S.NAGAMUTHU. J.,

1. Selvi. Sujatha, the detenue, is aged 17 years. She is the daughter of the petitioner. Previously, she was studying in a Higher Secondary School at Tiruvallur and was staying at the house of the petitioner's sister. On 08.06.2011 at about 4.30 p.m. She had gone to a local temple, but she did not return thereafter. The petitioner learnt that the 2nd respondent along with others had kidnapped her. He preferred a complaint in this regard before the 1st respondent on 20.06.2011 on which a case in Crime No.309 of 2011 for offence under Section 366(A) of IPC has been registered. Alleging that the minor detenue was kept illegally by the kidnappers, the petitioner filed the present habeas corpus petition.

2. The 3rd respondent is the father of the 2nd respondent. When this habeas corpus petition came up for hearing before a Division Bench, on 28.07.2011, the Division Bench ordered notice to the respondents. In pursuance of the same, the minor detenue appeared before the Division Bench on 01.08.2011 and filed an affidavit to the effect that she had fallen in love with the 2nd respondent for quite some time and that on knowing the same, her parents started arranging for her marriage with her maternal uncle much against her wish. Therefore, according to her, on 08.06.2011, she left the parental home on her own accord and on 12.07.2011, she married the 2nd respondent. The said marriage has been accepted by the 2nd respondent and his other family members and she is not illegally detained by anybody, she had stated.

3. Based on the above affidavit of the minor detenue, the learned counsel appearing for the respondents 2 and 3 contended before the Division Bench that since the detenue was in a position to make intelligent preference to go with the 2nd respondent and since after the said marriage, the 2nd respondent is the legal guardian, the detenue should be set at liberty to go along with the 2nd respondent.

4. But, the learned counsel appearing for the petitioner opposed the same on several grounds projecting the welfare of the minor detenue. Having considered the rival submissions, the Division Bench presided over by Mr.Justice C.Nagappan directed the minor detenue to be kept in a Government Children's Home. The learned counsel heavily placed reliance on the judgment of another Division Bench of this Court in G.Saravanan v. The Commissioner of Police, Trichy City and others, 2011 - 2 - L.W. (Crl.) 114 wherein the Division Bench has held that a child marriage is neither void nor voidable and the same is valid and so, the husband of the child in marriage is entitled for custody of the child / wife. The Division Bench had doubt about the correctness of the said conclusion. The Division Bench also took note of the judgments in Saraswathi Ammal V. Dhanakoti Ammal, (1924) 47 MLJ 614 [Madras High Court], Seema Devi @ Simran Kaur v. State of Himachal Pradesh, (1928) 2 Crimes 68 (Himachal Pradesh High Court), Neetu Singh v. The State, (1999) II AD Delhi 37 [Delhi High Court], Ravikumar v. State , 124 (2005) DLT 1 [Delhi High Court], Manish Singh v. State, AIR 2006 DELHI 37 [Delhi High Court], Association for Social Justice and Research v. Union of India, [decided on 13.05.2010 by Delhi High Court], Latori Chamar v. State of Madhya Pradesh, [decided on 10.01.2007 by Madhya Pradesh High Court], Avinash v. State of Karnataka, [Karnataka High Court] and Jitendar Kumar Sharma v. State [decided on 11.10.2010 by Delhi High Court]. In Association for Social Justice and Research Case cited supra, a Division Bench of Delhi High Court observed that the issue relating to custody of a minor girl who has been married has been referred to a Full Bench for decision in Lajja Devi's case. We are informed that the said reference has not been so far decided by a larger Bench of the Delhi High Court. But, without noticing the same, a Division Bench of the Delhi High Court in Jitendar Kumar Sharma v. State and another reported in 2010 INDLA