Patna High Court - Orders
Noor Saba vs The State Of Bihar & Ors on 23 April, 2013
Author: V.N. Sinha
Bench: V.N. Sinha, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.301 of 2013
======================================================
Noor Saba d/o Mohd. Shafique & W/o Mobark Hasan @ Nirale detained in
After Care Home, Gayghat, Patna) resident of mohalla- Chak Abdul Wahid,
Majhaulia road, P.S.- Kazimohammadpur, District- Muzaffarpur.
.... .... Petitioner/s
Versus
1. The State Of Bihar
Through the Chief Secretary Government of Bihar, Patna.
2. Superintendent of After Care Home, Panta
3. Mobark Hasan @ Nirale s/o Late Washi Akhtar @ Sarjan
4. Mohd. Shafique s/o Nur Mohammad
5. Khurshida Khatoon w/o late Washi Akhtar @ Sarjan
Respondent nos. 3, 4 & 5 are r/o Mohalla- Chak Abdul Wahid, Majhaulia
road, P.S.- Kazimohammadpur, District- Muzaffarpur.
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner and Respondent No. 3 & 5
: Mr. Sanjay Kumar @ S. K. & Arun, Adv.
For the Respondent No. 4: Mr. Sanjay Parasmani, Adv.
For the State : Mr. Prabhu Narayan Sharma, A. C. to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
6 23-04-2013Heard counsel for the petitioner, State respondent nos. 1 and 2. Counsel for the petitioner has also appeared for respondent nos. 3 and 5 supporting the case of the petitioner. Also heard counsel for respondent no. 4, father of the petitioner in opposition to the prayer made in this writ petition.
2. This petition has been filed praying inter alia to set aside the order dated 6.3.2013 passed by CJM Muzaffarpur in Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 2/9 Kazimohammadpur P. S. Case No. 446/12 directing the petitioner to be kept in After Care Home, Gaighat Patna with further prayer to set the petitioner free to join her husband, mother-in-law (respondent no. 3, 5).
3. In this connection, it is submitted that the petitioner eloped with respondent no. 3 on 2.12.2012 as she apprehended illtreatment at the instance of her father, respondent no. 4. While she remained with respondent no. 3 she also married respondent no. 3 on 11.12.2012 at village Tajpur in the district of Samastipur. Present Kazimohammadpur P. S. Case was registered by respondent no. 4 on 10.12.2012 asserting that his daughter namely petitioner has been enticed away by respondent nos. 3 and 5 on 2.12.2012. Having learnt and confirmed the said fact, the present Kazimohammadpur P. S. Case No. 446/12 has been lodged on 10.12.2012 for the offence under Sections 363, 366 A of the Penal Code against respondent nos. 3 & 5.
4. While the aforesaid Kazimohammadpur P. S. Case No. 446/12 remained pending for investigation, the petitioner appeared before the CJM, Muzaffarpur on 5.3.2013 and recorded her 164 Cr.P.C. statement, copy whereof has been annexed with the petition vide Annexure-4. Perusal of the statement indicates that the petitioner stated before the Magistrate that she eloped with Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 3/9 respondent no. 3 on 2.12.2012 and stayed with his relatives until 11.12.2012 when her marriage was solemnized with respondent no. 3 at Tajpur. It is also stated in the statement that she loved respondent no. 3 and always wanted to get married to him but her father was opposing the matrimony between the petitioner and respondent no. 3. In the statement the petitioner described her age as 20 years but the Magistrate recording her statement assessed her age as 17 years. From the statement it further appears that the petitioner claimed that she carried pregnancy of about three months. On the same date i.e. 5.3.2013 itself the petitioner was subjected to medical examination by a board of doctors. Doctors examining the petitioner estimated her age between 19 to 21 years. The report of medical board is contained in Annexure-5 to the petition.
5. Learned Chief Judicial Magistrate heard the matter on 6.3.2013 and relying on the admit card issued by CBSE, authorities estimated her age as 15 years in view of entry made in the admit card indicating the date of birth of the petitioner to be 2.8.1997. In light of the aforesaid finding reached by the CJM, Muzaffarpur the petitioner was sent to Remand Home as she was not willing to go with her parents.
6. In the writ petition, counter affidavit has been filed Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 4/9 on behalf of State through Superintendent of After Care Home, Gaighat Patna (respondent no. 2) accepting the fact that the petitioner is pregnant and is under medical supervision of doctors of NMCH, Patna. She visited OPD on 5.4.2013 for regular check- up and was diagnosised to be pregnant of five months.
7. Respondent no. 3 has also filed counter affidavit accepting the fact that respondent no. 3 married the petitioner on 11.12.2012 after observing Muslim rites under guidance of Maulvi and in presence of witnesses. In the light of the affidavit of respondent no. 3 we called upon respondent nos. 3 and 5 under order dated 4.4.2013 to appear before this Court on 8.4.2013. In compliance of our aforesaid direction respondent nos. 3 and 5 appeared before us on 8.4.2013 and confirmed the factum of marriage as also indicated their willingness to accept the petitioner as wife of respondent no. 3 and daughter-in-law of respondent no. 5 with due affection and care.
