A writ petition was filed for the issuance of writ, order or direction in the nature of Habeas Corpus thereby commanding the opposite parties to produce the petitioner (detenue) before Court and set free the petitioner with liberty to live with her husband namely Ram Mitra. It was further submitted that the life of the petitioner as well as her child (foetus) which was growing in mother’s womb was in danger in the house of opposite parties (the parents of detenue). Pursuant to the order of the Court dated 22.10.2021, Sub Inspector of Police Station Motipur, authorized by opposite party, produced the corpus, the alleged detenue, Smt. Suneeta before the Court. Learned counsel for the petitioner was present alongwith the alleged next friend of detenue, the husband of the alleged detenue namely Ram Mitra.
Court perused the pleadings and annexures made evidences by the petitioner’s next friend. On perusal of the petition, pleading was found to the effect that the marriage of the petitioner was solemnized with Ram Mitra (next friend) on 02.11.2020 at Arya Samaj Mandir, copy of marriage certificate was placed in the writ petition. The annexure no.7 i.e. School Leaving Certificate discloses the date of birth of alleged detenue as 16.06.2003. Therefore, relying on the date of birth, the alleged detenue was 17 years’ old at the time of her marriage and by reason of her minority, she was neither in capacity of giving her consent for marriage nor her wish to go with the petitioner. The statement under Section 164 Cr.P.C. was also recorded on attaining the age of majority.
In the context of facts and circumstances as revealed from the record and from the statement of the corpus-Smt. Suneeta, since she was adult, she had right to marry with a man of her choice and also to live with anyone of her choice, anywhere where she wants, therefore, her detention was not legal in view of the judgment of Hon’ble Apex Court in the case of Lata Singh Vs. State of U.P. and Others reported in [AIR 2006 SC 2522]. Hon’ble Apex Court in the Lata Singh case had held as under:
“…………….This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or interreligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
When the alleged detenue was produced before the Court in the presence of Ram Mitra, she stated that she was not legally wedded. She further informed that she unwillingly had conceived a child from Ram Mitra but the child born died. The detenue further in clear and explicit words stated her unwillingness to go with the alleged next friend to his house. She wanted to reside with her parents in the parental house. She does not ratify the marriage with Ram Mitra.
Under the Juvenile Justice (Care and Protection of Children) Act, 2015, school first attended and matriculation certificate was to be given priority beyond other evidences. The only basis of claiming the marriage with the detenue by the next friend is in certificate issued by the Arya Samaj Temple. Irrespective of the genuineness of the certificate, it was important to consider the age of detenue when she was alleged to have entered into marriage with the alleged next friend, Ram Mitra.
The petitioner’s date of birth was admittedly 16.06.2003, as such on the date of agreement’ dated 02.11.2020, she undoubtedly was a minor. The definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such person is termed as child. Admittedly, the petitioner was minor as well as a child also when she allegedly entered into the agreement to marry on 02.11.2020. The law applicable to her being a Hindu, was “The Hindu Marriage Act, 1955”. Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the are conditions are fulfilled.
Under both the Acts viz. The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry. According to the Indian law, in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriages, if solemnized even by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage attaining the age of majority.
A criminal case i.e. F.I.R. No.443 of 2020, under Section 363 of the I.P.C., was also pending against the alleged next friend as husband, Ram Mitra. The action of such proceeding against any criminal case cannot provide justification subsequently by any judicial order unless it was not concluded under the said criminal case. A minor, if on attaining majority is willing to ratify the marriage and accepts his/her marital status and relations with the other party of the marriage, the marriage would subsist. In the present case, the detenue when alleged to have entered into marriage with the present next friend she was minor but when she was produced before the Court, had attained the majority. Being major, she did not ratify the alleged marriage nor her marital status with the alleged next friend namely Ram Mitra. Even she didn’t wanted to go with Ram Mitra. The writ of Habeas Corpus was not issued in favour of said Ram Mitra as husband for carrying of the alleged detenue ”Suneeta’ as his wife.
In view of the statement recorded in the Court of the detenue-Smt. Suneeta, the petition had no merit and, therefore, decided in terms of the statement. Accordingly, the writ petition was dismissed.
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