Gujarat High Court
Jashiben Amrutbhai Rabari vs State Of Gujarat on 11 September, 2024
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/SCR.A/9848/2024 ORDER DATED: 11/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS)
NO. 9848 of 2024
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JASHIBEN AMRUTBHAI RABARI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
ANKIT M MODI(7418) for the Applicant(s) No. 1
MR KISHAN R CHAKWAWALA(9846) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Respondent(s) No. 3,4,5,6,7
MS NAMRATA R MULCHANDANI(9956) for the Respondent(s)
No. 3,4,5,6,7
MR RONAK RAWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 11/09/2024
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition under Article 226 of the Constitution of India is filed by the petitioner - mother of respondent No. 7 - corpus praying for direction to the concerned respondent authorities to produce Page 1 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined corpus before the Court. Pursuant to filing of petition and serving of advance copy to the office of Public Prosecutor, police authority produced the corpus on 08.08.2024. We had interacted with corpus, ascertained whether she is being illegally confined by anyone or not on that day. Our interaction with the corpus revealed that she is aged about 22 years having birth in the year 2002. Though, Mr. Chakwawala, learned advocate for the petitioner claims that she is still a minor having birth in the year 2007, without entering into such disputed facts, we have recorded in an order dated 08.08.2024 that she is mature enough having reached near to the age of discretion; she knows about her well-being along with her child. We permitted her to join the company of her husband along with the child she delivered out of the relationship, which is claimed to be in the nature of marriage.
2. We could have concluded the matter on that day, but as a request was made on behalf of the petitioner to adjourn the matter as petitioner - mother wishes to have interaction with corpus - daughter whom she has not seen for more than a year, therefore, matter was Page 2 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined kept pending and on the next date, it was ordered to be listed directing the respondent police authority to again produce the corpus on the date of adjournment.
3. It would be profitable to narrate the entire order dated 08.08.2024 here as under:
"1. Pursuant to filing of the petition and service of advance copy to the office of Public Prosecutor, High Court of Gujarat, respondent - Police Authority has produced the corpus, who is minor, as claimed by the petitioner herein claiming her date of birth to be 17.06.2007.
2. We have heard Mr. Kishan Chakwawala, learned advocate for the petitioner. We have also interacted with the corpus in chamber in isolation.
3. It is submitted by Mr. Chakwawala, learned advocate for the petitioner, that the corpus has still not attained the age of majority and she is claimed to have married with respondent no.3 herein, the marriage being illegal her custody cannot be entrusted back to him as there is no consent of the parents for the said marriage.
4. Without entering into all these disputed facts at present, she has been living with respondent no.3 herein since 12.02.2023 and out of the relation she has a baby girl aged about four months as on date.
5. We have interacted with her and ascertained whether she is illegally confined by anyone or not. Not only that, she Page 3 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined has clearly stated that she is not illegally confined by respondent no.3 with whom she has contracted marriage but claims that parents willingly got her married with him on payment of money, as per their custom. It is only because further demand of money has come, which could not be fulfilled by respondent no.3, all these unpleasant things occurred, which has led to filing of this writ of habeas corpus. Our interaction further revealed that she claims to be aged 22 years having her birth in the year 2002. However, the copy of School Leaving Certificate of corpus claimed to be issued by Shri Umiya Vidya Vihar, Kansarakui, Taluka Visnagar, District Mehsana reflects the date of issue to be 02.07.2022, which reflects the date of birth to be 17.06.2007. Be that as it may, during her interaction we conclude that she is mature enough and has reached near the age of discretion and she knows about her well being alongwith her child.
6. She has declared her wish to go with respondent no.3 and his relatives flatly refusing to go with the petitioner - mother. The claim made by the learned advocate for the petitioner that since marriage itself is invalid, without the consent of the parents, she cannot be entrusted to the custody of the alleged husband, which would again be illegal.
7. We refrain ourselves from finally concluding the aspect at this stage but having been satisfied about her maturity and considering the welfare of the baby girl delivered by her, who is four months old, she alongwith her would be taken good care of by respondent no.3 herein as also his relatives, and therefore, we permit her to go back with them from where she has been brought.
