The central legal point established in the judgment is the requirement of consent for detention, especially in cases involving minors, and the interpretation of marriage validity under the Hindu Marriage Act.

Sham Sunder, J.

1. This Criminal Writ Petition under Articles 226 and 227 of the Constitution of India for issuance of a writ in the nature of habeas corpus, for the release of detenu Sarabjeet Kaur wife of Balwinder Singh, petitioner, and Akashdeep Singh, his son, from the illegal custody of respondent No. 3, has been filed by him (petitioner).

2. According to the averments, contained in the petition, the petitioner and Sarabjit Kaur went to Chhattisgarh, where they performed their marriage in Arya Samaj, Kashi Nagar. Both of them were living happily. From their wedlock, one male child was born. It was stated that thereafter the parties approached the Collector/Marriage Officer, District Korba (Chhattisgarh) for registration of their marriage. The marriage of the petitioner and the detenu was registered. Copy of the marriage certificate is Annexure P-2. It was further stated that the mother of Sarabjit Kaur, detenu lodged FIR No. 40 dated 27.2.2006, in Police Station Valtoha, under Sections 363, 366 and 376 Indian Penal Code, in which the petitioner and his family members were arrested. It was further stated that Sarabjeet Kaur was detained in Nari Niketan, Jalandhar, as she did not want to go with her mother. It was further stated that the petitioner, after his release, went to meet his wife, who told him, that she did not want to stay, in Nari Niketan and wanted to go to her matrimonial home, with him. The petitioner requested the Superintendent of Nari Niketan, Jalandhar, to release Sarabjit Kaur, wife of the petitioner, but she refused to do so. It was further stated that detention of Sarabjit Kaur in Nari Niketan being illegal, and even her minor child could not be kept in the said Niketan, respondent No. 3, be directed to release them from such illegal custody, immediately.

3. At the time of issuance of notice of motion to the Advocate General, Punjab on 31.3.2008, the Counsel for the petitioner, was directed to produce, on record the certified copy of the order passed by the concerned Judicial Magistrate, vide which Sarabjeet Kaur was sent to Nari Niketan. The Counsel for the petitioner, thus, produced, on record, certified copy of the remand request dated 30.11.2007, vide which the police requested for the police remand of the accused, wherein a prayer was also made that Sarabjit Kaur be sent to Nari Niketan. Certificate copy of the order dated 30.11.2007, passed on the said application, by the concerned Judicial Magistrate, was also placed on record. The concerned Judicial Magistrate passed an order remanding the accused to police custody, but, no specific order, was passed for sending Sarabjit Kaur to Nari Niketan. It was, thereafter, that the District and Sessions Judge, Amritsar, was directed to send the entire record relating to FIR No. 40 dated 27.2.2006 under Sections 363, 366 and 376 read with Section 34 IPC, Police Station Valtoha, which was registered against the accused, and in which Sarabjit Kaur, was the prosecutrix. He was also directed to send his detailed report as to whether, any specific order was passed by the concerned Committing Court or by the trial Court for sending Sarabjeet Kaur to Nari Niketan, as the Counsel for the petitioner, emphatically stated that no order was passed by any Court for sending Sarabjit Kaur to Nari Niketan nor her statement was recorded, in that regard, and, as such, her detention in Nari Niketan was illegal, the trial Court was also directed to record the statement of the prosecutrix, as to whether, she wanted to remain in Nari Niketan or not.

4. In pursuance of such direction, the record of the trial Court, the statement of Sarabjeet Kaur dated 17.4.2008 recorded by it, and the report of the District and Sessions Judge, Amritsar were received.

5. I have heard the counsel for the parties, and have gone through the entire record carefully.

6. It was contended by the Counsel for the petitioner that since the detention of Sarabjeet Kaur in Nari Niketan was illegal,