Nirmaljit Kaur, J.

1. Respondent No. 5 i.e. Jekam along with Sarjeena had filed Criminal Misc. No. 9799 of 2009, stating that both the petitioners were major and that they have got married against the wishes of their parents. Thus, they apprehend danger to their life and liberty. It was further stated that the age of Sarjeena was 18 years. In order to support the fact that her age was above 18 years, a photocopy of the ration card was placed on record as P-1. An affidavit, in support of her age, was also filed.

2. In view of the averments, a direction was issued to "Superintendent of Police, Mewat to look into the matter and provide necessary security, if need be."

3. Therefore, the present petition under Article 226 of the Constitution of India is filed by the uncle of Sarjeena, praying for issuance of a writ of Habeas Corpus to recover the detenue, namely, Sarjeena alleged to be minor of the age of 14 years and 5 months at the time of marriage but more than 15 years at the time of filing of writ petition, from the custody of respondent No. 5-Jekam son of Md. Mummal, resident of VPO Mahun, Tehsil Ferozepur Jhirka, District Mewat, alleging himself to be the husband of Sarjeena.

4. The contest appears to be between her uncle and her husband. Surprisingly, the father has not filed the petition. Subsequently an application has been moved by the father to be impleaded as a party. Thus, the assumption is that the said custody case has been filed by the uncle on behalf of the father viz a viz the custody of the girl to the respondent No. 5 who is stated by the girl to be her husband. In order to show that the Date of Birth of Sarjeena was 02.01.1995, reliance was placed on the Birth Certificate as maintained by the Child Development Project Officer, Punhana (Mewat) P-1, as well as, School Leaving Certificate P-2.

5. In view of the contradictory stand of the parties with respect to the age of Sarjeena, daughter of Mohd. Bhopat son of Roojdar, the matter was sent to the District Judge, Gurgaon to enquire into the same and submit his report with respect to her correct age. The report dated 28.07.2009 was submitted by the District and Sessions Judge, Gurgaon. On objection filed by the respondents, the said report was set aside. The District Judge, Gurgaon was directed to submit a fresh report after taking into consideration certain documents. Accordingly, the second report dated 03.11.2009 was submitted by the District Judge, Gurgaon, holding as under :-

"As a result of the discussion above, it is held that the applicant Kammu has been able to produce ample evidence to show that the date of birth of Sarjina was 02.01.1995 and, thus, she was a minor aged about 15 years and five months at the time of filing of the Criminal Writ Petition under Article 226 of the Constitution of India in the Honble High Court."

6. Learned counsel for the respondent, however, disputed the same and stated that the age of Sarjeena was 15 years even on the date of issuance of Ration Card A-2 dated 16.02.2006. Reference was also brought to para 15 of the report, which is as under :-

"15. Of course in the ossification test report Ex. D1, the age of Sarjina is opined to be in between 17 to 18 but in the light of above discussed cogent and convincing documentary evidence in the shape of ration card Ex. P1, entry Ex. P2 in Admission & Withdrawal Register, School Leaving Certificate Ex. P3, Certificate Ex. P4 issued on the basis of entry Ex. P5 of Births and Deaths Register, it stands conclusively proved that Sarjina had born on 02.01.1995 and thus was a minor being aged about 15 years and 5 months on the date of the filing of the petition before the Honble High Court. Moreover, it is well settled law that there has always been margin of two years on both sides of the age so opined in ossification test."

7. Thereby, challenging the finding with respect to the age of the girl and stressed that the girl was between 17 to 18 years at the time of her marriage. However, the fact remains that the District Judge, Gurgaon, vide his report dated 03.11.2009, after taking into record the entire evidence, finally came to the conclusion that the girl was aged about 15 years and five months at the time of filing of the Criminal Writ Petition. Moreover, reliance has been placed on the Birth Certificate of the girl and the Birth Certificate has a strong evidentiary value as the document was prepared by the public servants in discharge of their public duty. Sarjeena was slightly less than 15 years of age at the time of marriage but was more than 15 years of age at the time of filing of the Criminal Writ Petition and as on date, she is almost 16 years of age.