8. However, learned advocate for the petitioner requested the Court to adjourn the matter tomorrow as the petitioner - mother wishes to have interaction with the corpus - daughter. Therefore, stand over to 09.08.2024. Concerned Police is hereby directed to see that proper security is provided to the corpus where she resides alongwith her husband and her Page 4 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined relatives. Learned Additional Public Prosecutor, is directed to see that tomorrow also when corpus is again brought here there remains peace and vigil in and outside the High Court premises."
4. On next day i.e. on 09.08.2024 corpus was again produced before us as requested by the petitioner - mother. However, instead of showing interest to talk with her, she insisted for her custody and she had come with some certificate, which was never tendered and which we did not ask to produce the same. Her insistence appeared to be that she is still minor and therefore, she cannot be sent with the contesting respondents. As per our interaction with the corpus a day before that day, she has contracted marriage claiming that parents willingly got her married with him on a payment of money, as per their custom. It was further revealed by the corpus that it is only because further demand of money has come, which could not be be fulfilled by respondent No. 3 with whom she contracted marriage, all unpleasant things occurred, which would be narrated herein after, which led to filing of the present petition praying for a writ of Habeas Corpus.
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NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined
5. However, while passing an order dated 08.08.2024, we had directed the police authority to provide sufficient security to the corpus and her family members. We reiterated the same in an order dated 09.08.2024. As submitted by the learned advocate for the petitioner, both these orders, dated 08.08.2024 and 09.08.2024 were challenged by the petitioner before the Supreme Court by way of Special Leave to Appeal (Criminal) Nos. 11292-11293 of 2024. However, vide order dated 23.08.2024, Supreme Court dismissed the petitions as withdrawn after arguing for some time, as reflected in that order. The learned advocate for the petitioner had fairly produced that order before the Court for perusal. However, while passing an order dated 09.08.2024, since learned advocate for the petitioner wanted to argue the case in detail on a question of law, matter was adjourned on 02.09.2024. On that day, matter was adjourned to 04.09.2024. On that day, matter was heard and on a request made by the learned advocate for the petitioner, matter was adjourned on 05.09.2024 to file additional affidavit whereby, an Aadhar Card of the corpus, claimed to be issued in the year 2014, is produced with additional affidavit affirmed by the petitioner dated Page 6 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined 05.09.2024. Corpus, though minor, affirmed an affidavit on 05.09.2024, produced Aadhar Update History along with that affidavit and claimed in paragraph 4 of affidavit that Aadhar Verification revealed that it was for the first time issued on 24.12.2013 containing date of birth of the corpus to be 17.06.2000. However, on 18.09.2020, as claimed in the affidavit filed by the corpus, her parent has made change in date of birth in the Aadhar Card and entered it to be 17.06.2007, which is reflected in Aadhar Update History. As such, corpus claimed in her affidavit that she is major as on the date and not a minor, as claimed by her parents.
6. Be that as it may, such disputed questions of facts with regard to actual date of birth cannot be determined and we would not do so while hearing this petition for a writ of Habeas Corpus. Suffice it to say that we have interacted with the corpus in detail in chamber, in isolation for at least two days, and we are satisfied that she is mature enough not only to take care of herself but of her baby girl as well, who is aged about four months by now. As such, obduracy shown by the petitioner towards her own daughter is not in the interest of Page 7 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined corpus or even a child born to her. As sequence of events related to filing of this petition reflect, it has a very ugly story to tell, which will be referred to herein after. Not only the petitioner appears to be stubborn, with a view to harass the corpus, her that attitude is also again not in the interest of still a minor baby girl of four months old born to her own daughter.
7. As coming out from the petition and the annexures annexed with it, petitioner claimed that she came to know that on 12.02.2023, respondent No. 3 herein i.e. husband of corpus with whom she contracted marriage, lured and abducted her daughter. It is also claimed in an application addressed to Police Inspector, Visnagar Taluka Police Station dated 27.05.2024. It is further asserted in it that respondent No. 3 has never contracted marriage with the corpus. These assertions along with others in it, appear to be with a view to wreak vengeance against not only respondent No. 3 but her own daughter i.e. corpus. We had not recorded in our order dated 08.08.2024 but the utterances of the petitioner, as disclosed to us for the corpus in her presence, appear to be coming out from a cruel Page 8 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined mother.
