1. The above two habeas corpus petitions are being decided by this common judgment. These relate to what are generally referred to as "Run away Marriages". Re-Manish Singh Manish Singh, petitioner in WP (Crl.) No. 1680 of 2005 seeks release of his wife Suman, allegedly detained by her parents against her wishes. Petitioner Manish Singh was a tenant under respondent No.2/Sh.Ram Sanjeewan Gupta and fell in love with his daughter Suman, respondent No.4 herein, a young girl of 16 years. Both eloped and got married on 17th May, 2005 at Arya Samaj Mandir, Jamuna Bazar, Delhi. They co-habited and lived together after marriage in Delhi and in Bihar.

2. Petitioner alleges that Shri .R. S. Gupta and his associates forceably abducted and took away his wife Suman on 15th September, 2005. He complained and lodged a report with the police but to no avail. Petitioner thereupon was constrained to file the present petition. Notice in the petition was issued on 30th September, 2005, returnable on 19th October, 2005 with a direction to produce Suman to ascertain if she was being detained against her wishes. Suman appeared in Court in response to the directions. She stated that she was in love with petitioner. She left the parental home of her own to get married. Petitioner did not take or entice her and marriage was her suggestion. She confirms the factum of marriage, co-habitation and living with the petitioner and her inlaws. She, However, stated that since September, 2005 she had been living with her parents and had thought about the entire matter and her future life. She does not now wish to live with the petitioner or resume co-habitation with him.

3. Petitioner and Suman were permitted to meet each other in our Chamber without any one else being present, to decide their future course of action. We also spoke to the couple in chamber and to the wife of respondent No.2, i.e mother of Ms Suman, who had accompanied her to Court. Petition was adjourned by a week to enable the parties to reflect further. On 24th October, 2005 Suman appeared and stated that she does not wish to live with the petitioner and wants to live with her parents. In view of her desire conveyed, as above, she was permitted to accompany her parents. No further orders are required to be passed in this Habeas Corpus Petition which stands disposed of. It would be for the petitioner-Manish Singh, if so advised, to avail any legal remedy for enforcement of his matrimonial rights. Re- Ram Ladle Chaturvedi.

4. Ram Ladle Chaturvedi, petitioner in WP(Crl) 1196 of 2003 is a Daftry working with Indian Airlines Corporation. In March, 2003, he lodged a missing person report in respect of his daughter Kumari Lalita, followed by an FIR in April, 2003 alleging that she had been kidnapped by one Prabhu on 26th April, 2003. FIR No.217/ 2003was registered under S.363 IPC, Police Station Sarojini Nagar. Notice was issued in the petition and a direction given to the respondents for production of Kumari Lalita. State machinery had been set in motion to trace Kumari Lalita. Wireless messages, hue and cry notices, photographs were telecasted on Doordarshan. Seven police teams were despatched to Bihar to carry out raids at the residence of Prabhu in Bihar. Proceedings for declaring him a proclaimed offender were also initiated. Despite monitoring and efforts by police, the run away couple could not be traced and Prabhu apprehended.

5. On 9th September, 2004, Kumari Lalita appeared in court of her own. Kumari Lalita stated that she had solemnized marriage with Prabhu of her own accord in a temple at Delhi on 26th April, 2003. They cohabited together. She stayed at different places in Bihar with her in laws. She stated that she was neither forced nor taken away. She had married Prabhu of her own choice. An interim direction that Prabhu be not arrested was issued. Their marriage had been performed in a temple. She claimed to be 19 years old. She gave birth to a male child on 18th March, 2004.

6. Petitioner initially claimed that his daughter was 14 years old with 6th May, 1993 as date of birth as per school leaving certificate. Kumari Lalita claimed that she was 19 years old. Ossification test was directed to be carried out to determine her age. As per the medico legal report furnished, her age was estimated between 16 to 18 years. By her physical appearance also, she now appears to us to be around 18 years of age.

7. With the passage of time, petitioner and his wife appear reconciled to accept the marriage entered into by Lalita, as a fait accompali especially with the birth of a child. Petitioner and his wife offered to provide shelter and assistance to young couple to enable them to settle in life. In the meanwhile, Prabhu, husband of Lalita stated that he had taken on rent a room in Okhla Phase-II and was earning Rs.100/- per day by vending vegetables. In these circumstances, Lalita was directed to be released from Nirmal Chaya to live with her husband and avail of the offer of support as given by the petitioner and his wife. The case was adjourned for a period of six months. Interim stay against further investigation and arrest of Prabhu in the case continued.

