Heard learned counsel for the petitioner, learned counsel appearing for the opposite parties no.4 to 6, learned Additional Government Advocate and perused the record.
This petition of Habeas Corpus has been filed for the direction to the opposite parties to produce the detenue in the Court. The detenue was directed to be produced in the Court and she had stated that she has solemnized marriage with Ashu Gupta and she is residing in her matrimonial home. By order dated 08.07.2014, the detenue was sent to "Nari Niketan" for three weeks. The application for recall of the said order was moved. Upon which, a detailed order considering the submissions of both the parties, has been passed on 21.07.2014.
Learned counsel for the petitioner has submitted that petitioner, who is mother of the detenue, has no objection in keeping the alleged detenue in "Nari Niketan".
On the other hand, learned counsel for the opposite parties no.4 to 6 has raised objection for sending the detenue to "Nari Niketan".
In support of his submission, learned counsel for the petitioner has relied upon the case of Smt. Anita & another vs. State of U.P. & others reported in 2013 (2) JIC 694 (Alld), in which the Division Bench of this Court has held that according to the school record, the corups was minor but according to the medical report she was major. In para-6 of the case reads as under:-
"6. Considering the submission made by learned counsel for the petitioners, learned A.G.A., learned counsel for the respondent No.5 and from the perusal of the record, it appears that in the present case the corpus has been produced before this Court, she stated that she was major and has performed the marriage with Shyamveer, she stated that she is uneducated girl. But according to the record procuded by Head Master of Junior High School, Sisaieeya Gusaee, District Madaun, she was admitted in the school. Her date of birth is 20.07.1998 and her name is Sunita, her father stated that her alias name is Anita but in school she was admitted in the name of Sunita. The corpus had refused to go in the company of her father. According to her school record she is minor, she may not be given in custody of Shyamveer Singh, petitioner No.2 who is accused in case crime No.163 of 2013, under Section 363, 366 I.P.C. There is no other option except to keep her in Nari Niketan as directed by learned A.C.J.M.-II, Badaun. The impugned order dated 01.08.2012 passed by learned A.C.J.M. Court No.2, Badaun is not suffering from any illegality or irregularities. The prayer for quashing the same is refused and the prayer to give the custody of the corpus to petitioner No.2 Shyamveer Singh is also refused".
Learned counsel for the petitioner has further relied upon the case of Smt. Jyoti vs. State of U.P. & others reported in 2013 (2) JIC 220 (Alld), in which, in paras-5, 6, 7 and 8, Hon'ble the Division Bench of this Court at Allahabad has held as under:-
"5. This petition has been filed by mentioning therein that corpus is major, her date of birth, according to the Scholar's Register and Transfer Certificate Form is 23.6.1993, she has appeared in the High School Examination in the year 2011, she has performed the marriage with Chandra Shekhar, the marriage certificate has been issued by Registrar of Hindu Marriage, Allahabad on 6.8.2012. According to the Marriage certificate, she has solemnized the marriage with Chandra Shekhar on 19.4.2012. Chandra Shekhar is also major, according his High School Mark sheet his date of birth is 20.6.1989. According to the Medical Examination report also the corpus is major, she does not want to live in Nari Niketan, she may be set her at liberty because she has been illegally sent to Nari Niketan, Mathura by learned C.J.M. Firozabad.
6. According to the counter affidavit filed on behalf of I.O. the corpus is minor, according to her High School Mark Sheet her date of birth is 23.6.1996 and according to the provisions of Juvenile Justice Care Protection Act, the age mentioned in High School Mark sheet has to be given preference with any other certificate. Since the corpus is minor her consent for marriage may not be proper, in such circumstance, learned Magistrate has not committed any error in passing the order by which corpus has been sent to Nari Niketan Mathura. The corpus may not be given to the accused Bantoo Yadav alias Chandra Shekhar because he is an accused for the offence punishable under sections 147, 363, 366 I.P.C. in which the corpus is the star witness. In case corpus is given to the accused, the fair investigation/trial may not be ensured. The custody of the corpus is not illegal, the present petition is devoid of the merits, the same may be dismissed.
