{"id":2465,"date":"2011-07-17T17:16:53","date_gmt":"2011-07-17T11:46:53","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=2465"},"modified":"2011-07-17T17:16:53","modified_gmt":"2011-07-17T11:46:53","slug":"67-2011","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/67-2011\/","title":{"rendered":"Habeas corpus to minor wife"},"content":{"rendered":"

IN THE HIGH COURT OF KARNATAKA AT BANGALORE<\/strong><\/p>\n

DATED THIS THE 12TH DAY OF MAY 2011<\/p>\n

PRESENT
\nTHE HON’BLE DR. JUSTICE K. BHAKTHAVATSALA AND THE HON\u2019BLE MR. JUSTICE K. GOVINDARAJULU<\/p>\n

WRIT PETITION (HC) NO.67\/2011<\/p>\n

1 MR AVINASH S\/O MR SURESH
\nAGED 21 YEARS
\nR\/O NO 36, I MAIN 2ND CROSS
\nSUDHAMANAGAR,
\nBANGALORE 560027 … PETITIONER
\n(BY SRI I S PRAMOD CHANDRA & M.H.PRAKASH, ADVOCATE)
\nAND :<\/p>\n

1 STATE OF KARNATAKA
\nBY SECRETARY TO GOVERNMENT
\nHOME DEPARTMENT, VIDHANA SOUDHA,
\nDR AMBEDKAR VEEDHI
\nBANGALORE<\/p>\n

2 THE COMMISSIONER OF POLICE,
\nBANGALORE CITY
\nINFANTRY ROAD, BANGALORE<\/p>\n

3 THE DEPUTY COMMISSINER OF POLICE,
\nCENTRAL DIVISION
\nBANGALORE CITY
\nBANGALORE<\/p>\n

4 THE ASST. COMMISSIONER OF POLICE
\nULSOOR GATE SUB DIVISION
\nBANGALORE CITY
\nBANGALORE<\/p>\n

5 THE INSPECTOR OF POLICE\/STATION
\nHOUSE OFFICER,
\nWILSON GARDEN POLICE STATION
\nWILSON GARDEN
\nBANGALORE<\/p>\n

6 MR JAMBULINGAM
\nNAME OF THE FATHER NOT KNOWN
\nAGED ABOUT 50 YEARS
\nR\/O 2ND CROSS SUDHAMANAGAR,
\nBANGALORE 560027<\/p>\n

7 MR SHANMUGAM @
\nSHANMUGAM SUNDARAM
\nS\/O MR S KANDASWAMY
\nAGED 42 YEARS
\nNO 11, 3RD CROSS,
\nH SIDDAIAH ROAD,
\nBANGALORE 560027 … RESPONDENTS
\n(BY SRI SAMPANGI RAMAIAH HCGP,SHRI K.N.PUTTEGOWDA, ADVOCATE FOR R-6)<\/p>\n

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.
\nThis Petition coming on for Orders this day, Dr.Bhakthavatsala, J., made the following:<\/p>\n

ORDER<\/strong>The petitioner is before this Court under Article 226 of the Constitution of
\nIndia, praying to issue a writ of habeas corpus, directing the respondents to
\nproduce Ms. Sanghavi (hereinafter referred to \u2018as the girl\u2019) before this Court.
\n2. The case of the petitioner is that he is the resident of Sudhamanagar
\nat Bangalore and knew the girl for the last two to three years and they were in
\nlove since two to three months, but their parents did not approve their
\nmarriage. Therefore, they left Bangalore and got married on 2.3.2011 in a
\nTemple at Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu.
\nAfter the petitioner came to know that the father of the girl lodged a missing
\ncomplaint with Wilson Garden Police Station at Bangalore, he brought the girl to
\nthe Police Station. The custody of the girl was given to respondent No.6\/father
\nand respondent No.7\/maternal uncle of the girl after they agreed to allow the
\npetitioner to speak to the girl twice daily, but in vain. Therefore, on 18.4.2011
\nthe petitioner along with his friend Ajay went to the house of respondent No.7
\nenquiring about the whereabouts of the girl for which the respondent No.7
\nabused the petitioner and threatened with dire consequences. Hence, on
\n20.4.2011 at about 12.45 p m, the petitioner lodged a complaint in Crime
\nNo.101\/2011 with the Wilson Garden Police against respondent No.6\/father,
\nrespondent No.7\/maternal uncle of the girl, Varadaraju, Dharmaraju,
\nMagalamani, Sugunamani, Dhanalakshmi and others. The Wilson Garden Police
\nhave registered a case against respondent Nos.6 and 7 and others for the offence
\nunder Sections 342, 504, 506 r\/w Section 149 of I P C.
\n3. Learned Counsel for the petitioner vehemently contended that the girl
\nis the legally wedded wife of the petitioner and the petitioner apprehends
\ndanger to the girl, who is in the custody of respondent Nos.6 and 7. Therefore,
\nhe prays for issue of a writ of habeas corpus to the respondents.
\n4. Sri Sampangiramaiah, learned High Court Government Pleader,
\nappearing for respondent Nos.1 to 5, submits that the girl\u2019s brother\/Vikram filed
\naffidavit dated 5.5.2011 and undertook to produce the girl before the Court
\ntoday and accordingly the girl had been produced by her brother and she is
\npresent before the Court.<\/p>\n

