Habeas corpus to minor wife

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 12TH DAY OF MAY 2011

PRESENT
THE HON’BLE DR. JUSTICE K. BHAKTHAVATSALA AND THE HON’BLE MR. JUSTICE K. GOVINDARAJULU

WRIT PETITION (HC) NO.67/2011

1 MR AVINASH S/O MR SURESH
AGED 21 YEARS
R/O NO 36, I MAIN 2ND CROSS
SUDHAMANAGAR,
BANGALORE 560027 … PETITIONER
(BY SRI I S PRAMOD CHANDRA & M.H.PRAKASH, ADVOCATE)
AND :

1 STATE OF KARNATAKA
BY SECRETARY TO GOVERNMENT
HOME DEPARTMENT, VIDHANA SOUDHA,
DR AMBEDKAR VEEDHI
BANGALORE

2 THE COMMISSIONER OF POLICE,
BANGALORE CITY
INFANTRY ROAD, BANGALORE

3 THE DEPUTY COMMISSINER OF POLICE,
CENTRAL DIVISION
BANGALORE CITY
BANGALORE

4 THE ASST. COMMISSIONER OF POLICE
ULSOOR GATE SUB DIVISION
BANGALORE CITY
BANGALORE

5 THE INSPECTOR OF POLICE/STATION
HOUSE OFFICER,
WILSON GARDEN POLICE STATION
WILSON GARDEN
BANGALORE

6 MR JAMBULINGAM
NAME OF THE FATHER NOT KNOWN
AGED ABOUT 50 YEARS
R/O 2ND CROSS SUDHAMANAGAR,
BANGALORE 560027

7 MR SHANMUGAM @
SHANMUGAM SUNDARAM
S/O MR S KANDASWAMY
AGED 42 YEARS
NO 11, 3RD CROSS,
H SIDDAIAH ROAD,
BANGALORE 560027 … RESPONDENTS
(BY SRI SAMPANGI RAMAIAH HCGP,SHRI K.N.PUTTEGOWDA, ADVOCATE FOR R-6)

This Writ Petition (HC) is filed under Article 226 of the Constitution of India, praying to issue a writ or order in the nature of habeas corpus directing the respondents to produce the corpus of the detenue Mrs. Sanghavi before this Court.
This Petition coming on for Orders this day, Dr.Bhakthavatsala, J., made the following:

ORDERThe petitioner is before this Court under Article 226 of the Constitution of
India, praying to issue a writ of habeas corpus, directing the respondents to
produce Ms. Sanghavi (hereinafter referred to ‘as the girl’) before this Court.
2. The case of the petitioner is that he is the resident of Sudhamanagar
at Bangalore and knew the girl for the last two to three years and they were in
love since two to three months, but their parents did not approve their
marriage. Therefore, they left Bangalore and got married on 2.3.2011 in a
Temple at Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu.
After the petitioner came to know that the father of the girl lodged a missing
complaint with Wilson Garden Police Station at Bangalore, he brought the girl to
the Police Station. The custody of the girl was given to respondent No.6/father
and respondent No.7/maternal uncle of the girl after they agreed to allow the
petitioner to speak to the girl twice daily, but in vain. Therefore, on 18.4.2011
the petitioner along with his friend Ajay went to the house of respondent No.7
enquiring about the whereabouts of the girl for which the respondent No.7
abused the petitioner and threatened with dire consequences. Hence, on
20.4.2011 at about 12.45 p m, the petitioner lodged a complaint in Crime
No.101/2011 with the Wilson Garden Police against respondent No.6/father,
respondent No.7/maternal uncle of the girl, Varadaraju, Dharmaraju,
Magalamani, Sugunamani, Dhanalakshmi and others. The Wilson Garden Police
have registered a case against respondent Nos.6 and 7 and others for the offence
under Sections 342, 504, 506 r/w Section 149 of I P C.
3. Learned Counsel for the petitioner vehemently contended that the girl
is the legally wedded wife of the petitioner and the petitioner apprehends
danger to the girl, who is in the custody of respondent Nos.6 and 7. Therefore,
he prays for issue of a writ of habeas corpus to the respondents.
4. Sri Sampangiramaiah, learned High Court Government Pleader,
appearing for respondent Nos.1 to 5, submits that the girl’s brother/Vikram filed
affidavit dated 5.5.2011 and undertook to produce the girl before the Court
today and accordingly the girl had been produced by her brother and she is
present before the Court.

