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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 03.09.2014
CORAM :
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
HABEAS CORPUS PETITION(MD)No.1039 of 2014
R.Thiagarajan

... Petitioner
Vs.

1)

The Superintendent of Police,

Trichy District, Trichy.

2)

The Inspector of Police,

Jeeyapuram Police Station,
Jeeyapuram,
Trichy District.

3)

Manohar

... Respondents

Prayer : Petition filed under Article 226 of the Constitution

of India, directing the respondents 1 and 2 to produce the
person

or

body

of

the

detenue

namely,

Iswarya,

D/o.R.Thiagarajan aged around 18 years old and set her at

liberty.
For Petitioner

: Mr.L.Madhusudhanan

For R1 and R2

: Mr.C.Mayilvahana Rajendran
Additional Public Prosecutor

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ORDER
(Order of the Court was made by S.MANIKUMAR, J.)
For the alleged detention of the petitioner's daughter
Iswarya, who has crossed the age of 18 years, by respondent No.
3, writ of Habeas Corpus has been filed.

2.

According to the petitioner, the alleged detenue is

now undergoing Bachelor of Engineering in Anna University,

Trichirappalli. Whileso, on 30.08.2014, she was missing. The
petitioner came to know that the detenue was in custody of
respondent No.3. Immediately, he rushed to the Inspector of
Police, Jeeyapuram Police Station. He was called for an enquiry
by the police. According to the petitioner, at the time of enquiry,
the third respondent, came with a group of people and affirmed
custody of the petitioner's daughter. She was simply directed to
react, as per their directions. Though the alleged detenue has
just crossed the statutory period of 18 years, due to threat, she
was not in a position to decide. Inspector of Police, Jeeyapuram
Police Station, respondent No.2, informed the petitioner, since
the alleged detenue had attained majority, she can decide her
course of action.

3.

Learned counsel for the petitioner contended that it is

the duty of the father to safeguard the custody of the alleged

detenue and that the second respondent has a duty to enquire
into

the

complaint,

in

fair

and

reasonable

manner,

ascertaining as to where there was any undue influence or

threat on the alleged detenue.

4.

Learned counsel appearing for the petitioner further

submitted that the Inspector of Police, Jeeyapuram Police

Station, respondent No.2, ought not to have allowed the detenue
to go along with the third respondent viz., Manohar. Learned
Counsel for the petitioner submitted that at the threshold of
crossing the age of 18, children would not be in a position to
decide their future course of action, particularly to lead life. He
also submitted that on attainment of majority, children take
extreme steps of deciding their own future, including marriage.
He submitted that though the third respondent has stated that
he was married to the alleged detenue, it is not true. Learned
counsel for the petitioner prayed that there must be some
directions to the police, to properly investigate the allegations of
detention and if necessary, directions should be issued to the

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subordinate judiciary, whenever crime is reported.

5.

On

instructions,

Mr.C.Mayilvahana

Rajendran,

learned Additional Public Prosecutor submitted that earlier,

brother of the alleged detenue Mr.Varadarajan has lodged a
complaint with the Inspector of Police, Jeeyapuram Police
Station, respondent No.2, stating that the detenue was missing.
Brother had also alleged that the respondent No.3 was detaining
the detenue.

He further submitted that on receipt of the

complaint, an enquiry was conducted. During the enquiry, the

alleged detenue, complainant Varadarajan, (Brother of the
alleged detenue) the petitioner, Thiagarajan and respondent No.3
were present. The alleged detenue as well as the respondent No.
3 gave their respective statements stating that they were
married. Father of the alleged detenue is the petitioner, has also
given a statement that he was enquired, and that the alleged
detenue refused to go along with him. In the said statement, one
Sri Padmavathi has signed as a witness. In the statement of
respondent No.3, witnesses have affixed their signatures.
Iswarya, alleged detenue has also given her statement. Mobile
numbers of the witnesses were also written at the end of the
statements.

6.

As per the photocopy of the transfer certificate issued

by S.V.Hindu Girls Higher Secondary School, Trichirappalli, the

Date of Birth of the alleged detenue is 05.12.1995. From the
entries in the said certificate and the statements, photocopies of
which, produced before this Court, it could be deduced that the
alleged detenue is a major.

