Charanjit Talwar, J.
(1) By this petition Feroz Ahmed is seeking quashing of the order passed on 15th Sept. 1981, by Shri Mahabir Singhal, Metropolitan Magistrate, New Delhi, whereby the custody of Suman Devi, wife of the petitioner herein was directed to be handed over to her father on super dari.
(2) Admitted facts are that the petitioner herein got married to Suman Devi on 19th August 1981, under the provisions of the Special Marriage Act, 1954. A copy of the marriage certificate is annexure A to this petition. That marriage is being challenged under sections 24, 25 and 27 of the Special Marriage Act on various grounds. The grounds, inter alia, being that the petitioner was a minor at the time of the marriage and she had been induced by fraud in entering into the marriage. That case is now pending trial before an Additional District Judge and was fixed for 23rd Oct. 1981. Prior to the filing of the said petition on 25th September 1981, First Information Report No. 287 of 1981, had been registered against the petitioner herein for offences under sections 363 and 366 of the Indian Penal Code in Mandir Marg Police Station on 19th August 1981. On coming to know of the registration of the case against him the petitioner herein moved an application under section 438 of the Code of Criminal Procedure for grant of anticipatory bail. While granting interim bail the learned Additional Sessions Judge directed the Station House Officer to verify the age of the girl Suman Devi. On 11th September, 1981, the Station House Officer stated that he had verified the age of the girl from the School record. According to his report she was of 21 years of age. Accordingly, the interim bail granted to the petitioner was confirmed by the learned Additional Sessions Judge on the 11th September 1981.
(3) It is stated in this petition that the girl had also been brought to the Court by the petitioner's father on 5th Sept. 1981. Her statement under section 164 of the Code of Criminal Procedure was recorded by Shri Mahabir Singhal, Metropolitan Magistrate, New Delhi on that day. In that statement she had averred that she was 20 years of age and had gone to the house of the petitioner without any pressure from anybody. She declined to go to Nari Niketan. She also declined to go with her father Shri Relu Ram. The learned Magistrate, however, it appears directed that she be sent to Nari Niketan and be produced on 10th September, 1981. On that day although the girl was produced from Nari Niketan the learned Magistrate adjourned the case to 15th Sept. 1981.
(4) On 15th September, 1981, the learned Magistrate by the impugned order recorded on the application filed by the father of the girl Relu Ram, respondent No. 2 herein, handed over the custody of the girl to him subject to his executing a bond to produce her in Court whenever required. That application on which this order was recorded was handed over by the Court to the Investigating Officer. It is difficult to discern the reasons as to why the application containing the judicial order was handed over to the Investigating Agency. Before me it was stated by Shri Harish Gulati, learned counsel for the State, that the document was handed over by the Ahlmad of the Court, after obtaining receipt for the same so that the application can be attached with the other papers and documents of this case which were in the custody of the Investigating Agency. The application and the order made thereon were shown to me. This action on the part of the Court official seemingly with the approval of the Magistrate concerned is to be deprecated.
(5) It is the above order of the learned Magistrate which is being impugned before me.
(6) Mr. Soni submits that prima facie the girl being major could not be handed over on superdari to her father. The argument is that because of this order the father of the girl Shri Relu Ram is competent to prevent her from joining her husband as he is to produce her in the Court whenever required so to do. Mr. Soni further submits that by virtue of the impugned order in fact the girl is being detained illegally. The assertion of the petitioner is that his wife, it given choice, would gladly live with him.
(7) In the interest of justice I had directed that the girl be produced before me so as to ascertain her wishes. In compliance with my direction she was produced on 26th October, 1981, at 2 p.m. I took up the matter in my chambers. As would be evident from the minutes of the proceedings of that day Suman Devi categorically stated that she wanted to live with her parents. I satisfied myself that she was under no pressure and was making the statement voluntarily. Thereafter, I sent for the counsel for the parties. She repeated her statement in their presence confirming the fact that she wants to live with her parents.
(8) In view of the assertion of the girl Mr. Soni learned counsel for the petitioner confined himself to the argument that the girl being a major ought not to have been handed over on superdari by the learned Magistrate. At that stage, according to him, in view of the prima facie finding of the learned Additional Sessions Judge that she is of 21 years of age, she could not be considered a minor. Respondent No. 2 father of the girl, however is contesting this fact. According to him, the date of birth of Suman Devi is 6th Sept. 1966, and not 6th September, 1960. It is not for me at this stage to pronounce my judgment one way or the other on this fact. In the event of the report under section 173 of the Code of Criminal Procedure being filed by the Investigating Officer in Court, it will be for that Court to go into this question. Prima facie, however, the record shows that she is not a minor. In her statement before Shri Mahabir Singhal on 5th September 1981, she had stated so. The Additional Sessions Judge vide her order dated 11th September, 1981, had also found her to be so.
(9) In this state of affairs and keeping in view that she is not accused of having committed any offence, the direction regarding handing over of her custody on superdari to her father was unwarranted. In the facts of this case the Magistrate had no jurisdiction to pass the impugned order. The girl having been prima facie held to be major ought to have been allowed to go where she liked. I am fortified in this view by a judgment of the Kerala High Court in Pradeepan v. State of Kerala and another, 1981 K.L.T.664. In almost similar circumstances, Bhat J. observed, 'As I have already pointed out, the learned Magistrate should have allowed to leave the Court on her own, since she is a major. If the law permits him to take a bond from her either under S. 171 of the Code, or otherwise, it was open to him to pass an order requiring her to execute a bond.'
(10) In view of my discussion above, the order dated 15th September, 1981, passed by Shri Mahabir Singhal, Metropolitan Magistrate, New Delhi, is quashed. To that extent the application is allowed. .