JUDGMENT

Badar Durrez Ahmed, J. (ORAL)

1. This petition seeking a writ of habeas corpus has been filed by Shamsuddin for the production of his daughter, Gulshan. It was alleged in the petition that his daughter (Gulshan) was being illegally detained by one Bhura @ Furqan, who was also a tenant in the house in which the petitioner is residing, namely, C-216, Gali No. 8, Mullah Colony, Gharoli Extension, Delhi. Through efforts made by the respondent/ State, Gulshan was located and has been produced before Court. Earlier, she made a statement under Section 164 of the Code of Criminal Procedure, 1973 on 20.04.2009 before the learned Metropolitan Magistrate at Karkardooma Courts, Delhi. In the said statement, she categorically stated that she left her house about five months ago of her own volition with Bhura @ Furqan. Thereafter, they went to Aligarh and got married in Court. At the outset, we may note that there is no evidence produced before us to indicate a court marriage. However, she further stated that she as well as Bhura lived as husband and wife first of all in his village Choudhera, Police Station Chhatri, District Bulandshahar, U. P. and thereafter moved back to Delhi and lived in Seemapuri as husband and wife in a rented accommodation. According to her said statement she is 20 years of age.

2. According to the petitioner, she is below 15 years of age inasmuch as as per her school record her date of birth has been indicated as 12.07.1994. We had explored the possibility of ascertaining her age through medical evidence by directing her to undergo an ossification test. However, the learned counsel for the State submitted that that would not be possible because Gulshan is in the family way. Therefore, in the wake of rival claims with regard to her age, we are left to consider this case. On the one hand the petitioner, that is, the girl's father is claiming custody over the minor girl Gulshan and on the other hand she herself has categorically and clearly indicated her preference to reside with her husband and not returning to her parental home. There is, however, another complication. Because of the missing person's report lodged vide DD No. 13-A at Police Station New Ashok Nagar, Delhi on 28.12.2008 and action pursuant thereto, an FIR was registered on 07.01.2009 under Section 363 IPC in which Gulshan's husband Bhura @ Furqan has been named as a suspect. It is pertinent to point out that the offence punishable under Section 376 IPC has also been added later on. As a result of the registration of the case, Gulshan's husband Bhura @ Furqan has been arrested and is in custody.

3. The parties are Sunni Muslims and are governed by Hanafi law. Under the law applicable to them, any person who has attained the age of puberty is entitled to contract a marriage. There is no nikahnama which has been produced before us or any other documentary evidence to indicate that Gulshan and Bhura entered into a nikah. However, Gulshan asserts that she has been married and that a nikah had been performed between her and her husband Bhura @ Furqan. Under Muslim law, the mere fact that a couple cohabits for a length of time as a husband and wife also raises the presumption of marriage. In any event, normally it is for either party to the marriage to assert or deny the factum of marriage. In the present case, neither party to the marriage has denied the factum of marriage. With regard to the question as to whether Gulshan has attained the age of puberty or not, it is now abundantly clear that she has attained the age of puberty inasmuch as she is now in the family way. Ms Mukta Gupta, the learned counsel who appears on behalf of the State, referred to the MLC dated 19.04.2009 prepared at Lal Bahadur Shashtri Hospital, Kichdi Pur, Delhi which indicates that her pregnancy test was positive. Thus, there is no doubt that even if Gulshan is considered to be a minor, she has attained the age of puberty and has been cohabited with Bhura @ Furqan as