8. On 8th August, 2005, we appointed Mr. Rajesh Mahajan, Advocate as an Amicus Curiae to provide legal assistance to the couple to proceed further with the matter for protection of their interest. Crl.M.10400 of 2005 was then moved by the petitioner for quashing of FIR No.217 of 2003. Statement of Lalita had already been recorded where she stated that she was neither enticed nor forced. She had left parental home to get married to Prabhu. It would be seen that she would have been over around 17 years when she married Prabhu. Petitioner, Ram Ladle Chaturvedi also stands reconciled to the marriage of the couple and states that he does not want to prosecute the complaint and in fact has moved Crl.M.10400 of 2005 for quashing of the FIR.

9. In these circumstances, continuation of criminal proceedings arising out of FIR No.217 of 2003 under S.363 IPC Police Station Sarojini Nagar would be an exercise in futility. Besides, it would also be detrimental to the matrimonial life of the couple and of the infant. Lalita being around 17 years of age, on the verge of majority, having reached the age of discretion, had accompanied Prabhu of her own volition without any kind of enticement or inducement or force from any one. There was, thus, no taking away or enticing of a minor out of the keeping of a lawful guardian. Essential ingredients of the offence of kidnapping are missing. Reference may be made to S. Varadarajan v. State of Madras reported at 1965 Supreme Court 942 where the husband was held not guilty of kidnapping when the wife, a college going girl on the verge of majority had left the parental home of her own accord, to marry him, without any threat or inducement. This is a fit case for quashing of FIR in exercise of jurisdiction under Art.226 and 227 of the Constitution. Accordingly, FIR No. 217 of 2003 under S.363 IPC P. S. Sarojini Nagar and all the consequential proceedings arising thereto are quashed. We record our appreciation for the assistance rendered by the Amicus Curiae and other counsel.

10. We find increasing number of habeas corpus petitions being filed by the parents / guardians for production of their wards, who leave their parental houses in these "Run away Marriages". While the parents of the couples go through agony, the couples are on the run with husband being accused of kidnapping and / or rape.

11. The court while dealing with a Habeas Corpus Petition is required to ensure that the person whose production is sought is not illegally detained. For this purpose, the court ascertains whether the person is being detained against his / her wishes or is otherwise illegally detained and gives directions, as required. In cases, where a minor girl after meeting her parents and / or on reflection has second thoughts about her marriage or escapade, her custody is restored to parents as in the first case. Difficulty arises in cases where the minor girl has entered into matrimonial alliance and is steadfast in her resolve to continue to cohabit with the partner of her choice. At times, the girl is even in family way. The situation becomes difficult with parents of girl either on account of cast, differences or groom not matching their social standing or expectation are bent upon breaking the alliance. They continue to press the charges of abduction or kidnapping.

12. This Bench had occasion to deal with such cases in writ petitions being WP(Crl.) 942 of 2005-Ravi Kumar v. The State and Another., WP(Crl) 1446 of 2005-Shikha Sharma v. The State and Anr and WP(Crl) 1369 of 2005-Phoola Devi v. The State and ors reported at 2005 VIII AD (DELHI) 256. The girls between the age of 16 to 18 years had left their homes and got married with persons of their choice. The Bench held that girls could not be made to stay in the remand homes against their wishes unless their presence was required for legal proceedings or under a statute. The girls were steadfast in their resolve to live with their spouses. The complainant and the petitioners therein had stated that they were not interested in prosecution of the complaint. The girls were released from Nirmal Chaya / Nari Niketan, remand homes and permitted to cohabit with their husbands.

13. Let us notice the legal position with regard to marriages performed below the prescribed age under the Hindu Mariage Act, 1955 and the Child Marriage Restraint Act. We reproduce, for facility of reference, the text of S.5(iii),11,12 and 18 of the Hindu Marriage Act, 1955. "5. Conditions for a Hindu Marriage.- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i).......

(ii)......

(iii) the bridegroom has completed the age of (twenty one years) and the bride, the age of (eighteen years) at the time of the marriage;

(iv)..........................

(v)...........................

11. Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void any may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of S.5.

12. Voidable marriages.- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a) that the marriage has not been consummated owing to the impotence of the respondent; or

(b) that the marriage is in contravention of the condition specified in clause

ii) of S.5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner (was required under S.5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978) the consent of such guardian was obtained by force (or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent); or

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-s.(1), no petition for annulling a marriage-

(a) on the ground specified in clause (c) of sub-s.(1) shall be entertained if -

(i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or

(ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

(b) on the ground specified in clause (d) of sub-s.(1) shall be entertained unless the court is satisfied-

(i) that the petitioner was at the time of the marriage ignorant of the facts alleged;

(ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized; after

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of (the said ground).

