 as under:
5. The substantive part of Section 15 enables divorced persons to marry again. The proviso prescribes a time-limit within which such divorced persons cannot contract marriage and the time prescribed is a period of one year from the date of the decree in the Court of the first instance. Section 16 confers status of legitimacy on a child who but for the provision would be treated illegitimate. If a marriage is annulled by a decree of nullity, the legal consequence would be that in the eye of law there was no marriage at all even though the parties contracting the marriage might have gone through some form of marriage but as they were not bound by a valid binding wedlock, the child conceived or begotten before the decree of nullity would nonetheless be illegitimate. The law steps in and provides that such child shall be legitimate. The principle discernible is that innocent person shall not suffer. Section 17 provides for punishment for bigamy. Section 18 prescribes punishment for contravention of some of the conditions prescribed for valid marriage in Section 5. Contravention of conditions (iii), (iv), (v) and (vi) of Section 5 is made punishable under Section 18.
16. It will, therefore, be clear that the observations in the last four lines of para 6 of the citation precisely relate to Section 15 and its proviso and not the other provisions referred to in that para.
In fact in a writ petition of habeas corpus following observations of the Hon’ble Supreme Court in the case of Mohd. Ikram Hussain v. State of U.P. would assume a great deal of importance while dealing with a claim of minor girl’s custody by her alleged husband:
(13) Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife and the alternative remedy under Section 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a clear case. It is of course singularly inappropriate in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ.
(Emphasis supplied)
17. In para 15 it has been further observed that a writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Before a Court accedes to this request it must satisfy itself atleast prima facie that the person claiming the writ is in fact the husband and further whether a valid marriage between him and the woman could at all have taken place.
From what is stated above, it might be noted that a Court has to be conscious about not exercising the writ power so as to reach near a stage which is described as particeps criminnis. (Particeps criminnis quasi accedens ad culpam, means a partner in crime is, as it were, assenting to the offence).
Before reaching a just and proper conclusion on the second aspect of the problem we might also usefully refer to following observations of the Hon’ble Supreme Court in Mr. ‘X’ v. Hospital ‘Z‘ reported in AIR 1999 SC 495:
Where there is a clash of two Fundamental Rights…the Right which would advance public morality or public interest, would alone be enforced through the process of Court….
In the present case there is a clash between alleged private right of the respondent No. 3 and apparent private right of the petitioner subject of course to public morality and public interest in case of protection and welfare of the minor girl.
As a result of the above discussion, bearing in mind the facts of the case parental status has to be preferred to the marital status vis-a-vis the custody of the minor girl.
18. The third dimension of the problem in hand is “welfare of the minor girl”.
The circumstances under which we are required to take into consideration welfare of the minor girl need not be repeated. However, it has been submitted on behalf of the respondent No. 3 that since minor girl has expressed her desire to associate with him she cannot be left and/or continued in the custody of the aforesaid institution. It may be noted that she preferred to stay at the aforesaid institution instead of staying at her parental home. That apart, the submissions based on the challenge to continuation of the custody of the minor girl in the aforesaid institution might be considered.
19. In the first place reliance has been placed on the decision of the H. P. High Court in Seema Devi’s case (supra). We have already dealt with the said decision where question was whether the Additional Chief Judicial Magistrate could have sent the minor girl to a Protective Home. Reference has also been made to a decision of the Allahabad High Court in Kalyani v. State of U.P. reported in 1978 Cri.LJ 1003. There the petitioner claiming herself to be Mrs. Kalyani Chowdhary challenged her custody with the Superintendent of Mahila Ashram, Lucknow alleging that she was illegally detained there. In return it was pointed out that she was admitted to the Ashram on the basis of an order issued by the Magistrate. It was pointed out that on account of a dispute between the two factions concerning the girl she was produced before the Magistrate and on the basis of the orders of the Magistrate she was put in the Ashram. The minor girl complained before the High Court that she was not being permitted by the authorities of the Ashram to have free movement and that she was being detained against her will. Under such circumstances, the Allahabad High Court had an occasion to observe that a person can be kept in a Protective Home only when she is being dealt with under the provisions of Suppression of Immoral Traffic in Women and Girls Act, 1956, that there was inherent lack of jurisdiction in the Magistrate with regard to sending of the girl to the Protective Home and that the evidence of the girl did show that she was major. Reliance has, however, been placed on these observations which in our opinion would amount to obiter:
Moreover, in the present case the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home.
It will not be necessary to stretch the matter any further since there is a precedent of this Court which, in our opinion, clearly answers the point in hand. This is apart from the fact that Nari Vikas Gruh cannot be said to be a ‘Protective Home’ in the sense in which position of ‘Mahila Ashram’ was before the Allahabad High Court and the facts of the case in hand are quite distinct and not comparable with those in the case before the Allahabad High Court.
In Savitaben v. Manji Ramji a Division Bench of this Court was concerned with a case of ‘mother v. Father’ in respect of custody of their minor children. This Court has held that the Court has jurisdiction both under Article 226 of the Constitution and Section 491 of Criminal Procedure Code and it has also inherent jurisdiction to decide about the welfare of the children. Following observations from a Full Bench decision of Kerala High Court in Marggarate Maria Pulparampil Nee Feldmen v. Dr. Chacko Pulparampil and Ors. have been referred to at page 688:
Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res.