7.

Though

Mr.L.Madhusudhanan,

learned

counsel

appearing for the petitioner expressed his deep concern over the
decision making power and capacity of the persons, who had
just completed the age of 18 years, to chose their life partners,
and lead a life, of their own choice, which is against the custom,
tradition and culture and further submitted that some of the
marriages also end in failure, this Court is conscious of the
submission made on behalf of the parent, but we cannot issue
any prohibitory orders, as regards the exercise of rights of such
persons, for the reason, that as per the laws of the land,
completion of 18 years of age has been fixed as the age, to take
care of their person and property. Section 3 of the Majority Act,
1875 deals with the age of majority of persons domiciled in India,
which reads as follows:-

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"(1) Every person domiciled in India shall attain
the age of majority on his completing the age of
eighteen years and not before.
(2) In computing the age of any person, the day
on which he was born is to be included as a whole
day and he shall be deemed to have attained majority
at the beginning of the eighteenth anniversary of that
day."

8.

We do agree with the deep sentiments expressed by

the learned counsel appearing for the parent, regarding the

rights of the parents to decide the future course of action, as
regards education and marriage of their children.

But as

observed earlier, laws of the land have prescribed completion of

18 years, as attainment of majority and it would be the age, for
taking any decision over the person and property. In many
Habeas Corpus Petitions, we do find that on attainment of
majority, adolescents choose their own life partners, without
considering the wishes, desire and future expectations of the
parents.

We fully agree with the contentions of the learned

counsel appearing for the petitioner that custom, tradition and

the welfare of the adolescents have to be taken care of and
parents who have nurtured the children, with love and affection

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and provided education, would be the best persons, to act, for
the welfare of their children.

However, we have our own

limitations in issuing any orders, in view of the laws of the land.

Even during hearing of some of the Habeas Corpus Petitions,
parents have posed us a question about their rights over the
children. Parents bring up their children with love and affection,
educate them with a fond hope, and after verifying many
particulars, as to who would be his/her best partner in life,
settle them in marriage and at times, believe that children would
help them, in their old age. Some of them even borrow money
to provide education. It is the grievance of the parents that at
the adolescent age, when their children are not mentally and
psychologically matured to decide their course of

action,

particularly marriage because of infatuation, lack of proper

understanding with parents, they think there is somebody to
take care, develop relationships, and many a times, get
themselves

entangled.

Parents

are

engaged

in

their

employment. Little time is spent with the children. Technology,

social media, particularly, mobile phones, though enabled many,
to reach out and communicate, but at the same time, it cannot
be said that, there are no adverse effects.

Voice and visual

communications through social media, end up in relationship.

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Parents cannot monitor all the time.

9.

Marriage is sacred. It is not a contract as per Hindu

Law. Consent cannot be thrust on those who have completed 18

years in the case of female, and male, above 21 years. But a
marriage between a male above 21 years and a girl, below 18
years is an offence under the provisions of the Prohibition of
Child Marriage Restraint Act, 1929.

After considering the

provisions in various enactments, a Hon'ble Full Bench of this

Court in T.Sivakumar vs. Inspector of Police, reported in 2011
(4) MLJ (Crl) 315, held that the male who has committed an
offence under the provisions of the Child Marriage Restraint Act,
1929, is not entitled to enjoy the fruits of such offence and seek
for custody of a minor.

Judicial notice can be taken that in

Habeas Corpus Petitions, these adolescents report that their

marriage was solemnized in a temple, on their own. It may even
be the wish of the parents to solemnize a marriage in a temple.
But no parent would like his child walk away from the family
and getting married on her/his own, in their absence.

10.

By taking advantage of technology and utilities like

mobile, computers, social media, it is very easy for young

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persons to get in contact with others, even from far off distances,
and it is not uncommon that adolescent boys or girls are found
missing or reported to have developed some sort of relationship,
mostly, described as a love affair.

11.

Education of girl children in rural areas and their

development, as compared to urban areas, are less, due to many

factors, mostly socio-economic condition.

Parents of a female

child may feel that it is difficult for them to give protection to an

adolescent girl, at home, when they are away due to their
avocation, employment, at far away places. The chances of an
adolescent girl, getting in contact and developing relationship, is
more, despite parenting.

