Jiten Bouri Vs. State of West Bengal - Court Judgment

P.K. Biswas, J.

1. This is an application under Section 482 of the Code of Criminal Procedure filed at the instance of the petitioner Jiten Bouri seeking to set aside the order dated 19.7.2002 passed by the learned Sessions Judge, Purulia in Criminal Motion No. 66 of 2002 affirming the judgment and order dated 11.7.02 passed by Sub-Divisional Judicial Magistrate, Raghunathpur, Dist. Purulia in connection with Raghunathpur, P.S. Case No. 26/02 dated 16.5.02 rejecting his prayer for custody of the victim girl.

2. The short facts leading to the filing of this revisional application are as under:

One Sri Ganesh Chandra Mondal, O.P. No. 2 herein lodged one information at Raghunathpur P.S. and on the basis of the same, a case being Raghunath P.S. Case No. 26/02 dated 16.5.02 under Sections 341/ 323/365/506/34 of the Indian Penal Code was started against the present petitioner and another.

3. In the aforesaid information, it was alleged that one Kumari Sujata Mondal did not return to her house even after expiry of 5 p.m. on 16.5.02 and it was further alleged that the petitioner along with another person kidnapped said Sujata Mondal.

4. Subsequently, the present petitioner and said Sujata Mondal were produced before the learned SDJM, Raghunathpur and the petitioner was enlarged on bail by the said Court and the victim girl was ultimately sent to custody, organised by the voluntary organisation.

5. From the prosecution side, it was alleged that the concerned girl was a minor and to substantiate the same, a school certificate was produced showing the date of birth of the concerned girl as 4.10.1987, but the authenticity of the said date of birth was challenged on behalf of the petitioner relying upon the statement made by the concerned girl under Section 164 of the Code of Criminal Procedure and it was revealed from such statement that the girl was aged about 19 years.

6. The learned Magistrate initially did not come to any finding with regard to the age of the concerned girl and referred the concerned girl to the safe custody under female escort and also directed that the ossification test of the said girl may be held.

7. Pursuant to such direction, ossification test was held and the report of the said test was produced before the learned SDJM, Raghunathpur and in such report it was indicated that the concerned girl was above 15 years, but less than 17 years and relying on such report, the learned SDJM, Raghunathpur held that the concerned girl was minor and accordingly the girl was sent to the custody organised by the voluntary organisation.

8. The father of the victim girl made an application before the concerned Court praying for custody of the said girl and the learned SDJM was pleased to allow the said prayer on condition to furnish a bond and give an undertaking to the effect that the girl should not be subjected to any physical and mental torture, but since no undertaking was submitted, the girl was eventually sent to the custody, organised by the voluntary organisation.

9. It has been alleged by the petitioner that the petitioner had/has love affairs with the concerned girl and a marriage was solemnized between the concerned girl and the petitioner under Special Marriage Act and the question of kidnapping of the concerned girl on the part of the petitioner does not and cannot arise at all, as the victim girl left the house of her father on her own accord and married the petitioner and the said fact would be borne out from the statement recorded under Section 164 of the CrPC by the learned Magistrate in which the victim girl has also denied the allegation of kidnapping of her by the petitioner.

10. Subsequently, the present petitioner as the husband of the said girl filed an application before the learned SDJM, Raghunathpur praying for custody of the said girl but the learned SDJM, however, was pleased to reject the said application holding simply that the girl was a minor.

11. Being aggrieved by and dissatisfied with the order, the petitioner challenged the said order before the learned Sessions Judge, Purulia and the learned Sessions Judge without due application of mind has simply rejected the said revisional application.

12. So, being aggrieved by the order dated 19.7.2002, passed by the learned Sessions Judge, the present revisional application has been filed with the prayers as mentioned at the outset alleging that as per the provisions of Section 60 of the Hindu Guardians and Minority Act, 1956, even if it is assumed without admitting that she was a minor, the husband was a natural guardian and such being the position, the husband is certainly entitled to apply for custody of his wife. Furthermore, it has been alleged on behalf of the petitioner that as per the settled position of law regarding ossification test and looking into the statement of the victim girl, recorded under Section 164 of CrPC by the learned Magistrate, it would be crystal clear that the victim girl must have attained the age of majority at the present moment and as such she being sui juris, she should be allowed to go to a place of her choice. It has also been alleged on behalf of the petitioner that the minority of the girl, itself does not make the marriage void, itself, at best it is voidable marriage and unless such marriage is avoided by the decree or order of the competent Court, the marriage tie subsists and during the subsistence of the marriage tie. the petitioner being husband is certainly entitled to take the custody of his wife who is also very much willing to go to his place.

13. The aforesaid contention of the petitioner has been challenged by the opposite party No. 2, the father of the victim gir! alleging that the materials on record specially the ossification test report and the school certificate, both affirm that the girl was a minor and still a minor and as such the present petitioner is not entitled to take the custody of the girl and in fact, this opposite party No. 2 as a father of the girl is very much willing and ready to accept the custody of the girl on furnishing undertaking. The learned advocate appearing for the State also supports the contention of the opposite party No. 2.

14. Being directed by this Court, the victim girl was produced before the Court and she appeared in the Court with vermilion on her forehead and as such she looked like a married lady. She with firmness has also stated before this Court that she does not like to go to her father's place and instead, she wanted to go to her husband's place.

