IMPORTANT POINTS
1. There is no provision of law which permits court to direct custody of prosecutrix even if she is minor, in Nari Niketan against her will.
2. Marriage in contravention of provisions of Section 5(iii) of Hindu Marriage Act or child Marriage Restraint Act would only lead to punishment and that - marriage would not be void.

JUDGMENT (ORAL)

M. Srinivasan, C.J.- This petition is directed against the order of the-Additional Chief Judicial Magistrate. Anib, District Una dated 13-8-1996 whereby he directed the - petitioner herein to be kept in Nari Niketan at Bilaspur. The relevant facts are shortly as follows.

2. A complaint was filed before the Additional Chief Judicial Magistrate in F.I.R. No. 124/96 on 8-8-1996 under Sections 363,366,368.376 and 120-B of the Indian Penal Code. As per the complaint; the accused were Ajmer Singh, Leela Devi and Amar Singh. The complaint was given by the 2nd respondent herein. The complaint was that his daughter Seema Devi alias Simaran Kaur was taken fr9m his house by his mother-in-law Vidya Devi and she was not brought back to his house. According to him, the said Vidya Devi in conspiracy with the three accused gave daughter in marriage to the said Ajmer Singh, the first accused. Thus. he filed a complaint under the aforesaid Sections of the Indian Penal Code.

3. The accused was enlarged on bail by order dated 20-8-1996 by the Sessions Judge, Una.

4. However, on 13-8-1996, when the petitioner herein was produced before the Additional Chief Judicial Magistrate, he passed an order directing her to be kept in Nari Niketan at Bilaspur. It is better to set out his order in entirety so as to appreciate his reasoning. The order reads as follows:

"It has been alleged that Seema is prosecutrix in case, FIR No. 124/96 registered against, one Ajmer Singh. Allegations of the prosecution are that accused Ajmer Singh kidnapped Seema Devi and thereafter committed rape in connivance with certain persons and kept her at his home for about 2-1/2 months. After registration of case on 8-8-1996 during investigation, she was recovered from Talwara from house of the accused. It is stated that she has been got medically examined, however presently she is not ready to live with her parents or with other relatives who can be entrusted her supervision. In view of this fact she deserves to be sent to Nari Niketan. Accordingly, it has been prayed that she be ordered to be kept in Nari Niketan at Bilaspur where she would remain in proper care. I have inquired from Seema Devi whether she wants to go to her parents who has stated that she is major and has conducted her marriage with Ajmer Singh and would like to go with him and not with her parents as she apprehends danger to her life from her parents as they would sell her and would not send her to her in laws house. Perusal of the file and facts disclosed by her goes to show that no proper marriage has been conducted which can be described to be legal marriage, thus Ajmer Singh cannot be described to be her legal guardian to keep her as wife nor any other else except her parents can be construed to be a proper guardian. She claimed her age to be 20 years and that marriage has been conducted at her free will whereas as per certificate taken by the police from Principal, Senior Secondary School, Takoli date of birth has been written as 8th August, 1981 which goes to show that she is minor and is not competent to opt for marriage. Taking into consideration all these facts. I feel that uptil question of her guardianship is not decided by the competent court or some proper arrangement made she deserves to be kept in safe supervision. As she does not want to go to her parents, as prayed by the police she be kept in Nari Niketan at Bilaspur where she can be kept in safe supervision. She is ordered to be sent there under the escort of two lady constables and shall be kept there till further orders."

5. It is noted that in the order, the Additional Chief Judicial Magistrate has glibly observed that no proper marriage had been conducted, which can be described to be a legal marriage, Such an observation could not have been made at all at that stage of the case by the Additional Chief Judicial Magistrate. He had no material whatever before him from either side with regard to the performance of marriage or