Marriage of Minor, If the victim was minor on date of marriage or fled away with petitioner, marriage is neither void nor voidable(Jharkhand High Court)

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P. (Cr.) No. 105 of 2015

 Shashank Mandal @ Bapi Mandal
 Son of Sri Ganesh Chandra Mandal, resident of village & PO - Salpatra,
 P.S. Baliapur, District- Dhanbad                     ....       ...     Petitioner(s)
                      -V e r s u s-
1. State of Jharkhand
2. Arjun Mandal, son of Sri Jagarnath Mandal, resident of village Keliasole, PO- Nirsa,
   PS- Nirsa (Kalubathan), District- Dhanbad          ....       ...   Respondents

      CORAM: - HON'BLE MR. JUSTICE RAVI NATH VERMA

For the Petitioner(s)      : - Mr. Mukesh Bihari Lal, Advocate
For the State              : - Mr. K.K.Mishra, A.P.P.
For the respondent no.2    : - Mr. Nitish Krishna, Advocate
                    -----------

C.A.V. ON: 06/08/2015 PRONOUNCED ON: 23/11/2015 Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the order dated 26.09.2014 passed by learned Additional Sessions Judge- Vth, Dhanbad in Sessions Trial No. 215 of 2014 whereby and whereunder the petition filed by the petitioner for release of the victim girl Tumpa Mandal from Nari Niketan, Deoghar, has been rejected.

2. At the instance of the informant-Arjun Mandal, who is respondent no.2 in this writ application, Nirsa (Kalubathan) P.S. Case No. 55 of 2014 was instituted under Sections 363 and 366(A)/34 of the I.P.C. with the allegation that on 19.02.2014 at about 3.00 P.M., his daughter Tumpa Mandal aged about 16 years as usual went to attend tuition classes but Sanjay Mandal along with the petitioner Shashank Mandal @ Bapi Mandal forcibly kidnapped his daughter. This incidence was witnessed by several co-villagers and they informed him about the incidence. Even after search, when he could not get any information about his daughter, this case was lodged.

3. It appears from the record that Tumpa Mandal was subsequently recovered by the Police on 22.03.2014 and her statement under Section 164 of Cr.P.C. was recorded on 24.03.2014 but as she refused to go to her parents’ house, she was sent to Nari Niketan, Deoghar. She had clearly stated in her statement that her age is 18 years and she has solemnized her marriage with this petitioner in a temple and nobody had kidnapped her rather because of the cruelty and physical torture of her parents, she left her house along with this petitioner on her own and she wants to live with her husband Bapi- the petitioner. In the said statement, she has also stated that she does not want to go to her parents’ house. After completion of the investigation, charge-sheet was submitted by the police whereafter cognizance was taken and case was committed to the court of sessions. Before the said court, a petition was filed on behalf of the victim Tumpa Mandal for her release, but her prayer was rejected by the court concerned vide order dated 26.09.2014 holding that the victim in her statement had disclosed her age as 16 years and from matriculation certificate issued by the Jharkhand Academic Counsel also it transpires that her date of birth is 09.04.1998. So considering the age of victim, her consent becomes immaterial and her willingness to stay with the accused is also not considerable at all and apparently she is a minor girl.

4. The victim girl was examined as P.W.1 by the court of Additional Sessions Judge- Vth-cum-F.T.C. Dhanbad and in her deposition in court, she testified that she was subjected to torture at the hands of her father and mother, whereafter she fled away along with Bapi-the petitioner and she wants to live with him. The victim has also stated that the police brought her and Bapi to the police station and produced her in court. Even in court also she had stated that she does not want to go to her parents’ house whereafter she was sent to Nari Niketan, Deoghar. During cross-examination, she has stated that the two accused persons Sanjay Mandal and Shashank Mandal have been falsely implicated in this case and after her marriage with this petitioner, they had been living as husband and wife.

5. Learned counsel appearing for the petitioner while assailing the order impugned as bad in law seriously contended that even if the victim Tumpa Mandal be considered as minor, aged 16 years on the alleged date of incidence but as she went with the petitioner on her own accord without any coercion and solemnized her marriage with petitioner, she cannot be detained against her wishes in the Nari Niketan and detention is contrary to law. Learned counsel relying upon a case Seema Devi alias Simran Kaur Vs. State of Himachal Pradesh reported in 1998(2) Crime 168 submitted that in that case also, the petitioner was found to be 15 years of age and had solemnized her marriage with the accused of that case Ajmer Singh on her own accord, the Court held that there was no provision of law, which permits to give such a direction to remand a minor to protective custody at Nari Niketan against her Will. It was also held that even if the minor was 15 years of age, her wishes should be ascertained before placing her in custody of any person or institution. Hence, the victim was directed to be released from Nari Niketan. It was also submitted that now after more than one and half year of incidence, she has almost attained majority. Hence, a direction be given to the court to release the victim at once.

