Jharkhand High Court
Shankar Mandal Alias Bapi Mandal vs The State Of Jharkhand And Anr on 23 November, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 105 of 2015
Shashank Mandal @ Bapi Mandal
Son of Sri Ganesh Chandra Mandal, resident of village & PO - Salpatra,
P.S. Baliapur, District- Dhanbad .... ... Petitioner(s)
-V e r s u s-
1. State of Jharkhand
2. Arjun Mandal, son of Sri Jagarnath Mandal, resident of village Keliasole, PO- Nirsa,
PS- Nirsa (Kalubathan), District- Dhanbad .... ... Respondents
CORAM: - HON'BLE MR. JUSTICE RAVI NATH VERMA
For the Petitioner(s) : - Mr. Mukesh Bihari Lal, Advocate
For the State : - Mr. K.K.Mishra, A.P.P.
For the respondent no.2 : - Mr. Nitish Krishna, Advocate
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C.A.V. ON: 06/08/2015 PRONOUNCED ON: 23/11/2015
Invoking the extra ordinary jurisdiction of this Court
under Article 226 of the Constitution of India, the petitioner has
prayed for quashing of the order dated 26.09.2014 passed by learned
Additional Sessions Judge- Vth, Dhanbad in Sessions Trial No. 215 of
2014 whereby and whereunder the petition filed by the petitioner for
release of the victim girl Tumpa Mandal from Nari Niketan, Deoghar,
has been rejected.
2. At the instance of the informant-Arjun Mandal, who is
respondent no.2 in this writ application, Nirsa (Kalubathan) P.S. Case
No. 55 of 2014 was instituted under Sections 363 and 366(A)/34 of the
I.P.C. with the allegation that on 19.02.2014 at about 3.00 P.M., his
daughter Tumpa Mandal aged about 16 years as usual went to attend
tuition classes but Sanjay Mandal along with the petitioner Shashank
Mandal @ Bapi Mandal forcibly kidnapped his daughter. This
incidence was witnessed by several co-villagers and they informed
him about the incidence. Even after search, when he could not get
any information about his daughter, this case was lodged.
3. It appears from the record that Tumpa Mandal was
subsequently recovered by the Police on 22.03.2014 and her statement
under Section 164 of Cr.P.C. was recorded on 24.03.2014 but as she
refused to go to her parents' house, she was sent to Nari Niketan,
Deoghar. She had clearly stated in her statement that her age is 18
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years and she has solemnized her marriage with this petitioner in a
temple and nobody had kidnapped her rather because of the cruelty
and physical torture of her parents, she left her house along with this
petitioner on her own and she wants to live with her husband Bapi-
the petitioner. In the said statement, she has also stated that she does
not want to go to her parents' house. After completion of the
investigation, charge-sheet was submitted by the police whereafter
cognizance was taken and case was committed to the court of
sessions. Before the said court, a petition was filed on behalf of the
victim Tumpa Mandal for her release, but her prayer was rejected by
the court concerned vide order dated 26.09.2014 holding that the
victim in her statement had disclosed her age as 16 years and from
matriculation certificate issued by the Jharkhand Academic Counsel
also it transpires that her date of birth is 09.04.1998. So considering
the age of victim, her consent becomes immaterial and her
willingness to stay with the accused is also not considerable at all and
apparently she is a minor girl.
4. The victim girl was examined as P.W.1 by the court of
Additional Sessions Judge- Vth-cum-F.T.C. Dhanbad and in her
deposition in court, she testified that she was subjected to torture at
the hands of her father and mother, whereafter she fled away along
with Bapi-the petitioner and she wants to live with him. The victim
has also stated that the police brought her and Bapi to the police
station and produced her in court. Even in court also she had stated
that she does not want to go to her parents' house whereafter she was
sent to Nari Niketan, Deoghar. During cross-examination, she has
stated that the two accused persons Sanjay Mandal and Shashank
Mandal have been falsely implicated in this case and after her
marriage with this petitioner, they had been living as husband and
wife.
5. Learned counsel appearing for the petitioner while
assailing the order impugned as bad in law seriously contended that
even if the victim Tumpa Mandal be considered as minor, aged 16
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years on the alleged date of incidence but as she went with the
petitioner on her own accord without any coercion and solemnized
her marriage with petitioner, she cannot be detained against her
wishes in the Nari Niketan and detention is contrary to law. Learned
counsel relying upon a case Seema Devi alias Simran Kaur Vs. State
of Himachal Pradesh reported in 1998(2) Crime 168 submitted that in
that case also, the petitioner was found to be 15 years of age and had
solemnized her marriage with the accused of that case Ajmer Singh
on her own accord, the Court held that there was no provision of law,
which permits to give such a direction to remand a minor to
protective custody at Nari Niketan against her Will. It was also held
that even if the minor was 15 years of age, her wishes should be
ascertained before placing her in custody of any person or institution.
