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Art. 226 — Habeas Corpus


Bench: JUSTICE Gulab C. Gupta and Thinkkachalam


Law Point:
Art. 226 — Habeas Corpus — Custody — Girl aged 17 years — Kidnapped by the second respondent from the school — Denied by the girl — Marriage — Husband, natural guardian of minor married girl u/Sec. 6. Hindu (Minority and Guardianship) Act — Whether the Court would be right in taking away the girl from the custody of the second respondent? — (No).



The petitioner is the father of the girl, Preethi, allegedly of about 17 years of age. There is no dispute that the said girl is living with the second respondent at the present. The case of the petitioner is that the girl was kidnapped by the second respondent on 15-2-1994 while she was in her school. Since the girl has been taken out of the custody of the petitioner without his consent, it is claimed that she is in illegal custody and a writ of Habeas Corpus is prayed for securing her release.

2. The second respondent has entered appearance and has stated in his counter affidavit that the girl Preethy is living with him voluntarily and of her sweet will. She was about 19 years of age and lawfully married to him on 6-5-1994. It is also stated that the girl is now Pregnant. It is further submitted that after he and the girl started living together, a panchayat of the community was called on 4-3-1994, where the girl was voluntarily given to the parents of the second respondent by the petitioner and his wife. The proceedings of the Panchayat have also been produced and are not denied. It is, however, submitted on behalf of the petitioner that the so-called consent obtained in the Panchayat was because of undue influence on him by the politicians of the area, who had assembled at the panchayat as members thereof.

3. The first respondent-Inspector of Police, however, submitted that a report was lodged on 27-4-1994 to the effect that the girl was missing and hence an offence under Sec. 366 Indian Penal Code was registered. During investigation, on 21-5-1994 the girl’s statement was taken and it appeared to him that she had lawfully married the second respondent and was living with him as a husband and wife. It was also stated that on that day, the jewellery which has in the possession of the girl and belonging to the petitioner, was referred to the petitioner. By then this writ petition has been filed in this Court and therefore, no further investigation in the matter was done.

4. The petitioner has asserted that the girl was a minor and hence, the petitioner being her father, was the natural guardian and entitled to her custody. The girl was produced before us on the last date of hearing and was closely examined in the presence of all. She denied that she was kidnapped or forcibly taken away by any one. She also submitted that she was married to the second respondent and was happily living with him and his parents. She specifically stated that she had no complaint of any type against the second respondent and his parents and that she would not like to go back to her parents.

5. Learned Counsel for the petitioner has, however, filed certain documents to show that the girl was borne on 16-5-1977. She is alleged to” be missing from 15-2-1994. She is stated to have married the second respondent on 6-5-1994. If the aforesaid date of birth be correct, she was less than 17 years of age on the day when she went from the custody of the petitioner, and the date of her marriage with the second respondent. Though a medical report based on ossification test filed by the second respondent indicates that she was about 19 years of age, this Court does not consider it necessary to express any final opinion on her age. This Court would, however, assume that she was about 17 years of age on the date of her marriage with the second respondent. As regards the fact of marriage, the petitioner does not deny the same. The submission of the learned Counsel for the petitioner, however, is that the attitude of the girl would only indicate that she is an uncontrollable child and therefore, it will be proper for this Court to send her to a private school at his (petitioner’s) costs. Reliance has been placed on a Division Bench judgment of this Court in Seenivasagama v. S.R. Sankaran & Others, 1992 LW (Cr.) 556. A perusal of the aforesaid judgment would indicate that the girl in the aforesaid case was of less than 15 years of age and claimed to be married. The Tamil Nadu Children Act, 1920, was in force on that date and therefore, the Division Bench reported to the provisions of the said Act. This Court is now informed that the Juvenile Justice Act, 1986, has been brought into force in the State of Tamil Nadu and for that reason, the Tamil Nadu Children Act, 1920, has ceased to be operative. For that very reason alone the provisions in the said Act cannot be utilised for the instant case.

6. As regards the custody of the minor married girl, Section 6 of the Hindu (Minority & Guardianship) Act clearly lays down that the husband of the minor married girl shall be her natural guardian. Since the marriage in the instant case is not disputed, it is apparent that the second respondent is the natural guardian of the girl in question by virtue of the aforesaid provision. The aforesaid provision is admittedly applicable to the facts of the instant case as the parties are Hindus. The question in such a situation would be whether this Court would ignore the marriage of the girl and her wish expressed before this Court and take her away from the custody of the second respondent to be placed somewhere else. Having given our serious thought to it in the context of the welfare of the girl, we are not inclined to adopt any such course for reasons more than one. Firstly, the girl has appeared before this Court and stated that she is living happily with the second respondent and her in-laws. There is nothing to doubt that statement. She appeared to have reached the age of discretion and knew what she was stating. Secondly, the girl is reported to be pregnant and hence it would not be in her interest to send her to go with the petitioner, who is hostile to her and the marriage, sending to a school, is also not proper girls in such a situation may not be welcome. While adopting the aforesaid course, this Court cannot ignore the fact that the petitioner has, himself, handed over custody of the girl to the parents of the second respondent in a Panchayat on 4-3-1994. It is true that the learned Counsel for the petitioner now complains that the consent before the panchayat was not voluntary. But we find that no such allegation has been made by him to the police in his complaint dated 27-4-1994. If there was use of force as he claims now nothing prevented him from mentioning this to the police while lodging his complaint on 27-4-1994. Under the circumstances, we are not inclined to attach any importance to the aforesaid complaint of the petitioner. In this view of the matter, our conclusion is that the girl Preethy is not in any illegal custody and therefore, there is no case for any Habeas Corpus writ. The petition fails and is dismissed.

Petition dismissed.