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Mr. Avinash v. State Of Karnataka, By Secretary To Government, Home Department And Others

Karnataka High Court

May 12, 2011

Judgment

Subsequent
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Factual and Procedural Background

The petitioner approached this Court under Article 226 of the Constitution of India seeking a writ of habeas corpus to direct respondents to produce Ms. Sanghavi (the girl) before the Court. The petitioner alleged that he and the girl, who knew each other for two to three years and had been in love for two to three months, left Bangalore and got married on 2.3.2011 at a temple in Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu, because their parents did not approve the marriage. After the petitioner's knowledge that the girl's father lodged a missing complaint at Wilson Garden Police Station, he brought the girl to the police station. Custody was given to respondent Nos. 6 (father) and 7 (maternal uncle) after they agreed to permit the petitioner to speak to the girl twice daily, but that access did not occur. The petitioner alleged threats and abuse when he and a friend inquired about the girl's whereabouts, and lodged a complaint on 20.4.2011 (Crime No. 101/2011) against respondent Nos. 6 and 7 and others; the Police registered offences under Sections 342, 504, 506 r/w Section 149 IPC against respondent Nos. 6 and 7 and others.

Procedurally, the girl's brother filed an affidavit dated 5.5.2011 undertaking to produce the girl; the girl was produced in Court. The matter was argued before the Court and the central procedural question formulated was whether the petitioner was entitled to seek a writ of habeas corpus.

Legal Issues Presented

Whether the petitioner is entitled to seek the writ of Habeas Corpus to secure production of Ms. Sanghavi before the Court?

Arguments of the Parties

Petitioner's Arguments

The petitioner contended that he and the girl were legally wedded (married on 2.3.2011) and that the girl was being unlawfully detained by respondent Nos. 6 and 7; the petitioner apprehended danger to the girl and therefore sought the writ of Habeas Corpus.

Respondent Nos. 1–5 (State / Government Pleader)

The Learned High Court Government Pleader (for respondent Nos. 1–5) submitted that the girl's brother filed an affidavit undertaking to produce the girl and that the girl had been produced before the Court.

Respondent No. 6 (Father) and Other Respondents' Arguments

Counsel for respondent No. 6 submitted that the petitioner had kidnapped the girl on 4.2.2011 when she was a minor and that the alleged marriage on 2.3.2011 is not valid because, on that date, the girl had not completed 18 years and the petitioner had not completed 21 years. The petitioner had not produced age proof to rebut this contention.
It was contended that the petitioner had a history ("third love affair") and therefore the claim that the girl was a legally wedded wife was incorrect; the petitioner had committed the offence of kidnapping and the parents had suffered hardship.
Counsel for respondent No. 6 also referred to an affidavit of the girl's elder brother and alleged that the Police, in the guise of the alleged marriage, sought to send the girl to a remand home and that the Inspector had taken Rs. 1,00,000/-, for which complaints were lodged with Lokayuktha, Commissioner of Police and the State Human Rights Commission.

Statement of the Girl (Ms. Sanghavi)

The girl stated she was a II Year PUC student (2010–11) at NMKRV College, Jayanagar, Bangalore. She said that on 4.2.2011, when going to college, the petitioner (a friend of her brother) kidnapped her and took her to Tamil Nadu; she denied having married the petitioner and stated she was happily living with her parents.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court identified the sole point for consideration as whether the petitioner is entitled to the writ of habeas corpus. The Court analysed the matter with reference to:

Section 5 of the Hindu Marriage Act, 1955 (conditions for a Hindu marriage, including the requirement in clause (iii) that the bridegroom must have completed 21 years and the bride 18 years at the time of marriage);
Section 3 of the Indian Majority Act, 1875 (which the Court noted for the proposition that, for purposes of appointment of a guardian, a person is deemed to have attained majority on completion of 21 years); and
Sections 361 and 363 of the Indian Penal Code (Section 361 defines taking or enticing a girl under 18 out of lawful custody without guardian's consent as kidnapping from lawful custody; Section 363 prescribes punishment for kidnapping).

Applying these provisions to the facts before it, the Court observed that according to respondent No. 6 the girl was a minor on the dates relevant (4.2.2011 and 2.3.2011) and that the petitioner likewise had not completed 21 years on 2.3.2011. The petitioner did not produce age proof to contradict that contention. The girl herself informed the Court that she had been kidnapped on 4.2.2011 and that she was living with her parents. On the basis of the available material, the Court found that a prima facie case of kidnapping under Section 361 IPC (punishable under Section 363 IPC) was made out against the petitioner.

The Court therefore concluded that the petitioner had no legal right to invoke the writ jurisdiction under Article 226 to claim habeas corpus relief in these circumstances. The Court also commented on the wider social pattern of run-away "love marriages", observing that many such marriages fail and can cause lifelong hardship for the girl and her parents. The Court noted perceived gaps in the Hindu Marriage Act as it relates to love marriages and expressed the opinion that Parliament should consider amending the law so that, in the case of a love affair involving a girl below 21 years, parental approval should be a condition for validity (the Court expressly stated it could not rewrite the statute and that law reform was a matter for Parliament).

