The predominance of special Act (Muslim Personal Law) over general Act (Prohibition of Child Marriage Act, 2006) in the context of marriage under Muslim Law.

JUDGMENT

Daya Chaudhary, J. - Criminal Misc. No. W-155 of 2018

This application has been moved for placing on record Annexure P-5.

2. Application is allowed and Annexure P-5 is taken on record.

Criminal Writ Petition No.532 of 2018

3. Petitioner-Mohd. Samim has filed the present petition under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus to produce detenue, namely, Tasliman, who is confined in Safe House (Protection Home) at Nuh, District Nuh (Mewat) Haryana against her will and to get her released from illegal custody and to hand over to him being her husband.

4. As per case of the petitioner, he and detenue-Tasliman performed 'Nikah' on 03.06.2018 with their free will and consent. Thereafter, FIR No.3l0 dated 26.05.2018 was registered under Sections 363, 366-A IPC at Police Station Nuh by respondent No.4. The marriage is valid as the detenue has attained the age of puberty and she is major as per Muslim Law. The parents of detenue were not happy with the marriage as they wanted to get her marry with other person of their choice but the detenue was not ready. The petitioner and detenue filed Criminal Misc. No. M-25415 of 2018 before this Court for protection of their lives and liberty at the hands of family members and relatives of detenue, which was disposed of with a direction to Superintendent of Police, Mewat to look into the matter and take action in accordance with law to ensure that no harm is caused to the life and liberty to the petitioners at the hands of private respondents. The petitioner and detenue were residing in Safe House (Protection Home) at Nuh. The detenue was produced before the JMIC, Nuh and her statement under Section 164 Cr.P.C., 1973 was recorded on 11.06.2018 wherein it was stated by her that she had performed marriage with petitioner and wanted to go with him. The petitioner was arrested on 12.06.2018 and subsequently, he was released on bail by the trial Court. The detenue was kept in Safe House and was not allowed to meet the petitioner, hence, the present petition was filed by the petitioner.

5. Learned counsel for the petitioner submits that the petitioner and detenue belong to Muslim community and they are governed by Muslim Law. It is a valid marriage under the Muslim Law and provisions of Prohibition of Child Marriage Act, 2006 (hereinafter referred to as 'the Act, 2006') are not applicable. Learned counsel further submits that the petitioner is entitled to take the custody of the detenue being his legally wedded wife. Learned counsel for the petitioner has also relied upon judgment rendered by this Court in Kammu vs. State of Haryana and others, 2010 (4) RCR (Civil) 716 wherein the girl was 15 years of age and marriage was held valid under the Muslim Law by holding that the Prohibition of Child Marriage Act, 2006 are not applicable.

6. Learned State counsel has not disputed the submissions made by learned counsel for the petitioner with regard to age, marriage and also filing of petition for protection but has disputed the submission made regarding applicability of provisions of the Act, 2006.

7. Similarly, learned counsel for respondent No.4-complainant has also opposed the submissions made by learned counsel for the petitioner and has also relied upon judgment rendered by Hon'ble the Apex Court in Independent Thought vs. Union of India and another, 2017(4) RCR (Criminal) 595 , judgment rendered by this Court in Amnider Kaur and another vs. State of Punjab and others, 2010(1) RCR (Criminal) 261 and judgment rendered by the Karnataka High Court in Mis. Seema Begaum vs. State of Karnataka by its Secy., Women and Child Development Dept., and others, 2014 (8) RCR (Civil) 2004 in support of his arguments.

8. However, learned State counsel as well as counsel for respondent No.4 have not disputed the ratio of judgment rendered by this Court in Kammu's case (supra).

9. Heard arguments of learned counsel for the parties and have also perused the docu