Sham Sunder, J.
1. This Criminal Writ Petition under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of habeas corpus, for the release of detenu Sarabjeet Kaur wife of Balwinder Singh, petitioner, and Akashdeep Singh, his son, from the illegal custody of respondent No. 3, has been filed by him (petitioner).
2. According to the averments, contained in the petition, the petitioner and Sarabjit Kaur went to Chhattisgarh, where they performed their marriage in Arya Samaj, Kashi Nagar. Both of them were living happily. From their wedlock, one male child was born. It was stated that thereafter the parties approached the Collector/Marriage Officer, District Korba (Chhattisgarh) for registration of their marriage. The marriage of the petitioner and the detenu was registered. Copy of the marriage certificate is Annexure P-2. It was further stated that the mother of Sarabjit Kaur, detenu lodged FIR No. 40 dated 27.2.2006, in Police Station Valtoha, under Sections 363, 366 and 376 Indian Penal Code, in which the petitioner and his family members were arrested. It was further stated that Sarabjeet Kaur was detained in Nari Niketan, Jalandhar, as she did not want to go with her mother. It was further stated that the petitioner, after his release, went to meet his wife, who told him, that she did not want to stay, in Nari Niketan and wanted to go to her matrimonial home, with him. The petitioner requested the Superintendent of Nari Niketan, Jalandhar, to release Sarabjit Kaur, wife of the petitioner, but she refused to do so. It was further stated that detention of Sarabjit Kaur in Nari Niketan being illegal, and even her minor child could not be kept in the said Niketan, respondent No. 3, be directed to release them from such illegal custody, immediately.
3. At the time of issuance of notice of motion to the Advocate General, Punjab on 31.3.2008, the Counsel for the petitioner, was directed to produce, on record the certified copy of the order passed by the concerned Judicial Magistrate, vide which Sarabjeet Kaur was sent to Nari Niketan. The Counsel for the petitioner, thus, produced, on record, certified copy of the remand request dated 30.11.2007, vide which the police requested for the police remand of the accused, wherein a prayer was also made that Sarabjit Kaur be sent to Nari Niketan. Certificate copy of the order dated 30.11.2007, passed on the said application, by the concerned Judicial Magistrate, was also placed on record. The concerned Judicial Magistrate passed an order remanding the accused to police custody, but, no specific order, was passed for sending Sarabjit Kaur to Nari Niketan. It was, thereafter, that the District and Sessions Judge, Amritsar, was directed to send the entire record relating to FIR No. 40 dated 27.2.2006 under Sections 363, 366 and 376 read with Section 34 IPC, Police Station Valtoha, which was registered against the accused, and in which Sarabjit Kaur, was the prosecutrix. He was also directed to send his detailed report as to whether, any specific order was passed by the concerned Committing Court or by the trial Court for sending Sarabjeet Kaur to Nari Niketan, as the Counsel for the petitioner, emphatically stated that no order was passed by any Court for sending Sarabjit Kaur to Nari Niketan nor her statement was recorded, in that regard, and, as such, her detention in Nari Niketan was illegal, the trial Court was also directed to record the statement of the prosecutrix, as to whether, she wanted to remain in Nari Niketan or not.
4. In pursuance of such direction, the record of the trial Court, the statement of Sarabjeet Kaur dated 17.4.2008 recorded by it, and the report of the District and Sessions Judge, Amritsar were received.
5. I have heard the counsel for the parties, and have gone through the entire record carefully.
6. It was contended by the Counsel for the petitioner that since the detention of Sarabjeet Kaur in Nari Niketan was illegal, she be directed to released immediately. She also referred to the statement of Sarabjit Kaur made by her on 17.4.2008, before the Additional Sessions Judge, Taran Taran, in this regard, which was recorded, as per the direction of this Court. She also placed reliance on Neetu Singh v. State (Delhi) (1999-1)121 P.L.R. 47; Seema Devi alias Simaran Kaur v. State of H.P. 1998(1) R.C.R. (Crl.) 697 and Ruksana and Anr. v. Govt. of NCT of Delhi and Ors. 2007(3) R.C.R. (Crl.) 542 (Delhi) in support of her contention, that even a minor girl, cannot be kept in Nari Niketan, against her wishes, and is required to be released from such illegal detention. On the basis of these authorities, she also contended that even if, a minor girl performs marriage with a boy, her marriage cannot be said to be void, and, as such, the persons of such a wedlock can only attract punishment under Section 18(5) of the Hindu Marriage Act. In nutshell her prayer was that respondent No. 3 be directed to release Sarabjit Kaur, from illegal custody.
7. The Counsel for the respondent, contended that the aforesaid FIR was registered against the accused, in which Sarabjeet Kaur, the prosecutrix, was sent to Nari Niketan, as she was minor at that time. He, however, could not lay hands, on any order, which was passed by any competent Court for sending Sarabjeet Kaur to Nari Niketan after obtaining her consent.
