Shamsuddin vs State & Ors
2009 Latest Caselaw 2056 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 15.05.2009


+      WP(CRL) 13/2009


SHAMSUDDIN                                                 ... Petitioner
                                  - versus -


STATE & ORS                                                ... Respondents

Advocates who appeared in this case:

For the Appellant : Mr R. D. Rana For the Respondent : Ms Mukta Gupta with Mr Rajat Katyal

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not? YES

3. Whether the judgment should be reported in Digest? YES

BADAR DURREZ AHMED, J (ORAL)

1. This petition seeking a writ of habeas corpus has been filed by

Shamsuddin for the production of his daughter, Gulshan. It was alleged

in the petition that his daughter (Gulshan) was being illegally detained

by one Bhura @ Furqan, who was also a tenant in the house in which

the petitioner is residing, namely, C-216, Gali No. 8, Mullah Colony,

Gharoli Extension, Delhi. Through efforts made by the respondent/

State, Gulshan was located and has been produced before Court.

Earlier, she made a statement under Section 164 of the Code of

Criminal Procedure, 1973 on 20.04.2009 before the learned

Metropolitan Magistrate at Karkardooma Courts, Delhi. In the said

statement, she categorically stated that she left her house about five

months ago of her own volition with Bhura @ Furqan. Thereafter, they

went to Aligarh and got married in Court. At the outset, we may note

that there is no evidence produced before us to indicate a court

marriage. However, she further stated that she as well as Bhura lived

as husband and wife first of all in his village Choudhera, Police Station

Chhatri, District Bulandshahar, U. P. and thereafter moved back to

Delhi and lived in Seemapuri as husband and wife in a rented

accommodation. According to her said statement she is 20 years of

age.

2. According to the petitioner, she is below 15 years of age

inasmuch as as per her school record her date of birth has been

indicated as 12.07.1994. We had explored the possibility of

ascertaining her age through medical evidence by directing her to

undergo an ossification test. However, the learned counsel for the State

submitted that that would not be possible because Gulshan is in the

family way. Therefore, in the wake of rival claims with regard to her

age, we are left to consider this case. On the one hand the petitioner,

that is, the girl's father is claiming custody over the minor girl Gulshan

and on the other hand she herself has categorically and clearly indicated

her preference to reside with her husband and not returning to her

parental home. There is, however, another complication. Because of

the missing person's report lodged vide DD No. 13-A at Police Station

New Ashok Nagar, Delhi on 28.12.2008 and action pursuant thereto, an

FIR was registered on 07.01.2009 under Section 363 IPC in which

Gulshan's husband Bhura @ Furqan has been named as a suspect. It is

pertinent to point out that the offence punishable under Section 376 IPC

has also been added later on. As a result of the registration of the case,

Gulshan's husband Bhura @ Furqan has been arrested and is in

custody.

3. The parties are Sunni Muslims and are governed by Hanafi law.

Under the law applicable to them, any person who has attained the age

of puberty is entitled to contract a marriage. There is no nikahnama

which has been produced before us or any other documentary evidence

to indicate that Gulshan and Bhura entered into a nikah. However,

Gulshan asserts that she has been married and that a nikah had been

performed between her and her husband Bhura @ Furqan. Under

Muslim law, the mere fact that a couple cohabits for a length of time as

a husband and wife also raises the presumption of marriage. In any

event, normally it is for either party to the marriage to assert or deny

the factum of marriage. In the present case, neither party to the

marriage has denied the factum of marriage. With regard to the

question as to whether Gulshan has attained the age of puberty or not, it

is now abundantly clear that she has attained the age of puberty

inasmuch as she is now in the family way. Ms Mukta Gupta, the

learned counsel who appears on behalf of the State, referred to the

MLC dated 19.04.2009 prepared at Lal Bahadur Shashtri Hospital,

Kichdi Pur, Delhi which indicates that her pregnancy test was positive.

Thus, there is no doubt that even if Gulshan is considered to be a

minor, she has attained the age of puberty and has been cohabited with

Bhura @ Furqan as wife and husband. In any event, the age of puberty,

in the absence of any evidence under Muslim law, in the case of a girl,

is to be taken as 15 years. Although there is no conclusive finding with

regard to her exact age, it would not be necessary for the purposes of

considering whether a valid marriage had been contracted or not in

view of the fact that she has attained puberty.

4. We may also point out that a Division Bench of this Court in the

case of Mohd. Nihal v. State: WP (Crl) 591/2008 & Crl. M.

A. 5507/2008 decided on 08.07.2008 had occasion to consider the

aspects of validity of the marriage of a minor Muslim girl. The said

decision surveyed the law on the subject. It also considered the

provisions of the Guardians and Wards Act, 1890. In that case there

were rival claims of custody with regard to Mst. Afsana. Mohd. Nihal,

who claimed to be the legally wedded husband, claim custody over her

by means of a habeas corpus petition whereas on the other hand, her

mother claimed custody over Mst. Afsana on the ground that the

marriage was invalid and that the custody of a minor is to be restored to

the parents/ natural guardians.