8. Learned counsel for the petitioner-Mr. R.S. Sihota, Sr. Advocate, in the facts of the present case referred to certain relevant provisions of the and raised the argument that the marriage was void on two accounts. Firstly, the marriage was in the absence of Wali i.e. the father. As per the Muslim Law, during the lifetime of the father, no other relative is competent to function as the Wali. In the present case, the father is alive, thus, anyone else, in the absence of the father, cannot give away the girl in marriage. Accordingly, the marriage was void. Secondly, on account of Section 12 (a) of the Prohibition of Child Marriage Act, 2006.

9. Section 1(2) of the Prohibition of Child Marriage Act, 2006 was referred to show that the was applicable to all Citizens of India :-

"1. Short title, extent and commencement.-

(2) It extends to the whole of India except the State of Jammu and Kashmir; and it applies also to all citizens of India without and beyond India:

Provided that nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry."

10. The definition of the "child" as per Section 2(a) of the said Act reads as under :-

"2. Definitions.-(a) "child" means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age;"

11. Attention was drawn to Section 12(a) of the Prohibition of Child Marriage Act, 2006 (hereinafter referred to as ` the) to state that the marriage of the minor child is void in the present circumstances. Section 12 of the Act, reads as under :-

"12. Marriage of a minor child to be void in certain circumstances.- Where a child, being a minor -

(a) is taken or enticed out of the keeping of the lawful guardian"

12. Learned counsel, further submitted that the Child Marriage Restraint Act, 1929 was enacted with a view to restrain solemnization of child marriages. Subsequently, it was amended. However, the said act although restrains solemnization of child marriages yet it did not declare it to be void or invalid. Accordingly, The Prohibition of Child Marriage Act, 2006 came into being in the year 2006. While relying on Section 12 of the Act, this Court in the case of Amninder Kaur and another v. State of Punjab and others (CRM-M No. 29790 of 2009 decided on 27.11.2009) held that the provisions of Section 12 of thewould apply with full rigour. Thus, in the present case, the marriage which has been solemnized by respondent No. 5 with Sarjeena, who is a child and a minor, is unsustainable in the eyes of law and is thus, liable to be declared as void and in view of the provisions of The Prohibition of Child Marriage Act, 2006, the marriage of respondent No. 5 to the minor girl is void because he has enticed away the girl from the lawful keeping of the father and has in fact committed an offence under Sections 363/366-A IPC and other provisions of the act.

13. Learned counsel for the respondents, on the other hand, disputed the stand and referred to Full Bench of Madras High Court in the case titled as S. Varadarajan v. State of Madras 1963 Mad WN 636, wherein a different view was expressed as under :-

"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her fathers protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."

14. In any case, the matter herein has to be seen in reference to the application of the same to Muslims. Learned counsel for the respondent while meeting the arguments of the learned counsel, in the facts of the present case, submitted that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (26 of 1937) provides the Application of Personal Law to Muslim in case of marriage and guardianship. Section 2 of the aforesaid Act is reproduced here as under :-

"2. Application of Personal Law to Muslim - Notwithstanding any customs usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract of gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian, khula and mubaraa, maintenance, dower, guardianship gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

15. It is apparent from the above that the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat) that would be applicable for the purpose of marriage and dissolution of marriage etc. The Majority Act, 1875 further makes it clear that the said Act will not be applicable in the case of marriage etc. No doubt that as per the Prohibition of Child Marriage Act, 2006, marriage of minor is void in certain circumstances and specially as per Section 12(a) of theif the "child is taken or enticed out of the keeping of the lawful guardian" and the same is applicable to all Citizens of India. It nevertheless did not repeal the Muslim Law. Section 21 of the Prohibition of Child Marriage Act, 2006 reads as under :-

"21. Repeal and savings.- (1) The Child Marriage Restraint Act, 1929 (19 of 1929) is hereby repealed.

(2) Notwithstanding such repeal, all cases and other proceedings pending or continued under the said Act at the commencement of this Act shall be continued and disposed of in accordance with the provisions of the repealed Act, as if this Act had not been passed."