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5. Sri K N Puttegowda, learned counsel appearing for respondent
No.6/father of the girl, submits that on 4.2.2011 the petitioner kidnapped the
girl, who was a minor, from the lawful custody and the alleged marriage of the
petitioner with the minor girl on 2.3.2011 is not valid. He also submits that for
the petitioner, it is third love affair and on 2.3.2011, the petitioner had not
completed the age of 21 years and therefore the petitioner’s claiming that the
girl is legally wedded wife, is not correct; the petitioner has committed an
offence of kidnapping and the parents of the girl have undergone untold
hardship and misery and the girl is happily living with her parents and the same
is liable to be dismissed as devoid of any merits. He further submits that the
girl’s elder brother-Vikram has filed an affidavit narrating the facts of the case
and that the Police, in the guise of the alleged marriage, wanted to send the girl
to remand home and respondent No.6/father and respondent No.7/maternal
uncle of the girl pleaded the Police to give her custody, for which the Inspector
of the Police Station has taken `1,00,000/- and in that regard a complaint has
been lodged with Lokayuktha, Commissioner of Police, State Human Rights
Commission, etc.
6. The girl, who is present before us, submits that she was studying II
Year PUC (2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011
when she was going to the College, the petitioner, who is friend of her brother,
kidnapped and took her to Tamil Nadu and she did not marry the petitioner and
she is happily living with her parents.
7. In the light of the arguments addressed by the learned Counsels for the
parties and the submission of the girl, the only point that arises for our
consideration is:

¨ Whether the petitioner is entitled to seek writ of habeas corpus ?
8. Our answer to the above point is in the negative for the following reasons:

9. The petitioner and the girl belong to Hindu religion. In this regard, We
have to refer to Section 5 of the Hindu Marriage Act, 1955, Section 3 of the
Indian Majority Act, 1875 and Sections 361 and 363 of the Indian Penal Code.
10. According to respondent No.6, the date of kidnapping and the alleged
marriage , the girl was a minor as she had not completed the age of 18 years. It
is also contended that as on 2.3.2011, the date of alleged marriage, the
petitioner had not completed the age of 21 years. Thus, on 2.3.2011, the
petitioner and the girl had not completed the age of 21 years and 18 years,
respectively. The petitioner has not produced age proof so as to reject the
contention of respondent No.6. Therefore, the petitioner’s claim that the girl is
his legally wedded wife is not correct. A prima facie case is made out that the
petitioner had kidnapped the girl from the lawful guardian and the same
constitutes an offence under Section 361, which is punishable under Section
363 of I P C. Further, the girl herself has stated that she is happily living with
her parents. Under such circumstances, the petitioner has no legal right to
invoke the writ jurisdiction of this Court under Article 226 of the Constitution of
India and seek writ of Habeas Corpus and the Petition is liable to be dismissed in limine as not maintainable.
11. We have seen many cases of run away love marriages and untold
misery and hardship of the parents of the girls. All the love marriages are not
successful. In the event of failure of the love marriage of the girl, it is the girl
and her parents have to suffer for their life long. The girls, later on, realise
their mistake that they were hasty in love marriage and repent at leisure.
12. Section 5 of the Hindu Marriage Act, 1955, which reads as under:
“5. Conditions for a Hindu marriage.- A marriage may
solemnized (emphasis supplied) between any two Hindus, if
the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent
to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid
consent, has been suffering from
mental disorder of such a kind or to
such an extent as to be unfit for
marriage and the procreation of children; or

