The court emphasized the applicability of the Juvenile Justice Act in determining custody of a minor and the eligibility of a person as a 'fit person' under the Act.

Vivek Rusia, J.

Petitioner has filed the present petition seeking the relief in the nature of Habeas Corpus for production of respondent No.5 before this Court.

2. The contention of the petitioner is that petitioner and respondent No.5 belong to the Muslim community and they are governed by the Personal Law i.e. Muslim Law. Petitioner and respondent No.5 performed the marriage by way of joint agreement in the office of Anjuman Nikahul Muslemin, Bhopal. The Kazi of the Anjuman Nikahul Muslemin, Bhopal after verification, performed the marriage between them. At the time of marriage, petitioner was aged about 22 years and the respondent No.5 was aged about 19 years.

3. On 13.02.2016 Police registered a case against the petitioner for the offences punishable under sections 363 & 366-A of the IPC at the instance of respondent No.6 who is the brother of respondent No.5. Petitioner was arrested and sent to jail. Family members of the respondent No.5 filed an application before the Magistrate for custody of respondent No.5. Since she is a minor girl and refused to go with her family members, she was sent to Balika Grah, Police Line, Kotra, Bhopal vide order dated 24.02.2016 passed by the Judicial Magistrate, First Class, Sarangpur, district Rajgarh. Thereafter, petitioner moved an application under section 98 of the Cr.P.C seeking custody of the girl. Vide order dated 08.03.2016, the said application was rejected by the J.M.F.C, Sarangpur against which petitioner preferred a revision under section 397 of the Cr.P.C before the Sessions Court, Rajgarh. Vide order dated 05.05.2016 the said revision was also dismissed. Vide order dated 22.03.2016 Bal Kalyan Samiti, district Rajgarh has rejected the application of the petitioner seeking custody of respondent No.5 on the ground that she is minor. Being aggrieved by the order dated 22.03.2016, petitioner filed the present petition seeking a writ in the nature of habeas corpus to send the respondent No.5 in the company of the petitioner. In support of his contentions counsel for the petitioner has placed reliance over a judgment passed by the Patna High Court in the case of Md. Idris v. State of Bihar and others reported in 1980 Cr.L.J 764 in which the custody of Mahomedan girl aged about 15 years was given to the husband. He has also placed reliance over the judgment of this High Court in the case of Rashid Khan v. State of M.P and others decided on 13.02.2014 reported in 2014 (3) MPHT 268 in which also the writ petition in the nature of habeas corpus was allowed and the custody of wife aged about 15 years was given to the husband. In the light of the aforesaid judgments, Shri Godha, counsel for the petitioner submits that under the Muslim Law, a minor girl can perform marriage, therefore, the marriage between the petitioner and respondent No.5 is valid and he is entitled for the custody of respondent No.5.

4. After notice, respondents filed return submitting that respondent No.5 is a minor as her date of birth is 12.08.1999 and by order of the Judicial Magistrate First Class she was sent to Balika Grah. Under the provisions of Juvenile Justice (Care & Protection of Child) Act, 2015 a person who has not completed the age of 18 years is a child and he/she needs care and protection. Since respondent No.5 is minor she cannot be sent along with the petitioner who is not a “fit person” as per section 2(28) of the Act of 2015 because petitioner is facing trial under sections 363 & 366-A of the IPC.

5. Shri Rohit Mangal, learned GA for the respondent/State has placed reliance over the judgment passed by the Calcutta High Court in the case of Rahul Amin Sekh v. State of W.B reported in 2015 SCC Online Cal 1172 and a judgment of the Division Bench of the Bombay High Court in the case of Daud Hasan Mhalungkar and another v. State of Maharashtra reported in 1993 Mh.L.J 1437.

6. We have heard learned counsel for the parties.

7. After hearing learned counsel for the parties, we are of the view that the p