The welfare of the child is the paramount consideration in determining custody, and the court is not bound by strict rules of evidence or precedents.

In this habeas corpus petition filed by the father of Sangeeta (herein after called “corpus”), it was stated that she was taken away by respondent No. 6. Pursuant to the direction of this Court, the corpus was produced before this Court. The corpus engaged Shri Pradeep Katare as her counsel. It was stated by Shri Katare that corpus solemnised marriage with respondent No. 6 and she does not want to go with her parents. During the preliminary hearing of this matter and awaiting the ossification test report, she was sent to Nari Niketan.

2. Learned counsel for the petitioner relied on the Primary Board Marksheet of 2007 (Annexure P-2), which shows that the date of birth of corpus is 15.03.1995. As per the ossification report also, corpus was found to be minor.

3. Shri Katare heavily relied on Section 6(c) of the Hindu Minority and Guardianship Act, 1956 (herein after called “1956 Act”) to submit that as per this provision even the minor married girl is required to be handed over to her husband. He also relied on Section 19(a) and Section 17 of the Guardians and Wards Act, 1890 (herein after called 2 “1890 Act). On the strength of these provisions, it is stated that the natural guardian of a Hindu minor girl after marriage is her husband. By placing reliance on 1956 Act, it is stated that the Court is required to see the wish of the girl also. However, Shri Katare has not disputed that the corpus is a minor girl.

4. Per Contra, Shri M.S. Rawat, learned counsel for the petitioner relied on Section 12 of the Child Marriage Restraint Act, 1929 and Section 6 of 1956 Act to submit that such marriage cannot be recognized. Shri Rawat and Shri Vijay Sundaram, learned Panel Lawyer vehemently argued that there is no material to show that even a marriage had taken place. Shri Sundaram submits that respondent No. 6 was arrested and is in custody in Crime No. 75/12 and offences under Section 363 and 366 of IPC are registered against him for forcefully and without authority of law taking away the corpus. He submits that the corpus was wrongfully detained by respondent No. 6.

5. I have also heard Shri H.D. Gupta, learned senior counsel as amicus curiae.

6. In the light of aforesaid submissions, the question is whether this Court while exercising its writ jurisdiction under Article 226 of the Constitution is bound by the aforesaid sections of 1956 Act and 1890 Act ? Another question is what is the main consideration for deciding the custody of a minor in a habeas corpus writ petition ? Whether writ Court is mechanically bound by the provisions of 1956 or 1890 Act ?

7. Before dealing further, it is profitable to quote the aforesaid provisions relied upon by Shri Katare, which reads as under:-

Sec. 6(c) of 1956 Act:

“6. Natural guardians of a Hindu minor.-- The natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-

(c) in the case of a married girl – the husband: provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-

(a) if he has ceased to be a Hindu, or

(b) if he has completely and finally renounced the world by becoming a hermit (varaprastha) or an ascetic (yati or sanyasi)..”

Sec. 17 and 19(a) of 1890 Act:

17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provision of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with