MUHAMMED RIYAD Vs. STATE POLICE CHIEF

JUDGEMENT

(1.) This writ petition has been filed to produce the body of the detenue - Rifana Riyad - aged 19 years by her father under Article 226 of the Constitution of India by the issue of a writ of habeas corpus or other appropriate writ. The allegation is that the detenue is under the illegal custody of the fourth respondent by name Hanize aged 18 years and that she should be set at liberty at once. The detenue and the fourth respondent appeared before us on receipt of notice in the writ petition and submitted that they are intensely in love with each other since school days. The dates of birth of the detenue and the fourth respondent are 20.9.1998 and 24.2.2000 respectively and therefore both of them have become major as on date.

(2.) There were proceedings earlier too on the file of the Court of the Judicial First Class Magistrate of Alappuzha on complaint filed by the petitioner when the detenue was taken away from his home by the fourth respondent. The detenue walked out of her parental home again to go with the fourth respondent despite her custody being granted to the petitioner by an interim order in this writ petition. It now transpires that the detenue and the fourth respondent are having a live-in relationship practically living as husband and wife though not legally wedded. The petitioner adds that he is willing to let go the detenue with the fourth respondent after a legal and valid marriage and not before under a live-in relationship. The short question that arises for consideration now is as to whether the daughter of the petitioner has been illegally detained by the fourth respondent warranting interdiction by this Court.

(3.) The petitioner submits that the fourth respondent has not completed 21 years of age and hence a 'child' as defined under Section 2(a) of the Prohibition of Child Marriage Act, 2006 ('the Act' for short). The petitioner asserts that there can be no valid marriage between the detenue and the fourth respondent and any offspring born to them can only be an illegitimate child in the eye of law. We however notice that the detenue has attained puberty and has the capacity to marry both under Section 251 of Mahomedan Law as well as the provisions of the Act. But the marriage of the fourth respondent who has not completed 21 years of age is voidable at his instance under Section 3 of the Act on the ground that he was a 'child' at the time of marriage.