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Punjab and Haryana High Court: Harnaresh Singh Gill, J., held that the husband of the Hind minor is the legal guardian of his wife.

The facts of the case where such that the petitioner had solemnized marriage with respondent 3-Gulista on 20-03-2020 and she herself fled away with the petitioner and thereafter performed marriage willingly. A kidnapping case was registered against the petitioner. The petitioner, while relying on the judgment in Madan Lal v. State of Punjab, CRM-M-20909- 2014 and Jitender Kumar Sharma v. State, 2010 (4) RCR (Criminal) 20, contended that respondent 3-Gulista had got recorded her statement under Section 164 CrPC, in which she had stated that she had performed marriage with Vikas (petitioner) and had been residing with him willingly.

The statements of the respondent-wife were recorded under Sections 161 and 164 of CrPC, wherein she had specifically stated that she had been residing with the petitioner who was her husband. Considering the above recorded statements, the Bench found out that the respondent 3-Gulista was alleged to be minor at the time of performing marriage but also that she had performed marriage with the petitioner with her own free will. The Bench opined that since the girl at the time of marriage, the marriage was voidable in terms of the Hindu Marriage Act, 1955 but because the couple had chosen their life partners against the wishes of their parents and were carrying on the relationship by living together, the Court could take the cognizance of the fact as per Section 25 of the Guardians and Wards Act, 1890, as the welfare of the ward was of paramount importance, which could not be ignored. Thus, the Bench opined,

The petitioner being the husband is in relationship with respondent 3 and in terms of Sections 19 and 21 of the Guardians and Wards Act read with Sections 6, 10 and 13 of the Hindu Minority and Guardianship Act, 1956 has a right to hold as the natural guardian of the minor Hindu girl who is married to him which as per the statute is the girl’s husband. Thus, it cannot be said that there is any element of taking away or enticing her.

Noticing that the petitioner and respondent 3 were living together, the Bench stated that the couple had rights of protection of life and liberty granted under Article 21 of the Constitution.

Reliance was placed by the Court on Jitender Kumar Sharma v. State, WP (CRL) 1003 of 2010, wherein the Delhi High Court had held, “A reading of the 1890 Act and the 1956 Act, together, reveals the guiding principles which ought to be kept in mind when considering the question of custody of a minor hindu. We have seen that the natural guardian of a minor hindu girl whose is married, is her husband…Furthermore, that no guardian of the person of a minor married female can be appointed where her husband is not, in the opinion of the court, unfit to be the guardian of her person. The preferences of a minor who is old enough to make an intelligent preference ought to be considered by the court.

In the light of above, the Bench held that since respondent 3-Gulista had performed marriage with the petitioner of her own will and had been residing happily with him at her matrimonial home, no useful purpose would be served in allowing the criminal proceedings to continue. Accordingly, this petition was allowed. The FIR registered under Section 346 IPC and later on added Sections 363, 366 IPC were quashed qua the petitioner.[Vikas Tomar v. State of Haryana, 2021 SCC OnLine P&H 1269, decided on 05-04-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Naresh Kumar Chhokar
For the State of Haryana: Addl. AG. Ashok Singh Chaudhary