MD IDRIS Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ application has been filed on behalf of the petitioner, who is the father of respondent No. 5, for quashing an order passed by the learned Sessions Judge directing release of respondent No. 5 in order that she may live with respondent No. 4 with whom she claims to have married. The facts of this case present a typical case where the dispute in connection with, matrimonial relationship has been brought before different courts for adjudication of the question as to with whom respondent No. 5 should remain, whether with her father the petitioner, or with her husband respondent No. 4.

(2.) IT appears that on 13.12.1979 this petitioner filed a petition of complaint before the Chief Judicial Magistrate, Hajipur alleging therein that on 9.12.1979 in the evening Shahnaz Begum (respondent No. 5) went out from his house and she was enticed away by respondent No. 4 who wanted to forcibly marry her. It was further stated that although she was aged about 14 years still the complainant had learnt that she had appeared before a Magistrate and sworn an affidavit that she had married respondent No. 4. The Chief Judicial Magistrate forwarded the petition of complaint to the officer -in -Charge, Vaishali Police Station under Section 156 (3) of the Criminal Procedure Code for investigating into the case. The Officer -in -Charge, registered a case under Section 366 read with Section 120B I. P. C. and recovered respondent No. 5 from the house of respondent No. 4. She was produced before the Magistrate for passing proper order, about her custody. On 15.12.1979, respondent No. 5 made a statement under Section 164 of the Code that she was aged about 22 years and she had married respondent No. 4 of her own volition. She further stated that respondent No. 4 did not entice her, she herself went along with him. Copies of the petition of complaint as well as the statement under Section 164 of the Code are annexures to the counter -affidavit filed on behalf of respondent No. 5 before this Court. Respondent No. 5 was medically examined by the Lady Doctor pursuant to an order passed by the Chief Judicial Magistrate, who was of the opinion that she was above 15 years but below 18 years. On 18.12.1979, the Chief Judicial Magistrate passed an order giving the custody of respondent No. 5 to the petitioner taking the view that as (sic) she was below 18 years of age, as such, minor and the petitioner being the father, was the natural guardian. Respondent No. 5, however, filed a revision application before the Sessions Judge, which as already stated above, was allowed and the learned Sessions Judge in view of the assertion made by respondent No. 5 that she had married respondent No. 4, passed an order that she should be set at liberty and be allowed to go with respondent No. 4 whom she claimed to have married. According to the learned Sessions Judge, as respondent No. 5 was above 15 years of age, under the Mohomedan Law she could marry without the consent of her parents. The aforesaid finding on the question of law was seriously challenged on behalf of the petitioner before this Court.

(3.) WHENEVER a minor is produced before a Court, the Court has to consider the question as to who should be the guardian of such minor during the pendency of the proceeding, keeping in view the interest of the minor. But while considering that question, the Court has also to consider as to who has the right in law to be the guardian of such a minor. Section 98 of the Code vests power in the Magistrate whenever any complaint is made to him of abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, to make an order of immediate restoration of such woman to her liberty, or of such female child to "her husband, parent, guardian or other person having the lawful charge of such child". Problem arises when there is conflict between the parent and the husband of such female who is below 18 years. Then Court is called upon to decide the question as to who should be the guardian of such female child, the parent or the husband. Now in the instant case, admittedly when the offence of kidnapping is alleged to have been committed, respondent No. 5 was not married to respondent No. 4. According to the statement of respondent No. 5 herself, she married him on 11.12.1979. Whether respondent No. 5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 of Mulla's Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, in absence of evidence, on completion of the age of 15 years. Even in Tyabji's Muslim Law under Article 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla's Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of the woman as his wife. Article 90 of Tyabji's Muslim Law also says that a marriage is to be presumed on the acknowledgment of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i. e., in normal course at the age of 15 years, can marry without the consent of her guardian.