# Shivani & Anr v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 1013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-15
- **Case number:** Criminal Misc. Writ Petition No. 14348 of 2023
- **Bench:** Vivek Kumar Birla, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivani-anr-v-state-of-u-p-anr-50822
- **Pages:** 5

## Headnote

A. Constitution of India,1950-Article 226Indian Penal Code, 1860-Sections 363,
366, 376 & Section 3⁄4 of POCSO Act-In the
Present
case,
Petitioner
prayed
for
custody of her minor wife-petitioners
solemnized their marriage at Arya SamajUpon lodging FIR, petitioner no. 2 (girl)
was kept in Rajkiya Bal grih since her
mother refused to take her custody-Since,
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage
solemnized
in
violation
of
section 5(iii) of the Hindu Marriage Act is
not declared void or voidable, therefore
such child marriages are considered valid,
and the husband is recognized as her
natural guardian under the Hindu Minority
and
Guardian
Ship
Act-Thus,
in
accordance with section 19 and 21 of the
Guardians and Wards Act, coupled with
sections 6, 10, 13 of the Hindu Minority
and Guardianship Act, 1956, he holds the
right to act as a natural guardian of the
minor Hindu girl married to him-As per her
statement u/s 164 CrPC she asserts that
she is 19 years old, and expresses her
desire to live with her husband however,
in his high school marksheet she actually
aged about 16 years 11 months- The
paramount consideration in deciding the
return of a minor to the custody of a
guardian or husband is the welfare of the
minor-Since mother declined the custody
of the minor wife, the court concludes that
she is no longer required to be retained
and is free to go with her husband in
these circumstances.(Para 1 to 17)

The petition is disposed of. (E-6)

List of cases cited:

## Text

1 All. Shivani & Anr. Vs. State of U.P. & Anr.
1013

26. This definition includes the words
'by force compels' and the words 'or by
any deceitful means induce any person to
go from any place'.

27. The word 'inducement' has been
defined in Black's Law Dictionary as "The
act or process of enticing or persuading
another person to take a certain course of
action". The word 'induce' has been
defined as "to make or persuade somebody
to do something". In Legal Glossary the
word 'induce' has been defined as "to
inspire, call forth or bring about by
influence
or
stimulation"
and
word
'inducement' has been defined as "that
which induces; something attractive by
which a person is led on or persuaded to
action".

28. The element of inducement
certainly affects the understanding of a
person and persuade another person to take
a certain course of action like in the present
case running away from the house, living in
with a person, who is not major and is even
not 18 years of age.

29. In the background of the facts as
narrated above where no one is coming
forward and not even the victim to get the
statement recorded under Section 161
Cr.P.C. or under Section 164 Cr.P.C., at
this stage, it cannot be said that there is no
use of force, or in any case, inducement.

30. Therefore, at this stage, there is no
ground to be influenced by the argument
that there is no such use of force or there is
no element of inducement at this stage
when the girl is coming forward from the
company of the accused persons.

31. In the present case, element of
inducement is there or not is yet to be
investigated particularly in the background
of the admitted facts of this case when no
body is coming forward for recording
statement. Thus, act of abduction has been
done
and
consequently
offence
is
committed under Section 366 IPC or not is
yet to be ascertained by the investigating
agency.

32. In such view of the matter, we do
not find any good ground to grant any
indulgence in the present case on the
ground that the petitioners are in live in
relationship. We find that it is not a fit case
for exercising extraordinary jurisdiction
under Article 226 of the Constitution of
India.
----------
(2024) 1 ILRA 1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14348 of 2023

Shivani & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Ajai Kumar Srivastava, Sri Mohammad
Salman

Counsel for the Respondents:
G.A.

