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ARUN KUMAR TYAGI, J. (ORAL) –

(The case has been taken up for hearing through video conferencing.)

CRM-W-1001-2020

1. The petitioner has filed the present application under Section 482 of the Code of Criminal Procedure, 1973 for pre-ponement of the date i.e. 12.01.2021 fixed in case CRWP-818-2019.

2. Learned Counsel for the respondents have no objection if the application is allowed.

3. In view of the reasons mentioned in the application and no objection by learned Counsel for the respondents, the application is allowed and the main case is pre-poned for today.

CRWP-818-2019

4. The petitioner has filed the present petition under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus for release of detenue-Mosmina from illegal custody of respondents No.4 to 7.

5. Briefly stated the petition was filed on the averments that the petitioner is aged about 22 years while detenue-Mosmina is aged more than 19 years. The petitioner performed marriage with detenue on 02.09.2019 according to Muslim rites and ceremonies against the wishes of respondents No.4 to 7. On 13.09.2019 respondents No.4 to 7 came to his house and took detenue-Mosmina with them and illegally detained her. The petitioner submitted application dated 13.09.2019 to respondent No.3 but no action was taken on the basis thereof.

6. Vide order dated 18.09.2019, the Superintendent of Police, Nuh was directed to depute police team to determine as to whether Mosmina had been illegally detained by respondents No.4 to 7. Detenue-Mosmina was produced before the Court on 25.09.2019 and on being asked initially she stated that she wanted to go with her parents but subsequently she stated that she wanted to go with the petitioner on which detenue-Mosmina was ordered to be kept in the Protection Home and the Superintendent of Police, Nuh was directed to determine from the school in the village where the petitioner residing, as to his educational qualification and his date of birth and also whether the person who had signed the marriage certificate was a Qazi legally allowed to issue the same. In compliance of the above-said order affidavit of Ajaybir Singh, Station House Officer, P.S. Bichhor, District Nuh on behalf of respondents No.1 to 3 was filed wherein it was submitted that date of birth of the petitioner is 20.08.2000 and he had passed 7th Class and the person who signed Nikahnama was Hifaz Pass and had solemnized marriage of the petitioner with Mosmina in the presence of two witnesses.

7. Vide order dated 07.11.2019 it was noticed by this Court that as per Aadhar Card (Annexure P-1) date of birth of detenue-Mosmina was 01.01.2001 but as per School Leaving Certificate her date of birth is 26.08.2002. Thereupon vide orders passed by this Court from time to time, the detenue was ordered to be kept in Protection Home, Sector-19, Chandigarh/Ashiana, Sector-15, Chandigarh.

8. During pendency of the petition, detenue-Mosmina has attained majority. On application filed by the petitioner, the case was pre-poned and presence of detenue-Mosmina by way of whatsapp call was secured through learned Addl. Public Prosecutor for U.T. Chandigarh.

9. On being asked, deteune-Mosmina has stated that she has attained majority and she wants to got with the petitioner with whom she had performed marriage.

10. I have heard learned Counsel for the parties and have gone through the relevant record.

11. Learned Counsel for the petitioner has submitted that detenue-Mosmina has attained majority and she be allowed to accompany him and ordered to be released from Aashiana, Sector-15, Chandigarh accordingly.

12. On the other hand, learned Counsel for respondents No.4 to 7 has submitted that besides the offences under the Indian Penal Code, 1860 the petitioner had also committed offence punishable under Section 9 of the Prohibition of Child Marriage Act, 2006 and is liable to be arrested and prosecuted for the same and directions may be given in this regard.

13. Learned State Counsel representing the State of Haryana has taken the stand that the State will abide by the order to be passed by this Court.

14. In Soni Gerry Vs. Gerry Douglas : 2018(1) RCR (Civil) 650, where the daughter, who was major, expressed a desire to reside with her father in Kuwait, where she was pursuing her education, Hon'ble Supreme Court dismissed the habeas corpus petition filed by her mother on the ground that the daughter being major was entitled to exercise her choice. In that case Hon'ble Supreme Court observed as under:-

“10. It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation."

(emphasis added)

15. The detenue-Mosmina being major is entitled to make her choice and to live wherever she wants and the Court cannot assume the role of super guardian and impose any restriction. Accordingly, detenue-Mosmina is ordered to be released from Aashiana, Sector-15, Chandigarh and the detenue shall be at liberty to go with the petitioner as desired by her.

16. Since the detenue-Mosmina has on attaining of majority been allowed to go as per her desire with the petitioner, the petition has become infructuous and is disposed of accordingly.

17. However, in view of the fact that respondent No.4 can make complaint to respondents No.2 and 3 who shall be bound to take appropriate action against the petitioner under the provisions of the Prohibition of Child Marriage Act, 2006, issuance of any direction in this regard is considered to be unnecessary and in case of any inaction on their part, respondent No.4 shall be at liberty to avail appropriate remedy for redressal of his grievances in accordance with law.

Petition allowed.

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