{"id":47934,"date":"2011-04-06T00:00:00","date_gmt":"2011-04-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-saravanan-vs-the-commissioner-of-police-on-6-april-2011"},"modified":"2017-05-29T02:32:53","modified_gmt":"2017-05-28T21:02:53","slug":"g-saravanan-vs-the-commissioner-of-police-on-6-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-saravanan-vs-the-commissioner-of-police-on-6-april-2011","title":{"rendered":"G.Saravanan vs The Commissioner Of Police on 6 April, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
G.Saravanan vs The Commissioner Of Police on 6 April, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 06\/04\/2011\n\nCoram\nThe HONOURABLE Mr.JUSTICE S.RAJESWARAN\nand\nTHE HONOURABLE MR. JUSTICE G.M.AKBAR ALI\n\nH.C.P. (MD) No.190 of 2011\n\nG.Saravanan \t\t\t\t\t\t... Petitioner\n\nVs.\n\n1.The Commissioner of Police,\n   Trichy City,  Trichy.\n\n2.The Inspector of Police,\n   Fort Police Station,\n   Trichy.\n\n3.P.Chandrasekar\t\t\t\t\t...Respondents\n\n\tPetition filed under Article 226 of the Constitution of India to issue a\nWrit of Habeas Corpus to direct the respondents 1 and 2 herein to produce the\nbody of the detenue namely Lakshmi Priya, aged about 18 years, the wife of the\npetitioner herein before this Court and set her at liberty forthwith.\n\n!For Petitioner\t...  Mr.B.Janath Ahmed\n^For Respondents...  Mr.P.N.Pandidurai\n\t   \t     Addl. Public Prosecutor (For R1 & R2)\n\t  \t     Mr.Ilanchezian (For R3)\n\t\t     \t\t\n:ORDER\n<\/pre>\n
(Order of the Court was made by S.Rajeswaran, J.)<\/p>\n
\tThis Habeas Corpus Petition has been filed by the petitioner to trace his
\nwife Lakshmi Priya, aged about 18 years.\n<\/p>\n
\t2. The case of the petitioner is that he has married the detenue on
\n09.01.2011 at Samayapuram Mariamman Temple and they were living peacefully at
\nSangliandapuram, Trichy.  On 24.01.2011, when they proceeded to attend a
\nfunction at Kumbakonam, the third respondent\/father of the detenue\/his wife,
\ncame along with a few persons and threatened them with dire consequences.
\nImmediately they rushed to the Kumbakonam All Women Police Station and lodged a
\ncomplaint.  On the same day i.e., 24.01.2011, the petitioner\/husband received a
\nphone call from second respondent\/Inspector of Police, Trichy stating that his
\nbrother was confined to the Police Station and he should came to Police Station
\nwith his wife.  The petitioner and his wife rushed to Polise Station and there
\nall the persons were present and Assistant Commissioner of Police threatened him
\nto leave his wife and get away.  Fearing for his life, his brother and the
\npetitioner came out of the Police Station and after consulting their elders,
\nthey went back to the Police Station the next day and enquired second respondent
\nabout his wife.  The second respondent informed the petitioner that his wife was
\ntaken away by her family members.  On 27.01.2011, his wife Lakshmi Priya\/the
\ndetenue herein contacted him over phone and informed him that she was kept in
\nillegal custody by her parents.  On the same day the petitioner gave a complaint
\nto the second respondent.  Since the complaint given to the second respondent
\nhas not been seriously investigated into, the above Habeas Corpus Petition has
\nbeen filed.\n<\/p>\n
\t3. On notice, the third respondent\/father of the detenue, brought the
\ndetenue to court today.  The petitioner is also present before this Court.  The
\nrespective counsel are also present.\n<\/p>\n
\t4. The learned counsel appearing for the third respondent\/father of the
\ndetenue would submit that the detenue is a minor girl and as a father, he is
\nhaving the legal and statutory custody.\n<\/p>\n
\t5. To ascertain the truth, we interacted with the detenue\/Lakshmi Priya
\nwho has clearly stated that after marrying the peititoner on 09.01.2011, she
\nlived with him as his wife for more than 15 days.  But, she has been forcibly