Because the Court found a prima facie offence under the Penal Code, it directed the Police to register a case against the petitioner and to apprehend him; the petitioner, who was present in Court, was to be dealt with according to law. The Court imposed costs on the petitioner (Rs. 10,000/-) and directed payment within one month. The Registrar (Judicial) was directed to send a copy of the order to the Secretary to the Law Commission and to the Parliamentary Secretary to the Union of India. A copy of the operative portion was to be given to the Learned Government Pleader.

Holding and Implications

Holding: The petition was DISMISSED.

Implications:

The petition for a writ of habeas corpus was rejected because the Court found that a prima facie case of kidnapping (under Sections 361/363 IPC) was made out and the petitioner had not established a legal right to habeas corpus relief.
The Court imposed costs of Rs. 10,000 on the petitioner, to be deposited with the Court within one month.
The Wilson Garden Police were directed to register a case against the petitioner and to apprehend him; the petitioner (present in Court) was ordered to be dealt with according to law.
The Registrar (Judicial) was directed to forward a copy of the order to the Secretary to the Law Commission and to the Parliamentary Secretary to the Union of India for necessary steps; a copy of the operative portion was to be given to the Learned Government Pleader.
No new judicial precedent was established by the Court's decision; the Court made observations and suggested legislative reform in relation to love marriages and the age of girls, but expressly stated that amendment of the statute is a matter for Parliament.

Show all summary ...

Dr. Bhakthavatsala, J.:—

The petitioner is before this Court under Article 226 of the Constitution of India, praying to issue a writ of habeas corpus, directing the respondents to produce Ms. Sanghavi (hereinafter referred to as ‘the girl’) before this Court.

2. The case of the petitioner is that he is the resident of Sudhamanagar at Bangalore and knew the girl for the last two to three years and they were in love since two to three months, but their parents did not approve their marriage. Therefore, they left Bangalore and got married on 2.3.2011 in a Temple at Tali Village, Tenkanakote Taluk, Krishnagiri District, Tamil Nadu. After the petitioner came to know that the father of the girl lodged a missing complaint with Wilson Garden Police Station at Bangalore, he brought the girl to the Police Station. The custody of the girl was given to respondent No. 6.father and respondent No. 7.maternal uncle of the girl after they agreed to allow the petitioner to speak to the girl twice daily, but in vain. Page: 2446Therefore, on 18.4.2011 the petitioner along with his friend Ajay went to the house of respondent No. 7 enquiring about the whereabouts of the girl for which the respondent No. 7 abused the petitioner and threatened with dire consequences. Hence, on 20.4.2011 at about 12.45 P.M the petitioner lodged a complaint in Crime No. 101/2011 with the Wilson Garden Police against respondent No. 6.father, respondent No. 7.maternal uncle of the girl, Varadaraju, Dharmaraju, Magalamani, Sugunamani, Dhanalakshmi and others. The Wilson Garden Police have registered a case against respondent Nos. 6 and 7 and others for the offence under Sections 342, 504, 506 r/w Section 149 of IPC.

3. Learned Counsel for the petitioner vehemently contended that the girl is the legally wedded wife of the petitioner and the petitioner apprehends danger to the girl, who is in the custody of respondent Nos. 6 and 7. Therefore, he prays for issue of a writ of Habeas Corpus to the respondents.

4. Sri Sampangiramaiah, Learned High Court Government Pleader, appearing for respondent Nos. 1 to 5, submits that the girl's brother/Vikram filed affidavit dated 5.5.2011 and undertook to produce the girl before the Court today and accordingly the girl had been produced by her brother and she is present before the Court.

5. Sri K.N Puttegowda, Learned Counsel appearing for respondent No. 6.father of the girl, submits that on 4.2.2011 the petitioner kidnapped the girl, who was a minor, from the lawful custody and the alleged marriage of the petitioner with the minor girl on 2.3.2011 is not valid. He also submits that for the petitioner, it is third love affair and on 2.3.2011, the petitioner had not completed the age of 21 years and therefore the petitioner's claiming that the girl is legally wedded wife, is not correct; the petitioner has committed an offence of kidnapping and the parents of the girl have undergone untold hardship and misery and the girl is happily living with her parents and the same is liable to be dismissed as devoid of any merits. He further submits that the girl's elder brother-Vikram has filed an affidavit narrating the facts of the case and that the Police, in the guise of the alleged marriage, wanted to send the girl to remand home and respondent No. 6.father and respondent No. 7.maternal uncle of the girl pleaded the Police to give her custody, for which the Inspector of the Police Station has taken Rs. 1,00,000/- and in that regard a complaint has been lodged with Lokayuktha, Commissioner of Police, State Human Rights Commission, etc.

