1. - By way of instant petition under Section 482 Cr.P.C., the petitioner, a minor girl namely Santosh has challenged the order of the Chief Judicial Magistrate, Barmer, dated 19.6.2004, whereby, she has been sent to Nari Niketan, Jaipur.

2. The second respondent, the father of the petitioner herein, lodged a missing report at Police Station Sadar, Barmer on 3.6.2004. It is alleged that she was being abducted by one Ashok. On this information, police registered a case. During investigation, the petitioner herein was recovered. The second respondent filed an application before the learned Magistrate claiming the custody of the petitioner. A prayer was also made for recording her statement under Section 164 Cr.P.C. The applicant was medically examined under the orders of the court. In the opinion of the Medical Board on the date of examination, she completed 15 yea rs of age. As per the school certificate, she was born on 20.2.1988. In these circumstances, the learned Magistrate found her a minor. The learned Magistrate also recorded the statement of the petitioner under the provisions of Section 311 Cr.P.C. She made a statement to stay with her husband Ashok. It was also stated that she left the house on her own and performed marriage with Ashok. In these circumstances, the learned magistrate refused to give the custody of the girl, the petitioner herein, to her father. He also did not give the custody to the so called husband Ashok. The petitioner was directed to be sent to the Nari Niketan at Jaipur.

3. It is contended by Sh. Sandeep Mehta, learned counsel for the petitioner that the petitioner's detention by virtue of the impugned order is absolutely illegal and abuse of the process of the court. She has specifically desired to live with Ashok and refused to live with her father and, as such, there was no reason for the learned Magistrate to deprive her the company of her husband Ashok. On other hand, it is submitted by Mr. Pradeep Shah, learned counsel for the 2nd respondent that the petitioner, admittedly, is a minor and as such, so called marriage is a nullity. It is further submitted that the second respondent is entitled to the custody of the minor girl being a natural guardian.

4. I have considered the rival contentions. In order to appreciate the contentions it will be apt to refer some of the provision of Hindu Marriage Act. Section 5 of the Act provides conditions for a Hindu Marriage which reads as follows:

"5. Conditions for a Hindu Marriage:- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of marriage,

(ii) at the time of the marriage, neither party -

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity or epilepsy.

(iii) The bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."

5. Section 11 of the Hindu Marriage Act provides that the marriage shall be null and void on a petition presented by either party, declaring the same a nullity by a decree if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of Section 5.

6. Section 12 of the Hindu Marriage Act provides that any marriage solemnized before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the grounds mentioned therein. Sub-section (b) provid