8. As further coming out from that application, petitioner as also her husband persuaded respondent No. 3 to return their daughter with the intervention of even community people but respondent No. 3 did not permit her to meet the corpus or even to have a look at her. As further revealed in it, respondent No. 3 demanded Rs.50 lakh in return of their daughter as mentioned in petition as well in paragraph 3(II) towards "Daavo" - Customary Expenses towards the tarnishment of image, respect etc. Again, it is a word against word as what we recorded in an order dated 08.08.2024 heard from corpus herself that despite customary payment was made to the parents of corpus by the respondent No. 3 pursuant to which, parents willingly got her married with respondent No. 3 on payment thereof as per their custom. However, further demand has come which respondent No. 3 could not fulfill which led to violent disputes between the parties. Not only we have heard it from the corpus which is recorded in an order dated 08.08.2024, if we look at the FIR filed by respondent No. 3 herein, it is registered at Gandhinagar Infocity Page 9 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined Police Station as FIR No. 11216011240407 on 19.07.2024 against cousin brothers of the corpus who assaulted husband of the corpus very badly causing fractures on head, both hands as also left leg. That FIR also reflects that the marriage of respondent No. 3 with the corpus was after exchange of customary amount with express consent and for either remaining or for some further amount, there is some dispute between the parties.
9. This very fact goes to show that despite, as claimed by the petitioner in her application addressed to Police Inspector, Visnagar Taluka Police Station, that corpus was abducted on 12.02.2023, such complaint of abduction and other offences, claimed to have been filed for the first time by way of an application on 25.07.2024 after she delivered a child. Unless there is express consent of the parents for the marriage of corpus with respondent No. 3, complaint invoking provisions of Indian Penal Code, 1860 (IPC) as also the Protection of Children from Sexual Offences Act, 2012 (POCSO) would have been filed immediately if at all parents are concerned for the said offence. Their conduct proves for itself. Page 10 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024
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10. Very surprisingly, though it is not suppressed either in this petition or in a petition before the Court praying for registration of FIR based on an application made to the Police Inspector, Visnagar Taluka Police Station dated 25.07.2024 and similar such application dated 29.07.2024 addressed to Superintendent of Police as well as the Director General of Police, without bringing it to the notice of the Coordinate Bench of this Court about passing of the orders in present writ petition dated 08.08.2024 and 09.08.2024, a Special Criminal Application (Direction - To Lodge FIR / Complaint) No. 10034 of 2024, has come to be disposed of with a direction to the respondent No. 2 therein to go through the complaint made in writing for taking a decision whether the same discloses commission of a cognizable offence or not. Perhaps, before the Supreme Court also when they challenged both the orders of this Court dated 08.08.2024 and 09.08.2024, they might not have disclosed the same. Though, it may not be relevant to be disclosed but simultaneous invocation of different jurisdictions based on distorted facts as narrated herein above may lead to entangle the respondent No. 3 and the corpus in different proceedings at the instance of the petitioner, Page 11 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined which were not even required at all.
11. Mr. Chakwawala, learned advocate for the petitioner vehemently submitted that since corpus is minor as on date as claimed by the petitioner, if she does not want to go with the petitioner mother, she should be sent to Nari Vikas Gruh. Again that submission itself appears to be wreaking vengeance and nothing else. As narrated herein above, if it was not a marriage of the corpus with respondent No. 3 with the express consent of the petitioner and her husband, they would have immediately filed the FIR, if at all respondent No. 3 abducted their minor daughter on 12.02.2023. But, for a pretty long time of nearly one year and five months, no attempt at all was made either to submit such an application to any police or prayed before the High Court by way a petition for registration of an FIR or complaint, that too, after corpus delivered a child. 11.1 Mr. Chakwawala, learned advocate for the petitioner relied on a decision in the case of P. and Others v. State of Gujarat and Others, reported in 1999 (2) GLR 1422, (from a copy downloaded Page 12 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined from website - Indian Kanoon) more particularly, paragraph 10, for a proposition that, a marriage with a minor is illegal and therefore, husband cannot be termed as natural guardian of a Hindu minor. Further, drawing attention of the Court to paragraph Nos. 13 and 19 of the very decision, it is submitted that if a minor girl resists going to her parents then place her in a Nari Vikas Gruh, which takes her proper care.