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(c) has been subject to recurrent attacks of insanity;
(iii) the bridegroom has completed the age of
twenty-one years) and the bride the age of
eighteen years at the time of the marriage;
(iv) that parties are not within the degrees of
prohibited relationship, unless the custom or
usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other,
unless the custom or usage governing each of
them permits of a marriage between the two.
The word “solemnized” used in Section 5 of the Hindu Marriage Act indicates
that marriage may be performed subject to conditions. It does not say who are
the persons to perform marriage and whether consent of parents of the boy and
girl is required or not ? Section 5 of the Hindu Marriage Act is not lucid. In our
opinion, it appears to us that the Parliament had not taken into account the
love marriages when the Bill was introduced. Should We interpret the word
“solemnized” to the effect that marriage may be performed by the respective
parents of the bridegroom and the bride and thus their consent is necessary ?
We cannot supply words or re-write the law as it is for the Parliament to do it.
As per Section 5 of the Hindu Marriage Act, prior to 1.10.1978, the age of the
boy and the girl was 18 years and 15 years, respectively. According to English
Law, a minor attains the age of majority on completion of 21 years. Section 3 of
the Indian Majority Act, 1875, also says that in the case of appointment of a
guardian of a minor person or property or both shall, notwithstanding anything
contained in any other enactment, be deemed to have attained majority on
completion of 21 years and not before. In our opinion, the girls below the age of
21 years are not capable of forming a rational judgment as to suitability of the
boy, who is in love. It is relevant to mention that those girls, who are suffering
from harmonal imbalance easily fall prey to the boys and fall in love, marry and
repent at leisure. The parents of the girl are interested in selecting a suitable
boy and see that the girl leads a happy married life. Since the Hindu Marriage
Act does not deal with love marriages, in our view, it is a high time that the
Parliament shall take note of the sufferings and turmoil of such girls and their
parents and amend the law suitably. We perpetuate our memory as to the
episode of the famous Telugu Cine actor Sri Chiranjivi’s daughter’s love
marriage. Hence, We suggest that in the case of love affair of a girl, who is
below the age of 21 years, there shall be a condition that the parents of the girl
should approve the marriage, otherwise such marriages shall be declared void or
voidable.
13. Now, We refer to Section 361 of the Indian Penal Code. According to
Section 361, whoever takes or entices a girl, who is under the age of 18 years
out of the keeping of the lawful custody of such minor, without consent of such
guardian, is set to kidnap such minor from lawful custody. The offence under
Section 361 of the Indian Penal Code is punishable under Section 363 of the
Indian Penal Code. From the above facts, We notice that the petitioner has
kidnapped the girl, who was minor. It is an offence under Section 361 of the
Indian Penal Code. We cannot close our eyes when it is brought to our notice as
to the offence committed by the petitioner under the Penal Code. Therefore,
We have to direct the Police to apprehend the petitioner, who is present before
the Court, and he shall be dealt with, in accordance with law.
14. In the result, the Petition fails and the same is hereby dismissed,
imposing costs of `10,000/-, which amount shall be deposited by the petitioner
with this Court, within a month from today.

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Statement of Ms. Sanghavi made before us shows that the petitioner has kidnapped her. Hence, the Wilson Garden Police is directed to register a case against the petitioner. Further, the Wilson Garden Police is directed to apprehend the petitioner, who is present in the Court, and he shall be dealt with, in accordance with law.

The Registrar (Judicial) is directed to send a copy of this order to the Secretary to the Law Commission and Parliamentary Secretary to Union of India,for taking necessary steps.

Copy of the operative portion of this order shall be given to the learned Government Pleader.

[K. BHAKTHAVATSALA]
Judge
[K. GOVINDARAJULU]
Judge

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