5. Sri K N Puttegowda, learned counsel appearing for respondent
\nNo.6\/father of the girl, submits that on 4.2.2011 the petitioner kidnapped the
\ngirl, who was a minor, from the lawful custody and the alleged marriage of the
\npetitioner with the minor girl on 2.3.2011 is not valid. He also submits that for
\nthe petitioner, it is third love affair and on 2.3.2011, the petitioner had not
\ncompleted the age of 21 years and therefore the petitioner\u2019s claiming that the
\ngirl is legally wedded wife, is not correct; the petitioner has committed an
\noffence of kidnapping and the parents of the girl have undergone untold
\nhardship and misery and the girl is happily living with her parents and the same
\nis liable to be dismissed as devoid of any merits. He further submits that the
\ngirl\u2019s elder brother-Vikram has filed an affidavit narrating the facts of the case
\nand that the Police, in the guise of the alleged marriage, wanted to send the girl
\nto remand home and respondent No.6\/father and respondent No.7\/maternal
\nuncle of the girl pleaded the Police to give her custody, for which the Inspector
\nof the Police Station has taken `1,00,000\/- and in that regard a complaint has
\nbeen lodged with Lokayuktha, Commissioner of Police, State Human Rights
\nCommission, etc.
\n6. The girl, who is present before us, submits that she was studying II
\nYear PUC (2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011
\nwhen she was going to the College, the petitioner, who is friend of her brother,
\nkidnapped and took her to Tamil Nadu and she did not marry the petitioner and
\nshe is happily living with her parents.
\n7. In the light of the arguments addressed by the learned Counsels for the
\nparties and the submission of the girl, the only point that arises for our
\nconsideration is:<\/p>\n

\u00a8 Whether the petitioner is entitled to seek writ of habeas corpus ?
\n8. Our answer to the above point is in the negative for the following reasons:<\/p>\n

9. The petitioner and the girl belong to Hindu religion. In this regard, We
\nhave to refer to Section 5 of the Hindu Marriage Act, 1955, Section 3 of the
\nIndian Majority Act, 1875 and Sections 361 and 363 of the Indian Penal Code.
\n10. According to respondent No.6, the date of kidnapping and the alleged
\nmarriage , the girl was a minor as she had not completed the age of 18 years. It
\nis also contended that as on 2.3.2011, the date of alleged marriage, the
\npetitioner had not completed the age of 21 years. Thus, on 2.3.2011, the
\npetitioner and the girl had not completed the age of 21 years and 18 years,
\nrespectively. The petitioner has not produced age proof so as to reject the
\ncontention of respondent No.6. Therefore, the petitioner\u2019s claim that the girl is
\nhis legally wedded wife is not correct. A prima facie case is made out that the
\npetitioner had kidnapped the girl from the lawful guardian and the same
\nconstitutes an offence under Section 361, which is punishable under Section
\n363 of I P C. Further, the girl herself has stated that she is happily living with
\nher parents. Under such circumstances, the petitioner has no legal right to
\ninvoke the writ jurisdiction of this Court under Article 226 of the Constitution of
\nIndia and seek writ of Habeas Corpus and the Petition is liable to be dismissed in limine as not maintainable.
\n11. We have seen many cases of run away love marriages and untold
\nmisery and hardship of the parents of the girls. All the love marriages are not
\nsuccessful. In the event of failure of the love marriage of the girl, it is the girl
\nand her parents have to suffer for their life long. The girls, later on, realise
\ntheir mistake that they were hasty in love marriage and repent at leisure.
\n12. Section 5 of the Hindu Marriage Act, 1955, which reads as under:
\n\u201c5. Conditions for a Hindu marriage.- A marriage may
\nsolemnized (emphasis supplied) between any two Hindus, if
\nthe following conditions are fulfilled, namely:-
\n(i) neither party has a spouse living at the time of the marriage;
\n(ii) at the time of the marriage, neither party-
\n(a) is incapable of giving a valid consent
\nto it in consequence of unsoundness of mind; or
\n(b) though capable of giving a valid
\nconsent, has been suffering from
\nmental disorder of such a kind or to
\nsuch an extent as to be unfit for
\nmarriage and the procreation of children; or<\/p>\n