11.2 Mr. Chakwawala, learned advocate for the petitioner further relied on a decision in the case of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, reported in AIR 2019 SC 2318, referring to paragraph Nos. 17 and 18 for the maintainability of a petition for a writ of Habeas Corpus for a custody of minor daughter. 11.3 He has further relied on a decision in the case of Veljibhai Bhanabhai Prajapati v. State of Gujarat, reported in AIR 2016 (Guj) 170, where, on a similar facts as projected in the present petition, corpus was sent to Nari Vikas Gruh till she attains the age of majority.
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11.5 Mr. Chakwawala, learned advocate for the petitioner further placed reliance on a decision of Allahabad High Court in the case of Pradip Tomar v. State of UP, rendered in Matters under Article 227 No. 4804 of 2020, (perhaps downloaded it from website - LiveLaw), more particularly, recorded in paragraph No. 17 thereof to submit that since minor is not inclined to go back to her parents, Court is left with no alternative but to direct the State to place her in a suitable State facility other than a Nari Niketan, may be a Safe Home / Shelter Home.
11.6 He has further relied on a decision in the case of Nitish Kumar @ Nitish Ram @ Nitish Kumar Ram v. State of Bihar and Page 14 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined Others, rendered in Criminal Writ Jurisdiction Case No. 880 of 2023 dated 16.01.2024, more particularly on paragraph Nos. 8, 12 and 14 thereof, to submit that the Constitutional Courts in this country may exercise parens patriae jurisdiction in the matters of child custody treating the welfare of the child as a paramount concern although the same is required to be invoked in exceptional situations.
11.7 Therefore, he submitted that if corpus - minor daughter of the petitioner does not wish to go with her, she be sent to any Nari Vikas Gruh or a Shelter Home but she cannot be handed back to her husband, which would be an offence not only under the POCSO but also under the Prohibition of Child Marriage Act, 2006 (herein after referred to as, "the Act, 2006"). Therefore, he has submitted that this writ petition be allowed accordingly.
12. As against that, Mr. Manish J. Patel, learned advocate for the respondent Nos. 3 to 7 tendered an affidavit of the corpus referred to herein above and submitted that though welfare of the child should Page 15 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined be the paramount consideration in custody battle, in the present case, corpus has no more remained a child, even if she is to be treated as minor, but she has also delivered a child. Therefore, he has urged that keeping in mind paramount consideration of a child, which corpus delivered, in better interest of both of them, they be sent to the company of respondents instead of petitioner - mother who appears to be at inimical terms in the sequence of events as occurred. He has further submitted that though marriage with a child would be an offence under "the Act, 2006", nonetheless, it is not a void marriage, except, in the circumstances mentioned in Section 12 of "the Act, 2006". Section 12 prescribes incidents of void marriages in certain circumstances, if a child being minor is taken or enticed out of the keeping of the lawful guardian; or by force compelled, or by any deceitful means induced to go from any place; or is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage is treated to be null and void under Section 12. Therefore, he has submitted that in the present case, marriage with the corpus of respondent No. 3 cannot be Page 16 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined said to be a void marriage as none of the exigencies as mentioned in Section 12 of "the Act, 2006" can be said to have occurred. 12.1 Therefore, he has submitted that at best, child marriage of the corpus herein with the respondent No. 3 herein can be said to be voidable, that too, at the option of contracting party being child. Therefore, according to his submission, only and only corpus who is aggrieved and at her option the marriage with respondent No. 3 can be said to be voidable, that too, on a proceedings in that respect is filed after she attains the age of majority, that too, within the time prescribed under "the Act, 2006". Even if, any petition is to be filed for declaring the marriage void, at the option of the minor child, it is to be through his or her guardian or next friend, but along with Child Marriage Prohibition Officer, before she attains majority. 12.2 Drawing attention of the Court to not only the applications made by the petitioner to different police authorities as also the FIR filed against cousins of corpus, who badly assaulted respondent No. 3 herein i.e. husband of the corpus, causing fractures on multiple Page 17 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined parts of the body, including upper limbs and lower limb, so-called attempt made by the petitioner to get offence registered under the POCSO against respondent No. 3 and others, that too, after one year and five months of the so-called offence, with a view to bring about settlement of an offence under Section 307 of IPC committed by nephews of the petitioner.
