Nitish Kumar @ Nitish Ram vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Pat) 133

IN THE HIGH COURT OF JUDICATURE AT PATNA
P.B. BAJANTHRI and RAMESH CHAND MALVIYA, JJ.
Cr. WJC No. 880 of 2023
(16.1.2024)
Nitish Kumar @ Nitish Ram @ Nitish Kumar Ram ... Petitioner
vs.
State of Bihar & Ors. ... Respondents

Advocates Appeared:
For the Petitioner: Mr. Lakshmindra Kumar Yadav.
For the Respondents: M/s P.K. Shahi, AG., Prabhu Narayan Sharma, AC to AG.

Headnote:
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 27 – Constitution of India – Article 226 – Habeas Corpus Petition seeking release of respondent from State Girls Care Home, Gaighat, Patna, on the ground that respondent was assessed by Doctor to be under 18 years of age – Whether a girl who is less than 18 years of age gets married to a boy with her consent can be compelled to stay at State Girls Care Home, Gaighat, Patna while she refuses to accompany her parents or not – Marriage performed with consent of a minor girl would pale into insignificance in view of fact that child marriage itself is an offence although it may not be illegal under Hindu Marriage Act, 1955 but certainly it is a voidable marriage under Prohibition of Child Marriage Act, 2006 – Welfare of a girl is always of paramount consideration – In several cases where girl does not marry with her choice then there is an apprehension that she may be forced to get married to any other person by her parents, steps which are required to be taken in that eventuality is to protect the girl by keeping her in a safe custody rather than permitting her to marry before she attains age of majority – Consequences of girl child marriage are much more devastating – Element of consent is always subservient to overall welfare of a child – Medical hazards in case of a child marriage cannot be overlooked – Fixing age of marriage for females as 18 years by Legislature is not without any reason as it is also based upon evil effects of a child marriage in terms of medical, social, psychological, economic and other like factors – Under no circumstances can a child below 18 years of age gives consent express or implied for sexual intercourse. (Paras 13 and 14)
Constitution of India – Article 226 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 27 – Whether a girl who is less than 18 years of age gets married to a boy with her consent can be compelled to stay at State Girls Care Home, Gaighat, Patna while she refuses to accompany her parents or not – When a girl is not a major and expresses fear of life in custody of her parents, Court may exercise jurisdiction to send her to an appropriate home meant to give shelter to women till she becomes a major, there is no inherent right vested in husband to claim custody of minor girl by filing writ of habeas corpus on illegal detention – Respondent has specifically refused to go along with her father and her stay at State Girls Care Home, cannot be said to be detrimental to her well being and her child, she cannot be directed to be released till she attains the age of majority by giving her custody to her husband (petitioner) – Petitioner hereby directed to open a bank account in name of newborn child and regularly deposit a considerable amount of money for newborn child's welfare. (Paras 15 and 16)
Doctrine – Parens Patriae Jurisdiction – Constitutional Courts in this country exercise parens patriae jurisdiction in matters of child custody treating welfare of child as a paramount concern although same is required to be invoked in exceptional situations – This doctrine can be invoked and on certain other occasions when a girl is not a major and has eloped with a person and she is produced in a case of habeas corpus filed by her parents and she expresses fear of life if laced in custody of her parents, Court should send her to appropriate shelter home where her interest can be best taken care of till she becomes a major. (Para 12)

Ramesh Chand Malviya, J. – Heard learned counsel for the petitioner and learned counsel for the State.

2. The present criminal writ application has been filed on behalf of the petitioner by way of Habeas Corpus seeking a direction from the respondents for release of the respondent no. 11 namely, Shivani Kumari from the respondent no. 8, namely The State Girls Care Home, Gaighat, Patna, on the ground that the respondent no. 11 was examined by the doctor and her age was assessed to be under 18 years. Her statement under Section 164 Cr.P.C. was also recorded where she has admitted that she moved out of her own will to the petitioner and in course of time, she has given birth to a child out of the relationship. Respondent No. 11 has also stated that she is major and the marriage is out of will. Hence, the present Habeas Corpus application has been preferred for her release in favour of the petitioner. There is a criminal case also instituted by the father of the respondent no. 11 against the petitioner i.e., Salimpur P.S Case No. 07 of 2022, wherein the petitioner has been granted bail.

3. Learned counsel for the petitioner has submitted that it was a case of love marriage between Nitish Kumar and Shivani Kumari and they had married voluntarily and without any force or coercion. He submitted that notwithstanding that girl was minor, she still had a legal right to live with her husband and therefore, she cannot be compelled to stay at State Girls Care Home, Gaighat, Patna. The learned counsel further submitted that the present petition has been filed by Nitish Kumar. He further submitted that since the present petition is filed seeking a writ in the nature of Habeas Corpus and the same would be maintainable in law. He has further submitted that there is no bar for releasing Shivani Kumari from State Girls Care Home, Gaighat, Patna, in view of the stand taken by Shivani Kumari herself that she had voluntarily married Nitish Kumar and she wanted to stay with him and not with her parents and therefore, no useful purpose would be served in case Shivani Kumari continues to remain in State Girls Care Home, till the age of majority.

4. Per contra, Learned counsel for the respondent nos. 5 & 9, while referring to the reply by way of affidavit filed by the District Magistrate, Patna, has submitted that as per the application of father of Shivani Kumari (respondent no. 11), the age of the child is 14 years. The letter no 412 dated 26.07.2023, issued by the Chairman, Child Welfare Committee, Patna stated that Shivani is a minor. The leaned State counsel has further submitted that since girl is even less than 17 years of age, it was a case of child marriage and prohibited under law and therefore, even if she has consented to marriage, the same would not be of any significance as child marriage is prohibited under the law and therefore, it will be in the interest of Shivani and her child continues to remain in the State Girls Care Home, Gaighat, Patna, till she attains the age of majority.

5. On 12.12.2023, when the matter was heard, the aforesaid girl Shivani (respondent no. 11) who is residing at Nishant Girih Balika, Gaighat, Patna, was produced and this Court had the occasion to interact with her. She apprised the Court that she is duly married with Nitish Kumar (petitioner) and her age is about 18-19 years and she is a major. On being pointedly asked as to where she wants to reside, she stated that she wishes to go with her husband. When she was asked as to whether she was ready and willing to go with her father or not, she flatly refused to go along with her father.

6. This Court, vide order dated 12.12.2023 also directed the Registry to issue notice to In- Charge Principal, Primary School, Rupas Mahaji, Bakhtiyarpur, Patna to furnish the admission register wherein the details of Shivani Kumari has been written. The admission register mentions that her date of birth is of 17.03.2008, also the birth certificate of respondent no. 11 produced by