MADRAS HIGH COURT
CORAM : MR.JUSTICE S.MANIKUMAR AND MR.JUSTICE V.S.RAVI
HABEAS
CORPUS PETITION(MD)No.1039 of 2014
R.Thiagarajan
Vs.
The
Superintendent of Police,
Dated;03.09.2014
For the alleged detention of the
petitioner's daughter Iswarya, who has crossed the age of 18 years, by
respondent No. 3, writ of Habeas Corpus has been filed.
2. According to the petitioner, the
alleged detenue is now undergoing Bachelor of Engineering in Anna University, Trichirappalli.
Whileso, on 30.08.2014, she was missing. The petitioner came to know that the
detenue was in custody of respondent No.3. Immediately, he rushed to the
Inspector of Police, Jeeyapuram Police Station. He was called for an enquiry by
the police. According to the petitioner, at the time of enquiry, the third
respondent, came with a group of people and affirmed custody of the
petitioner's daughter. She was simply directed to react, as per their directions.
Though the alleged detenue has just crossed the statutory period of 18 years,
due to threat, she was not in a position to decide. Inspector of Police,
Jeeyapuram Police Station, respondent No.2, informed the petitioner, since the
alleged detenue had attained majority, she can decide her course of action.
3.
Learned counsel for the petitioner contended that it is the duty of the father
to safeguard the custody of the alleged detenue and that the second respondent
has a duty to enquire into the complaint, in a fair and reasonable manner, ascertaining
as to where there was any undue influence or threat on the alleged detenue.
4. Learned counsel appearing for the
petitioner further submitted that the Inspector of Police, Jeeyapuram Police Station,
respondent No.2, ought not to have allowed the detenue to go along with the
third respondent viz., Manohar. Learned Counsel for the petitioner submitted
that at the threshold of crossing the age of 18, children would not be in a
position to decide their future course of action, particularly to lead life. He
also submitted that on attainment of majority, children take extreme steps of
deciding their own future, including marriage. He submitted that though the
third respondent has stated that he was married to the alleged detenue, it is
not true. Learned counsel for the petitioner prayed that there must be some directions
to the police, to properly investigate the allegations of detention and if
necessary, directions should be issued to the subordinate judiciary, whenever
crime is reported.
5. On instructions, Mr.C.Mayilvahana
Rajendran, learned Additional Public Prosecutor submitted that earlier, brother
of the alleged detenue Mr.Varadarajan has lodged a complaint with the Inspector
of Police, Jeeyapuram Police Station, respondent No.2, stating that the detenue
was missing. Brother had also alleged that the respondent No.3 was detaining the
detenue. He further submitted that on receipt of the complaint, an enquiry was
conducted. During the enquiry, the alleged detenue, complainant Varadarajan,
(Brother of the alleged detenue) the petitioner, Thiagarajan and respondent
No.3 were present. The alleged detenue as well as the respondent No. 3 gave
their respective statements stating that they were married. Father of the
alleged detenue is the petitioner, has also given a statement that he was
enquired, and that the alleged detenue refused to go along with him. In the
said statement, one Sri Padmavathi has signed as a witness. In the statement of
respondent No.3, witnesses have affixed their signatures. Iswarya, alleged
detenue has also given her statement. Mobile numbers of the witnesses were also
written at the end of the statements.
6. As per the photocopy of the transfer
certificate issued by S.V.Hindu Girls Higher Secondary School, Trichirappalli,
the Date of Birth of the alleged detenue is 05.12.1995. From the entries in the
said certificate and the statements, photocopies of which, produced before this
Court, it could be deduced that the alleged detenue is a major.
7. Though Mr.L.Madhusudhanan, learned
counsel appearing for the petitioner expressed his deep concern over the decision
making power and capacity of the persons, who had just completed the age of 18
years, to chose their life partners, and lead a life, of their own choice,
which is against the custom, tradition and culture and further submitted that
some of the marriages also end in failure, this Court is conscious of the submission
made on behalf of the parent, but we cannot issue any prohibitory orders, as
regards the exercise of rights of such persons, for the reason, that as per the
laws of the land, completion of 18 years of age has been fixed as the age, to
take care of their person and property. Section 3 of the Majority Act, 1875
deals with the age of majority of persons domiciled in India, which reads as
follows:-
"(1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.
(2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day."
8. We do agree with
the deep sentiments expressed by the learned counsel appearing for the parent,
regarding the rights of the parents to decide the future course of action, as regards
education and marriage of their children. But as observed earlier, laws of the
land have prescribed completion of 18 years, as attainment of majority and it
would be the age, for taking any decision over the person and property. In many
Habeas Corpus Petitions, we do find that on attainment of majority, adolescents
choose their own life partners, without considering the wishes, desire and
future expectations of the parents. We fully agree with the contentions of the
learned counsel appearing for the petitioner that custom, tradition and the
welfare of the adolescents have to be taken care of and parents who have
nurtured the children, with love and affection and provided education, would
be the best persons, to act, for the welfare of their children. However, we
have our own limitations in issuing any orders, in view of the laws of the
land. Even during hearing of some of the Habeas Corpus Petitions, parents have
posed us a question about their rights over the children. Parents bring up
their children with love and affection, educate them with a fond hope, and
after verifying many particulars, as to who would be his/her best partner in
life, settle them in marriage and at times, believe that children would help
them, in their old age. Some of them even borrow money to provide education. It
is the grievance of the parents that at the adolescent age, when their children
are not mentally and psychologically matured to decide their course of action, particularly
marriage because of infatuation, lack of proper understanding with parents,
they think there is somebody to take care, develop relationships, and many a
times, get themselves entangled. Parents are engaged in their employment.
