Under Muslim Law, a minor girl who has attained puberty can marry without parental consent, and the court must consider the minor's best interest when determining custody.

1. Nahida Parveen is the petitioner before us. She is daughter of Mukhtar Ansari (respondent no. 6). She claims to have married Md. Sahrukh on 29th of May, 2008 in accordance with musiims rites. Her father lodged the first information report being P.S. Case No. 225 of 2008 at Police Station Bhabhua on 10th June, 2008 alleging that one lady wife of Md. Sabbir, resident of Ward No. 16 came to his house on 27th of May, 2008 at about 9 A.M. and took his daughter Nahida Parveen (aged about 14-15 years) on the pretext that some guests were to come to her house. When she did not return until evening, he went to Sabbirs house. At that time, Sabbirs wife told him that she had already left Nahida Parveen about half an hour back. He kept on searching his daughter, but failed. Then he came to know that Md. Sahrukh son of Md. Sabbir after abducting his daughter intended to marry her. Based on the said first information report, a criminal case under Section 366A read with Section 34 IPC was registered against Md. Sabbir, Md. Sahrukh, Md. Yusuf, Md. Sajid, Ramjan Ansari and the wife of Md. Sabbir.

2. During the course of investigation, Nahida Parveen was produced before the Court of Judicial Magistrate, 1st Class, Bhabhua and her statement was recorded under Section 164 Cr.P.C. In her statement before the court, she stated that she has married Sahrukh on 29th May, 2008 and since then she has been staying with him as his wife. She denied having been abducted by the accused persons as alleged in the FIR. She stated before the court that she did not want to go to her parents house as they have been torturing her. Nahida Parveen was produced for medical examination and on radiological findings, her age was found to be between 17-19 years.

3. The Investigating Officer made an application seeking an order of the Court as to whom the custody of Nahida Parveen was to be given, particularly in view of the fact that she has refused to go to her parents place. On the said application, the Chief Judicial Magistrate, Bhabhua passed an order on 13th June, 2008, that she be kept at After Care Home, Gaighat, Patna.

4. From the material placed on record it appears that two applications came to be filed before the Chief Judicial Magistrate, Bhabhua; one at the instance of Md. Sahrukh and the other by the petitioner. In both these applications, the prayer has been made that Nahida Parveen be released from After Care Home, Gaighat, Patna and permitted to reside with Md. Sahrukh.

5. No order seems to have been passed by the Chief Judicial Magistrate, Bhabhua on these applications. Nahida Parveen has approached this court now under high prerogative jurisdiction praying that she be released from After Care Home as she is entitled to live with her husband at her matrimonial home.

6. The respondents no. 1 to 5 has not filed any counter affidavit. We do not deem it necessary to issue notice to the respondent no. 6 as the petitioner has repeatedly made statement that she did not want to stay with her parents. As a matter of fact, Nahida Parveen was produced before us on 4th of August, 2008 and on that date she made a categorical statement that she has married Md. Sahrukh and that she wanted to go to her husbands place. On that day, the matter was adjourned as the senior counsel for the petitioner prayed for time to study the matter and show us the law with regard to custody of a muslim girl, although not major as per Indian Majority Act, but has married after having attained puberty without the consent of her parents.

7. Article 251 of Mullas Mahomedan Law is a statement of law in respect of capacity for marriage. It reads thus:

"251. Capacity for marriage. (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.

(2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

(3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void,