MEHARUNNISSA KHAN Vs. KAMLESH NAIK

JUDGEMENT

(1.) THIS Criminal Revision is directed against the order of the learned J. M. F. C. , Panjim, dated 15th May, 1993 in Criminal Misc. Application No. 158/93/c whereby the learned Magistrate has rejected an application moved by the petitioner under Section 98 of Criminal Procedure Code and declined to give to her the custody of her minor daughter Wahida Bi Khan. Along with this application an interim relief was also sought for to the effect that pending the disposal of the application the Court should hand over back to the petitioner the custody of her said daughter.

(2.) THE case of the petitioner is that the respondent No. 1 (hereinafter called the respondent)kidnapped the petitioner's minor daughter on 2. 4. 1993 against the wishes of the petitioner and her husband, got married to her at Sawantwadi by furnishing a false School Leaving Certificate so as to represent to the concerned authorities that the petitioner's daughter was a major. Thereupon consequent upon a complaint lodged by the petitioner against the respondent about the kidnapping of her daughter the police arrested the said respondent who was, however, released on bail by the learned J. M. F. C. pending investigation of the offence. The material taken into consideration by the learned Magistrate while enlarging the respondent on bail was the school Leaving Certificate showing the date of birth of Wahida as 9. 3. 1975 as well as her marriage certificate,

(3.) SHRI Rebello, learned Counsel for the petitioner, has made a strong grievance against the impugned order inasmuch as according to him it appears that the learned Magistrate has grossly overlooked that the law prescribing the minimum of 18 years for marriage of a girl was an invariable rule and as such a marriage with a minor is not to be recognised by law being thus a nullity. It was further contended by the learned Counsel that admittedly the respondent has forged the School Leaving Certificate of the petitioner's daughter so as to mislead the Court and the concerned authorities and led them to believe that Wahida was a major. The learned magistrate also seems to have ignored that a minor could not give a valid consent and he clearly erred when it was wrongly held by him that Wahida had not been illegally detained by the respondent and that her detention was not unlawful. The learned Magistrate was again not right when he arrived at this conclusion by relying on the statement made by a minor which in all probabilities could not have been believed by him once it is the case of the petitioner that her minor daughter had been induced by the respondent to leave the parental house and accompany him for an unlawful purpose. It was further urged by the learned Counsel that the birth certificate regarding the age of the minor as being 9. 3. 1976 as well as School Leaving Certificate confirming that her birth occurred on 9. 3. 1976 had been produced by the petitioner, while the respondent before the Magistrate tendered another birth certificate apparently forged which shows the minor's birth as being 9. 3. 1975. It was also submitted by the learned Counsel that if by confronting both the birth certificates the one produced by the respondent being not an original document but simply a mere xerox copy it could be found that Wahida was a minor there was therefore no question of her voluntarily having left the parental house so as to enable the respondent to claim that Wahida accompanied him of her own free will. It was further urged by the learned Counsel that the allegation of the respondent that Wahida was presently married to him and that the marriage was celebrated at Sawantwadi becomes also irrelevant. Being a minor, the learned Counsel contended, Wahida could not validly and legally marry without her parents' consent. Hence the marriage was on its face null and inoperative and could not create any rights either to the minor or to the respondent. It was also submitted by the learned Counsel that the learned Magistrate appears to have questioned the minor before releasing her so as to permit wahida to join the respondent thus totally ignoring the requirements of Section 98 of Criminal procedure Code. The learned Counsel reminded that the petitioner having filed a criminal case for an offence of kidnapping against the respondent under Section 361 of Indian Penal Code the circumstance of Wabida having married the said respondent should not have weighed in the learned Magistrate's mind considering that Wahida being a minor could not marry without the express permission of the petitioner and/or her husband.