Following passages quoted from the American Jurisprudence, Volume 25, pages 202, 203, 204 and 205 have also been reproduced and they may be usefully referred to here more particularly in the context of minor’s liberty qua custody:
It should be observed that as a general rule, where the writ is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceeding. The controversy does not involve the question of personal freedom, because an infant, for humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The Court, in passing upon the writ in a case involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any more legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the cases of an adult, but on the Court’s view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence a Court is in no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents are entitled to due consideration.
It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular part. See D. Ramaswami v. State of Tamil Nadu . And ‘what is truly the welfare of minor’ has to be seen. See Surinder Kaur v. Harbax Singh .
Now, in the present case we are clearly of the opinion that welfare and liberty of the minor girl are and will better be attended to and protected in the institution in which she has been staying under the orders passed by this Court from time to time during the last more than a month.
A minor girl between her 15 to 18 years of age floats into a state of puberty, a state of innocence and yet lacking in mature understanding more guided by ‘attractions’. The state of mind can hardly be described as mature. If that be not so, she can hardly leave her parents for a new entrant in her life. Without being mindful of what the type of such new entrant in the life is. We cannot resist expressing our concern at the manner in which such girls are being cajoled and entrapped so as to see them out of their parental home at a premature point of time. Here the third respondent is aged around 28 years. Though according to him he is a divorcee, the first wife having committed suicide, he has described himself to be unmarried in the marriage registration form. One can hardly find any welfare of the minor girl in his association.
It has finally been submitted that the respondent No. 3 decided to marry minor girl after verifying her age as appearing in the school leaving certificate. It might be noted that the certificate from statutory register of births and deaths indicates that minor girl (**) will be attaining the age of majority on 7-11-1999, her birth date being 7-11-1981. It is no doubt true that her birth date appearing in the school leaving certificate is 15-11-1980. However, it is settled law that we have to accept birth date as appearing in the birth certificate. The submission on behalf of the respondent No. 3 is that there is a bona fide reliance placed on school leaving certificate for the purpose of minor girl and, therefore, the respondent No. 3 would be protected by virtue of Section 79 of the Indian Penal Code. It is true that Section 79 of the Indian Penal Code, which provides an exception to the offences noted hereinabove, to the effect that an act done by person which is justified by law or who by reason of mistake of fact and not by reason of mistake of law believes himself justified by law in doing it, will provide a defence to the aforesaid offences in a given case. That all is a question of fact to be established by way of defence as and when respondent No. 3 is to face or is facing any proceeding for the offence with which he may be charged. That will have hardly any bearing on the questions which have been dealt with hereinabove. In that view of the matter, there is no question of applying the decision in the case of Raj Kapoor v. Laxman . Following observations might, however, be noted from Para 9 of the citation:
Jurisprudentially viewed, an act may be an offence, definitionally speaking; but a forbidden act may not spell inevitable guilt if the law itself declares that in certain special circumstances it is not to be regarded as an offence. The chapter on General Exceptions operates in this province. Section 79 of Penal Code makes an offence a non-offence. When ? Only when the offending act is actually justified by law or is bona fide believed by mistake of fact to be so justified. …
We may conclude by saying that it would be trite law to say that the Court in exercise of jurisdiction in a writ of habeas corpus like the present acts as a loco-parent is. In the case like the present where custody of the minor girl cannot be handed over to the respondent No. 3 (alleged husband) and if the girl continuously expresses that she would not like to go to her parent’s place, and instead to stay at the institution like Nari Vikas Gruh, Paldi, Ahmedabad, she would be under a proper care and be away from all apprehensions and risks to her life and will have better, uninfluenced living. She has not expressed any grievance for the aforesaid institution. However, she has stated that she would like to associate/go to respondent No. 3. Since we have expressed that it would neither be legal nor be just and proper to send the minor girl to respondent No. 3, the obvious choice would be the petitioner being her father to be entrusted with her custody, but since she has expressed some apprehensions about going to her parental house and since she has expressed that she would opt to continue in the aforesaid institution, we find that it would be certainly in her interest and for her welfare to continue her with the aforesaid institution with appropriate directions.
20. In the result, we pass following order:
I. The minor girl (***), daughter of the petitioner shall be continued in the custody of Nari Vikas Gruh, Paldi, Ahmedabad, through its Secretary/ Superintendent or any other responsible officer as per our order dated 22-1-1999 till further orders, however, not beyond the date on which she would attain her age of majority.
II. It will be open to the Secretary/Superintendent of the Nari Vikas Gruh, Paldi, Ahmedabad to take guidance/instructions in respect of minor girl (***) as and when found necessary.
III. The parent of minor girl (***) will be permitted to visit minor girl during office hours on 23-3-1999, 31-3-1999 and 4-4-1999 and in presence of the Secretary/Superintendent of the Nari Vikas Gruh or any other responsible officer. We make it clear that neither parent will employ any force, verbal or otherwise, on minor girl (***) but they will be free to politely persuade her about her future.
IV. Our order dated 18-3-1999 for bringing minor girl (***) before this Court at 2-45 p.m., on 5-4-1999 will remain so as to find out whether any other or further orders are necessary in the matter.
In view of what is stated above, Rule in Misc. Criminal Application No. 579 of 1999 is hereby discharged and Rule in Special Criminal Application No. 1 of 1999 shall stand answered in the aforesaid terms.