18. Punishment for contravention of certain other conditions for Hindu marriage.- Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv), and (v) of S.5 shall be punishable-

(a) in the case of a contravention of the condition specified in clause (iii) of S.5 with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of S.5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both.

14. From a perusal of the grounds given in S.11 and 12 of the Hindu Marriage Act, as reproduced above, it would be seen that contravention of the prescribed age under S.5(iii) of the is not given as a ground on which the marriage could be void or voidable. The Legislature at the same time desired to discourage child marriages. For this purpose, Child Marriage Restraint Act, 1929 was enacted. The object and intent of the is to prevent child marriages. Definition of child is, "For a male who has not completed 21 years of age and for a female, who has not completed 18 years of age. The Act aims to restrain performances of child marriages. The Act does not affect the validity of a marriage, even though it may be in contravention of the age prescribed under the. In spite of the marriage not being declared void or made voidable, the Legislature disapproves of child marriages and makes the performance of such marriage punishable under the law with imprisonment which can extend up to three months and with fine. Provision is also made under S.12 of the to issue an injunction to prevent performance of any child marriage. There appears to be a rationale and public policy, in the Legislature not making marriages solemnized in breach of the statutory age, as prescribed under the Hindu Marriage Act and the Child Marriage Restraint Act, void or voidable. In large parts of India, especially rural areas, child marriages are prevalent. The Gauna or consummation of marriage at times takes place after few years either when the girl has grown or attained puberty or majority. The Legislature was conscious of the fact that if such marriages, performed in contravention of the age restriction, are made void or voidable it could lead to serious consequences and exploitation of the women who are vulnerable on account of their social and economic circumstances. The provisions of the Hindu Marriage Act and Child Marriage Restraint Act are aimed to discourage performance of such marriages by making them punishable with imprisonment and fine, while recognizing the necessity of protecting marriages performed even though in contravention of the prescribed age as valid and subsisting.

15. This legal position has been taken note of in several judicial decisions viz. Seema Devi @ Simran Kaur v. State of H.P. reported at 1998 (2) Crimes 168 and Lila Gupta v. Laxmi Narain reported at AIR 1978 Supreme Court 1351. The Supreme Court in Lila Gupta v. Laxmi Narain (Supra) while reviewing the provisions of the Hindu Marriage Act in the context of a case falling within ambit of proviso to S.15 observed as under:-

4. At the outset it would be advantageous to have a clear picture of the scheme of the. S.5 prescribes the conditions for a valid Hindu Marriage that may be solemnized after the commencement of the. They are six in number. Condition No.(i) ensures monogamy. Condition No.(ii) refers t the mental capacity of one or the other person contracting the marriage and prohibits an idiot or lunatic from contracting the marriage. This condition incidentally provides for consent of the bride and the bridegroom to the marriage as the law treats them mature at a certain age. Condition (iv) forbids marriage of parties within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two. Condition No.(v) is similar with this difference that it prohibits marriage between two sapindas. Condition No. (vi) is a corollary to condition (iii) in that where the bride has not attained the minimum age as prescribed in condition (iii) the marriage will none the less be valid if the consent of her guardian has been obtained for the marriage. S.6 specifies guardians in marriage who would be competent to give consent as envisaged by S.5(vi). S.11 is material. It provides that any marriage solemnised after the commencement of the shall be null and void and may on a petition presented by either party thereto be so declared by decree of nullity if it contravenes any one of the conditions specified in Clauses. (ii), (iv) and (v) of S.5. Incidentally at this stage it may be noted that S.11 does not render a marriage solemnised in violation of conditions (ii), (iii) and (vi) void, all of which prescribe personal incapacity for marriage. S.12 provides that certain marriages shall be voidable nullity on any of the grounds mentioned in the section. Clause (b) of sub-s.(1) inter alia provides that the marriage in contravention of condition specified in Clause (ii) of S.5 will be voidable. Similarly, sub clause provides that the consent of the petitioner or where consent of the guardian in marriage is required under S.5 and such consent was obtained by force or fraud, the marriage shall be voidable, S.13 provides for dissolution of marriage by divorce on any of the grounds mentioned in the section. S.14 prohibits a petition for divorce being presented by any party to the marriage within a period of three years from the date of the marriage which period has been reduced to one year by S.9 of the Marriage Laws (Amendment) Act, 1976. Then comes S.15 as it stood at the relevant time, which is material for the purpose of this judgment and may be reproduced in extenso ...................."