16. As per Section 21 of the Act, the only Act that was repealed was the Child Marriage Restraint Act, 1929 and has no bearing on the Muslim Personal Law (Shariat) Application Act, 1937. The Muslim Personal Law (Shariat) Application Act, 1937 is a special Act, whereas, the Prohibition of Child Marriage Act, 2006, is a general Act. The general provisions would yield to specific provisions. This is a well settled proposition of law. The special Act would have predominance over the general Act. Honble the Supreme Court in the case of U.P. State Electricity Board and another v. Hari Shankar Jain and others 1978 (4) Supreme Court Cases 16 [LQ/SC/1978/217] held as under :-

"(d) The rule "generalis specialibus non derogant," which means that the general provision should yield to a specific provision, is based upon the reason that in passing a special Act, Parliament devotes its entire consideration to a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former special Act unless it appears that the special Act again received consideration from Parliament. Since the Industrial Employment (Standing Orders) Act is a special Act, dealing with a specific subject, viz. The conditions of service enumerated in the Schedule, of workmen in an industrial establishment, it is impossible to conceive that Parliament sought to abrogate the provisions of that Act, embodying as they do hard-won and the precious rights of the workmen and prescribing as they do an elaborate procedure including a quasijudicial determination, by a general, incidental provision like Section 79(c) of the Electricity Supply Act. It is obvious that Parliament did not have before it the Standing Orders Act when it passed the Electricity Supply Act and Parliament never meant that the Standing Orders Act should stand pro tanto repealed by Section 79(c) of the Electricity Supply Act. The provisions of the Standing Orders Act must, therefore, prevail over Section 79(c) of the Electricity Supply Act in regard to matters to which the Standing Orders Act applies."

In the present case, the question is of the custody of Mohamadden girl of 15 years. The precise question came up before the Patna High Court in the case of Md. Idris v. State of Bihar and others 1980 Crl. Law Journal 764, wherein, it is held as under :-

"In such a situation, even for the purpose of considering the question as to whether the petitioner should be the guardian of respondent No. 5, I am left with no option but to proceed on the assumption that there has been a marriage between respondent Nos. 5 and 4. It is well settled that the Indian Majority Act which fixes the age of 18 years, at which a minor becomes a major, exempt, marriage and divorce. The result will be that respondent No. 5 on the relevant date may be minor under the Indian Majority Act, or within the meaning of Section 361of the Indian Penal Code, but certainly she could have married without the consent of her natural guardian. The necessary corollary to this will be that whatevermay be the fate of the criminal case, which has been lodged by the petitioner for prosecuting respondent No. 4 for kidnapping, after the marriage, respondent No. 4 will be deemed to be the husband, and, as such, entitled to live with respondent No. 5. In such a situation, in my opinion, learned Sessions Judge has not committed any error in directing the release of respondent No. 5 saying that she was at liberty to live with respondent No. 4 whom she claims to have married."

17. In the present case, however, it is stated that the said marriage was without the consent of father. According to Mohammedan law, if the girl is less than 15 years, the consent of the father is necessary and in the absence of the same, the marriage was void.

18. The factum of marriage has not been denied. The only assertion is that the said marriage is without the consent of her guardian i.e. her Wali. This proposition was gone into by the Patna High Court in the case of Md. Idris (supra). The Delhi High Court in the case of Rukshana v. Govt. of NCT of Delhi 2007(3) R.C.R. (Criminal) 542, by relying on the judgment of Md. Idris (supra) while reflecting on the Mohammedan Law in somewhere similar situation, as the present one, held that the Sessions Judge was right in directing that she was at liberty to live with her husband. The same reads as under :-

"7. Learned counsel for the petitioner submitted that as per Mohammedan Law, a girl who had attained the age of puberty could marry without consent of her parents and had right to reside with her husband even when she was less than 18 years of age and thus otherwise a minor girl. In support of this, he referred to the judgment of Patna High Court in the case of Md.Idris v. State of Bihar and others 1980 Crl. L.J. 764. That was a case where girl in question was 15 years of age and had married respondent No. 4 without the consent of her parents. Complaint was filed that respondent No. 4 had enticed away the girl in question (respondent No. 5) and minor daughter of the petitioner in that case with a view to marry her forcibly. On this complaint, respondent No. 5/girl was produced before a Magistrate before whom she stated that she had gone with respondent No. 4 with her own accord and without enticement and married him with her own volition. The medical evidence showed that she was above 15 years but below 18 years, the Magistrate ordered the custody of respondent No. 5 to the petitioner as she minor. However, in the revision, the Sessions Judge ordered the custody of the girl to her husband/respondent No. 4 whom she claimed to have married. Challenging this order, father filed writ petition before the Patna High Court. The High Court dismissing the writ petition held that though respondent No. 5 on relevant date may he minor under the Indian Majority Act or within the meaning of Section 361 IPC, still under Mohammedan Law she could have married without consent of her natural guardian as she had attained the age of puberty. In such a situation, Sessions Judge was right in directing that she was at liberty to live with her husband. The following observations from this judgment would be worth quoting:

