KOKKULA SURESH Vs. STATE OF ANDHRA PRADESH
LAWS(APH)-2008-10-36
HIGH COURT OF ANDHRA PRADESH
Decided on October 20,2008

KOKKULA SURESH Appellant
VERSUS
STATE OF ANDHRA PRADESH Respondents

JUDGEMENT

- (1.) THIS writ petition is filed seeking a declaration that the order dated 4. 7. 2008 passed by the learned Judicial Magistrate of First Class, Jagtial, directing to send the petitioner's wife by name Gaddam Sandhya to State Home for Girls, Nimboliadda, Chaderghat, Hyderabad as arbitrary and illegal. The petitioner states that he married Gaddam Sandhya, the daughter of the 3rd respondent herein, on 19. 06. 2008 as they liked each other. However, since the marriage was against the wishes of the 3rd respondent, he lodged a complaint in P. S. Dharmapuri on 20. 06. 2008 alleging that his daughter Sandhya was kidnapped by the petitioner. On the basis of the said complaint FIR No. 130 of 2008 was registered, and the petitioner and his wife Gaddam Sandhya were called by the Police for enquiry. Though Gaddam Sandhya categorically stated before the Police that she married the petitioner on her own and wanted to lead a happy married life with him and refused to go with her parents, the police produced her before the learned Judicial First Class Magistrate, jagtial, on 4. 7. 2008. When her statement was recorded by the learned magistrate, again she expressed her unwillingness to go to her father's house and reiterated that she voluntarily left her father's house along with the writ petitioner and that they got married. Having recorded the said statement, the learned Magistrate passed the impugned order dated 4. 7. 2008 sending her to the State Home for Girls, Nimboliadda, on the ground that she is a minor. The said order dated 4. 7. 2008 is under challenge in this writ petition contending inter alia that though she is a minor, being the natural guardian, the petitioner/husband alone is entitled to her custody and therefore sending her to State Home is unwarranted. Despite notice, the 3rd respondent did not choose to appear before this Court either in person or through duly instructed counsel.
(2.) AS per Section 5 (iii) of the Hindu Marriage Act, 1955, one of the conditions to be fulfilled for a Hindu marriage is that the bridegroom has completed the age of 21 years and the bride has completed the age of 18 years at the time of the marriage. However, the marriage, if any, solemnized in contravention of the said condition is not a void marriage under Section 11 of the Hindu Marriage Act. It is not even a voidable marriage under Section 12 of the Hindu Marriage Act. However, every person who procures a marriage of himself or herself to be solemnized in contravention of the said condition shall be punishable under Section 18 of the Hindu Marriage Act with simple imprisonment which may extend to 15 days or with fine which may extend to Rs. 1,000/- or with both.
(3.) IN SMT. LILA GUPTA v. LAXMI NARIAN AND OTHERS1 having considered the object and intendment of the Hindu Marriage Act, the Supreme Court held that when the minimum age of bride and the bridegroom for a valid marriage is prescribed in Condition (iii) of Section 5, it would only mean personal incapacity for a period because every day the person grows and would acquire the necessary capacity on reaching the minimum age and that before attaining the minimum age if a marriage is contracted it is not rendered void under section 11 even though Section 18 makes it punishable. Thus, it is clear that the petitioner's marriage with the daughter of the 3rd respondent cannot be held to be a nullity merely on the ground that the girl is a minor by the date of the marriage. Coming to the provisions of the Hindu Minority and Guardianship Act, 1956, it is true that a person who has not completed the age of eighteen years is a minor and as per Section 6 (a) of the said Act, the father is a natural guardian of a Hindu minor unmarried girl. However, as per Section 6 (c) of the said Act, in the case of a Hindu minor married girl, the husband is the natural guardian in respect of the minor's person as well as in respect of the minor's property. On a combined reading of Section 5 (iii) read with Sections 11, 12 and 18 of the Hindu Marriage Act and Section 4 (a) and Section 6 (a) and (c) of Hindu minority and Guardianship Act, 1956, I find force in the submission of the learned counsel for the petitioner that the petitioner who is the husband of 3rd respondent's minor daughter is her natural guardian and consequently her custody shall be with the petitioner. A Division Bench of this Court in MAKEMALLA SAILOO v. SUPERINTENDENT OF POLICE, NALGONDA DISTRICT2 in identical circumstances held that the 3rd respondent therein was entitled to the custody of his wife, who was a minor girl of 13 years, since he was the natural guardian under the provisions of the Hindu Minority and Guardianship Act, 1956, and accordingly directed that the minor girl who was sent to State Home for Child-care Centre by the Magistrate shall be handed over to her husband, the 3rd respondent therein.;


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