A. Constitution of India,1950-Article 226Indian Penal Code, 1860-Sections 363,
366, 376 & Section 3⁄4 of POCSO Act-In the
Present
case,
Petitioner
prayed
for
custody of her minor wife-petitioners
solemnized their marriage at Arya SamajUpon lodging FIR, petitioner no. 2 (girl)
was kept in Rajkiya Bal grih since her
mother refused to take her custody-Since,
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage
solemnized
in
violation
of
section 5(iii) of the Hindu Marriage Act is
not declared void or voidable, therefore
such child marriages are considered valid,
and the husband is recognized as her
natural guardian under the Hindu Minority
and
Guardian
Ship
Act-Thus,
in
accordance with section 19 and 21 of the
Guardians and Wards Act, coupled with
sections 6, 10, 13 of the Hindu Minority
and Guardianship Act, 1956, he holds the
right to act as a natural guardian of the
minor Hindu girl married to him-As per her
statement u/s 164 CrPC she asserts that
she is 19 years old, and expresses her
desire to live with her husband however,
in his high school marksheet she actually
aged about 16 years 11 months- The
paramount consideration in deciding the
return of a minor to the custody of a
guardian or husband is the welfare of the
minor-Since mother declined the custody
of the minor wife, the court concludes that
she is no longer required to be retained
and is free to go with her husband in
these circumstances.(Para 1 to 17)

The petition is disposed of. (E-6)

List of cases cited:

1. Jitendra Kumar Sharma Vs St. & anr.. (2010)
SCC OnLine Del 2707

2. T. Shiva Kumar Vs. The Insp. of Police (2011)
5 CTC 689

(Delivered by Hon'ble Vivek Kumar Birla,
J.
&
Hon'ble Vinod Diwakar, J.)

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
1 All. Shivani & Anr. Vs. State of U.P. & Anr.
1015
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
arrested by the police on 10.5.2023 and
subsequently sent to jail. He was later
released on bail by this Hon'ble Court
through an order dated 6.7.2023 in
Criminal Misc. Application No.26019 of
2023.

7.5 As per Section 6 of the Hindu
Minority and Guardianship Act, 1956, the
husband is the natural guardian of a
married woman. Consequently, petitioner
no.2 is entitled to the custody of petitioner
no.1.

7.6
Section
17(5)
of
the
Guardians and Wards Act, 1890 stipulates
that the Court shall not appoint or declare
any person as a guardian against the will of
a minor married girl if the marriage adheres
to Clause (iii) of Section 5 of The Hindu
Marriage Act, rendering it neither void nor
voidable.

7.7 Considering Sections 19 and
21 of The Guardians and Wards Act in
conjunction with Sections 6, 10, and 13 of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hindu Minority and Guardianship Act,
1956, petitioner no.2 is the natural guardian
of petitioner no.1, given their marital union.

7.8 The action of the Child
Welfare Committee, sending petitioner
no.1 to Nari Niketan, is inconsistent with
Sections 19 and 21 of the Guardians and
Wards Act, read in conjunction with
Sections 6, 10, and 13 of the Hindu
Minority and Guardianship Act, 1956.
Consequently, the Committee's action is
deemed voidable under Article 21 of the
Constitution of India.

7.9 Learned counsel for the
petitioners has relied upon Jitendra Kumar
Sharma v. State and Another1, and T.
Shiva Kumar v. The Inspector of Police2,
wherein the minor wife was allowed to
reside with her husband considering the
welfare of minor wife.

8. On the contrary, the learned A.G.A.
contends that; i) the alleged victim's age at
the time of the incident was 16 years and
11 months, according to her academic
records, leading to the registration of the
First Information Report (F.I.R.) as Case
Crime No.0594 of 2022 under Section 363
of the Indian Penal Code at P.S. Gandhi
Park, District Aligarh; ii) in accordance
with Section 94 of the Juvenile Justice
(Care and Protection of Children) Act,
2015, the age determination can be
established through the victim's academic
records. Upon scrutiny of said records, it
was established that the victim was a
minor. Consequently, she was presented
before the Child Welfare Committee,
rendering the committee's decision to send
the girl to Rajkiya Bal Grih; and iii)
furthermore,
the
complainant
has
corroborated
the
prosecution's
case,
affirming that her underage daughter,
approximately 17 years old, was lured
away by petitioner no.2.

9. Learned A.G.A. further contends
that petitioner no.1 was minor at the time of
marriage, rendering the marriage null and
void from its inception. Consequently,
petitioner no.2 faces charges under Section
363, 366, 376, 468 I.P.C. read with Section
3/4 POCSO Act.