(c) has been subject to recurrent attacks of insanity;
\n(iii) the bridegroom has completed the age of
\ntwenty-one years) and the bride the age of
\neighteen years at the time of the marriage;
\n(iv) that parties are not within the degrees of
\nprohibited relationship, unless the custom or
\nusage governing each of them permits of a marriage between the two;
\n(v) the parties are not sapindas of each other,
\nunless the custom or usage governing each of
\nthem permits of a marriage between the two.
\nThe word \u201csolemnized\u201d used in Section 5 of the Hindu Marriage Act indicates
\nthat marriage may be performed subject to conditions. It does not say who are
\nthe persons to perform marriage and whether consent of parents of the boy and
\ngirl is required or not ? Section 5 of the Hindu Marriage Act is not lucid. In our
\nopinion, it appears to us that the Parliament had not taken into account the
\nlove marriages when the Bill was introduced. Should We interpret the word
\n\u201csolemnized\u201d to the effect that marriage may be performed by the respective
\nparents of the bridegroom and the bride and thus their consent is necessary ?
\nWe cannot supply words or re-write the law as it is for the Parliament to do it.
\nAs per Section 5 of the Hindu Marriage Act, prior to 1.10.1978, the age of the
\nboy and the girl was 18 years and 15 years, respectively. According to English
\nLaw, a minor attains the age of majority on completion of 21 years. Section 3 of
\nthe Indian Majority Act, 1875, also says that in the case of appointment of a
\nguardian of a minor person or property or both shall, notwithstanding anything
\ncontained in any other enactment, be deemed to have attained majority on
\ncompletion of 21 years and not before. In our opinion, the girls below the age of
\n21 years are not capable of forming a rational judgment as to suitability of the
\nboy, who is in love. It is relevant to mention that those girls, who are suffering
\nfrom harmonal imbalance easily fall prey to the boys and fall in love, marry and
\nrepent at leisure. The parents of the girl are interested in selecting a suitable
\nboy and see that the girl leads a happy married life. Since the Hindu Marriage
\nAct does not deal with love marriages, in our view, it is a high time that the
\nParliament shall take note of the sufferings and turmoil of such girls and their
\nparents and amend the law suitably. We perpetuate our memory as to the
\nepisode of the famous Telugu Cine actor Sri Chiranjivi\u2019s daughter\u2019s love
\nmarriage. Hence, We suggest that in the case of love affair of a girl, who is
\nbelow the age of 21 years, there shall be a condition that the parents of the girl
\nshould approve the marriage, otherwise such marriages shall be declared void or
\nvoidable.
\n13. Now, We refer to Section 361 of the Indian Penal Code. According to
\nSection 361, whoever takes or entices a girl, who is under the age of 18 years
\nout of the keeping of the lawful custody of such minor, without consent of such
\nguardian, is set to kidnap such minor from lawful custody. The offence under
\nSection 361 of the Indian Penal Code is punishable under Section 363 of the
\nIndian Penal Code. From the above facts, We notice that the petitioner has
\nkidnapped the girl, who was minor. It is an offence under Section 361 of the
\nIndian Penal Code. We cannot close our eyes when it is brought to our notice as
\nto the offence committed by the petitioner under the Penal Code. Therefore,
\nWe have to direct the Police to apprehend the petitioner, who is present before
\nthe Court, and he shall be dealt with, in accordance with law.
\n14. In the result, the Petition fails and the same is hereby dismissed,
\nimposing costs of `10,000\/-, which amount shall be deposited by the petitioner
\nwith this Court, within a month from today.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Copy of the operative portion of this order shall be given to the learned Government Pleader.<\/p>\n

[K. BHAKTHAVATSALA]
\nJudge
\n[K. GOVINDARAJULU]
\nJudge<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[14709,4850,267,2946,8647,15346,15347,15350,15352,15348,1978,15351],"class_list":["post-2465","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-advocate","tag-article-226","tag-constitution-of-india","tag-habeas-corpus","tag-i-s-pramod-chandra","tag-k-bhakthavatsala","tag-k-govindarajulu","tag-m-h-prakash","tag-minor-wife","tag-mr-avinash-so-mr-suresh","tag-writ-petition","tag-writ-petition-hc"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/2465","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=2465"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/2465\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=2465"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=2465"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=2465"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}