8. In the light of aforesaid statement of respondent nos. 3 and 5 we granted liberty to respondent no. 4 to file counter affidavit as also rejoinder to the affidavit filed by respondent no. 3. In the light of our direction respondent no. 4 has also filed counter affidavit and supplementary counter affidavit reiterating the fact that the petitioner was born on 2.8.1997 and she being 15 and a Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 5/9 half years old on the date on which she eloped and got married with respondent no. 3, had no authority to enter into matrimonial alliance and as the marriage is void under the eye of law, the marriage cannot be taken into account for permitting the petitioner to join the matrimonial alliance with respondent no. 3, 5.
9. Aforesaid submission of respondent no. 4 has been refuted by the petitioner with reference to provisions of Mahomedan Law as noticed by this Court in the case of Md. Idris vs. State of Bihar & Ors., 1980 Crl. L.J. 764. While answering the question whether respondent no. 5 in the reported case who was a girl below 18 years of age could marry without the consent of her parents, the Division Bench of Patna High Court referred to Article 252 of Mulla's Principles of Mahomedan Law which permit every Mahomedan of sound mind attaining puberty to enter into a contract of marriage. The explanation appended to Article 252 further presume puberty on completion of the age of 15 years in absence of evidence to the contrary. Even in Tyabji's Muslim Law under Article 27 it is stated that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla's Principles of Mahomedan law further states that marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgement by the man of the woman as his wife. Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 6/9 Article 90 of Tyabji's Muslim Law also says that a marriage is to be presumed on the acknowledgement of either party to the marriage. In the instant case, the admitted position even according to respondent no. 4 is that the petitioner is 15 ½ years of age and having attained puberty as no contrary evidence has been produced by respondent no. 4 it has to be presumed that petitioner out of her own freewill has married respondent no. 3 which fact has also been admitted not only by respondent no. 3 but also his mother-respondent no. 5.
10. Counsel for the respondent no. 4 further submitted that in the light of Division Bench order of this Court dated 11.10.2012 passed in Cr. Writ No. 998 of 2012 (Shabnam Khatoon vs. State of Bihar) and order dated 1.8.2012 passed in Cr.W.J.C. No. 757 of 2012 (Puja Kumari wife of Munna Kumar Mandal @ Digambar vs. State of Bihar & Ors.), this Court should not interfere in the present matter as the petitioner has been sent to After Care Home, Gaighat Patna under judicial order and proper remedy for the petitioner should be under Cr.P.C. and this Court has no jurisdiction to entertain the writ petition.
11. From perusal of the aforesaid order dated 1.8.2012 it appears that while dismissing the writ petition filed by one Puja Kumari against the order dated 19.7.2012 passed by the Chief Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 7/9 Judicial Magistrate, Banka in Dhoraiya P.S. Case No. 104 of 2012 directing Puja Kumari to be kept in Remand Home, the Division Bench relied on the judgment of Supreme Court in the case of Naresh Shridhar Mirajkar vs. State of Maharastra & Anr., AIR 1967 SC 1. Perusal of the said judgment of the Supreme Court indicates that challenge to the interim order passed in a civil suit for libel filed in the original side of the High Court is not maintainable in the High Court by filing a writ petition under Article 226, 227 of the Constitution. Interim order passed in the civil suit filed in the original side of the High Court is required to be challenged by filing an appeal or revision as is maintainable under law. In the case of Nahida Parveen vs. State of Bihar, 2008(4) PLJR 147, Division Bench of this Court Coram R. M. Lodha, C J as his lordship then was and Kishore K. Mandal, J placing reliance on the different articles of Mulla's Mahomedan Laws as also on the Division Bench judgment in the case of Md. Idris (supra) set aside the order dated 13.6.2008 passed by CJM, Bhabua remanding Nahida Parveen to the custody of After Care Home with further direction to the Superintendent After Care Home, Gaighat, Patna to produce Nahida Parveen in the court of Chief Judicial Magistrate, Bhabhua forthwith with further direction to the court to pass appropriate order for her custody in Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 8/9 the light of the observations made in the order of the High Court. It may also be stated here that Delhi High court in the case of Mrs. Tahra Begum vs. State of Delhi & Ors., W. P. (Crl) 446/2012 decided on 9.5.2012 placing reliance on the judgment of Md. Idris (supra) quashed the order remanding Mrs. Tahra Begum to the custody of Remand Home. In this connection, we would like to mention that the High Court exercising its supervisory jurisdiction over the subordinate courts under Article 227 of the Constitution is always empowered to consider the validity of the order passed by the subordinate courts under Cr.P.C. or any other provisions of law to decide the correctness or otherwise of the orders passed by the subordinate courts. Considering the facts of a particular case it is the discretion of the High Court to interfere or not to interfere in a case under Article 227 of the Constitution. In the instant case, admittedly, the girl has attained puberty and as per her personal law married respondent no. 3 without the consent of her parents. She has not only married respondent no. 3 but has also conceived. We see no reason not to interfere in the present case as it is in the best personal interest of the parties to set the petitioner free so as to enable her to join her husband and mother-in-law.
12. In view of our discussion above, we set aside the order dated 6.3.2013 passed by CJM, Muzaffarpur in Patna High Court CR. WJC No.301 of 2013 (6) dt.23-04-2013 9/9 Kazimohammadpur P. S. Case No. 446/12 and direct Superintendent After Care Home, Gaighat Patna to produce the petitioner before CJM, Muzaffarpur without any delay who should restore her custody to her husband and mother-in-law (respondent no. 3 and 5) forthwith.
13. In the result, this petition is allowed.
(V.N. Sinha, J) (Amaresh Kumar Lal, J) Kanchan A. F. R.