\ntaken by her parents against her wish and she is compelled to live in her native
\nplace, a village near Bangalore.  She asserts that she would like to live only
\nwith the petitioner\/her husband and she prays for setting her at liberty to go
\nwith the petitioner\/her husband.  When we asked the petitioner, he also claims
\nthat he has married the detenue and lived with her for more than 15 days as her
\nhusband.  His adoptive mother, an elderly woman, who is present before this
\nCourt also, admits that they are married and they were living together as
\nhusband and wife in her house.  She also leads for appropriate orders to be
\npassed so that both could be united and made to live as husband and wife.\n<\/p>\n
\t6. The primary question that arises for consideration in this case is,
\nwhether the detenue, a minor girl could be set at liberty to go along with her
\nhusband\/the petitioner herein?\n<\/p>\n
\t7. In the instant case, as the parties are Hindus, the validity of the
\nmarriage is to be considered in the context of Section 5 of the Hindu Marriage
\nAct (herein after referred to as HMA).\n<\/p>\n
\t8. Section 5 of the HMA sets out the conditions for a Hindu Marriage, one
\nof them, Clause (iii) being the stipulation as to age of the bride-groom and the
\nbride.\n<\/p>\n
\t9. According to Section 5.3 of HMA, the bridegroom has to complete the age
\nof 21 years and the bride the age of 18 years.  But, does this mean that a
\nmarriage where this twin condition as to age is violated, would be void or
\nvoidable?  Section 11of HMA  deals with the void marriages and a perusal of that
\nSection would show that a marriage solemnised after the commencement of this
\nAct, shall be null and void on a petition presented by either party thereto
\nagainst the other party, is declared by a decree of nullity, if it contravenes
\nany one of the conditions specified in clauses (i), (iv), (v) of Section 5.
\nClause (iii) of Section 5 is conspicuously missing in Section 11.  Thus, a Hindu
\nmarriage solemnised in contravention of clause (iii) of section 5 of the HMA
\ncannot be regarded as void or invalid marriage.  Therefore the petitioner’s
\nmarriage with the detenue is not a void marriage.\n<\/p>\n
\t10. Now let us consider whether it is a voidable marriage under Section 12
\nof HMA.    A perusal of Section 12 in its entirety makes it very clear that the
\nviolation of sub clause (iii) of Section 5 is conspicuously absent in Section 12
\nalso, which means, the petitioner’s marriage with the detenue is also not
\nvoidable.\n<\/p>\n
\t11. In this connection, it is useful to refer to Section 18 of the HMA,
\nwhich prescribes punishment for contravention of certain conditions of Hindu
\nmarriage.  It specified that violation of conditions psecified in clauses (iii),\n<\/p>\n
(iv), (v) of Section 5 is punishable and in particular it contemplates a simple
\nimprisonment which may extend to 15 days or with fine which may extend
\ntoRs.1000\/- or both in the case of violation of condition specified in Clause\n<\/p>\n
(iii) of Section 5.  Therefore, it is clear that the marriages conducted in
\ncontravention of the age stipulation is no longer a void or voidable or invalid
\nmarriage and it is punishable under Section 18 of the Hindu Marriage Act.\n<\/p>\n
\t12. Further Section 13(2)(iv) of HMA enables a wife to petition for
\ndesolution of her marriage on the ground that he marriage was solemnised before
\nshe attained the age of 15 years and she has repudiated the marriage after
\nattaining that age, but before attaining the age of 18 years.  Thus, it shows
\nthat even a marriage of a minor girl is regarded as valid one and can only be
\ndissolved on her petition provided she repudiates the marriage between the time
\nshe is 15 years old and 18 years old.\n<\/p>\n
\t13. Further, in respect of the provisions of The Prohibition of Child
\nMarriage Act, 2006, a specific provision deals with void and voidable marriage.
