Delhi High Court

Bholu Khan vs State Of Nct Of Delhi & Ors. on 1 February, 2013

Author: Sanjiv Khanna

*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 01st February, 2013
+                       W.P.(CRL) 1442/2012

       BHOLU KHAN                                           ..... Petitioner
               Through                Mr. Vivek Kumar, Advocate with
                                      petitioner in person.

                             versus

       STATE OF NCT OF DELHI & ORS.         ..... Respondent
                Through  Mr. Rajeev Mehra, ASG with
                         Mr. Pawan Sharma, standing counsel,
                         Ms. Richa Kapoor with Ms. Priyanka
                         Kapoor, Advocates.
                         Inspector Parmendra Rana, PS Nihal
                         Vihar.
       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

SANJIV KHANNA, J. (ORAL)

Mr. Rajeev Mehra, Additional Solicitor General has entered

appearance and has drawn our attention to 2(2) of the Protection of

Children from Sexual Offences Act, 2012. He has further relied on the

Full Bench decision of this Court in Court on its own motion (Lajja

Devi) vs. State, 2012 (193) DLT 619.

2. Mr. Pawan Sharma, learned standing counsel has drawn our

attention to the order dated 22nd January, 2013 passed in W.P. (Crl.)

1025/2012 titled Furqan v. State.

3. Bholu Khan and Shama Parveen admit that they got married as

per the Muslim rites on 16th July, 2012. Shama Parveen states that the

said marriage was solemnized without any force or coercion as per her

wishes and desire and accepts Bholu Khan, the petitioner herein, as her

husband. She has made similar statement under Section 164 Code of

Criminal Procedure, 1973 before the Metropolitan Magistrate.

4. The present writ petition was filed on 5th October, 2012 and on

1st November, 2012, Shama Parveen was produced in the Court. On

the said date, Mr. Ashok Kumar, Advocate had entered appearance on

behalf of Bhure Khan, father of the girl i.e. Shama Parveen. The writ

petition was adjourned to 3rd December, 2012.

5. On 3rd December, 2012, the matter was passed over to enable the

parties to interact with each other and was taken up at 3.30 P.M. Bholu

Khan, Bhure Khan and Shama Parveen were spoken to in the Chamber.

Bhure Khan, father of Shama Parveen in categorical terms had stated

that he cannot accept marriage of Shama Parveen with Bholu Khan due

to social pressure and compulsions. Shama Parveen had reiterated her

desire to live with Bholu Khan and expressed that she did not want to

stay in Nirmal Chaya.

6. In these circumstances, in the order dated 3rd December, 2012,

we had requested the Child Welfare Committee to counsel Shama

Parveen and guide her, on various aspects, including the problems

faced by young girls, in case they get married and have children. Direction

was issued to provide vocational training to her, as per her ability. Bholu

Khan was also asked to report for counselling and Child Welfare Committee

was requested to explain various issues and aspects to him. Thereafter, two

hearings were held on 7th January, 2013 and 15th January, 2013.

7. Today we have received the action taken report from the Child

Welfare Committee. The said report states that a counselling session was

held on 22nd January, 2013 with Bholu Khan and Shama Parveen.

Photocopy of the counselling report has been enclosed.

8. Shama Parveen has been housed in Nirmal Chaya since 28th July,

2012, since she does not want to reside and live with her parents and wants

to live with Bholu Khan and his family.

9. The difficulty remains as Shama Parveen may or may not be 18 years

of age. As per the school records her date of birth is 16th July, 1996.

Shama Parveen disputes the said date of birth and claims that she is more

than 18 years of age. Bhure Khan, father of Shama Parveen had stated that

he had got married some years before the death of Mr. Rajiv Gandhi, former

Prime Minister of India. He had averred that his first child was born in the

year in which Mr. Rajiv Gandhi expired, but was unable to give the exact

date. Shama Parveen is his third child. The date of birth recorded in the

school records is therefore not true and correct date or veritable but a

convenient date or a guess.

10. As per the ossification test report dated 16th September, 2012, Shama

Parveen was about 16 years old, plus/minus one year. This again is a mere

estimation and variation is possible. Thus, it is clear that the exact age is

somewhat uncertain.

11. We have spoken to Shama Parveen at great lengths in the Chamber

and find that she is mature and understands the consequences of the choice

she is making. As noticed above, she has been repeatedly counselled on

several aspects and issues. She has spent 7 months in Nirmal Chaya but her

decision to live with Bholu Khan is consistent. It is apparent that she loves

and likes him. The parents of Shama Parveen have stopped coming to Court

as they know her wishes and desire.

12. In Mrs. Tahira Begum vs. State of Delhi & Ors., W.P. (Crl.)

446/2012 decided on 09.05.2012, a Division Bench of this Court examined

the Muslim Law and observed that a Muslim girl can get married, without

consent of her parents, once she attains the age of puberty. Reference was

made to the decision of Mohd. Idris vs. State of Bihar & Ors. 1980 Crl.L.J.

764 and a decision of this Court in Vivek Kumar @ Sanju and Anjali @

Afsana vs. The State and Another, Crl.M.C. No.3073-74/2006 decided on

23.02.2007. Shamsuddin vs. State , W.P. (Crl.) 13/2009 decided on

15.05.2009 in which the provisions of the Prohibition of Child Marriage Act,

2006 were also considered.