12.3 Criticizing the conduct of the petitioner in filing application with the police belatedly for her desired result, it is submitted that it is nothing but an attempt to extort more money as per their custom, may be legal or illegal, present petition with a view to exert pressure upon the respondent No. 3 of serious offences under the POCSO, is filed as also the petition for direction to register FIR / Complaint, came to be filed by the petitioner.
12.4 Therefore, he submitted that this petition being without any merit and when corpus has refused to go with the petitioner and declared her wish to be in the company of respondent No. 3 herein along with her minor child, where her presence with him, who is Page 18 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined bedridden and having multiple fractures not only of upper limb but lower limb as well, to serve him better, therefore, he has requested that this petition be rejected.
13. Having heard the learned advocates appearing for the parties as also going through the petition, annexures annexed along with it, additional affidavit filed by the petitioner, affidavit filed by the corpus, precedents relied on by the learned advocates for the parties, we have been called upon to determine this petition praying for a writ of Habeas Corpus, where corpus is a child, who is married with respondent No. 3 herein, whether can be said to be in illegal confinement or not and whether her custody be entrusted to Nari Vikas Gruh or not.
13.1 First of all, on interaction with the corpus in chamber, in isolation, revealed startling facts, partly which is recorded in an order dated 08.08.2024, where she flatly refused to go with the petitioner - mother. As disclosed by the corpus, who prima facie, appears to be much more mature, from appearance as also after Page 19 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined delivering a baby girl, to take enough care of her own child as well taking care of her badly injured husband.
13.2 As such, as disclosed by her in an interaction in chamber, in isolation, her marriage with respondent No. 3 herein is with the express consent of the parents, though disputed by the learned advocate for the petitioner, that too, on payment of customary amount. However, there appears to be certain further dispute in respect of adequacy thereof, which has led to filing of the present petition and other petition before this Court to exert tremendous pressure on not only respondent No. 3 but on the corpus as well. 13.3 If in custody battle paramount consideration is welfare of the child, petitioner has not even thought of welfare of a child even delivered by her child. She appears to be bent upon to harass even her own blood for her other motive. Considering welfare of both the children i.e. corpus as also child delivered by the her, on ascertaining and concluding about the maturity of the corpus we concluded that she is mature enough not only to take care of herself, but her new Page 20 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined born baby girl as also her injured husband, who has reached near an age of discretion. Not only that, marriage under "the Act, 2006", as disclosed by the corpus, is not void or else, it would have been an offence under that very Act. At the same time, so-called child marriage is not solemnized in contravention of any injunction order issued under Section 13 of "the Act, 2006" by any Court, said marriage cannot be said to be void. If at all child marriage, which is not void, is an offence under "the Act, 2006", a suitable action may be initiated in accordance with law by the aggrieved party, if at all they wish. Nonetheless, the said marriage cannot be said to be void as it does not fulfill any of the criteria as enumerated in Section 12 of "the Act, 2006". Even if the marriage is voidable under "the Act, 2006", it should be avoided at the option of the contracting party being a child i.e. the corpus herself. For the present, it does not appear, for a while, that she is opting to get it declared void. 13.4 Since parties to the marriage i.e. respondent No. 3 as also the corpus are Hindus, they are governed under the Hindu Minority and Guardianship Act, 1956 (herein after, referred to as, "the Act, Page 21 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined 1956"). Under Section 4(c) of "the Act, 1956", Natural guardian of a Hindu minor is defined. Sub-clause (c) of Section 6 of "the Act, 1956" prescribes her husband, in case of a married girl, to be a natural guardian. As such, personal laws recognize even child marriage but with the introduction of "the Act, 2006", it may be prohibited, nonetheless, for the status as a guardian as defined under Section 4(c) of "the Act, 1956", husband of a minor can be treated to be a natural guardian.
