J 2011 SCC OnLine Kar 127 ILR 2011 Kar 2442 2012 1 ICC 22010126228 Symlawacin 20231024 163128 1 6

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Tuesday, October 24, 2023

Printed For: Tejal Garg, Symbiosis Law School
SCC Online Web Edition: http://www.scconline.com
© 2023 Karnataka High Court.
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2011 SCC OnLine Kar 127 : ILR 2011 Kar 2442 : (2012) 1 ICC 381 : (2011) 4
KCCR 2587 (DB) : (2011) 4 Kant LJ 560 (DB) : (2011) 2 HLR 644 (DB) : (2011)
3 DMC 719 (DB)
In the High Court of Karnataka

(BEFORE DR. K. BHAKTHAVATSALA AND K. GOVINDARAJULU, JJ.)
Mr. Avinash
Versus
State of Karnataka, by Secretary to Government, Home
Department and Others*
Writ Petition (HC) No. 67/2011
Decided on May 12, 2011
A) CONSTITUTION OF INDIA — ARTICLE 226 — Writ of Habeas Corpus — Petitioner
seeking direction to the Respondents to produce the Corpus of the detenue, Ms. Sanghavi —
Petitioner's right to seek Writ of Habeas Corpus — HELD, A prima facie case is made out
that the petitioner had kidnapped the girl from the lawful guardian and the same constitutes
an offence under Section 361, which is punishable under Section 363 of Penal Code, 1860.
Further, the girl herself has stated that she is happily living with her parents. Under such
circumstances, the petitioner has no legal right to invoke the Writ jurisdiction of High Court
under Article 226 of the Constitution of India and seek Writ of Habeas Corpus and the
Petition is liable to be dismissed in limine as not maintainable. — FURTHER HELD, As per
Section 5 of the Hindu Marriage Act, prior to 1.10.1978, the age of the boy and the girl was
18 years and 15 years, respectively to attain the age of majority. According
Page: 2443
to English Law, a minor attains the age of majority on completion of 21 years. Section 3 of the
Indian Majority Act, 1875, also says that in the case of appointment of a guardian of a minor person
or property or both shall, notwithstanding anything contained in any other enactment, be deemed to
have attained majority on completion of 21 years and not before. The girls below the age of 21
years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is
relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to
the boys and fall in love, marry and repent at leisure. — (1) HINDU MARRIAGE ACT, 1955 —
SECTION 5 — (2) INDIAN MAJORITY ACT, 1875 — SECTION 3 — DISCUSSED.
(Paras 7, 12)
B) HINDU MARRIAGE ACT, 1955 — SECTION 5 — Conditions for a Hindu Marriage — The
word “Solemnized” used in Section 5 of the Act — Discussed — HELD, The word
“Solemnized” used in Section 5 of the Hindu Marriage Act indicates that marriage may be
performed subject to conditions. It does not say who are the persons to perform marriage
and whether consent of parents of the boy and girl is required or not? Section 5 of the Hindu
Marriage Act is not lucid. It appears that the Parliament had not taken into account the love
marriages when the Bill was introduced. — Since the Hindu Marriage Act does not deal with
love
Page: 2444
marriages, in the opinion of the Court that, it is a high time that the Parliament shall take note of the
sufferings and turmoil of such girls and their parents and amend the law suitably. — Hence, it is the
suggestion of the Court that in the case of love affair of a girl, who is below the age of 21 years,
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there shall be a condition that the parents of the girl should approve the marriage, otherwise such
marriages shall be declared void or voidable. — FURTHER HELD, According to Section 361 of Penal
Code, 1860, whoever takes or entices a girl, who is under the age of 18 years out of the keeping of
the lawful custody of such minor, without consent of such guardian, is said to kidnap such minor
from lawful custody. The offence under Section 361 of the Penal Code, 1860 is punishable under
Section 363 of the Penal Code, 1860. From the facts of the case, it is noticed that the petitioner has
kidnapped the girl, who was minor. It is an offence under Section 361 of the Penal Code, 1860.
Court cannot close its eyes when it is brought to its notice as to the offence committed by the
petitioner under the Penal Code. Therefore, it is appropriate to direct the Police to apprehend the
petitioner, who is present before the Court, and he shall be dealt with, in accordance with law. —
Penal Code, 1860 — SECTIONS 361, 363 — DISCUSSED.
(Paras 12, 13)