7. In this petition after perusing the marriage certificate and other documents, the Registrar Hindu Marriage, Allahabad was directed to appear before this Court along with documents with regard to registration of the marriage of the corpus with Chandra Shekhar on 6.8.2012 and notice was issued to the respondent no. 4 also for her appearance before this Court. In pursuance of the order dated 14.9.2012, Sri Gyanendra Kumar, Registrar, Hindu Marriage, Allahabad has appeared before this Court but he did not produce all the documents by which the process of registration of marriage was completed by him. It was submitted by him that Domicile certificate of the corpus was issued from Allahabad, whereas corpus was not resident of Allahabad, admittedly, she was resident of district Firozabad. The Domicile Certificate issued from Allahabad also made the whole case suspicious. Therefore, the authority who issued the Domicile Certificate, was directed to appear before this Court to explain as to why Domicile Certificate was issued. In pursuance of the order dated 1.10.2012 Smt. Rakesh Devi, respondent no. 4 has appeared before this Court. On a query made by this Court, she stated that she was firstly married with Bobby Yadav, from his wed lock, she gave birth to the corpus, but after death of Bobby Yadav, she performed her marriage with Ram Sewak who was already married with Vidya Devi. Ram Sewak performed the marriage with her with the consent of Vidya Devi because from their wedlock no child was born. From the wedlock of Ram Sewak a male child has been born. The corpus has not married with Bantoo Yadav alias Chandra Shekhar. The school transfer certificate in which the corpus date of birth 23.6.1993 has been mentioned is forged because the corpus has been born in the year 1996, she was ready to have the custody of the corpus.
8. In pursuance of the order dated 1.10.2012, SDM Tehsil Sadar, Allahabd, who had issued the Domicile Certificate of the corpus has not appeared. Sri Gyanendra Kumar, Registrar, Hindu Marriage Allahabad was present in the court who filed his affidavit also. Again S.D.M. Sadar Allahabad and Sri Gyanendra Kumar Registrar Hindu Marriage Allahabad were directed to appear before this Court on 8.10.2012. In pursuance of the order dated 8.10.2012 Smt. Vandana Tripathi, SDM Sadar Allahabad appeared before this Court. She filed her affidavit also mentioning therein that Tehsildar Sadar Allahabd reported that certificate was never issued by the authority of the Tehsil Sadar, Allahabad, it was forged and fabricated document, it shows that by filing the forged domicile certificate, the corpus obtained marriage certificate. Sri Gyanendra Kumar, Registrar Hindu Marriage, Allahabad also filed his affidavit mentioning therein that in good faith he issued the marriage registration certificate but he tendered unconditional apology for causing inconvenience to the court, which shows that in the present case by playing fraud and forged domicile certificate was obtained. According to the school certificate the date of birth of the croups is 23.6.1996. According to the provisions of Juvenile Justice (care and protection) Act, the age mentioned in the High School certificate shall be given preference over any other certificate. The learned C.J.M. Firozabad passed a reasoned order on 4.9.2012 by which the corpus has been sent to Nari Niketan, Mathura. The impugned order dated 4.9.2012 is not suffering from any illegality or irregularity. In pursuance of the order dated 4.9.2012 the corpus has been detained in Nari Niketan, Mathura, in any manner detention of the croups is not illegal. The prayer for setting side the impugned order dated 4.9.2012 passed by the learned C.J.M. Firozabad and to give the custody of the corpus to Bantoo Yadav alias Chandra Shekher is refused. The corpus may not be given in the custody of respondent no. 4 because she has already refused to go in her company. The present writ petition is devoid of merits, the same is dismissed".
