Delhi District Court
Dalip vs State (Govt. Of Nct Delhi) on 24 July, 2012
IN THE COURT OF SH RAJENDER KUMAR SHASTRI
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE:
Criminal Appeal No. 28/12
ID No: 02406R0162262012
Dalip
S/o Sh. Nemi Chand
R/o 13/347, Trilok Puri,
Delhi110091. . . . . . Appellant
VERSUS
1. State (Govt. of NCT Delhi)
2. Smt. Pooja
W/o Sh. Dalip
Through Incharge, Children Home
for Girls, Nirmal Chhaya Complex,
Jail Road, Hari Nagar, New Delhi64. . . . . Respondents
Date of Institution : 06.07.2012
Date of Arguments : 24.07.2012
Date of Judgment : 24.07.2012
J U D G M E N T
This is an appeal U/s 52 of The Juvenile Justice (Care & Protection of Children) Act 2000, directed against an order dated 11.04.2012 passed by The Child Welfare Committee (in brief The Committee), whereby an application filed by appellant seeking custody CA No. 28/12 1/6 of respondent No.2 Smt. Pooja was declined.
Section 52 of The Act prescribes for an appeal against an order made by a competent authority under this act. Subject to provisions of Section 52, any person aggrieved by an order made by a competent authority can file appeal to the Court of Sessions, within 30 days from the date of such order. As mentioned above, impugned order is dated 11.04.2012 and appeal in hands was filed on 06.07.2012. The appellant has filed an application seeking condonation of delay. As per Section 52, the court may entertain appeal filed after expiry of period of 30 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
It is submitted by Ld. Counsel for appellant that the latter prepared a revision petition against said order to be filed in High Court of Delhi. When same was ready to be filed, Ld. Counsel for appellant came to know after consulting someone that the proper remedy for him was an appeal U/s 52 of The Act and not the revision. All this caused delay in filing appeal in hands. Submitting that the delay in filing appeal was not intentional, Ld. Counsel requests to condone the same.
No objection is raised in this regard on behalf of the respondents. Considering same as well as the reason given by Ld. Counsel for appellant, I find it fit case where delay in filing appeal can CA No. 28/12 2/6 be condoned. Same is thus condoned.
It is submitted that the appellant and respondent Smt. Pooja were residing in the same locality. They developed love affairs with each other. All this was not to the taste of parents of respondent Pooja. The couple after having eloped, got married in Arya Samaj Mandir, Jamuna Bazar, Delhi. Pooja became pregnant from the appellant. On a complaint lodged by father of said respondent, both of the couple were apprehended. Appellant was arrested by police and produced in the court. He was admitted on bail later on. Respondent Pooja was sent to Children Home for Girls i.e. Nirmal Chhaya. After being released on bail, the appellant filed an application before the committee to get custody of respondent No.2, claiming himself as her husband. The application was rejected by the committee, stating that Smt. Pooja was still a minor and her custody could not be given to the appellant/ applicant, being an accused.
It is contended by Ld. Counsel for appellant that although Smt. Pooja is major being aged about 21 years, but same has no evidence to prove this fact. Even if, for the sake of arguments she is minor, she cannot be detained anywhere against her wishes. Ld. Counsel referred here a case titled as Smt. Neetu Singh vs. State & Ors. 1999 FLC 195, holding that even if it is assumed that the petitioner Neetu Singh was a minor on the date of marriage, as per CA No. 28/12 3/6 position of law, the marriage was neither void nor voidable, the petitioner was ordered to be released by order of our own High Court in the custody of her husband Sh. Kartar Singh.
It is not in dispute that appellant and respondent Pooja have already been married. Copy of a marriage certificate is already on the record. Respondent has given birth to a male child stated to be fathered by the appellant. Apart from appeal in hands, respondent also filed an application before this court, stating that she wants to go with the appellant, being wife of him. She does not want to join her parents. Even otherwise, none from parents of said respondent has approached the Child Welfare Committee or the court seeking custody of respondent No.2 (Smt. Pooja). In these circumstances, it is neither legal nor proper to compel the respondent to be confined anywhere, may be Nirmal Chhaya. High Court of Delhi while deciding Smt. Neetu Singh's case (Supra), relied upon a case titled as Seema Devi @ Simran Kaur vs. State of H.P 1998 (2) Crime 168, where following was held by the Chief Justice of Himachal Pradesh High Court: "It is not in dispute that the parties are Hindus and they are governed by the Hindu Marriage Act, 1995. 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 CA No. 28/12 4/6 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 marriage 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 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."
Hon'ble Judge of Delhi High Court also referred a case titled as Mrs. Kalyani Chaudhari vs. State of U.P & Ors. 1978 Cr.LJ 1003, where it was held by a Division Bench of Allahabad High Court that no person can be kept in the protective home, unless she is required to be kept there, either in pursuance of the suppression of Immoral Traffic in Women and Girls Act or under some other law, permitting her detention in such a home. Where the Magistrate's order mentions no provision of law, under which he has passed such a direction, the order directing the girl to be kept in the protective home, suffers from inherent lack of jurisdiction. Unfortunately, no provision is cited by the CA No. 28/12 5/6 committee to keep respondent No.2 in protective home i.e. Nirmal Chhaya. Impugned order thus suffers with illegality and not sustainable in the eyes of law. Same is thus setaside.
Apart from seeking settingaside impugned order, the appellant has prayed this court to grant custody of respondent No.2 alongwith her son master Dev to the appellant or to pass such other order, as this court deems fit.
During deliberations, it is submitted by Ld. Counsel that if this court does not find appellant a proper person to give custody of respondent No.2, the latter i.e. respondent No.2 be allowed to go anywhere, she wants.
As respondent No.2 is not an accused. None from her parents has approached the court/ committee to seek custody of said respondent and she does not want to remain in Nirmal Chhaya or any other protective home, I think it proper to set the respondent No.2 free. She appears to be mature in appearance and understanding. She be set free from Nirmal Chhaya.
Let file of Child Welfare Committee be sent back alongwith a copy of this order. File of this court be consigned to record room.
Announced in open court (RAJENDER KUMAR SHASTRI) today i.e. 24th July 2012 Addl. Sessions Judge02:South East Saket Court: New Delhi CA No. 28/12 6/6