\nSection 12 deals with the circumstances, under<\/p>\n
which, the marriage of a minor child would be void.  The minor child refers to a
\nperson under 18 years of age.\n<\/p>\n
\t14. Section 12 of the Prohibition of Child Marriage Act, 2006 reads as
\nunder:\n<\/p>\n
\t“12. Marriage of a minor child to be void in certain circumstance.  Where
\na child, being a minor\n<\/p>\n
(a) is taken or enticed out of the keeping of the  lawful guardian; or\n<\/p>\n
(b) by force compelled, or by any deceitful means induced to go from any place;
\nor\n<\/p>\n
(c) is sold for the purpose of marriage; and made to go through a form of
\nmarriage or if the minor is
\nmarried after which the minor is sold or trafficked or used for immral purposes,
\nsuch marriage shall be null and void.”\n<\/p>\n
\t15. A Hindu marriage which is not a void marriage under HMA would continue
\nto be such, provided the provisions of Section 12 of the Prohibition of Child
\nMarriage Act, 2006 are not attracted.  In the case in hand, none of the
\ncircumstances specified in Section 12 arises.\n<\/p>\n
\t16. Therefore, the marriage between these two is not void or voidable or
\ninvalid and it would also be unaffected by the provisions of the Prohibition of
\nChild Marriage Act, 2006.\n<\/p>\n
\t17. Now let us consider the voidability of marriage under Section 3 of The
\nProhibition of Child Marriage Act, 2006 also.  Section 3 is extracted below for
\nbetter appreciation.\n<\/p>\n
\t“3. Child marriages to be voidable at the option of
\ncontracting party being a child. (1) Every child marriage, whether solemnised
\nbefore or after the commencement of the Act, shall be voidable at the option of
\nthe contracting party who was a child at the time of the marriage;
\nProvided that a petition for annulling a child marriage by a decree of nullity
\nmay be filed in the district court only by a contracting party to the marriage
\nwho was a child at the time of the marriage.\n<\/p>\n
(2) If at the time of filing a petition, the petitioner is a minor, the petition
\nmay be filed through his or her guardian or next friend along with the Child
\nMarriage Prohibition Officer.\n<\/p>\n
(3) The petition under this section may be filed at any time but before the
\nchild filing the petition completes two years of attaining majority.
\n(4) While granting a decree of nullity under this section, the district court
\nshall make an order directing both the parties to the marriage and their parents
\nor their guardians to return to the other party, his or her parents or guardian,
\nas the case may be, the money, valuables, ornaments and other gifts received on
\nthe occasion of the marriage by them from the other side, WP(CRL) 1003\/10 Page
\n12 of 24 or an amount equal to the value of such valuables, ornaments, other
\ngifts and money:\n<\/p>\n
Provided that no order under this Section shall be<\/p>\n
passed unless the concerned parties have been given notices to appear before the
\ndistrict court and show cause why such order should not be passed.”\n<\/p>\n
\t18. The above provision makes it very clear that irrespective of whether
\nthe child marriage is voidable or not under Personal Law, makes every child
\nmarriage voidable at the option of a party to the marriage, who was a child at
\nthe time of marriage.  The important aspect of this provision is that a petition
\nfor annulling a child marriage by a decree of nullity can be filed only by a
\nparty to the marriage, who was a child at the time of marriage.  Nobody other
\nthan a party to the marriage can petition for annulment of the marriage.\n<\/p>\n
\t19. In the instant case, the marriage of the detenue with the petitioner
\nis neither void nor voidable nor invalid undr both Acts, HMA and the Prohibition
\nof Child Marriage Act, 2006, as no petition was filed under Section 3 of
\nProhibition of Child Marriage Act, 2006 by the detenue who is still a minor.
\nExcepting the detenue, nobody has the locus-standi to question the validity or
\notherwise of the marriage with the petitioner.  In this case, not only she does
\nnot want to exercise this right conferred on her under Section 3 of Prohibition
\nof Child Marriage Act but also she wants to reinforce and strengthen,
\nconsolidate and preserve their marital bond by living together as she married
\nthe petitioner on her own will and volition.\n<\/p>\n
\t20. Now, the question of custody calls for discussion.  The detenue is a
\nminor.  She does not want to go to any home.  She has also refused to live with
\nher parents for fear of her life.  She wants to go with her husband\/the
\npetitioner and resume her married life with him.  In fact, her case is that she
\nwas separated from her husband and taken to the native place by her parents and
\nkept her in illegal custody against her wish and desire.  She was not allowed to
\neven contact any one and her husband was also not able to contact her.