Decision of an adolescent girl on

marriage, if opposed, then she has to lead a life, without the

support of her kith and kin.
estrangement of relationships,

Sense of insecurity due to

financial

constraint,

stress,

depression affects the life of such adolescent girl, if there is no

support, from either of the families.

12.

For a male, age for marriage is fixed as 21 years. For

a girl, it is 18 years. Till 17 years, children, both boys and girls,

grow in school atmosphere, although they may have elders at

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home and surroundings.

At the age of 18 years, a girl would be

in the 2nd year of graduation. Unemployment is alarming in this

Country and even qualified persons do not get suitable
employment.

When

Hindu

Law

prescribes

21

years

as

marriageable age for the male, whether it could be said that the
girl would acquire social, psychological maturity, on attaining the
age of 18 years. Capacity to drive a motor vehicle, decision to
vote, eligibility to travel by obtaining travel documents, minimum
age to secure employment, which are illustrative, whether all
that could be equated to mental maturity for marriage of a girl,
when comparatively a higher age is prescribed for a male? Not
to state about the problems, which a young girl faces after
marriage, if not supported.

In Lata Singh vs. State of U.P.,

reported in 2006 (5) SCC 475, the Hon'ble Supreme Court held
that once a person becomes a major, (i.e) attained 18 years of
age, he/she can marry, whosoever he/she likes. We are aware
that the decision of the Apex Court is binding on us. Yet we are
of the humble opinion that realities have to be addressed.

13.

In these type of cases, education a determinative

factor, for development, is disrupted. Legislations and religions

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are involved. But having regard to a serious question posed by
one of the parents, as to their right over their children on
marriage, and when we look at the provisions of the Indian
Majority Act, 1875, Guardians and Wards Act, 1890, Child
Marriage Restraint Act, 1929, we are of the humble opinion, the
issue has to be addressed.

14.

Whether the age of the girl has to be increased to 21,

equal to the age of the male or to fix a lesser age for the girl,
above 18 years, and declare the marriage between the male
above 21 years and a girl less than 18 years, the marriage of the
boy below 21 years with that of the girl, above 18 years, as void,
non-est in law, instead of making it voidable, at the instance of
the person, who has attained the marriageable age, in particular,
a minor girl, on attainment of majority, has to be addressed,
having regard to the mental and psychological maturity.

15.

Under Section 320 of the Criminal Procedure Code

offences can be compounded, for the purpose of deciding the

sentence and not for the guilt.

Prohibition of Child Marriage

Restraint Act, a special law, should have a supremacy over the

personal law. A parent or a guardian can initiate prosecution for

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an offence against a minor, under Section 198 of the Criminal
Procedure Code, including an offence relating to marriage, if the
minor girl or boy below the marriageable age, does not question
the marriage on attainment of majority, or the age fixed, as the
case may be, whether the offence committed can be said to be
ratified? Certainly, law would take its own course.

16.

On the facts and circumstances of this case, and in

the light of the statements made by the petitioner and the

alleged detenue, we are not inclined to hold that there was any
illegal detention. But taking note of the averments made in the
supporting affidavit that during the time of enquiry, the third
respondent came with a group of people, and that the petitioner
could not make any objections and thus constrained to give a
statement to the police, we direct that hereinafter, if any case
relating to abduction or kidnapping is reported, particularly,
relating to cases of this nature, the police shall conduct an
enquiry in the presence of the complainant, the alleged detenue
and others, and it is desirable to produce them before the Court
of criminal jurisdiction, where the alleged offence is reported
along with the statements recorded during enquiry, and place
the same before the concerned Magistrate, and obtain necessary

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orders.
With the above directions, the Habeas Corpus Petition is
closed.

(S.M.K.J) (V.S.R.J)
03.09.2014
NB2
Index : Yes
Internet : Yes

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S.MANIKUMAR, J.
AND
V.S.RAVI, J.
NB2
To
1)

The Superintendent of Police,

Trichy District, Trichy.

2)

The Inspector of Police,

Jeeyapuram Police Station,
Jeeyapuram,

HCP(MD)No.1039 of 2014

03.09.2014