Writ Petition is Dismissed.
Advocates who appeared in this case :
Page: 2445
Sri I.S. Pramod Chandra & M.H. Prakash; Advocates for Petitioner;
Sri Sampangi Ramaiah HCGP, Shri K.N. Puttegowda, Advocate for R-6 for
Respondents;
ORDER
DR. BHAKTHAVATSALA, J.:—
The petitioner is before this Court under Article 226 of the Constitution of India,
praying to issue a writ of habeas corpus, directing the respondents to produce Ms.
Sanghavi (hereinafter referred to as ‘the girl’) before this Court.
2. The case of the petitioner is that he is the resident of Sudhamanagar at
Bangalore and knew the girl for the last two to three years and they were in love since
two to three months, but their parents did not approve their marriage. Therefore, they
left Bangalore and got married on 2.3.2011 in a Temple at Tali Village, Tenkanakote
Taluk, Krishnagiri District, Tamil Nadu. After the petitioner came to know that the
father of the girl lodged a missing complaint with Wilson Garden Police Station at
Bangalore, he brought the girl to the Police Station. The custody of the girl was given
to respondent No. 6/father and respondent No. 7/maternal uncle of the girl after they
agreed to allow the petitioner to speak to the girl twice daily, but in vain.
Page: 2446
Therefore, on 18.4.2011 the petitioner along with his friend Ajay went to the house of
respondent No. 7 enquiring about the whereabouts of the girl for which the respondent
No. 7 abused the petitioner and threatened with dire consequences. Hence, on
20.4.2011 at about 12.45 P.M. the petitioner lodged a complaint in Crime No.
101/2011 with the Wilson Garden Police against respondent No. 6/father, respondent
No. 7/maternal uncle of the girl, Varadaraju, Dharmaraju, Magalamani, Sugunamani,
Dhanalakshmi and others. The Wilson Garden Police have registered a case against
respondent Nos. 6 and 7 and others for the offence under Sections 342, 504, 506 r/w
Section 149 of IPC.
3. Learned Counsel for the petitioner vehemently contended that the girl is the
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legally wedded wife of the petitioner and the petitioner apprehends danger to the girl,
who is in the custody of respondent Nos. 6 and 7. Therefore, he prays for issue of a
writ of Habeas Corpus to the respondents.
4. Sri Sampangiramaiah, Learned High Court Government Pleader, appearing for
respondent Nos. 1 to 5, submits that the girl's brother/Vikram filed affidavit dated
5.5.2011 and undertook to produce the girl before the Court today and accordingly the
girl had been produced by her brother and she is present before the Court.
Page: 2447
5. Sri K.N. Puttegowda, Learned Counsel appearing for respondent No. 6/father of
the girl, submits that on 4.2.2011 the petitioner kidnapped the girl, who was a minor,
from the lawful custody and the alleged marriage of the petitioner with the minor girl
on 2.3.2011 is not valid. He also submits that for the petitioner, it is third love affair
and on 2.3.2011, the petitioner had not completed the age of 21 years and therefore
the petitioner's claiming that the girl is legally wedded wife, is not correct; the
petitioner has committed an offence of kidnapping and the parents of the girl have
undergone untold hardship and misery and the girl is happily living with her parents
and the same is liable to be dismissed as devoid of any merits. He further submits
that the girl's elder brother-Vikram has filed an affidavit narrating the facts of the case
and that the Police, in the guise of the alleged marriage, wanted to send the girl to
remand home and respondent No. 6/father and respondent No. 7/maternal uncle of
the girl pleaded the Police to give her custody, for which the Inspector of the Police
Station has taken Rs. 1,00,000/- and in that regard a complaint has been lodged with
Lokayuktha, Commissioner of Police, State Human Rights Commission, etc.
6. The girl, who is present before us, submits that she was studying II Year PUC
(2010-11) in NMKRV College, Jayanagar, Bangalore, and on 4.2.2011 when she was
going to the College, the petitioner, who is friend of her brother, kidnapped and took
her to Tamil Nadu and she did not marry the petitioner and she is happily living with
her parents.
Page: 2448
7. In the light of the arguments addressed by the Learned Counsels for the parties
and the submission of the girl, the only point that arises for our consideration is:
“Whether the petitioner is entitled to seek writ of Habeas Corpus?”
8. Our answer to the above point is in the negative for the following reasons:
9. The petitioner and the girl belong to Hindu religion. In this regard, We have to
refer to Section 5 of the Hindu Marriage Act, 1955, Section 3 of the Indian Majority
Act, 1875 and Sections 361 and 363 of the Penal Code, 1860.
10. According to respondent No. 6, the date of kidnapping and the alleged
marriage, the girl was a minor as she had not completed the age of 18 years. It is also
contended that as on 2.3.2011, the date of alleged marriage, the petitioner had not
completed the age of 21 years. Thus, on 2.3.2011, the petitioner and the girl had not
completed the age of 21 years and 18 years, respectively. The petitioner has not
produced age proof so as to reject the contention of respondent No. 6. Therefore, the
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petitioner's claim that the girl is his legally wedded wife is not correct. A prima facie
case is made out that the petitioner had kidnapped the girl from the lawful guardian
and the same constitutes
Page: 2449
an offence under Section 361, which is punishable under Section 363 of IPC. Further,
the girl herself has stated that she is happily living with her parents. Under such
circumstances, the petitioner has no legal right to invoke the writ jurisdiction of this
Court under Article 226 of the Constitution of India and seek writ of Habeas Corpus
and the Petition is liable to be dismissed in limine as not maintainable.
11. We have seen many cases of run away love marriages and untold misery and
hardship of the parents of the girls. All the love marriages are not successful. In the
event of failure of the love marriage of the girl, it is the girl and her parents have to
suffer for their life long. The girls, later on, realise their mistake that they were hasty
in love marriage and repent at leisure.
12. Section 5 of the Hindu Marriage Act, 1955, which reads as under.
“5. Conditions for a Hindu marriage. — A marriage may solemnized (emphasis
supplied) between any two Hindus, if the following conditions are fulfilled,
namely:—
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party—
Page: 2450
(a) is incapable of giving a valid consent to it in consequence of unsoundness of