Conclusion

10. Citing T. Shivakumar (supra),
the full Bench of the Madras High Court
emphasizes that a marriage solemnized in
violation of sub-section (iii) of Section 5 of
the Hindu Marriage Act is not declared
void or voidable. While Section 11 deals
with void marriages, Section 12 provides
grounds for annulment. Both the Hindu
Marriage Act and the Child Marriage
Restraint Act do not explicitly declare the
marriage of a minor as void or voidable.
Therefore,
such
child
marriages
are
considered valid, and the husband of a
minor wife is recognized as her natural
guardian under the Hindu Minorities and
Guardianship Act.

11. The Bench expressed the view that,
despite the marriage being voidable under the
Hindu Marriage Act, 1955, due to the girl's
age at the time, the circumstances warranted
consideration. The couple, having deliberately
chosen life partners against parental wishes
and
maintaining
their
relationship
by
cohabitation, prompted the Court to invoke
Section 25 of the Guardians and Wards Act,
1890. The Bench emphasized that, in light of
the paramount importance of the ward's
welfare, this aspect could not be disregarded.
Consequently, the Bench concluded, "The
petitioner, as the husband, is in a relationship
with respondent. In accordance with Sections
1 All. Amit Kumar Vs. State of U.P. & Ors.
1017
19 and 21 of the Guardians and Wards Act,
coupled with Sections 6, 10, and 13 of the
Hindu Minority and Guardianship Act, 1956,
he holds the right to act as the natural guardian
of the minor Hindu girl married to him, as
statutorily designated the girl's husband.
Hence, it is unfounded to allege any element
of abduction or enticement in this context."

12. On the basis of the arguments
advanced by counsel for the parties, two
issues have emerged before this Court: i)
about the validity of the marriage solemnised
between petitioner no.1 and petitioner no.2,
ii) who is entitled to the custody of Shivani-
the minor wife, it is her mother, or it is her
husband or someone else.

13. So far as the validity of marriage of
the petitioners are concerned, it shall be
decided in accordance with Hindu Marriage
Act, 1955 in conjoint reading with the
relevant provisions of the Child Marriage
Restriant Act, 1929, which is not the case
before us, therefore, we are not passing any
order on this issue. Needless to say that the
petitioners have also annexed Marriage
Certificate as Annexure-6 to the writ petition,
issued by the Marriage Registration Officer,
Ghaziabad, and at this stage, we have no
reason to doubt the genuineity of the
marriage certificate in the instant case. The
instant petition has been filed for release of
minor-wife's custody by the husband. We are
leaving it open for the parties to raise the
issue of validity of marriage in appropriate
proceedings before the competent court, if
any, would arise in future.

14. Concerning the custody of the
minor-wife, her statement under Section
164 Cr.P.C. asserts that she is 19 years old,
married to petitioner no.2 through Hindu
rites and customs, and has been living as
husband and wife since the date of
marriage, and subsequently registered at
the
Marriage
Registration
Office-III,
Ghaziabad, U.P. She further expresses her
desire to live with her husband and requests
to be handed over to him.

 15. The court opines that a minor
possesses
the
capacity
to
form
an
intelligent preference about the choice of
living
arrangements.
The
paramount
consideration in deciding the return of a
minor to the custody of a guardian or
husband is the welfare of the minor.

16. The co-ordinate Bench of this Court
consistently holds the view that a minor
capable of making conscious decisions about
her welfare and future life and voluntarily
entering into a marital relationship should be
considered. It is noteworthy that the mother of
petitioner no.1 has declined the custody of the
minor wife. Consequently, the court concludes
that petitioner no.1 is no longer required to be
retained and is free to go with her husband.
She is at liberty to live with the man of her
choice.

17. Accordingly, the petition stands
disposed of in above stated terms.
----------
(2024) 1 ILRA 1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Misc. Writ Petition No. 14702 of 2023
AND
Criminal Misc. Writ Petition No. 14706 of 2023

Amit Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents