The main legal point established in the judgment is that under Mohammedan Law and the Prohibition of Child Marriage Act, 2006, a minor girl who has attained puberty has the right to reside with her husband, and her marriage is voidable at her option.

G.S.SISTANI, J (ORAL)

1. Present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking a writ of habeas corpus thereby directing respondents to produce the corpus of his daughter, Ms.Shahista.

2. In this case, daughter of the petitioner, who as per the writ petition is stated to be fifteen years of age, was missing since 26.4.2016 and the needle of suspicion was upon one, Shakeel.

3. Learned counsel for the petitioner submits that since the respondents failed to perform their statutory duty, the petitioner was left with no option but to knock the doors of this Court for justice.

4. We have heard learned counsel for the parties. In this case, marriage between Shahista and Shakeel was performed against the wishes of the parents of Shahista.

5. It may be noticed that on the last date of hearing i.e. 20.5.2016, Shahista was produced from Prayas Shelter Home. She had submitted that she has married Shakeel out of her own free will and wishes to reside with him. It was also informed to the Court that statement of Ms.Shahista has also been recorded under Section 164 of the Code of Criminal Procedure. The Court directed Shakeel, his parents, and Ms.Shahista and her parents to remain present in Court on the next date of hearing.

6. Today, Shahista and her family members are present in Court. Shakeel, his father and brother are also present in Court. Shahista reiterates the statement made by her in Court on 20.5.2016 to the effect that she has married Shakeel out of her own free will and she wishes to reside with him. Shahista further submits that her date of birth is 01.09.1998 and her age is 17 years and 8 months. Learned counsel for the petitioner disputes the same and submits that as per the petitioner, the age of Shahista is 15 years.

7. The petitioner is also present in Court. He submits that he has no objection if Shahista joins the company of her husband but they would not keep any relationship with Shahista and the her in-laws.

8. Now, the only question which arises for our consideration is whether Shahista has right to reside with her husband or not even if she is below eighteen years of age, as claimed by the petitioner.

9. The law in this regard in Mohammedan Law is well settled that once the girl attains the age of puberty, she has a right to reside with her husband.

10. In the case of Mrs.Tara Begum v. State of Delhi & Ors., reported at (2012) 116 AIC 862, a Division Bench of this Court while taking into consideration the law laid down in the case of Md. Idris v. State of Bihar, 1980, Crl.L.J.764 and in the other judgments passed from time to time, held as under:

“4….."Whether respondent No. 5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 of Mulla's Principles of Mahomedan Law which says that every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, in absence of evidence, on completion of the age of 15 years. Even in Tyabji's Muslim Law under Article 27 is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mulla's Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of the woman as his wife. Article 90 of Tyabji's Muslim Law also says that a marriage is to be presumed on the acknowledgment of either party to the marriage. As such, it has to be held that under Mahomedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian."

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