IMPORTANT POINT
Marriage between the persons below 18 years of age is now declared to be an offence under the Act of 2006, giving custody of a child to a person who has contracted marriage with such child in violation of the Act of 2006, would virtually amount to perpetrating an offence under the orders of the Court.

JUDGMENT

Sandeep Mehta, J.—Heard learned counsel for the parties.

The instant misc. petition has been preferred by the petitioner Pratapa Ram, father of Mst. Amri, being aggrieved of the order dated 21.4.2012 passed by the learned Judicial Magistrate, Raniwara directing detention of his daughter Mst. Amri at the Nari Niketan in connection with FIR No. 27/2012 of Police Station, Karda.

2. Succinctly stated the facts of the case are that the petitioner is the father of Mst. Amri aged 14 years (Date of Birth is 2.1.1998), Mst. Amri was kidnapped by Ashok, Ganesha, Raimal and Methi upon which the petitioner filed an FIR No.27/12 at P.S. Karda against these accused persons for the offence under Sections 363, 366 and 366A/34 IPC. The police recovered Mst. Amri during investigation of the FIR aforestated and she was produced before the Court of Judicial Magistrate, Raniwara. The petitioner being the natural guardian of the girl filed an application before the learned Magistrate praying that the custody of his daughter be given to him as she was a minor and the petitioner being the natural guardian was entitled to have the guardianship of the minor child.

3. It may be mentioned here that the girl upon being examined, refused to go with the petitioner and claimed that she should be permitted to go with the person who had allegedly kidnapped her namely, Ashok as she claimed that she had contracted marriage with him.

4. The learned Magistrate by the impugned order dated 21.4.2012 directed that since the petitioner’s daughter was a minor aged about fourteen years and was not desirous of going with the petitioner, she be kept at the Nari Niketan until further orders. The aforesaid order dated 21.4.2012 has been assailed by the petitioner by way of the instant misc. petition.

5. Mr. Vineet Jain, learned counsel for the petitioner contended that the petitioner being the father of the kidnapped minor girl, is her natural guardian and as such, is entitled to claim and receive her custody. It is submitted that Amri is neither a juvenile in conflict with law nor is she a child in need of care and protection so as to direct her detention at Nari Niketan. It is submitted that the petitioner has all the means and facilities to provide proper care to his daughter and as such, the minor’s desire cannot be considered to be a paramount or a bar for depriving the petitioner from the custody of his minor child. It is submitted that: the learned Magistrate has given no such finding that Amri was a child in need of care and protection in terms of Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act of 2000’) and, therefore, the order of the learned Executive Magistrate whereby Mst. Amri has been directed to be detained at Nari Niketan cannot be justified.

6. Learned Public Prosecutor and the counsel for Ashok have opposed the arguments advanced on behalf of the petitioner and submits that the learned Magistrate has rightly directed the minor to be detained at Nari Niketan and justified the order passed by the learned Magistrate.

This Court had directed the detained child to be produced before this Court and she was brought from the Nari Niketan on 30.5.2012. On an enquiry being made from her, she expressed her was to go with her father and desired to go with her alleged husband Ashok.

However, she did not express any threat to her life from her father nor did she state that her father was not having any means to maintain her. She stated that her father had never neglected to maintain her nor had abused her nor was he unfit or incapacitated to exercise control over her.

7. Upon a consideration of the arguments advanced at bar and on going through the order impugned and the material available on the record, it is evident that the petitioner’s daughter is minor aged 14½ years. She at present is neither mentally nor morally in a position to assess the consequences of the act of elopement which she did by going aw