The paramount consideration in determining the custody of a minor is the welfare of the minor, and a minor capable of making conscious decisions about her welfare and voluntarily entering into a marital relationship should be considered.

JUDGMENT :

1. Heard Shri Ajay Kumar Srivastava, learned counsel for the petitioners, Shri Vaibhav Ojha, learned A.G.A. for the State-respondent, and perused the record.

2. As per petitioners' case, the petitioner no.1 is the legally wedded wife of petitioner no.2. Pursuant to the registration of impugned F.I.R. being Case Crime No.594 of 2022, under Sections 363 I.P.C., P.S. Gandhi Park, District Aligarh, by the father of petitioner no.2, she has been remanded to Rajkiya Bal Grih/Balika Kendra on the direction of Child Welfare Committee vide order dated 11.1.2023. Therefore, the petitioners have assailed the order dated 11.1.2023 through instant petition for custody of petitioner no.2. In essence, petitioners are husband and wife and husband has prayed for custody of her minor wife.

Brief Facts

3. The prosecution's case unfolds on 30.9.2022, when the mother of the prosecutrix scolded the 17-year-old victim. Following this, the victim left her residence at 03:45 p.m. Despite all possible efforts by the first informant to locate the victim in the vicinity, she remained elusive. The complainant alleged that her daughter had absconded with Manish Pratap Singh, prompting the registration of an F.I.R., Case Crime No.0594 of 2022, under Section 363 IPC, at P.S. Gandhi Park, District Aligarh, on October 1st, 2022.

4. Subsequently, the victim was recovered by police, and her statement was recorded under Section 164 Cr.P.C., disclosed that she is a 19-year-old adult who left her home of her own following a scolding from her mother. She asserted that her journey to Agra and subsequent marriage to petitioner no.2 on 1.10.2022, were free from coercion or inducement, and she has been living contentedly since. In her statement under section 164 Cr.P.C., she said to having completed the fifth class.

5. Upon investigation, the first informant provided the victim's Class-Xth mark-sheet, indicating her date of birth as 27.8.2006. The victim was sixteen years, four months, and fourteen days on the date of incident, which confirmed her status as a minor. Consequently, Section 363, 366, 376 IPC, and Section 3/4 of the POCSO Act were added to the charges against petitioner no.2.

6. Given the victim's minor status as per her academic records, she was presented before the Child Welfare Committee. The natural guardian refused to take the victim’s custody, therefore the victim was sent to Rajkiya Bal Grih/Balika, 7/202 Swaroop Nagar, Kanpur, on 11.1.2023.

7. The petitioner no.2 was arrested on 10.5.2023, and subsequently released on bail from this Court on 6.7.2023.

Petitioners’ Submissions

7.1 On 7.10.2022, petitioner no.2 and petitioner no.1 legally solemnized their marriage at Arya Samaj Mandir, Greater Noida, with petitioner no. 1's age is disclosed as 19. The marriage was duly registered at the Marriage Registration Officer-III, District Ghaziabad, vide Registration No.S.N.2239 dated 15.11.2022.

7.2 The petitioner no.1 is the legally wedded wife of petitioner no.2, and their marriage was solemnized willingly and consensually. They continue to live harmoniously as husband and wife, predating the arrest of petitioner no.2.

7.3 The statement of petitioner no.1 was recorded under Section 164 Cr.P.C., wherein she affirmed being 19 years old. She explained that due to a disagreement with her mother, she left her residence willingly and travelled to Agra. Subsequently, petitioner nos.1 & 2 solemnized their marriage. Presently, they were living as married couple. She further conveyed that she completed her education up to the 5th class and desired to accompany her husband (petitioner no. 2). Notably, the victim was a minor on the incident date, as per her academic record, therefore she was presented before the Child Welfare Committee, however, the parents declined custody, leading the Committee to send the victim in Rajkiya Bal Grih/Balika, 7/202 Swarup Nagar, Kanpur, as per the order dated 11.1.2023 passed by Child Welfare Committee.

7.4 The petitioner no.2 was arrest