5. Construing Section 6 of the Guardians and Wards Act, 1890, this

Court in Mohd. Nihal (supra) came to the conclusion that when a

Court is called upon to determine the welfare of a minor so far as

appointing a guardian of his /her person or property or both is

concerned, the exercise would have to be determined in consonance

with Muslim Personal Law (Shariat) in disputes between persons

adhering to the Islamic faith. The said decision then examined the

provisions of the Indian Contract Act, 1972 in view of the fact that a

Muslim marriage is in the form of a contract. Referring to Section 11

of the said Act, the Division Bench held that the section specifies that

every person is competent to contract who is of the age of majority

according to the laws to which he is subject, and who is of sound mind

and is not disqualified from contracting by any law to which he is

subject. The Court specifically observed that Section 11 of the Indian

Contract Act in terms prescribed the applicability of personal laws on

the issue of competency of a person to enter into a contract. From this

principle as well as upon a consideration of several other decisions, the

said Division Bench in Mohd. Nihal (supra) concluded that a Muslim

girl, who has reached puberty or is presumed to have reached puberty

on attaining the age of 15, is competent to enter into matrimony even if

this partakes of a contract simpliciter.

6. In Mohd. Nihal (supra), the Division Bench, of course, found as

a fact that Mst. Afsana had not attained the age of puberty and,

therefore, her marriage could not have been performed without the

consent of her Wali (guardian). Consequently, the Court held that her

marriage was batil or void ab initio. Since the Court had come to the

conclusion that the marriage was void, there was no question of

granting custody to Mohd. Nihal, who claimed to be her husband and

consequently, the petition was dismissed leaving Mst. Afsana free to

decide her own fate and future.

7. In the present case, the facts are slightly different. Here, we have

Mst. Gulshan, who has attained the age of puberty. She has entered

into matrimony with Bhura @ Furqan. Though there is no

documentary evidence thereof, there is evidence of the fact that they

resided as a husband and wife and the presumption of marriage has to

be drawn. Nothing has been presented by the petitioner to rebut any

such presumption. In fact, Mst. Gushan is in the family way.

Therefore, we can safely come to the conclusion that her marriage with

Bhura @ Furqan was not a void marriage.

8. We may also notice certain provisions of the Prohibition of Child

Marriage Act, 2006 as also the Guardians and Wards Act, 1890. Under

the former Act, a child, if a female, has been defined under Section 2

(a) as being a person who has not attained the age of 18 years. Section

3 (1) of the Prohibition of Child Marriage Act, 2006 stipulates that

every child marriage, whether solemnized before or after the

commencement of this Act, shall be voidable at the option of the

contracting party who was a child at the time of the marriage provided

that a petition for annulling a child marriage by a decree of nullity may

be filed in the district Court only by a contracting party to the marriage,

who was a child at the time of the marriage. This clearly indicates that

a child marriage even under the secular laws is not void ab initio but

voidable at the option of the contracting party who was a child at the

time of marriage. Interestingly, this is also in consonance with the

principle under Muslim law where a minor has the option of annulment

of marriage on her attaining the age of majority / puberty. The

principle is well-known and is commonly referred to as the option of

puberty or khiyar-ul-bulugh. This clearly indicates that the marriage of

a 'child' is not void but voidable.

9. Section 12 may also be noticed where certain marriages are

treated as void. However, none of those circumstances mentioned in

Section 12 arise in the present case.

10. Section 17 (1) of the Guardians and Wards Act, 1890 specifically

stipulates that in appointing or declaring a guardian of a minor, the

Court shall, subject to the other provisions of the said Section, be

guided by what, consistently with the law to which the minor is subject,

appears in the circumstances to be for the welfare of the minor. This

makes it clear that while appointing a guardian of a minor, the Court

has to consider the personal laws of the minor and more importantly the

welfare of the minor. What is more important is Section 17 (5) which

says that the Court shall not appoint or declare any person to be

guardian against his will. Section 19 is also of great significance

insofar as the present case is concerned. It prescribes that nothing in

Chapter -II of the said Act authorizes the Court to appoint or declare a

guardian of the person of a minor, who is a married female and whose

husband is not, in the opinion of the Court, unfit to be guardian of a

person. We may also note that in the case of a minor not being a

married female, no guardian can be appointed for such a minor, whose

father is living and is not in the opinion of the Court, unfit to be

guardian of the person of a minor.

11. In the present case, nothing has been pointed out or brought to

our notice for us to declare that the Mst. Gulshan's husband, namely,

Bhura @ Furqan is unfit to be her guardian of her person. As such the

applicability of Section 19 (b) of the said Act which pertains to minors

in general whose fathers are living, would not come into play.

12. There is, however, one complication in this case, as pointed out

above and that is that Mst. Gulshan's husband Bhura @ Furqan is

presently in custody. Mst. Gulshan is present in Court and so are her

mother-in-law and father-in-law. She was residing with Bhura @

Furqan at Seema Puri. But, since he is in custody, till such time, he is

released from custody, she has expressed her clear desire to reside with

her parents-in-law. Her mother-in-law Momina is present in Court and

so is her father-in-law Mausam Ali. Both have acknowledged the fact

that their son Bhura @ Furqan is legitimately married to Mst. Gulshan.

Both of them have expressed their desire and willingness for the return

of their daughter-in-law Mst. Gulshan. It may be reiterated that

immediately after their marriage Mst. Gulshan and her husband Bhura

@ Furqan first resided with Mausam Ali and Momina at their village

Choudhera, Police Station Chhatri, District Bulandsahar, U. P. It is

only subsequently that they shifted to Seemapuri, Delhi.

13. In view of the discussion above, we dismiss the writ petition and

we direct that Mst. Gulshan is at liberty to reside with her parents-in-

law till the release of her husband and thereafter it is up to her as to

where she wants to reside with him.

BADAR DURREZ AHMED, J

AJIT BHARIHOKE, J MAY 15, 2009 SR