( 1 ) RULE. Service of rule is waived by Mr. MA Patel, Ld. APP for the respondent " State. At the request of the learned advocates for the parties, the matter is taken up for final hearing today itself.

( 2 ) PETITIONER is the husband of one Zarina, daughter of Hasambhai kumbhar. He has in this revision application challenged the order of the Ld. Judicial Magistrate First Class, Rapar, Dist. Kutch, dated 13/2/2006. By the said order the Ld. Magisrate has directed that Zarina, aged 16 years 3 months be sent to Mahila Kalyan Kendra, Bhuj and she be kept there till she attains age of 18 years. It is the say of the petitioner that Zarina is his legally wedded wife and when she is willing to stay with him, such direction cannot be passed by the Ld. Magistrate.

( 3 ) I have perused the record of this revision application. It appears that the petitioner and Zarina stayed in the same locality and they developed intimacy, which resulted in Zarina leaving her parents and going to the petitioner on 5/9/2005. They went to Rajkot and on the same day they contracted marriage [nikah] according to Muslim rites. One Moulvi Jamalsha Kadarsha resident of Rumdin Pari, Pir Dargah road, Rajkot performed ceremony. It further appears that in the meanwhile, father of Zarina lodged complaint to the District superintendent of Police, Kutch at Bhuj on 17/9/2005. In pursuance of the said FIR investigation commenced and statements of Zarina as well as of the petitioner were recorded. It further appears that Zarina expressed her desire to go with her husband i. e. the petitioner, but the ld. Magistrate, upon application being made by the Circle Police inspector dated 29/9/2005, directed that she should be sent to Nari vikas Gruh at Bhuj and her parents were to be informed accordingly. It also appears that the petitioner approached this Court against the said order by filing Special Criminal Application No. 173 of 2006 and the learned Judge passed order dated 8/2/2006 directing the Ld. Magistrate to interrogate Zarina and thereafter to record her wish. Accordingly the ld. Magistrate interrogated at length Zarina on 10/2/2006 and on the basis of the answers given by her the Ld. Magistrate came to the conclusion that she was a minor and that she was not capable of understanding the responsibility of a marriage. Hence, he directed that she be kept in Mahila Kalyan Kendra at Bhuj. It is this order which is now challenged before me by the petitioner.

( 4 ) MR. JB Pardiwala, learned advocate appearing for the petitioner has submitted that the order of the Ld. Magistrate is per-se illegal because it is against the provisions of the Mahomedan Law. He has further submitted that admittedly the girl is above 15 years of age and, therefore, she is at liberty to marry the petitioner even if there is no consent from the parents. He has submitted that the reason assigned by the Ld. Magistrate to the effect that the girl is not in a position to understand the consequences of the marriage, is also not proper since the answers given by her to the questions put by the Ld. Magistrate themselves show that she is fully mature and capable of understanding of what she was doing. Mr. Pardiwala has drawn my attention to certain provisions of the Mohamedan law and in particular Articles 251 and 348. He has also placed reliance on the decision rendered by the patna High Court in the case of Md. Idris v/s. State of Bihar reported in 1980 Cri. L. J. p. 764. Mr. MA Patel, Ld. APP has, however, supported the order of the Ld. Magistrate. He has submitted that when the girl is minor i. e. below the age of 18 years, she cannot be permitted to go with the petitioner. He has also submitted that the petitioner is facing prosecution for offences made punishable under sections 363, 366 and 376 of the Indian Penal Code and, therefore, it is desirable that the girl is kept in Mahila Kalyan Kendra till she attains the age of 18 years.

( 5 ) I have carefully considered the rival submissions. So far th

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