mind; or
(b) though capable of giving a valid consent, has been suffering from mental
disorder of such a kind or to such an extent as to be unfit for marriage and the
procreation of children; or
(c) has been subject to recurrent attacks of insanity;
(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) that parties are not within the degrees of prohibited relationship, unless the
custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage
governing each of them permits of a marriage between the two.
The word “solemnized” used in Section 5 of the Hindu Marriage Act indicates that
marriage may be performed subject to conditions. It does not say who are the persons
to perform marriage and whether
Page: 2451
consent of parents of the boy and girl is required or not? Section 5 of the Hindu
Marriage Act is not lucid. In our opinion, it appears to us that the Parliament had not
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taken into account the love marriages when the Bill was introduced. Should We
interpret the word “solemnized” to the effect that marriage may be performed by the
respective parents of the bridegroom and the bride and thus their consent is
necessary? We cannot supply words or re-write the law as it is for the Parliament to do
it. As per Section 5 of the Hindu Marriage Act, prior to 1.10.1978, the age of the boy
and the girl was 18 years and 15 years, respectively. According to English Law, a
minor attains the age of majority on completion of 21 years. Section 3 of the Indian
Majority Act, 1875, also says that in the case of appointment of a guardian of a minor
person or property or both shall, notwithstanding anything contained in any other
enactment, be deemed to have attained majority on completion of 21 years and not
before. In our opinion, the girls below the age of 21 years are not capable of forming a
rational judgment as to suitability of the boy, who is in love. It is relevant to mention
that those girls, who are suffering from harmonal imbalance easily fall prey to the boys
and fall in love, marry and repent at leisure. The parents of the girl are interested in
selecting a suitable boy and see that the girl leads a happy married life. Since the
Hindu Marriage Act does not deal with love marriages, in our view, it is a high time
that the Parliament shall take note of the sufferings and turmoil of such girls and their
parents and amend the law suitably. We perpetuate our memory as to the episode of
the famous Telugu Cine actor Sri Chiranjivi's daughter's
Page: 2452
love marriage. Hence, We suggest that in the case of love affair of a girl, who is below
the age of 21 years, there shall be a condition that the parents of the girl should
approve the marriage, otherwise such marriages shall be declared void or voidable.
13. Now, We refer to Section 361 of the Penal Code, 1860. According to Section
361, whoever takes or entices a girl, who is under the age of 18 years out of the
keeping of the lawful custody of such minor, without consent of such guardian, is set
to kidnap such minor from lawful custody. The offence under Section 361 of the Penal
Code, 1860 is punishable under Section 363 of the Penal Code, 1860. From the above
facts, We notice that the petitioner has kidnapped the girl, who was minor. It is an
offence under Section 361 of the Penal Code, 1860. We cannot close our eyes when it
is brought to our notice as to the offence committed by the petitioner under the Penal
Code. Therefore, We have to direct the Police to apprehend the petitioner, who is
present before the Court, and he shall be dealt with, in accordance with law.
14. In the result, the Petition fails and the same is hereby dismissed, imposing
costs of Rs. 10,000/-, which amount shall be deposited by the petitioner with this
Court, within a month from today.
Statement of Ms. Sanghavi made before us shows that the petitioner has kidnapped
her. Hence, the Wilson Garden Police is
Page: 2453
directed to register a case against the petitioner. Further, the Wilson Garden Police is
directed to apprehend the petitioner, who is present in the Court, and he shall be dealt
with, in accordance with law.
The Registrar (Judicial) is directed to send a copy of this order to the Secretary to
the Law Commission and Parliamentary Secretary to Union of India, for taking
necessary steps.
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Copy of the operative portion of this order shall be given to the Learned
Government Pleader.
———
* Writ Petition (HC) No. 67/2011
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, October 24, 2023

In the High Court of Karnataka

(Paras 12, 13)

(a) is incapable of giving a valid consent to it in consequence of unsoundness of

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