\nTherefore, she prefers to live with her husband where she will  be looked after
\nwith love and affection.  From this it is very clear that the detenue is
\ninterested in going with her husband and considering the settled law that it is
\nthe welfare of the minor which is the paramount consideration of this Court, she
\nhas to be allowed to join her husband provided there is no bar for her husband
\nto act as her guardian.\n<\/p>\n
\t21. In this connection, Section 17 of the Guardian and Wards Act is also
\nrelevant and Section 17 reads as under:\n<\/p>\n
\t“17. Matters to be considered by the Court in appointing guardian. (1) In
\nappointing or declaring the guardian of a minor, the Court shall, subject to the
\nprovisions of this section, be guided by what, consistently with the law to
\nwhich the minor is subject, appears in the circumstances to be for the welfare
\nof the minor.\n<\/p>\n
(2) In considering what will be for the welfare of the minore, the Court shall
\nhave regard the age, sex and religion of the minor, the character and capacity
\nof the proposed guardian and his nearness of kin to the minor, the wishes, if
\nany, of a deceased parent, and any existing or previous relatiions of the
\nproposed guardian with the minor or his property.\n<\/p>\n
(3) If the minor is old enough to form an intelligent preference, the Court may
\nconsider that preference.***
\n(4) The Court shall appoint or declare any person to be a guardian against his
\nwill.”\n<\/p>\n
\t22. The above provision makes it very clear that what is relevant is the
\nwelfare of the minor and what is very significant as if the minor is old enough
\nto form an intelligent preference, then the Court  could consider that
\npreference.  Therefore the wishes of a minor need to be seriously considered by
\nthe Court, where the minor is old enough.  In the present case, the detenue was
\nborn on 17.11.1994 as seen from her birth certificate which means she is above
\n16 years of age.  Hence her preference should definitely be considered in the
\ninterest of her welfare.\n<\/p>\n
\t23. Section 19(a) of the Guardians and Wards Act is also relevant to be
\nconsidered in this case, and accoridng to Section 19(a), only when the husband
\nis unfit to be a guardian of a married female then only the other persons could
\nbe considered.  Here the petitioner\/husabnd is not only a major but he has also
\nnot suffered any disqualification to act as her guardian.  In fact he is the
\nnatural guardian of the detenue as per provisions of Hindu Minority and
\nGuardianship Act, 1956.\n<\/p>\n
\t24. Thus, a compendus reading of the provisions of these Acts would make
\nit clear that a natural guardian of a minor Hindu girl who is married, is her
\nhusband.  Furthermore, no guardian of the person of a minor, married female, can
\nbe appointed when her husband is not, in the opinion of the court, unfit to be
\nthe guardian of her person.  The preferences of a minor who is old enough to
\nmake an independent preference are to be considered by this Court.   Most
\nimportantly the welfare of the minor is to be the paramount consideration.\n<\/p>\n
\t25. In the instant case, the detenue is a minor girl who is married to the
\npetitioner.  Her natural guardian is no longer her father, but, her husband and
\nhe shall be a guardian of the minor wife.  The detenue has refused to live with
\nher parents and has categorically expressed her desire and wish to live with her
\nhusband\/the petitioner.  Sending her to a home against her will is also not in
\nthe interest of the welfare of the minor.  If she is sent to the home against
\nher will, it is  tantamount to her detention against her will and it would be
\nviolative of her life guaranteed under Section 21 of the Constitution of India.\n<\/p>\n
\t26. Therefore, considering the detenue’s welfare which is the paramount
\nimportance, we are of the view that her welfare would be best served if she has
\nto live with her husband, who has promised to give her the love and affection.
\nFurther, she would have support of her adoptive mother-in-law who has already
\nwelcomed her.   Sending her to her parents place is not advisable as the minor
\nherself says that her liberty is curtailed and her movements are restricted
\nthere.\n<\/p>\n
\t27. Therefore, considering the above facts and circumstances and with
\nparticular references to laws on the subject, we are of the considered opinion
\nthat the interest of the minor would be best served if she is set at liberty to
\ngo and live with her husband\/the petitioner.  Accordingly, the H.C.P. is allowed
\nsetting the detenue at liberty and permitting her to go with her husband.\n<\/p>\n
cse\/asvm<\/p>\n
To<\/p>\n
1.The Commissioner of Police,
\n   Trichy City,  Trichy.\n<\/p>\n
2.The Inspector of Police,
\n   Fort Police Station,
\n   Trichy.\n<\/p>\n
3.The Additional Public Prosecutor,
\n   Madurai Bench of Madras High Court,
\n   Madurai.\t<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court G.Saravanan vs The Commissioner Of Police on 6 April, 2011 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-47934","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nG.Saravanan vs The Commissioner Of Police on 6 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-saravanan-vs-the-commissioner-of-police-on-6-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.Saravanan vs The Commissioner Of Police on 6 April, 2011 - 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