The paramount consideration in habeas corpus petitions involving minors is the welfare and well-being of the minor, without strictly construing statutory provisions.

JUDGMENT

1. This petition seeking writ of habeas corpus has been filed by the petitioner Smt. Manju for release of her minor daughter Ms. "G", alleged to be in illegal detention of the respondent no.4 herein.

2. In the writ petition filed, the petitioner has disclosed the age of her daughter as 16 years, however, in complaint filed, which was referred by the criminal Court of competent jurisdiction to the Police Station, Banar under Section 156(3) Cr.P.C., the age of the corpus was disclosed as 18 years and it was specifically mentioned in the complaint that the corpus "G" is major.

3. The statement of the corpus was recorded under Section 164 Cr.P.C. by the Metropolitan Magistrate No.1, Jodhpur Metropolitan on 15.6.2020 wherein the corpus has disclosed her age as 16 years. In the statement made, she denied that the accused Bhagirath, the respondent no.4 herein, has committed rape on her rather, she stated to have entered into marriage with him on 13.5.2020. The police has already filed negative Final Report in the matter after investigation.

4. The corpus 'G' is produced before us by Mr. Sitaram Khoja, SHO, Police Station, Banar & Ms.Sita, MFC.

5. We have conferred with the corpus in camera as also in presence of her parents. While reiterating that she has entered into marriage with the respondent no.4, the corpus stated that out of wedlock, a child is also born. She has declined to go with her parents and expressed her desire to stay with her husband, the respondent no.4 herein.

6. It is pertinent to note that the marriage of a girl below the age of 18 years in contravention of the provisions of Section 5(iii) of the Hindu Marriage Act, 1955 (in short "the Act of 1955") is neither void u/s 11 nor voidable u/s 12 of the Act of 1955. Thus, the effect of the marriage, if entered into between the parties, cannot be wiped out for the reason that at the time of marriage, the girl was below the age of 18 years. That apart, under the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, husband is the natural guardian of person of the wife, who is minor. Be that as it may, in the matter of custody of minor child, his overall welfare is of paramount consideration.

7. In Prathvi Singh's case (supra), a Bench of this court while dealing with similar issue relating to the corpus produced before the court who had not attained the majority, held:

"6. Before adverting to the rival contentions raised by the learned counsels for the parties, it may be stated that the petitioner by way of present petition has invoked the extraordinary jurisdiction of this court under Article 226 of the Constitution of India seeking corpus of his daughter Pratibha Kumari on the ground that the respondent No.4 had abducted and kept under illegal detention his minor daughter Pratibha Kumari. In this petition serious disputes have been raised as regards the age and validity of marriage of Pratibha Kumari, daughter of the petitioner, with the respondent No.4. However, it cannot be gainsaid that the jurisdiction of Habeas Corpus Petition under Article 226 of the Constitution of India is extraordinary in nature where the High Court could not be expected to decide the disputed questions of facts as regards the age or validity of marriage of the detenue girl. The paramount consideration before the court would always be the welfare and well being of the girl, whose custody is being sought by the petitioner. In deciding such petitions, the court though is expected to keep in mind the relevant statutes and the rights flowing therefrom, cannot decide the petition solely by interpreting the legal provisions. The court is required to consider the wishes of the girl also, if the girl is found to be old and matured enough to form an intelligent preference as to with whom she would be more happy. The instant case is also one of such cases, which is required to be decided with a human touch, without strictly construing the rights of the parties flowing from statuto