Learned counsel for the petitioner has also relied upon the case of Smt. Himani vs. State of U.P. & others reported in 2013 (3) JIC 435 (Alld.), in which, Hohn'ble the Division Bench of this Court at Allahabad in para-8 has held as under:-
"8. Considering the facts, circumstance of the case, submission made by learned counsel for the petitioner, learned A.G.A.for the State of U.P., counsel appearing on behalf of respondent no.4 and counsel appearing on behalf of Pt. Vigyan Prakash Sharma, it appears that in the present case the corpus was allegedly kidnapped by Devendra Singh alias Bunty on 20.6.2012, its FIR has been lodged on 2.7.2012 in case crime no. 111 of 2012 under sections 363, 366 I.P.C., Police Station Nangal District Bijnor. According to the school certificate, the date of birth of the corpus is 10.5.1996, but according to the first medical examination report she was aged about 19 years but according to second medical examination done by Medical Board, constituted by C.M.O. Bijnor, she was found above 18 years and below 20 years of age. According to the statement recorded under section 164 Cr.P.C., she has not supported the prosecution story, she stated that she had gone in the company of Devendra Singh alias Bunty with her free will and consent. The Marriage certificate filed with this petition as Annexure-2 shows that it has been issued by Pt. Vigyan Prakash Sharma, Purohit of Sri Jharkhand Mahadeo Mandir on 24.2.2012 mentioning therein that the corpus and Devendra Singh have performed marriage in the temple on 24.2.2012 at 5.30 P.M. but marriage certificate shows that it was not bearing the signatures of family members of corpus and Pt. Vigyan Prakash Sharma was not legally authorized to issue such type of marriage certificate but Pt. Vigyan Prakash Sharma who appeared before this Court tendered his unconditional apology and assured the Court that in future he shall not issue such type of certificate, therefore, this Court is restrained to proceed further against Pt. Vigyan Prakash Sharma by accepting unconditional apology tendered by him. According to the school record, the date of birth of the corpus is 10.5.1996, according to her date of birth she was minor aged about 16 years on the date of the alleged incident. In such an age, she was playing with emotions and she was not capable to foresee her future prospects of her life. The corpus has refused to go in the company of her father. In such circumstances, the learned Judicial Magistrate/Civil Judge ( J.D.) Najibabad, District Bijnor sent the corpus to Nari Niketan Moradabad vide order dated 24.7.2012. The order dated 24.7.2012 is not suffering from any illegality or irregularity. The corpus has been detained in Nari Niketan Moradabad in pursuance of the judicial order dated 24.7.2012, therefore, her detention is not illegal. The present petition is devoid of the merits. The prayer for quashing the impugned order dated 24.7.2012 is refused".
Learned counsel for the opposite parties no.4 to 6 has further submitted that as per the medical examination report, her age is nineteen years and the Mark-sheet filed by the petitioner cannot be treated as certificate.
In support of his submission, learned counsel for the opposite parties no.4 to 6 has drawn attention of this Court towards the case of Shah Nawaz vs. State of U.P. and another reported in 2011 (72) ACC 201, in which, Hon'ble the Single Judge of this Court at Allahabad has observed that for deciding the juvenility of a person, the Marksheet cannot be treated as a certificate.
Learned counsel for the opposite parties has further relied upon the case of Court of its own motion (Lajja Devi) vs. State reported in 2014 (1) JIC 198 (Delhi) (FB), in which, Hon'ble the Delhi High Court has considered the provisions of Prohibition of Child Marriage Act and Indian Penal Code and held that marriage of a female less than 18 years or a male less than 21 years shall be voidable marriage.
As far as the case of Shah Nawaz (supra) is concerned, the present case is not the case of Juvenile Justice Act. Moreover, the petitioner has filed the Marksheet-cum-Certificate of High School Examination, in which, the date of birth of the alleged detenue is 28.08.1997. The language of the said certificate, which has been filed as annexure no.1, is apparently clear that it is the "Certificate-cum-Marks Sheet". The language starts with the words "This is to certify that ......." In these circumstances, annexure no.1 is not merely a Mark-sheet, but it is a Certificate-cum-Marksheet. Therefore, I do not find any substance in the submission of learned counsel for the opposite parties that the said mark-sheet cannot be treated as High School Certificate.