8. After hearing the Counsel for the parties, and, on going through the record of the case, and the detailed report dated 23.4.2008, sent by the District and Sessions Judge, Amritsar, in my considered opinion, respondent No. 3 is required to be directed to release Sarabjeet Kaur immediately as her detention, in Nari Niketan, Jalandhar is illegal, in her statement dated 17.4.2008, recorded by the Additional Sessions Judge, in clear-cut terms, stated that she wanted to go out of Nari Niketan. She further stated that she was married to Balwinder Singh, and at that time she had completed 18 years of age. She further stated that she moved an application dated 5.12.2007, Mark 'A' and 2.1.2008 Mark 'B as her mother assured her that she would be sent with Balwinder Singh, her husband. She further stated that she wanted to go with the petitioner, her husband. It is evident from the report, of the District and Sessions Judge, Amritsar, and the record that no order whatsoever, was passed by any competent Court of law, after obtaining the consent of Sarabjeet Kaur, for sending her to Nari Niketan. In these circumstances, it can be safely held that the concerned, Presiding Officer/Officers of the Court(s) was/were completely remiss in the performance of their judicial functions. It was a case, in which the life and liberty of a person, was involved. Such a person could not be sent to Nari Niketan, against his/her-wishes. In Seetna Devi's case (supra) the accused married a girl aged about 15 years. The father of the girl lodged an FIR under Sections 363, 376 and 368 IPC. The Court passed an order, that the girl be kept in Nari Niketan. The girl wanted to go with her husband. It was observed that the Court could not pass the order, against the wishes of the girl even if, she was minor. It was further observed that there was no law, which permits the Court to give such a direction, even in the case of minors, against their will. In this case, reliance was placed on Smt. Lila Gupta v. Laxmi Narain and Ors. : [1978]3SCR922 . The Court also considered the scope of the proviso to Section 15 of the Hindu Marriage Act. While doing so, the Court referred to the provisions of Sections 5, 11 and 12 of the Hindu Marriage Act. The following passages, in the Judgment of the Supreme Court, are quite relevant and instructive:
A comprehensive review of the relevant provisions of the Act unmistakably manifests the legislative thrust that every marriage solemnized in contravention of one or other condition prescribed for valid marriage is not void. Section 5 prescribes six condition for valid marriage. Section 11 tenders marriage solemnized in contravention of conditions (i), (iv) and (v) of Section 5 only void. Two incontrovertible propositions emerge from a combing reading of Sections 5 and 11 and other provisions of the Act, that the Act specifies conditions for valid marriage and a marriage contracted in breach of some but not all them renders the marriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would treated as a breach of a prerequisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions, but not all would render the marriage void. Simultaneously, the Act is conspicuously silent on the effect on a marriage solemnized in contravention or breach of the time bound prohibition enacted in Section 15A further aspect that stares into the face is that while a marriage solemnized in contravention of Clauses (iii), (iv), (v) and (vi) of Section 5 is made penal, a marriage in contravention of prohibition prescribed by the Proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year had not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court of first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos.(i), (iv) and (v) are expressly declared void and marriages in breach of conditions Nos. (iii), (iv), (v) and (vi) of Section 5 are specifically made punishable by Section 18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriage punishable. This express provision prima facie would go a long way to negative any suggestion of the marriage being void though not covered by Section 11 such as in breach of proviso to Section 15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to make it punishable.
Similarly, a reference to Child Marriage Restraint Act would also show that Child Marriage Restraint Act was enacted to carry forward the reformist movement of prohibiting Child marriage and while it made marriage in contravention of the provisions of the Child Marriage Restraint Act punishable, simultaneously it did not render the marriage void. It would thus appear that voidances of marriage unless statutorily provided for is not to be readily inferred.
Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void.
9. In the said case, the Apex Court also considered that the Child Marriage Restraint Act, was enacted to carry forward the reformist movement of prohibiting Child marriages, and while it made marriage in contravention of the provisions of Child Marriage Restraint Act punishable, but the marriage would not be void. In Neetu Singh's case (supra), the girl was minor. She performed marriage. Mother of the girl lodged a report under Section 363 IPC, against the husband. She was sent to Nari Niketan. In these cir cumstances, it was held that even a minor girl cannot be kept in Nari Niketan against her wishes. Accordingly, she was ordered to be released from the custody of Nari Niketan, holding that the marriage was neither void nor voidable. In Ruksana's case (supra), it was held that the right of life and liberty, as guaranteed by the Constitution, is equally available to minor. If a minor girl ran away from the protection of her parents to save herself, from the onslaught of her father, or relatives and joined her lover or ran away with him, no offence by the girl or the boy with whom she ran away and married was committed. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts to the present case. In fact, the present case, stands on better foot ing, as Sarabjeet Kaur is major, as she stated her age as 20 years, as on 17.4.2008, when her statement was recorded by the Additional Sessions Judge, Tarn Taran. Since, detention of Sarabjeet Kaur, in Nari Niketan is illegal, respondent No. 3 deserves to be di rected to release her, along with her minor child forthwith, so as to enable her to go where ever she wants to go.
10. For the reasons recorded herein before, the instant petition is accepted. Respondent No. 3 is directed to release Sarabjeet Kaur, wife of Balwinder Singh @ Binder son of Parsan Singh, r/o Gajjal, Police Station Khem Karan, Tehsil Patti, District Amritsar, along with her minor child immediately and the compliance report be sent. The registry shall comply with the order forthwith. Copy of the order be given dasti, on payment of usual charges. The Trial Court record be send back.