"Whether respondent No. 5, who was below 18 years of age, could have married without the consent of her parents is another question which was seriously contended before us. But, as I shall immediately indicate, under the Mohammedan Law a girl, who has attained the age of puberty, can marry without the consent of her parents. In this connection reference can be made to Article 251 or Mullas Principles of Mohammedan Law which says that every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. The explanation to the said Article says that puberty is presumed, in absence of evidence on completion of the age of 15 years. Even in Tyabjis Muslim Law under Article 27 it is mentioned that a girl reaching the age of puberty can marry without the consent of her guardian. Article 268 of Mullas Principles of Mohammedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man or the woman as his wife. Article 90 of Tyabjis Muslim Law also says that a marriage is to be presumed on the acknowledgment of either party to the marriage. As such, it has to be held that under Mohammedan Law a girl, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian."

19. In the present case, Sarjeena is admittedly more than 15 years at the time of filing of the petition and is 16 years of age as on today. The mother of the girl was allowed to meet her in the Chamber. However, the girl refused to even talk to her mother. The girl was asked whether she would like to go with her parents but she strongly projected her denial and refused to go with them. Admittedly, respondent No. 5 and Sarjeena are living together after marrying each other. The said marriage is stated to have solemnized on 19.04.2009. In the objections to the report of the District Judge, it has been mentioned that she is pregnant. However, without deciding the factum whether the said averment is true or not, it is apparent that the girl is now more than 15 years of age and is capable of expressing her wish and desire. As per the Mohammedan Law, as on date, she has attained the age of puberty. Thus, as on date, she can marry without the consent of her guardian.

20. As per the Text Book of Mohammedan Law by Aqil Ahmad, "Puberty and majority are in the Muslim law one and the same. The presumption is that a person attains majority at the age of 15 years. It should be noted that marriage of a minor without the consent of the guardian is invalid unless it is ratified after the attainment of majority. A boy or girl who has attained puberty is at liberty to marry any one he or she likes and the guardian has no right to interfere if the match be equal."

21. Thus, the girl who is now more than 15 years of age has the option under the Muslim law to ratify or enter into the contract of marriage afresh.

22. As per the judgment of Delhi High Court titled as Mohd. Nihal v. State 2008(4) RCR (Criminal) 477, it is held "when a Court is called upon to determine the welfare of a minor so far as appointing a guardian of his person or property or both is concerned, this exercise will have to be determined in consonance with Shariat Law in disputes between persons adhering to the Muslim faith" and in fact, went on to hold that Section 2 of the Majority Act indicates that its provisions do not impact on matters of marriage, dower, divorce and adoption and finally recorded the finding that "in this analysis, it is our opinion that a Muslim girl who has reached puberty or is presumed to have reached puberty on attaining the age of fifteen, is competent to enter into matrimony even if this partakes of a contract simplicitor." In the case of Mohd. Nihal (supra), a muslim husband Mohd. Nihal, who was seeking the custody of his muslim wife by way of filing habeas corpus petition, was no doubt dismissed by relying on the judgment of Ayub Khan v. Mst. Akhtari AIR 1963 All 525 [LQ/AllHC/1962/213] by holding that marriage before the age of 15 years entered into without the consent of Wali, was void, irrespective of her consent but nevertheless allowed Mst. Afsana to decide her own fate and the future.

23. The present case is a case of habeas corpus. No doubt, she was less than15 years of age at the time of marriage but today she is almost 16 years of age. As per the Muslim Law, she has attained the age of puberty being 15 years. Thus, the uncle on behalf of the parents is seeking the custody of Sarjeena who is aged 16 years. The girl and boy are admitting their marriage. On the date of filing of the petition for protection of life and liberty, she was more than 15 years of age. Under the Mohammedan Law, a Muslim girl at the age of 15 years can marry without the consent of her natural guardian. As on date i.e. at the age of 15 years, she has expressed her desire to accompany respondent No. 5 and wishes to voluntarily stay with him. Thus, it cannot be said that he is keeping her in the illegal custody. The girl does not want to go with her parents. Accordingly and in view of the above discussion, the petition is dismissed with liberty to the girl, who is today more than 15 years, to decide her own fate.