6. A comprehensive review of the relevant provisions of the unmistakably anifests the legislative thrust that every marriage solemnised in contravention of one or other condition prescribed for valid marriage is not void. S.5 prescribes six conditions for valid marriage. S.11 renders marriage solemnised in contravention of conditions (i), (iv) and (v) of S.5 only, void. Two incontrovertible propositions emerge from a combined reading of S.5 and 11 and other provisions of the, that the specifies conditions for valid marriage and a marriage contracted in breach of some but not all of them renders the arriage void. The statute thus prescribes conditions for valid marriage and also does not leave it to inference that each one of such conditions is mandatory and a contravention, violation or breach of any one of them would be treated as a breach of a pre-requisite for a valid marriage rendering it void. The law while prescribing conditions for valid marriage simultaneously prescribes that breach of some of the conditions but not all would render the marriage void. Simultaneously, the is conspicuously silent on the effect on a marriage solemnised in contravention or breach of the time bound prohibition enacted in S.15. A further aspect that stares into the fact is that while a marriage solemnised in contravention of Clauses (iii), (iv), (v) and (vi) of S.5 is made penal, a marriage in contravention of the prohibition prescribed by the proviso does not attract any penalty. The Act is suggestively silent on the question as to what is the effect on the marriage contracted by two persons one or both of whom were incapacitated from contracting marriage at the time when it was contracted in view of the fact that a period of one year ha not elapsed since the dissolution of their earlier marriage by a decree of divorce granted by the Court or first instance. Such a marriage is not expressly declared void nor made punishable though marriages in breach of conditions Nos. (iii), (iv), (v) and (vi) of S.5 are specifically made punishable by S.18. These express provisions would show that Parliament was aware about treating any specific marriage void and only specific marriages punishable. This express provision prima facie would go a long way to negative any suggestion of a marriage being void though not covered by S.11 such as in breach of proviso to S.15 as being void by necessary implication. The net effect of it is that at any rate Parliament did not think fit to treat such marriage void or that it is so opposed to public policy as to make it punishable."

16. In our judgment in Ravi Kumar v. The State and anr. and Phoola Devi v. The State and Others (supra), we followed the existing legal position as noted in the preceding paras as the marriages solemnized in contravention of the age prescribed under S.5(iii) of the Hindu Marriage Act i.e 21 years for male and 18 years for female were neither void nor voidable under S.11 and 12 of the Hindu Marriage Act. Such under age marriages were only punishable under S.18 of the Hindu Marriage Act with imprisonment of 15 days and a fine of Rs.1000/- as also under the provisions of Child Marriage Restraint Act.

17. We find that our judgment in the above cases has been perceived in certain quarters as "reducing the age of marriage", "reducing age of consent" and "declining to nullify marriages of minors". We never did nor could have reduced statutory age of marriage. Neither there was a prayer nor such marriages could have been nullified in view of existing factual and legal position. Reference to "age of discretion" was in the context of the girls having left of their own without inducement or enticement for the purpose of the charge of kidnapping and not to suggest any approval of the errant conduct.

18. Run Away Marriages are manifestation of a generational change due to variety of factors, including increased interaction between the sexes, with young boys and girls attaining maturity rapidly. It is a complex problem with inter play of social, economic, religious, caste, educational factors, including sex education and vulnerability and backwardness of the weaker sex having its impact. The Child Marriage Restraint Act, 1929 as well as relevant provisions of the Hindu Marriage Act are social legislations aimed at protection and development of the vulnerable sex and have to be interpreted and worked accordingly. The consequences of considering such marriages as void or voidable need to be evaluated since the State as well as the social reformists who have not been successful to change the mindset of the people tuned to early marriages. By an estimate, prevalence of child marriages in the major States of West Bengal, Rajasthan, Bihar and Madhya Pradesh varies from 56 to 59%. Moreover, it is also to be noted that any adverse fall out of any law that makes such underage marriages as void or voidable would be borne by none other than the women and their progeny. It is for the Parliament to consider whether the present provisions of the Hindu Marriage Act and the Child Marriage Restraint Act have proved insufficient or failed to discourage child marriages and to take such remedial steps, as are required in their wisdom.

19. What we as Judges are ordained to do, is to interpret the law as it stands, and that is precisely what we have done. We have added the above clarification since erroneous or misreporting of judicial pronouncements on vital issues affecting a large sections of the population may erode public confidence in judiciary, essential for the very preservation of rule of law.