1. The instant writ petition is filed for the issuance of writ, order or direction in the nature of Habeas Corpus thereby commanding the opposite parties no.1, 2 and 3 to produce the petitioner (detenue) before this Hon'ble Court and set free the petitioner with liberty to live with her husband namely Ram Mitra. It is further submitted that the life of the petitioner (detenue) as well as her child (foetus) which is growing in mother's womb is in danger in the house of opposite parties no.4 & 5 (the parents of detenue).
2. Pursuant to the order of the Court dated 22.10.2021, today Sri Awadesh Kumar Dwivedi, Sub Inspector of Police Station Motipur, District Bahraich authorized by opposite party no.3-Station House Officer, Police Station Motipur, District Bahraich produced the corpus, the alleged detenue, Smt. Suneeta before the Court.
3a. Learned counsel for the petitioner Sri Bhoopal Singh, Advocate and learned A.G.A. for the State Sri L.J. Maurya, Advocate are present in the Court.
3b. Learned counsel for the petitioner is present alongwith the alleged next friend of detenue, the husband of the alleged detenue namely Ram Mitra.
4. Heard the learned counsels. Perused the pleadings and annexures made evidences by the petitioner's next friend.
5. On perusal of the petition, pleading is found to the effect that the marriage of the petitioner (detenue) was solemnized with Ram Mitra (next friend) on 02.11.2020 at Arya Samaj Mandir, copy of marriage certificate is placed as annexure no.1 in the writ petition. The annexure no.7 i.e. School Leaving Certificate discloses the date of birth of alleged detenue as 16.06.2003. Therefore, relying on the date of birth, the alleged detenue was 17 years' old at the time of her marriage and by reason of her minority, she was neither in capacity of giving her consent for marriage nor her wish to go with the petitioner. The statement under Section 164 Cr.P.C. is also recorded on attaining the age of majority.
6. In the context of above facts and circumstances as revealed from the record and from the statement of the corpus-Smt. Suneeta, since she is adult, she has right to marry with a man of her choice and also to live with anyone of her choice, anywhere where she wants, therefore, her detention is not legal in view of the judgment of Hon'ble Apex Court in the case of Lata Singh Vs. State of U.P. and Others reported in [AIR 2006 SC 2522]. Hon'ble Apex Court in the case Lata Singh (supra) has held as under:
"................This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or interreligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
7. When the alleged detenue is produced before the Court in the presence of Ram Mitra, she stated that she is not legally wedded. She further informs that she unwillingly has conceived a child from Ram Mitra but the child born died. The detenue further in clear and explicit words stated her unwillingness to go with the alleged next friend to his house. She wants to reside with her parents in the parental house. She does not ratify the marriage with Ram Mitra. The parents of alleged detenue are present in the Court today alongwith her. In the context of above statement as to the desire of alleged detenue, the Court considers on following legal aspects.
8. Under the Juvenile Justice (Care and Protection of Children) Act, 2015, school first attended and matriculation certificate is to be given priority beyond other evidences.
9. The only basis of claiming the marriage with the detenue by the next friend is in certificate issued by the Arya Samaj Temple. Irrespective of the genuineness of the said certificate, this would be important to consider here the age of detenue when she is alleged to have entered into marriage with the alleged next friend, Ram Mitra.
10. Section 11 of the Indian Contract Act states "every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject. For the easy reference, Section 11 of the Indian Contract Act, 1872 is quoted hereunder:-
"11. Who are competent to contract.--Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject. --Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject."
11. In view of the aforesaid provisions of Contract Act, three points are to be kept in mind when enforceability of an agreement is considered-
(i) the person needs to be a major;
(ii) the person needs to be of sound mind; and
(iii) the person is not prohibited by law to enter into a contract.
12. What would be the age of majority which capacitates a person to contract is important to be kept in mind. The petitioner being a citizen of India, his/her age of majority would be considered under the Indian Majority Act, 1875, Section 3 of the said Act provides as below:
"3. Age of majority of persons domiciled in India.-
(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day."
13. The petitioner's date of birth is admittedly 16.06.2003, as such on the date of agreement' dated 02.11.2020, she undoubtedly was a minor. The definitions given in Child Marriage Restraint Act, 1929 and Juvenile Justice (Care and Protection of Children) Act, 2015 such person is termed as child. Admittedly, the petitioner was minor as well as a child also when she allegedly entered into the agreement to marry on 02.11.2020. The law applicable to her being a Hindu, is "The Hindu Marriage Act, 1955". Section 5 (iii) of the said Act provides the marriageable age, according to which the marriage may be solemnized between any two Hindus, if the following conditions are fulfilled:-
"(iii) the bride groom has completed the age of twenty one years and the bride, the age of eighteen years at the time of the marriage."
14. Under both the Acts viz. The Hindu Marriage Act, 1955 and The Indian Contract Act, 1872 the petitioner had no legal capacity and competence to enter into the agreement to marry.
15. According to the Indian law, in marriage where either the woman is below the age of 18 years or the man is below the age of 21 years, such marriages, if solemnized even by the guardians becomes voidable under Section 5 of the Hindu Marriage Act at the instance of minor. He has option to ratify the marriage attaining the age of majority.
16. A criminal case i.e. F.I.R. No.443 of 2020, under Section 363 of the I.P.C., Police Station Motipur, District Bahraich is also pending against the alleged next friend as husband, Ram Mitra. The action of such proceeding against any criminal case cannot provide justification subsequently by any judicial order unless it is not concluded under the said criminal case.
17. A minor, if on attaining majority is willing to ratify the marriage and accepts his/her marital status and relations with the other party of the marriage, the marriage would subsist. In the present case, the detenue when alleged to have entered into marriage with the present next friend she was minor but when she is produced before the Court, has attained the majority. Being major, she does not ratify the alleged marriage nor her marital status with the alleged next friend namely Ram Mitra. Even she does not want to go with Ram Mitra aforesaid to cohabit with him. The writ of Habeas Corpus in said circumstances cannot be issued in favour of said Ram Mitra as husband for carrying of the alleged detenue ''Suneeta' as his wife.
18. In view of the statement recorded in the Court of the detenue-Smt. Suneeta, the petition has no merit and, therefore, decided in terms of the statement.
19. Accordingly, the present writ petition is dismissed.
20. The opposite party i.e. the officer attending the Court for production of the detenue namely Sri Awadesh Kumar Dwivedi, S.I. and Ms. Pratima Yadav, C.P. No.182082245 posted at Police Station Motipur, District Bahraich are discharged from attending the Court.
Order Date :- 28.10.2021 Saurabh