Hence, the victim was directed to be released from Nari Niketan. It
was also submitted that now after more than one and half year of
incidence, she has almost attained majority. Hence, a direction be
given to the court to release the victim at once.
6. Contrary to the aforesaid submissions, learned counsels
appearing for the respondent no.2- the father of the victim girl and
the State submitted that the victim was minor on the date of alleged
incidence and the marriage between the petitioner and the victim girl
is invalid and illegal and the respondent no.2 undertakes to take care
of safety and security of the victim in his house.
7. Before adverting to the rival submissions of the counsels,
the question of marriage as raised by the learned counsel for the
respondent no.2 being illegal or void abinitio on account of minority,
in my opinion, this question is not an issue in the instant case and the
marriage of a minor is no longer res-integra. In Seema Devi alias
Simran Kaur (supra), the same issue of marriage of a minor and
confining her in Nari Niketan were raised and the Hon'ble High
Court of Himachal Pradesh observed in paragraph 5 of the judgment
as follows:-
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"5. It is not in dispute that the parties are Hindus and they are
governed by the Hindu Marriage Act, 1955. Section 5(iii) provides that
a marriage may be solemnized between any two Hindus if the
conditions set out in subsection (iii) is that the bridegroom has
completed the age of 21 years and the bride the age of 18 years at the
time of the marriage. For the purpose of this petition, I will assume that
the complaint of the 2nd respondent that the petitioner herein was aged
only 15 years is true. Even so, the marriage has not been invalidated by
the provisions of the Hindu Marriage Act. Section 11 of the Act deals
with void marriages. That Section relates only to marriages held in
contravention of clauses (i), (iv) and (v) of Section 5. That Section does
not refer to clause (iii) of Section 5. Section 12 refers to voidable
marriage. That Section deals only with marriages in contravention of
the conditions specified in clause (ii) of the Section 5. That Section does
not also deal with clause (iii) of Section 5. Thus, the marriage in
contravention of clause (iii) of Section 5 is neither void nor voidable
under the provisions of the Hindu Marriage Act. The only other
relevant provision is Section 18 of the Act, which provides for
punishment for contravention of the conditions specified in Section
5(iii) also. The punishment will be imprisonment, which may extend to
15 days or with fine which may extent to Rs.1,000/- or both. Thus, the
only provision which will come into play in the event of contravention
of Section 5(iii) is Section 18 of the Hindu Marriage Act and nowhere
does the Act declare the marriage to be illegal or invalid or void."
6. It is further observed by the learned Judge in paragraph 8 and 10
as follows:
"The next question is whether the Additional Chief Judicial
Magistrate had jurisdiction to direct the petitioner herein to be kept in
Nari Niketan at Bilaspur. There is no provision of law which permits a
Court to give such a direction even in the case of minors, when it is
against their will. Even if the petitioner is only a minor aged about 15
years, her wishes should be ascertained before placing her in the
custody of any person or Institution. In this case, she had categorically
stated before the Addl. Chief Judicial Magistrate that she would not
live with her parents and she wanted to live with her husband, the 1st
accused in the case. The Additional Chief Judicial Magistrate should
have given credence to her wish and only directed her custody to be
with the 1st accused and not with the Nari Niketan."
8. From the ratio decided in the above case, it is clear that
even if the victim was a minor on the date of marriage or when she
fled away with this petitioner, the marriage is neither void nor
voidable. The only provision attracted is sub-section(5) (iii) of Hindu
Marriage Act, 1955, which by virtue of Section 18 of the said Act at
best can lead to imprisonment up to 15 days and or fine and may
extend to Rs.1,000/- or both.
9. The case of this petitioner is squarely covered by the ratio
decided in the above case Seema Devi alias Simran Kaur (supra)
where the minor was also kept in Nari Niketan by the police and it
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was held that minor girl cannot be detained against her wishes in the
Nari Niketan and such detention would be contrary to law. In my
considered view also, the court below has not at all applied its
judicial mind while considering the statement of victim girl recorded
under Section 164 of the Cr.P.C. where she has shown her willingness
to live with the petitioner and refused to go to her father's house.
There is no provision in any law to even detain a minor girl
anywhere against her wishes. In the instant case also, the petitioner
has been released on bail whereafter this criminal writ has been
preferred.
10. In view of the discussions made above, this writ
application is, hereby, allowed. The court below is directed to release
the victim girl at once from Nari Niketan, Deoghar. The victim girl
shall be at liberty to go either with the petitioner or with her father-
the respondent no.2.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 23rd November, 2015
Ritesh/N.A.F.R.