13. Recently, Full Bench of this Court in Court on its own motion

(Lajja Devi) vs. State, 2012 (193) DLT 619 had examined the issue at

great length and, thereafter, noted that the Prohibition of Child

Marriage Act, 2006 is a secular legislation, and being special law,

would have an overriding effect over personal law but observed as

under:-

"We have already reproduced Sections 2(a), 9, 12 and 15 of this Act. It is clear therefrom that marriage of a minor child is treated as void only under the circumstances mentioned in Section

12. Otherwise, this Act does not make the marriage of the child void but voidable at the option of the parties to an underage marriage which option can be exercised within the stipulated time. It is intriguing that the legislature accepted the menace of child marriage. It even accepted that the child marriage is violation of human rights. The legislature even made the child marriage a punishable offence by incorporating provision for prosecution and imprisonment of certain persons. At the same time, except in certain circumstances contemplating under Section 12 of the Act, the marriage is treated as voidable. The interplay of this Act with other enactments compounds this anomaly and comments on such anomalies are stated in detail at the appropriate stage. At present we confine ourselves to the issue at hand as the status of the child marriage needs to be determined on the basis of statutory provisions, which exists as of now. As pointed out above, under the Hindu Marriage Act, child marriage is still treated as valid and not a void marriage. It is personal law, in codified form, governing Hindus. On the other hand, PCM Act, which is a secular law, treats this marriage as voidable except those events which are covered by Section 12 of the PCM Act. In neither of the aforesaid statutes the child

marriage is treated as void ab initio or nullity. Therefore, we cannot hold child marriage as a nullity or void. The next question that follows is as to whether the provisions of personal law, i.e., Hindu Marriage Act should be applied to declare such a marriage as valid or the provisions of PCM Act would prevail over the HM Act."

(The word PCM Act refers to the Prohibition of Child Marriage Act, 2006)

14. Thereafter, on the question of right to reside, that is whether an

underage (below 18 girl) can be allowed to stay and reside at a place of

her choice or can be directed to live with her parents, in cases of

elopement, the Court held:-

"48. We often come across cases where girl and boy elope and get married in spite of the opposition from the family or parents. Very often these marriages are inter- religion, inter-caste and take place in spite of formidable and fervid opposition due to deep- seated social and cultural prejudices. However, both the boy and girl are in love and defy the society and their parents. In such cases, the courts face a dilemma and a predicament as to what to do. This question is not easy to answer. We feel that no straight jacket formula or answer can be given. It depends upon the facts and circumstances of each case. The decision will largely depend upon the interest of the boy and the girl, their level of understanding and maturity, whether they understand the consequences, etc. The attitude of the families or parents has to be taken note of, either as an affirmative or a negative factor in determining and deciding whether the girl and boy should be permitted to stay together or if the girl should be directed to live with her parents. Probably the last direction may be legally justified, but for sound and good reasons, the Court has option(s) to order otherwise. We may note that in many cases, such girls severely oppose and object to their staying in special homes, where they are not allowed to meet the boy or their parents. The stay

in the said special homes cannot be unduly prolonged as it virtually amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her freedom and her wishes should not get negated as if she has no voice and her wishes are of no consequence. The Court while deciding, should also keep in mind that such marriages are voidable and the girl has the right to approach the Court under Section 3 of the PCM Act to get the marriage declared void till she attains the age of 20 years. Consummation of marriage may have its own consequences.

49. In case the girl is below 16 years, the answer is obvious that the consent does not matter. Offence under Section 376 IPC is made out. The chargesheet cannot be quashed on the ground that she was a consenting party. However, there can be special or exceptional circumstances which may require consideration, in cases where the girl even after attaining majority affirms and reiterates her consent.

50. Consummation, with the wife below the age of 15 years, is an offence under Section 375. No exception can be made to the said constitutional mandate and the same has to be strictly and diligently enforced. Consent in such cases is completely immaterial, for consent at such a young age is difficult to conceive and accept. It makes no difference whether the girl is married or not. Personal law applicable to the parties is also immaterial.

51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. Here again no straight jacket formula can be applied. The Court has to be cautious, for the girl has right to get the marriage nullified under Section 3 of the PCM Act. Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc. have to be taken into consideration."

(emphasis supplied)

15. The present case, according to us, is peculiar and falls into

exception carved out in the aforesaid decision. Keeping in view the

aforesaid aspects and relevant judgments, considering the wishes of

Shama Parveen, undesirable effect and consequence of prolonged stay

in Nirmal Chhaya and noticing that there is opposition by the parents

of the girl, we are passing the following order/directions:-

(i) Bholu Khan and Shama Parveen will be counselled by the

Counsellor at Nirmal Chaya for two days on the lines already indicated

and mentioned in our earlier orders.

(ii) Parents of Bholu Khan will be also counselled separately or

asked to join the aforesaid counselling.

(iii) After the counselling sessions are over, Shama Parveen will be

allowed and permitted to go to her matrimonial house if she wishes and

desires. She will not be detained in Nirmal Chaya.

(iv) Bhure Khan and Shama Parveen will continue to visit Nirmal

Chaya for counselling once every month after Shama Parveen is

released, till December, 2013.

(v) Counsellor at Nirmal Chaya will explain to both Bholu Khan