13.5 However, not entering into any such legal battle determining entitlement or status of the parties, referring to the assertions made in the petition, petitioner alleged that husband and his relatives have restrained, manhandled and withheld the victim i.e. the corpus - daughter of petitioner - respondent No. 7 herein. It is further asserted that she has been withheld by way of force and/or fraud and enticement etc. by the respondent No. 3 - husband and his relatives. In short, it is alleged that there is a danger to the victim - corpus - daughter of the petitioner. However, our interaction with the corpus on multiple occasions revealed that, it is contrary. What we have Page 22 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined seen from the documents annexed with the petition, nephews of the petitioner assaulted husband of the corpus very badly for a false pride and temptation of getting more money from the contesting respondents. As we have observed, while sitting in this jurisdiction, the community to which parties belong, have customary payment for marriage to be made to the father of bride. Therefore, the claim made by the petitioner, as asserted in the petition, that respondent No. 3 demanded Rs.50 lakh as a "Daavo" (Customary Expenses) for tarnishing image in the society, appears to be incorrect. However, we fail to understand how that image is tarnished even if petitioner wants back her daughter from him which he refused to part with as she is wedded wife of respondent No. 3. Therefore, what corpus informed us, as an outcome of interaction with her, that her parents are demanding more money from respondent No. 3 and he is a Cab driver, unable to pay more, there appears to be some dispute between them. Here, such revelation appears to be corroborated even by the FIR filed by the respondent No. 3 for deadly assault made on him as narrated in the FIR itself.
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NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined 13.6 Here, there is no question of either luring or enticement of the victim, who is claimed to be a minor as even according to the petitioner, she had been enticed by the respondent No. 3 under a false pretext of love affair on 12.02.2023. However, petitioner has never attempted to file any such complaint to anyone, even by way of an application that she has been enticed by the respondent No. 3 herein and she being minor, it is in violation of provisions of POCSO or any other law for about a year and five months. The explanation attempted to be given in the petition and in the application given to police, is worthy of no credence. Such an application is filed only and only after deadly assault made on respondent No. 3 herein by the nephews of petitioner. Not only that, present petition has also come to be filed thereafter only. Therefore, theory propounded by the petitioner of enticing the corpus minor appears to be, prima facie, false.
13.7 As such, there is no date of birth mentioned in the petition; only the age of corpus is referred to as 17 years without asserting actual date of birth. However, on asking to state the date of birth, an Page 24 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined additional affidavit is filed by the petitioner stating therein the date of birth of the corpus along with copy of Aadhar Card claimed to have been issued in the year 2014. As stated herein above, in earlier paragraphs, there appears to be dispute in respect of her age as coming out from the Aadhar Update History as also from the oral assertion made by the corpus herself during the course of interaction she claimed to be major one and her issuance of Aadhar Card at the relevant time i.e. 24.12.2013, date of enrollment reflects her date of birth to be 17.06.2000. Be that as it may, prima facie not deciding the disputed question of facts here at present, it appears that she is mature enough to take her own decisions not only taking care of herself, she is able to take care of her badly injured bedridden husband and a child delivered by her, who is aged about roughly 4-5 months by now.
13.8 Keeping in mind welfare of child, in view of what is discussed herein above reflecting the nature of the petitioner, her welfare is well protected with her injured husband and his relatives. We have to take into consideration not only the welfare of the child - corpus Page 25 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined for the present, but even welfare of that child she delivered as well. 13.9 Coming to the precedents cited by the learned advocate for the petitioner, he relied on a decision in the case of Aparna Jigarbhai Vala (supra), wherein, Court held that maintainability of a petition for a writ of Habeas Corpus in child custody matters is no more res integra. There is no dispute with regard to the maintainability of the petition and we are not saying it for a moment that it is not maintainable. Therefore, reliance placed on the aforesaid decision as also the decision in the case of Tejaswini Gaud (supra) requires no further discussion.
13.10 Reliance placed on a decision in the case of P. and Others (supra), it was a case wherein daughter of petitioner therein, aged about 14 years, said to have been enticed by the respondent therein for which, police did not record the complaint saying that police force was not meant for such complaints being recorded. Since, more than a month passed in that case without there being any news of his daughter, father filed a petition under Article 226 of the Page 26 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined Constitution before the Court, wherein Court observed that 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 or guided by "attractions". The state of mind can hardly described as mature. If that be not so, she can hardly leave her parents for a new entrant in her life.