15. Heard the learned counsel of the parties at length.

16. Sri Moitra. learned counsel appearing for the petitioner husband drawing my attention to the provisions of Section 6 of the Hindu Marriage and Guardianship Act, 1956 specially Section 6 of the aforesaid Act has contended that as per the provisions of the aforesaid Act in the case of a minor married girl, the husband is the natural guardian and that being the position in the present case, when the marriage between the victim girl and the present petitioner has not been disputed, the present petitioner becomes a natural guardian and for that even assuming without admitting that the victim girl is a minor, even in such event, the husband is entitled to the custody of his wife, who is still regarded as minor.

17. In support of his contention, placing reliance upon the decision reported in 1963(2) Cri LJ 541 in the case of Harihar v. State of Uttar Pradesh and Ors., it has been submitted by Sri Moitra that confinement by a person who has the authority to keep in his custody the person confined cannot be said to be wrongful nor can that person be said to be acting wrongly and this rule can be applied not only to minor unmarried persons but also to a minor wife and where a husband keeps his minor wife at his house, may be against her wishes, he cannot be said to have been acting wrongly and thereby guilty of the offence of wrongful confinement.

18. Relying upon the ratio of the aforesaid decision, it has been contended by Mr, Moitra that reversely the ratio of the aforesaid decision can be made applicable to the present case for handing over of the custody of the victim girl to the present petitioner as it is an admitted position that the marriage was solemnized between the petitioner and the victim girl and even assuming for the sake of the argument that the victim girl was a minor at the time of marriage, yet, that will not disqualify the husband-petitioner in seeking custody of his wife when she herself also was very much willing to come to his custody.

19. Sri Moitra has further contended that on the available materials, it is almost clear that there is also no overwhelming materials to come to a positive finding that the victim girl was definitely a minor as the ossification test report also does not fulfill the same as in connection with ossification test report advantage of (+)(-) of 2 years is available and in such a situation the school certificate cannot also be regarded as sacrosanct.

20. Sri Moitra has further contended that from simple visual examination of the victim girl and looking into her statement recorded under Section 164 of the CrPC, it will be crystal clear that the victim girl must have attained the age of majority at least.

21. He has further submitted that viewing the present matter in hand in the aforesaid light and taking into consideration, the further fact and the allegation to the effect that the marriage was held in contravention of the age limits as per Section 5(3) of the Hindu Marriage Act, 1955, the same also cannot plainly be regarded as the void marriage and at best it is a voidable marriage. So, during the subsistence of the marriage tie as per the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, the present petitioner is entitled to custody of wife who is also very much willing to go to her place.

22. Sri Moitra has, therefore, submitted that both the Courts below have failed to take into consideration of the above aspect of the matter and as such there has been erroneous exercise of their jurisdiction and the orders passed by both of them, are, therefore, illegal and without jurisdiction and as such those should be set aside and eventually, the petitioner should be favoured with the order of custody of the victim girl.

23. This claim of the petitioner has been seriously opposed by the opposite parties both alleging that there are overwhelming materials on record to come to a conclusion that the victim girl was a minor at the time of marriage and still a minor and as such she is not entitled to go to the place of her choice and keeping in mind the question of her welfare, she should be handed over the father of the victim girl.

24. Having heard the submissions of both sides and upon perusal of the provisions of Hindu Marriage Act, 1955 as also the provisions of the Hindu Minority and Guardianship Act, 1956. I am rather prompted to hold that since in the instant case, it is not disputed that the present petitioner and the victim girl were married to each other and the materials, available so far, lead me to conclude that although the victim girl has not attained the age of majority at the present moment, yet, she has at least reached the age of discretion to understand her own welfare which is a paramount consideration for the grant of her custody.

25. Now, although the victim may not have attained the marriageable age as per the provisions of Section 5(3) of the Hindu Marriage Act, 1955, yet, the marriage in contravention of the age limits can neither be void nor voidable though it is punishable under Section 18 of the Hindu Marriage Act, but, here in this particular case, we are not confronted with the situation under Section 18 of the Hindu Marriage Act and enquiry in the instant case, is only confined to the question of grant of custody of the aforesaid victim girl or in other words, it has to be decided in this case that the custody of the victim girl should be given to the present petitioner or to the opposite party No. 2 i.e. father of the victim girl,

26. Now, in view of the fact that the marriage between the present petitioner and victim girl has been solemnized that gives an edge to the petitioner, in preference to the other claimants including the father victim girl, to have the custody of the girl and it is more so in a situation, where the victim girl although might not have attained the age of majority in strict sense, yet, has attained the age of discretion to understand her own welfare and here by exercising her discretion she wanted to go to her husband's place and not to go to her father's place.

27. That being the position, I am inclined to come to a finding that both the learned Courts below have failed to take into consideration the above aspect of the matter and as such, there has been illegal exercise of their jurisdiction arid as such the impugned orders, passed by both of them should be set aside.

28. Now, after setting aside the aforesaid orders passed by both the Courts below, this Court passes the following order:

The victim girl be handed over to the custody of the present petitioner forthwith on executing a bond of Rs. 50,000 (Rupees fifty thousand only) with one surety to the satisfaction of the learned SDJM, Raghunathpur with an undertaking to produce the victim girl before any Court of law as and when such direction is issued by such Courts.

The matter is, thus, disposed of accordingly.