6. The girl, who is present before us, submits that she was studying II Year PUC (2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011 when she was going to the College, the petitioner, who is friend of her brother, kidnapped and took her to Tamil Nadu and she did not marry the petitioner and she is happily living with her parents.

7. In the light of the arguments addressed by the Learned Counsels for the parties and the submission of the girl, the only point that arises for our consideration is:

“Whether the petitioner is entitled to seek writ of Habeas Corpus?”

8. Our answer to the above point is in the negative for the following reasons:

9. The petitioner and the girl belong to Hindu religion. In this regard, We have to refer to Section 5 of the Hindu Marriage Act, 1955, Section 3 of the Indian Majority Act, 1875 and Sections 361 and 363 of the Indian Penal Code.

10. According to respondent No. 6, the date of kidnapping and the alleged marriage, the girl was a minor as she had not completed the age of 18 years. It is also contended that as on 2.3.2011, the date of alleged marriage, the petitioner had not completed the age of 21 years. Thus, on 2.3.2011, the petitioner and the girl had not completed the age of 21 years and 18 years, respectively. The petitioner has not produced age proof so as to reject the contention of respondent No. 6. Therefore, the petitioner's claim that the girl is his legally wedded wife is not correct. A prima facie case is made out that the petitioner had kidnapped the girl from the lawful guardian and the same constitutes Page: 2449an offence under Section 361, which is punishable under Section 363 of IPC. Further, the girl herself has stated that she is happily living with her parents. Under such circumstances, the petitioner has no legal right to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India and seek writ of Habeas Corpus and the Petition is liable to be dismissed in limine as not maintainable.

11. We have seen many cases of run away love marriages and untold misery and hardship of the parents of the girls. All the love marriages are not successful. In the event of failure of the love marriage of the girl, it is the girl and her parents have to suffer for their life long. The girls, later on, realise their mistake that they were hasty in love marriage and repent at leisure.

12. Section 5 of the Hindu Marriage Act, 1955, which reads as under.

“5. Conditions for a Hindu marriage. — A marriage may solemnized (emphasis supplied) between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party—

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(iii) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;

(iv) that parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

The word “solemnized” used in Section 5 of the Hindu Marriage Act indicates that marriage may be performed subject to conditions. It does not say who are the persons to perform marriage and whether Page: 2451consent of parents of the boy and girl is required or not? Section 5 of the Hindu Marriage Act is not lucid. In our opinion, it appears to us that the Parliament had not taken into account the love marriages when the Bill was introduced. Should We interpret the word “solemnized” to the effect that marriage may be performed by the respective parents of the bridegroom and the bride and thus their consent is necessary? We cannot supply words or re-write the law as it is for the Parliament to do it. As per Section 5 of the Hindu Marriage Act, prior to 1.10.1978, the age of the boy and the girl was 18 years and 15 years, respectively. According to English Law, a minor attains the age of majority on completion of 21 years. Section 3 of the Indian Majority Act, 1875, also says that in the case of appointment of a guardian of a minor person or property or both shall, notwithstanding anything contained in any other enactment, be deemed to have attained majority on completion of 21 years and not before. In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. Since the Hindu Marriage Act does not deal with love marriages, in our view, it is a high time that the Parliament shall take note of the sufferings and turmoil of such girls and their parents and amend the law suitably. We perpetuate our memory as to the episode of the famous Telugu Cine actor Sri Chiranjivi's daughter's Page: 2452love marriage. Hence, We suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable.

13. Now, We refer to Section 361 of the Indian Penal Code. According to Section 361, whoever takes or entices a girl, who is under the age of 18 years out of the keeping of the lawful custody of such minor, without consent of such guardian, is set to kidnap such minor from lawful custody. The offence under Section 361 of the Indian Penal Code is punishable under Section 363 of the Indian Penal Code. From the above facts, We notice that the petitioner has kidnapped the girl, who was minor. It is an offence under Section 361 of the Indian Penal Code. We cannot close our eyes when it is brought to our notice as to the offence committed by the petitioner under the Penal Code. Therefore, We have to direct the Police to apprehend the petitioner, who is present before the Court, and he shall be dealt with, in accordance with law.

14. In the result, the Petition fails and the same is hereby dismissed, imposing costs of Rs. 10,000/-, which amount shall be deposited by the petitioner with this Court, within a month from today.

Statement of Ms. Sanghavi made before us shows that the petitioner has kidnapped her. Hence, the Wilson Garden Police is Page: 2453directed to register a case against the petitioner. Further, the Wilson Garden Police is directed to apprehend the petitioner, who is present in the Court, and he shall be dealt with, in accordance with law.

The Registrar (Judicial) is directed to send a copy of this order to the Secretary to the Law Commission and Parliamentary Secretary to Union of India, for taking necessary steps.

Copy of the operative portion of this order shall be given to the Learned Government Pleader.