Madras High Court
N. Babu vs Sub-Inspector Of Police, Cuddalore And ... on 28 June, 2000
Equivalent citations: 2001(1)ALT(CRI)457, 2001CRILJ29
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar, Prabha Sridevan
JUDGMENT V.S. Sirpurkar, J.
1. The petitioner herein is one N. Babu, who is none else but the father of a minor girl called Amudha. The said Amudha, according to the petitioner, had been kidnapped by the second respondent herein viz. Araiselvan, son of Ramamurthy. In the petition, it is pointed out that Amudha was born on 1-10-1983 and on 23-5-2000, from the day when she disappeared from her house, she was studying in 11th standard. It is claimed in the petition that the second respondent kidnapped the said girl on 23-5-2000 from Cuddalore where the girl had gone to visit her maternal uncle. It is an admitted position that Crime No. 390 of 2000 for offences under Section 366 of I.P.C has been registered by the police and also that the second respondent has sought and got the anticipatory bail orders from the Court. The petitioner therefore seeks the custody of the said minor Amudha.
2. He also reiterates in the petition that there is serious danger to the safety of his daughter and her entire life would be at stake. He has also pointed out there is one another criminal case pending against the second respondent vide Crime No. 100 of 2000 for offences under Sections 147, 148, 323, 341, 307 and 294(b) of I.P.C registered by Villupuram Police Station. It is also a claim of the petitioner that the second respondent was already a married person on 23-5-2000 when he allegedly kidnapped the said minor.
3. A notice was sent to the parties and the Additional Public Prosecutor today reports that two criminal cases afore-mentioned are pending against the second respondent. When this matter was called out yesterday, the second respondent appeared along with the said Amudha, the minor girl. Since the parents were not present, the matter is kept today.
4. Learned counsel for the second respondent argued that the second respondent had got married to the said Amudha though no details of this marriage are forth-coming by way of an affidavit. Where the marriage took place, when did it take place, in whose presence did it take place or under what ceremonies it has been solemnised are all conspicuously absent. The only plea raised by the learned counsel for the second respondent is that the girl is wearing a 'Thali' and that admittedly the girl also says that she was married to the second respondent. Be that as it may. Learned counsel for the second respondent also very fervently submits that the allegation that the second respondent was already a married person is also not correct, because he has already divorced his first wife. The learned counsel, however, argues a ticklish question of law as to whether this Court would be justified in ordering the minor's custody to be with her parents, particularly in view of the marriage having been solemnised between the second respondent and the minor. He points out that this marriage even if it is in contravention of Section 5 of the Hindu Marriage Act cannot be termed as a void marriage. He then points out from the Provision of Section 6 of the Hindu Minority and Guardianship Act, 1956 that the husband is the natural guardian of the married minor girl. On this basis the learned counsel argues that if the girl is not prepared to go along with her parents, then she should not be put in the custody of the parents and should be allowed to remain in the custody of the accused.
5. The argument, though very attractive, has no basis whatsoever in law particularly in the habeas corpus proceedings. It is an admitted position that a criminal case for the offence under Section 366(a), IPC is pending against the accused. Therefore, under what circumstances was the girl taken by the accused is not yet clear and therefore it cannot be, at this stage, said that it was the girl alone who was responsible for going alongwith the second respondent. The criminal Court shall go into that question which would try the second respondent. Again the question of marriage and the plea of marriage at this stage has no meaning for the simple reason that it is not known under what circumstance the consent for the marriage has been given. There is no question of a consent by the minor. For all practical purposes in law, the father and the mother who are the natural parents of the minor would alone be the natural guardian, and at this stage when it is not decided as as to whether the second respondent was justified in taking the girl along with him. If the girl is allowed to stay with the second respondent it would be giving an advantage to the second respondent of his own wrong which may not be possible for this Court. The question as to who is the natural guardian, as to whether the marriage is proper or not, as to whether the second respondent was justified in taking the minor along with him, are not questions in the purview of this Court presently. Presently it is to be seen as to whether the minor girl should be allowed to stay with a person who is facing a charge of her abduction or kidnapping as the case may be. We are of the opinion that it may not be possible for us to allow the minor girl to stay with a person who is facing the charges under Section 366(a) and or 363 of I.P.C. for taking away of that very person. We, therefore, direct that the girl Amudha who is secured and is present in the Court shall be put in the custody of her parents, if necessary with the aid of the police. At this stage, the learned counsel for the second respondent expresses an apprehension that the parents may harm the minor and might act against her own interests. The learned Additional Public Prosecutor assures us that a close monitoring will be made by the police for the welfare of the girl. The parents are specifically warned not to treat the minor girl in any manner prejudicial to her welfare including getting her married against her wishes.
6. The H.C.P. therefore succeeds.