13.10.1 However, in the present case, as recorded herein above, she has been married with respondent No. 3 with the express consent of parents of the corpus, as disclosed to us during course of interaction, that too, on payment of money as a custom prevalent in their community nearly before one year and five months of the petition filed and during the time, no complaint of so-called enticement, as now averred, is made to anyone. Therefore, what corpus declared before us appears to be more sound than what is alleged by her mother whose action is actuated by malice against her own daughter. Keeping paramount consideration of a child, a word to be used for present corpus, she is found to be more mature and reaching near the age of discretion, delivered a child who is aged Page 27 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined about five months by now, she is better safe with her husband and relatives with child aged five months. The present petition, as also, so-called application before the police is filed after a long time, that too, after a deadly assault on the husband of the corpus i.e. respondent No. 3 herein for which, a case is registered for an attempt to commit murder against nephews of the petitioner herein. Welfare of the child and her child as well lies not with the petitioner but with the respondent No. 3 and his family members with whom she is said to be married before one and a half years at least. 13.11 Here, respondent - husband has not claimed the custody by way of filing a petition for a writ of Habeas Corpus. The petitioner, mother of the corpus claimed custody of her daughter who is said to be minor, whereas, corpus flatly refused to go with her mother for the reasons disclosed to us during the course of interaction. Therefore, better interest of corpus and her child is well protected in the custody of respondent No. 3 and his relatives rather than sending her to Nari Vikas Gruh as stubborn mother - petitioner insists. Three lives, one of corpus, her husband and her new born Page 28 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined child aged about five months, cannot be ruined for mere obduracy of greedy petitioner - mother.
13.12 Reference to the cases of Pradip Tomar and Veljibhai Bhanabhai Prajapati, (supra), are not needed for the reasons as aforesaid. Keeping paramount consideration in respect of child and her child as well, she would be more safe and protected with respondent No. 3 and his family members which we have already permitted to do so by passing orders dated 08.08.2024 and 09.08.2024, in this petition.
13.13 While considering this petition, we came across a decision of Division Bench of Andhra Pradesh High Court in the case of Makemalla Sailoo v. Superintendent of Police and Others, rendered in Writ Petition Nos. 23910 and 24690 of 2005, reported in 2006 (2) ALD 290, there, after considering provisions of Child Marriage Restraint Act, 1929 along with provisions of the Hindu Marriage Act, 1955, the Court held that marriage contracted by a minor was not void and nullity under the Hindu Marriage Act and Page 29 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined the Child Marriage Restraint Act and therefore, in view of Section 6 of the Hindu Minority and Guardianship Act, 1956, if a minor girl was married, her guardian was held to be her husband in view thereof.
13.14 We are not delving deep into it but even "the Act, 2006"
does not say that marriage in contravention of the provisions of "the Act, 2006" can be said to be void or nullity per se. It is only in the cases as prescribed under Section 12 of "the Act, 2006" when a child being minor is taken or enticed out of the keeping of the lawful guardian; or by force compelled, or by any deceitful means induced to go from any place; or is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage becomes null and void. As observed herein above, neither she is taken away or enticed out of the keeping of lawful guardian nor she is compelled by force or by any deceitful means to go from any place nor she is sold for the purpose of marriage etc. As such, marriage of the corpus with respondent No. 3 Page 30 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined is not in contravention of Section 12 of "the Act, 2006" and therefore, it cannot be said to be void marriage so as to refuse to recognize her husband to be a guardian as provided under "the Act, 1956". As observed earlier, child marriage is provided to be voidable at the option of contracting party being a child under "the Act, 2006". So long as it is not avoided or declared void, till then, it is still valid. As such, keeping in mind the facts and circumstances of the case, as narrated herein above, even if husband cannot be treated to be a guardian of minor wife, her best interest well protected along with child she delivered, is with the husband and his relatives.
14. Over and above, keeping in mind the paramount consideration of welfare of child as observed by us in earlier paragraphs, it is better protected and secured as corpus is mature enough, with respondent No. 3 and his relatives. Therefore, we find no substance in this petition and it is hereby rejected.
14.1 We would have imposed exemplary cost upon the petitioner Page 31 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024 NEUTRAL CITATION R/SCR.A/9848/2024 ORDER DATED: 11/09/2024 undefined not only for her conduct exhibited before us on 09.08.2024 but the manner in which these proceedings are filed as depicted herein above, but we refrain ourselves from doing so.
[ Umesh A. Trivedi, J. ] [ Cheekati Manavendranath Roy, J. ] hiren/SB-I-2tss10110924 Page 32 of 32 Uploaded by HIREN MER(HC00351) on Wed Sep 18 2024 Downloaded on : Wed Sep 18 20:33:42 IST 2024