PAWAN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner is the father of admittedly a minor girl-Pushpalata Kumari. He has filed this writ petition for recovery and production of the girl from alleged illegal custody of the private respondent. It is alleged that the girl, in question, was about 13 years of age and had been kidnapped for marriage by the private respondent. Upon such complaint being made, Kumar Khand P.S.Case No. 112 of 2011 was registered under Section 366A/34 of the Indian Penal Code and the police took up investigation. In course of investigation, the victim girl was recovered. She was produced before the learned Chief Judicial Magistrate, Madhepura. Upon her production, she was sent to the Judicial Magistrate, 1st Class for recording her statement under Section 164 Cr.P.C, which was done on 5.9.2011, which is Annexure 2 to the writ petition. She disclosed her age as 15 years being a student of Class IX of Project School, Kumar Khand, Madhepura. In her statement she has clearly stated that as she wanted to marry one Bimlesh Yadav, her parents were angry with her and as such she left the house and went to Bimlesh Yadav. They later got married and were staying at Purnea in a rented accommodation. When she came to know the present case, she has come and surrendered before the Court. She wanted to go and live with her husband. She was then sent by the learned Chief Judicial Magistrate for medical examination where her age was curiously assessed by the doctor at 17-18 years. She was then, on the same day, produced before the learned Chief Judicial Magistrate. The petitioner was also present and he filed her School Leaving Certificate, which showed her date of birth to be 27.4. 1996.That would make her slightly above 15 years of age. Thus, before the learned Chief Judicial Magistrate, the School Leaving Certificate, her own statement under Section 164 Cr.P.C. and the medical report were there. The first two being School Leaving Certificate and her own statement read with the fact that she is in Class IX clearly show that she is about 15 years of age. Curiously the doctor found her to be 17-18 years. Be that as it may, she is, admittedly, a minor. Not-withstanding this referring to some judgments of this Court of which we are not aware nor have been brought to our notice, the learned Chief Judicial Magistrate directed her release to go where ever she wanted. In effect, it is this order that is under challenge. This order was passed by the learned Chief Judicial Magistrate on 8.9.2011 notwithstanding the protest by the petitioner.

(2.) Having heard learned counsel for the petitioner and learned Advocate General, Bihar, Patna, in our view, it is a fit case, which calls for interference. It is one thing where a crime/offence is committed or not but where a minor girl matured enough decides to walk out of her parental house and settles with a boy it is totally another thing when it relates to custody of a minor girl. We think that it is in this perspective that this Court could have observed that a minor girl would go wherever she likes keeping in view the changing circumstances and the exposer of multi media. This could not have sanctified an illegal relationship of marriage of a minor. This Court could not be taken into sanctify the illegality in guardianship matter. Here admittedly as per girl's own shown she is 15 years of old. She is of an impressionable age. She cannot marry being a minor. So long she is a minor, it is the parents who are the guardian. The husband, who has married a minor girl, which is contrary to law, cannot be the guardian. It is a different matter where if personal law of the parties permitted such a marriage. It is not one of those cases.

(3.) Thus, we are of the view that the girl being a minor, the Court erred in ordering her custody as per her wish. Court cannot sanctify an illegality nor can the Court be a party to that. We have, therefore, no hesitation in holding that releasing the girl, who is said to be in the custody of the private respondent, the alleged husband, and in-laws, cannot be sanctified by this Court, specially when her natural legal guardian objects. It would be deemed to be wrongful confinement contrary to the law.