NAGENDRA PRASAD SINGH, J.

(1.) This writ application has been filed on behalf of the petitioner, who is the father of respondent No. 5, for quashing an order by the learned Sessions Judge directing release of the respondent No. 5 in order that she may live with respondent No. 4 with whom she claims to have married. The facts of this case present a typical case where the dispute in connection with matrimonial relationship has been brought before different courts for adjudication of the question as to with whom respondent no. 5 should remain, whether with her father the petitioner, or with her husband respondent no. 4.

(2.) It appears that on 13 12-1979 this petitioner filed a petition of complaint before the Chief Judicial Magistrate, Hajipur alleging therein that on 9-12-1979 in the evining Shahnaz Begum (respondent No. 5) went out from his house and she was enticed away by respondent No. 4 who wanted to forcibly marry her. It was further stated that although she was aged about 14 years still the complainant had learnt that she had appeared before a Magistrate and sworn an affidavit that she had married respondent no. 4. The Chief Judicial Magistrate forwarded the petition of complaint to the officer-in-charge, Vaishali Police Station under Sec. 156 (3) of the Code of Criminal Procedure for investigating into the case. The officer-in charge, registered a case under Sec. 366 read with Sec.120-B of the Indian Penal Code and recovered respondent No. 5 from the house of respondent No. 4. She was produced before the Magistrate for passing proper order about her custody. On 15-12-1979, respondent No. 5 made a statement under Sec. 164 of the Code that she was aged about 22 years and she had married respondent no. 4 of her own volition. She further stated that respondent no. 4 did not entice her; she herself went along with him. Copies of the petition of complaint as well as the statement under Sec. 164 of the Code are annexes to the counter affidavit filed on behalf of respondent no. 5 before this Court. Respondent No. 5 was medically examined by the Lady Doctor pursuant to an order passed by the Chief Judicial Magistrate, who was of the opinion that she was above 15 years but below 18 years. On 18-12-1979, the Chief Judicial Magistrate passed an order giving the custody of respondent No. 5 to the petitioner taking the view that as she was below 18 years of age, as such, minor and the petitioner being the father, was the natural guardian. Responded No. 5, however, filed a revision application before the Sessions Judge, which as already stated above, was allowed and the learned Sessions Judge in view of the assertion made by respondent no. 5 that she had married respondent no. 4, passed an order that she should te set at liberty and be allowed to go with respondent whom she claimed to have married. According to the learned Sessions Judge, as respondent no. 5 was above 15 years of age, under the Mahomedan Law she could marry without the consent of her parents. The aforesaid finding on the question of law was seriously challeneged on behalf of the petitioner before this Court.

(3.) Learned Counsel appearing for the petitioner submitted that on the allegations made in the petition of complaint by the petitioner, respondent no. 4 will be deemed to be an accused of an offence of kidnapping as he has enticed a minor girl (under 18 years of age) out of the keeping of the lawful guardian without the consent of such guardian, as such the learned Sessions Judge should not have released respondent no. 5 saying that she was at liberty to live with respondent no. 4. In other words, according to the petitioner, respondent No. 5 being a minor within the meaning of Sec. 361 of the Indian Penal Code as well as under the Indian Majority Act, petitioner should have been allowed to have custody of respondent no. 5. On the first impression, this argument is attractive, but complication has been created because of intervening factor, i. e. the alleged marriage between respondent No. 5 and respondent No. 4.

(4.) Whenever a minor is produced before a Court, the Court has to consider the question as to who should be the guardian of such minor during the pendency of the proceeding, keeping in view of the interest of the minor. But while considering that question, the Court has also to consider as to who had the right in law to be the guardian of such minor. Section 98 of the Code vests power in the Magistrate whenever any complaint is made to him of abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, to make an order of immediate restoration of such woman to her liberty, or of such female child to "her husband, parent, guardian or other person having the lawful charge of such child". Problem arises when there is conflict between the parent and the husband of such female who is below 18 years. Then Court, is called upon to decide the question as to who should be the guardian of such female child, the parent or the husband Now in the instant case, admittedly when the offence of kidnapping is alleged to have been committed, respondent no. 5 was not married to respondent No. 4. According to the statement of respondent no. 5 herself, she married him on 11-12-1979. 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 Mahomedan Law a girl, who has attained the age of puberty, can marry without the consent of her patents In this connection reference can be made to Article 251 of the Mulla: Principles of Mahomedan Law which says that every Mahomedan 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 is mentioned that a girl reaching the age of property can marry without the consent of her guardian. Article 268 of Mulla Principles of Mahomedan Law says that the marriage will be presumed, in the absence of direct proof, by mere fact of acknowledgment by the man of 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 Mahomedan 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.

(5.) So far as the factum of marriage is concerned, I may say at the outset that in the instant case it has not been disputed at any stage. From the order of the learned Sessions Judge it does not appear that the petitioner disputed the factum of marriage. His only assertion since the very beginning was that she is below 15 years of age, and, as such, she could not marry without the consent of her guardian. Even before this Court in the writ application there is no assertion that in fact there has been no marriage- This aspect of the matter has been considered by a Bench in the case of Mst. Bashiran v. Mohammad Hussain and others (AIR 1941 Oudh 284) wherein it was observed :

"Under the Mahomedan Law, acknowledgment of a man is valid with regard to five persons, his father, mother, child, wife and Mowla : vide Baillies Mohammaden Law, p. 407 and Amer Alis Moham maden Law, Vol. 2, p. 230. In 60 I. C. 147 (Mohammad AH Khan v. Ghazanfar AH Khan) it was held that though an acknowledgement may be open to the objection that it might have been made from ulterior motives, to conceal what might otherwise have been a result of shame it is sufficient in the eye of the Mphammaden Law to invest the woman with the status of a married wife and the subsequent born children with the status of legitimacy, unless the marriage is shown to have been legally impossible."

There is no suggestion that there was any impediment in the way of respondent no. 5 marrying respondent no. 4. 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, exempts 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 Sec. 391 of 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 whatever may be the fate of the criminal case, which has been lodged by the petitioner for the 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.

(6.) I have not been able to appreciate under what provision of law respondent no. 5 was taken in custody because she is not alleged to have committed any offence, and, as such, her detention in custody was without any authority in law. We are informed that even today she has been kept in Bihar State North Care Home, Patna City-6 under some order passed either by the learned Magistrate or by the Sessions Judge subsequently. As she is not an accused in any case there is no justification for detaining her in any Care Home. She should be allowed to go with respondent no. 4 as directed by the learned Sessions Judge.

(7.) In the result, the writ application is dismissed. Application dismissed.