Court No. - 32
Case :- HABEAS CORPUS WRIT PETITION No. - 3598 of 2018 Petitioner :- Karishma Bharti And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Mumtaz Ahmad Siddiqui Counsel for Respondent :- G.A.
Hon'ble Shashi Kant Gupta,J. Hon'ble Shashi Kant,J.
Learned counsel for the petitioner has filed today medical report along with X-ray report of the petitioner no. 1 Karishma Bharti (detenue), which are taken on record.
Heard Sri Mumtaz Ahmad Siddiqui, learned counsel for the petitioners, learned AGA and perused the record.
This writ petition has been filed seeking issuance of a writ, order or direction in the nature of habeas corpus directing the respondents to produce the petitioner no. 1 (corpus Karishma Bharti) before this Court and give her custody to her husband, the petitioner no. 2.
In pursuance of the order dated 5.10.2018, the detenue Karishma Bharti has been produced before us by respondent no. 5, Mahila Suhar Grah, Gopiganj, Bhadohi.
Upon a specific query made from the corpus petitioner no. 1 Karishma Bharti flatly refused to stay with her parents and expressed her willingness to live with her husband Ajay Kumar Gautam.
Learned counsel for the petitioner stated that in the statement recorded under Section 164 Cr.P.C. (Annexure-5) on 31.08.2018, the corpus has not supported the prosecution case rather she told her age 19 years. She also stated that she entered into wedlock with petitioner no. 2 Ajay Kumar Gautam and she wants to live with him. According to Certificate issued by C.M.O., Bhadohi, her radiological age was found to be 19 years. In this view of the matter, her detention in Mahila Sudhar Grah, Gopiganj, Bhadohi is wrong and illegal and she be set at liberty.
In reply, learned A.G.A. stated that the consent of a minor is no consent and the court below has rightly sent the petitioner no.1 (detenue) to Mahila Sudhar Grah since she has refused to go alongwith her parents.
It is evident from the perusal of the record that according to High School Certificate (Annexure-6) her date of birth is 17.02.2002 and she was minor on the date of incident and as per Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, for determination of age High School Certificate will prevail over other documents and only in absence of it, other documents and medical evidence have to be considered. In view of above the corpus was minor on the date of incident and is still minor.
We are aware that normally even minor corpus should not be kept in Mahila Sudhar Grah against her wishes but in the instant case, the corpus petitioner no. 1 does not want to go with her parents and express her willingness to live with her husband Ajay Kumar Gautam who is an accused in the case lodged by respondent no. 4, as Case Crime No. 35 of 2018, under Sections 363, 366 IPC, Police Station Bhadohi, District Bhadohi. In view of this, corpus could not be permitted to live with him. Admittedly corpus is minor and she could not be left on the street. In these circumstances, keeping in view of protection of interest of corpus along with her safety and security, we find it desirable that she should be kept in protection home/Mahila Sudhar Grah till attaining her age of majority and thereafter she should be set at liberty to move the place of her choice.
For the above discussion, we do not find any merits in this writ petition and it is liable to be dismissed.
The writ petition is accordingly, dismissed.
The corpus petitioner no. 1 Karishma Bharti (detenue) who has been produced today, be taken back to the concerned Mahila Sudhar Grah, Gopiganj, Bhadohi where she shall be kept until attaining majority. The Superintendent of Mahila Suhar Grah will strictly adhere to Rule of law and procedure prescribed and she/he will also ensure that during stay of corpus in Mahila Sudhar Grah, Gopiganj, Bhadohi, she should not be caused any physical, mental or psychological harm in any manner.
Concerned District Magistrate and District Judge shall ensure that CCTV Camera, if not already installed, be installed in the Nari Niketan/Protection Home immediately and regular monitoring be made by them.
Order Date :- 30.10.2018 Monika