ORDER Mukul Mudgal, J.
1. In the instant case the petitioner was directed to be released in the custody of her husband, Shri, Kartar Singh, by the order of this Court dated 16th October, 1998 and this judgment records the reasons in support of the order dated 16th October, 1998.
2. This writ petition challenges the detention of the petitioner in Nari Niketan, Nirmal Chhaya, Delhi as per the order of respondent No. 2, the learned Metropolitan Magistrate, Shahdara, Delhi. The petitioner's case is that she married one Shri Kartar Singh on 2nd November, 1997 and the marriage was registered on 12th November, 1997 with the Registrar of Hindu Marriages, Bulandshahar, Uttar Pradesh. Upon opposition from the mother of the petitioner, (the father being deceased), the petitioner left her mother's house of her free will. However, the mother lodged a complaint against the petitioner's husband, Kartar Singh, leading to registration of a FIR No. 748 of 1997 under Section 363 of the Indian Penal Code at Police Station Bhajanpura, Delhi.
3. The husband of the petitioner, Kartar Singh, was thereafter granted anticipatory bail by the learned Addl. Sessions Judge, Shahdara, Delhi on 27th November, 1997 and subsequently the petitioner was taken into custody by the police. The petitioner was thereafter taken to the hospital for medicolegal examination where the doctor advised the ossification test for determination of the age of the petitioner but the investigating officer did not get the ossification test done and on 17th January, 1998 the petitioner was directed to be sent to the Nari Niketan by an order passed by the Metropolitan Magistrate, Shahdara, Delhi.
4. The petitioner was again brought from Nari Niketan before the Metropolitan Magistrate, who rejected the petitioner's application dated 2nd June, 1998 for getting the ossification test done to determine her age. This application was rejected by respondent No. 2 on 27th June, 1998 and this order was affirmed by the Additional Sessions Judge on 17th August, 1998 by holding that it was for the Investigating Officer to determine the manner and method of investigation. Thereafter the investigating officer wanted to get the ossification test done but the Metropolitan Magistrate, Shahdara rejected the said request on the reasoning he had earlier rejected the same request by his earlier order dated 27th June, 1998. In this view of the matter, the petitioner filed the present writ petition in this Court contending interalia that she is not a minor and is about 20 years of age and as such she cannot be kept in the Nari Niketan against her will. Her plea was that this itself amounts to a detention without the authority of law and no provision in the Criminal Procedure Code warrants such restraint or detention in Nari Niketan.
5. The learned counsel for the petitioner relied on two judgments and Mrs. Kalyani Chaudhari Vs. The State of UP and others reported as 1978 Cr.L.J. 1003 and Seema Devi alias Simran Kaur Vs. State of H.P. reported as 1998(2) Crime 168. Both the judgments laid down similar position of law and it is only necessary to refer to the latter judgment of Seema Devi (supra). Hob'ble Mr. Justice M. Srinivasan, the Chief Justice of Himachal Pradesh (as he then was) observed in para 6 of the judgment as follows: "It is not in dispute that the parties are Hindus and they are governed by the Hindu Marriage Act, 1955. Section 5(iii) provides that a marriage may be solemnised between any two Hindus if the conditions set out in subsection (iii) is that the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of the marriage. For the purpose of this peti tion, I will assume that the complaint of the 2nd respondent that the petitioner herein was aged only 15 years is true. Even so, the marriage has not been invalidated by the provisions of the Hindu Marriage Act. Section 11 of the Act deals with void mar riages. That Section relates only to marriages held in contraven tion of clauses (i), (iv) and (v) of Section 5. That Section does not refer to clause (iii) of Section 5. Section 12 refers to voidable marriage. That Section deals only with marriages in contravention of the conditions specified in clause (ii) of Section 5. That Section does not also deal with clause (iii) of Section 5. Thus, the marriage in contravention of clause (iii) of Section 5 is neither void nor voidable under the provisions of the Hindu Marriage Act. The only other relevant provision is Section 18 of the Act, which provides for punishment for contravention of the conditions specified in Section 5(iii) also. The punishment will be imprisonment, which may extend to 15 days or with fine which may extent to Rs. 1,000/ or both. Thus, the only provision which will come into play in the event of contravention of Section 5(iii) is Section 18 of the Hindu Marriage Act and nowhere does the Act declare the marriage to be illegal or in valid or void."
6. It is further observed by the learned Judge in paragraphs 8 & 10 as follows:
"The next question is whether the Additional Chief Judicial Magistrate had jurisdiction to direct the petitioner herein to be kept in Nari Niketan at Bilaspur. There is no provision of law which permits a Court to give such a direction even in the case of minors, when it is against their will. Even if the petitioner in only a minor aged about 15 years, her wishes should be ascer tained before placing her in the custody of any person or Insti tution. In this case, she had categorically stated before the Addl. Chief Judicial Magistrate that she would not live with her parents and she wanted to live with her husband, the 1st accused in the case. The Additional Chief Judicial Magistrate should have given credence to her wish and only directed her custody to be with the 1st accused and not with the Nari Niketan."
"In Mrs. Kalyani Chaudhari Vs. The State of UP and others, a Division Bench of the Allahabad High Court held that no person can be kept in the protective home unless she is required to be kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act or under some other law permitting her detention in such a home. The Court pointed out that where the Magistrate's order mentions no provision of law under which he has passed such a direction, the order directing the girl to be kept in the protective home suffers from inherent lack of jurisdiction. His custody in the protective home cannot, there fore, be held to be a legal custody. The Court said that the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a protective home and the question of giving the girl in the custo dy of the father also did not arise in that case as the father was himself instrumental in getting the girl sent to the protective home through the aid of the police. With observations made by the Division Bench in that case."
7. It is thus clear that even if it is assumed that in the present case the petitioner, Neetu Singh, was a minor on the date of the marriage, even then as per the aforesaid position of law, the marriage is neither a void nor voidable. The only provision attracted is subsection 5(iii) of Hindu Marriage Act, 1955, which by virtue of Section 18 thereof at best can lead to imprisonment of upto 15 days and/or fine which may extend to Rs. 1,000/ or both.
8. In this view of the matter we hold that the petitioner Neetu Singh's marriage is neither void nor voidable but at the highest is punishable under Section 18 of Hindu Marriage Act for contravention of provisions of Section (5)(iii). We respectfully agree with the view of the Allahabad and Himachal Pradesh High Courts and hold that even a minor cannot be detained against her wishes in Nari Niketan and such detention would be contrary to law.
9. The petitioner has already been released in the custody of her husband, Shri Kartar Singh, by the order of this Court dated 16th October, 1998. The Writ petition is allowed and the impugned order dated 5th September, 1998 passed by the Metropolitan Magistrate, Shahdara, Delhi is hereby quashed.