Little time is spent with the children. Technology, social media, particularly,
mobile phones, though enabled many, to reach out and communicate, but at the
same time, it cannot be said that, there are no adverse effects. Voice and
visual communications through social media, end up in relationship. Parents
cannot monitor all the time.
9. Marriage is sacred. It is not a
contract as per Hindu Law. Consent cannot be thrust on those who have completed
18 years in the case of female, and male, above 21 years. But a marriage
between a male above 21 years and a girl, below 18 years is an offence under
the provisions of the Prohibition of Child Marriage Restraint Act, 1929. After
considering the provisions in various enactments, a Hon'ble Full Bench of this Court
in T.Sivakumar vs. Inspector of Police,
reported in 2011 (4) MLJ (Crl) 315, held that the male who has committed an offence
under the provisions of the Child Marriage Restraint Act, 1929, is not entitled
to enjoy the fruits of such offence and seek for custody of a minor. Judicial
notice can be taken that in Habeas Corpus Petitions, these adolescents report
that their marriage was solemnized in a temple, on their own. It may even be
the wish of the parents to solemnize a marriage in a temple. But no parent
would like his child walk away from the family and getting married on her/his
own, in their absence.
10. By taking advantage of technology and utilities like mobile, computers, social media, it is very easy for young persons to get in contact with others, even from far off distances, and it is not uncommon that adolescent boys or girls are found missing or reported to have developed some sort of relationship, mostly, described as a love affair.
11. Education of girl children in rural
areas and their development, as compared to urban areas, are less, due to many factors,
mostly socio-economic condition. Parents of a female child may feel that it is
difficult for them to give protection to an adolescent girl, at home, when they
are away due to their avocation, employment, at far away places. The chances of
an adolescent girl, getting in contact and developing relationship, is more,
despite parenting. Decision of an adolescent girl on marriage, if opposed, then
she has to lead a life, without the support of her kith and kin. Sense of
insecurity due to estrangement of relationships, financial constraint, stress, depression
affects the life of such adolescent girl, if there is no support, from either
of the families.
12. For a male, age for marriage is fixed as 21 years. For a girl, it is 18 years. Till 17 years, children, both boys and girls, grow in school atmosphere, although they may have elders at home and surroundings. At the age of 18 years, a girl would be in the 2nd year of graduation. Unemployment is alarming in this Country and even qualified persons do not get suitable employment. When Hindu Law prescribes 21 years as marriageable age for the male, whether it could be said that the girl would acquire social, psychological maturity, on attaining the age of 18 years. Capacity to drive a motor vehicle, decision to vote, eligibility to travel by obtaining travel documents, minimum age to secure employment, which are illustrative, whether all that could be equated to mental maturity for marriage of a girl, when comparatively a higher age is prescribed for a male? Not to state about the problems, which a young girl faces after marriage, if not supported.
In Lata
Singh vs. State of U.P., reported
in 2006 (5) SCC 475, the Hon'ble Supreme Court held that once
a person becomes a major, (i.e) attained 18 years of age, he/she can marry,
whosoever he/she likes. We are aware that the decision of the Apex Court is
binding on us. Yet we are of the humble opinion that realities have to be
addressed.
13.
In these type of cases, education a
determinative factor, for development, is disrupted. Legislations and
religions are involved. But having regard to a serious question posed by
one of the
parents, as to their right over their children on marriage, and when we
look at
the provisions of the Indian Majority Act, 1875, Guardians and Wards
Act, 1890,
Child Marriage Restraint Act, 1929, we are of the humble opinion, the
issue has
to be addressed.
14. Whether the age of the girl has to be
increased to 21, equal to the age of the male or to fix a lesser age for the
girl, above 18 years, and declare the marriage between the male above 21 years
and a girl less than 18 years, the marriage of the boy below 21 years with that
of the girl, above 18 years, as void, non-est in law, instead of making it
voidable, at the instance of the person, who has attained the marriageable age,
in particular, a minor girl, on attainment of majority, has to be addressed, having
regard to the mental and psychological maturity.
15. Under Section 320 of the Criminal
Procedure Code offences can be compounded, for the purpose of deciding the sentence
and not for the guilt. Prohibition of Child Marriage Restraint Act, a special
law, should have a supremacy over the personal law. A parent or a guardian can
initiate prosecution for an offence against a minor, under Section 198 of
the Criminal Procedure Code, including an offence relating to marriage, if the minor
girl or boy below the marriageable age, does not question the marriage on
attainment of majority, or the age fixed, as the case may be, whether the
offence committed can be said to be ratified? Certainly, law would take its own
course.
16. On the facts and circumstances of
this case, and in the light of the statements made by the petitioner and the alleged
detenue, we are not inclined to hold that there was any illegal detention. But
taking note of the averments made in the supporting affidavit that during the
time of enquiry, the third respondent came with a group of people, and that the
petitioner could not make any objections and thus constrained to give a statement
to the police, we direct that hereinafter, if any case relating to abduction or
kidnapping is reported, particularly, relating to cases of this nature, the
police shall conduct an enquiry in the presence of the complainant, the alleged
detenue and others, and it is desirable to produce them before the Court of
criminal jurisdiction, where the alleged offence is reported along with the
statements recorded during enquiry, and place the same before the concerned
Magistrate, and obtain necessary orders. With the above directions, the
Habeas Corpus Petition is closed.
(S.M.K.J) (V.S.R.J)
03.09.2014
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