As far as judgment of Court of its own motion (Lajja Devi) (supra) is concerned, the Full Bench of Delhi High Court in paras-48 and 51 has held as under:-
"48. We often come across cases where girl and boy elope and get married in spite of the opposition from the family or parents. Very often these marriages are inter-religion, inter-caste and take place in spite of formidable and fervid opposition due to deep-seated social and cultural prejudices. However, both the boy and girl are in love and defy the society and their parents. In such cases, the courts face a dilemma and a predicament as to what to do. This question is not easy to answer. We feel that no straight jacket formula or answer can be given. It depends upon the facts and circumstances of each case. The decision will largely depend upon the interest of the boy and the girl, their level of understanding and maturity, whether they understand the consequences, etc. The attitude of the families or parents has to be taken note of, either as an affirmative or a negative factor in determining and deciding whether the girl and boy should be permitted to stay together or if the girl should be directed to live with her parents. Probably the last direction may be legally justified, but for sound and good reasons, the Court has option(s) to order otherwise. We may note that in many cases, such girls severely oppose and object to their staying in special homes, where they are not allowed to meet the boy or their parents. The stay in the said special homes cannot be unduly prolonged as it virtually amounts to confinement, or detention. The girl, if mature, cannot and should not be denied her freedom and her wishes should not get negated as if she has no voice and her wishes are of no consequence. The Court while deciding, should also keep in mind that such marriages are voidable and the girl has the right to approach the Court under Section 3 of the PCM Act to get the marriage declared void till she attains the age of 20 years. Consummation of marriage may have its own consequences.
51. If the girl is more than 16 years, and the girl makes a statement that she went with her consent and the statement and consent is without any force, coercion or undue influence, the statement could be accepted and Court will be within its power to quash the proceedings under Section 363 or 376 IPC. Here again no straight jacket formula can be applied. The Court has to be cautious, for the girl has right to get the marriage nullified under Section 3 of the PCM Act. Attending circumstances including the maturity and understanding of the girl, social background of girl, age of the girl and boy etc. have to be taken into consideration".
In the present case, there is peculiar position because the alleged detenue claims her marriage with the alleged lover and she has refused to go in the company of her mother, who is natural guardian. From the High School Certificate, there remains no doubt regarding the fact that she is still minor. The alleged husband is still in jail and the opposite parties no.4 to 6 are her alleged in-laws. The detenue is detained in Nari Niketan by order of this Court because she does not want to go to the company of her mother and brothers. In the rejoinder affidavit filed by learned counsel for the petitioner, it has also come that brothers of the alleged husband are facing trial for the offence punishable under Section 302 I.P.C. and husband is also facing other criminal trial apart from the present case under Section 366 I.P.C.
In these peculiar circumstances, there is no option but to put the alleged detenue in Nari Niketan till she attains the age of majority.
In the present case, by order dated 21.07.2014 it has been observed that the girl has refused to go with her mother because her brother has bad eyes on her. The alleged husband is in Jail. She should not be given in the custody of alleged in-laws, because they are already facing trial under Section 302 I.P.C. Under these circumstances, the "Nari Niketan" is the safest place for her.
In these circumstances, this petition of habeas curpus has become infructuous because the detenue has been safely put in Nari Niketan. However, the petitioner-mother and the opposite parties no.4 to 6 shall have the right to meet the detenue in "Nari Niketan", once in a month, as per rules.
The petition is thus dismissed as infructuous with the direction that she shall remain in "Nari Niketan" till she attains the age of majority i.e. 28.08.2015. In the meanwhile, if she wishes to go with her natural guardian i.e. mother and the mother is also ready to take the custody of her, then the alleged detenue can move the application before the trial court, who shall consider it and shall pass necessary orders.
It is made clear that after 28.08.2015, she should be set at her liberty and should be sent to the place as per her wishes under proper security. While leaving "Nari Niketan" after 28.08.2015, she should also inform the trial court about her address so that trial may not be delayed.
Office is directed to send the certified copy of this order to the trial court, at an early date.
Order Date :- 28.8.2014 Suresh/