6. Contrary to the aforesaid submissions, learned counsels appearing for the respondent no.2- the father of the victim girl and the State submitted that the victim was minor on the date of alleged incidence and the marriage between the petitioner and the victim girl is invalid and illegal and the respondent no.2 undertakes to take care of safety and security of the victim in his house.

7. Before adverting to the rival submissions of the counsels, the question of marriage as raised by the learned counsel for the respondent no.2 being illegal or void abinitio on account of minority, in my opinion, this question is not an issue in the instant case and the marriage of a minor is no longer res-integra. In Seema Devi alias Simran Kaur (supra), the same issue of marriage of a minor and confining her in Nari Niketan were raised and the Hon’ble High Court of Himachal Pradesh observed in paragraph 5 of the judgment as follows:-

“5. It is not in dispute that the parties are Hindus and they are governed by the Hindu Marriage Act, 1955. Section 5(iii) provides that a marriage may be solemnized between any two Hindus if the conditions set out in subsection (iii) is that the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of the marriage. For the purpose of this petition, I will assume that the complaint of the 2nd respondent that the petitioner herein was aged only 15 years is true. Even so, the marriage has not been invalidated by the provisions of the Hindu Marriage Act.Section 11 of the Act deals with void marriages. That Section relates only to marriages held in contravention of clauses (i), (iv) and (v) of Section 5. That Section does not refer to clause (iii) of Section 5. Section 12 refers to voidable marriage. That Section deals only with marriages in contravention of the conditions specified in clause (ii) of the Section 5. That Section does not also deal with clause (iii) of Section 5. Thus, the marriage in contravention of clause (iii) of Section 5 is neither void nor voidable under the provisions of the Hindu Marriage Act. The only other relevant provision is Section 18 of the Act, which provides for punishment for contravention of the conditions specified in Section 5(iii) also. The punishment will be imprisonment, which may extend to 15 days or with fine which may extent to Rs.1,000/- or both. Thus, the only provision which will come into play in the event of contravention of Section 5(iii) isSection 18 of the Hindu Marriage Act and nowhere does the Act declare the marriage to be illegal or invalid or void.”

6. It is further observed by the learned Judge in paragraph 8 and 10 as follows:

“The next question is whether the Additional Chief Judicial Magistrate had jurisdiction to direct the petitioner herein to be kept in Nari Niketan at Bilaspur. There is no provision of law which permits a Court to give such a direction even in the case of minors, when it is against their will. Even if the petitioner is only a minor aged about 15 years, her wishes should be ascertained before placing her in the custody of any person or Institution. In this case, she had categorically stated before the Addl. Chief Judicial Magistrate that she would not live with her parents and she wanted to live with her husband, the 1st accused in the case. The Additional Chief Judicial Magistrate should have given credence to her wish and only directed her custody to be with the 1st accused and not with the Nari Niketan.”

8. From the ratio decided in the above case, it is clear that even if the victim was a minor on the date of marriage or when she fled away with this petitioner, the marriage is neither void nor voidable. The only provision attracted is sub-section(5) (iii) of Hindu Marriage Act, 1955, which by virtue of Section 18 of the said Act at best can lead to imprisonment up to 15 days and or fine and may extend to Rs.1,000/- or both.

9. The case of this petitioner is squarely covered by the ratio decided in the above case Seema Devi alias Simran Kaur (supra) where the minor was also kept in Nari Niketan by the police and itwas held that minor girl cannot be detained against her wishes in the Nari Niketan and such detention would be contrary to law. In my considered view also, the court below has not at all applied its judicial mind while considering the statement of victim girl recorded under Section 164 of the Cr.P.C. where she has shown her willingness to live with the petitioner and refused to go to her father’s house. There is no provision in any law to even detain a minor girl anywhere against her wishes. In the instant case also, the petitioner has been released on bail whereafter this criminal writ has been preferred.

10. In view of the discussions made above, this writ application is, hereby, allowed. The court below is directed to release the victim girl at once from Nari Niketan, Deoghar. The victim girl shall be at liberty to go either with the petitioner or with her father- the respondent no.2.

(R.N. Verma, J.) Jharkhand High Court, Ranchi Dated, 23rd November, 2015 Ritesh/N.A.F.R.

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