JUDGMENT K.N. Sinha, J.
1. The present writ petition has been filed on behalf of Km. Manglesh through her father and natural guardian Vijai Singh on the ground that the petitioner Km, Manglesh was born on 15.7.1987 and she passed High School Examination from Sri Ganesh Higher Secondary School, Kutumbpur district Etah in the year 2001. She was a regular student of Class IX in Rani Awanti Bai Inter College, Marhara district Etah. Km. Manglesh being a minor was not in a position to take her independent decision. It is alleged that one Nem Singh, respondent No. 3, is a notorious person and he kidnapped Km. Manglesh on 12.12.2001. The respondent Nos. 3 to 7 are highly influential persons, who have illegally detained Km. Manglesh against her free-will and wishes. Km. Manglesh went to school on 12.12.2001 at 9 a.m. but she did not return about which a report was lodged under Sections 363 and 366. I.P.C. at P.S. Marhara district Etah. The same was registered as Crime No. 118 of 2002 (Annexure-2 to the petition). The police did not take any action ; hence the father of the petitioner represented to the Human Rights Commission, the Chief Minister and the D.I.G. According to Vijai Singh, Km. Manglesh is under illegal confinement of respondent Nos. 3 to 7 ; hence he prayed for issuing a writ in the nature of habeas corpus commanding the respondents to produce Km. Manglesh and thereafter she may be given in the custody of Vijai Singh. In support of his contention, a photocopy of High School Marksheet of Km. Manglesh showing her date of birth to be 15.7.1987 has been filed.
2. Counter-affidavit, rejoinder-affidavit, then short counter-affidavit and rejoinder-affidavit were exchanged.
3. Counter-affidavit has been filed on behalf of the respondent Nos. 4, 5, 6 and 7 alleging that the deponent Kendra Pal is aged about 55 years and respondent Genda Lal is aged about 90 years being physically weak and not able to move properly. It was further submitted that Km. Manglesh is about 21 years of age and she was already enrolled in the electoral roll of village Sirsabadan. Her name is shown in the voters list in the Assembly Election. Thus, she has attained the age of majority and the petitioner's father Vijai Singh has wrongly shown her date of birth as 15.7.1987. A true copy of the electoral roll has been filed as Annexure-C.A. 1. The petition is misconceived as Km. Manglesh had already escaped from her house earlier to this occurrence. On the F.I.R. of Vijai Singh the matter has been Investigated but the charge-sheet has been filed only against respondent No. 3 Nem Singh alias Narendra.
4. By the rejoinder-affidavit, the petitioner's father has filed photocopies of the school leaving certificates right from Class VI upto Class XI.
5. In the short counter-affidavit deponent Kendra Pal has deposed that Km. Manglesh appeared in the Adhikarl Pariksha from Gurukul Vishwa Vidyalaya, Brindaban, Mathura and her date of birth is recorded as 15.7.1983. A photocopy of the marksheet has been filed as Annexure-C.A. 1.
6. Rejoinder-affidavit has further been filed against the short counter-affidavit denying the fact that Km. Manglesh was the student of Gurukul Vishwa Vidyalaya as she was the regular student of Sri Dungar Singh Junior School, Marhara, district Etah from the year 1997 to 1998 as student of Class VII and VIII in the relevant year.
7. I have heard the learned counsel for the petitioner, learned A.G.A. for respondent Nos. 1 and 2 and the learned counsel for the respondent Nos. 3 to 7 and perused the record of the petition.
8. Km. Manglesh was produced before this Court and the dispute regarding her age arose. She was sent to protective home and an order for her medical examination by the C.M.O., Etah was passed. The C.M.O., Etah submitted his report showing her age to be about 19 years.
9. The father of the petitioner has filed photocopies of large number of documents along with his affidavit regarding the age of Km. Manglesh. The photocopy of the High School Marksheet shows her date of birth to be 15.7.1987. The rejoinder-affidavit dated 9.1.2003 shows that Km. Manglesh was a student of Sri Dungar Singh Vidya Mandir Prathmik Vidyalaya, Marhara, district Etah and left the school on 30.6.1996. In this school leaving certificate (Annexure-1 to the rejoinder-affidavit) the date of birth of Km. Manglesh is shown to be 15.7.1987. Thereafter she joined class VI in Sri Dungar Singh Karya Junior High School on 1.7.1996 and left the school on 30.6.1999 after passing class VIII. In this school leaving certificate too her date of birth is given to be 15.7.1987. She passed High School from Sri Ganesh Inter College, Kutabpur (Etah). Photocopies of the Scholars Register and Transfer Certificate show that she passed High School Examination in 2001 and in this Transfer Certificate too, the date of birth of Km. Manglesh has been given as 15.7.1987. Photocopy of the Scholars Register and Transfer Certificate Form of Rani Awanti Bai Inter College, Marhara, further shows that she joined intermediate 1st year on 31.7.2001 but her name was struck off on account of her being absent regularly. This is the period when the alleged kidnapping had taken place on 12.12.2001. This is the evidence filed on behalf of the petitioner In proof of her age.
10. As against this, the respondents have filed the copy of the voters list showing the age of Km. Manglesh to be 20 years and a photocopy of the marksheet of Gurukul Vishwa Vidyalaya, Brindaban, Mathura, shows the date of her birth to be 15.7.1983. This marksheet has been denied in the rejoinder-affidavit against short counter affidavit. There is noting to substantiate this marksheet.
11. The medical examination report submitted by the C.M.O. shows her age to be about 19 years.
12. The various school leaving certificates filed on behalf of the petitioner show that right from Class V till the Intermediate 1st year, her date of birth is 15.7.1987. So far as the voters list is concerned, it is not based on any authentic document. The medical examination report shows her age about 19 years, which may vary two years either way.
13. In view of the overwhelming evidence of school leaving certificates, the variation in age cannot be made on the higher side. It can be said that while recording the age in the school, the parents give the age of the child showing the lesser age. This fact is also not correct as with the rejoinder-affidavit, the petitioner's father has filed a photocopy of the Scholars Register of his two elder daughters in which Km. Brijesh has been shown to be born on 1.4.1982 and Km. Harvesh, the other daughter, is shown to have been born on 1.5.1984. Both the daughters of the petitioner's father are elder to Km. Manglesh.
14. Calculated thus, the date of birth as given in various school records including the High School marksheet shows as on the date of the alleged offence, i.e., 12.12.2001 Km. Manglesh was about fourteen and a half (14-1/2) years and was a minor and the father is the natural guardian.
15. In the result, the writ petition is allowed and the petitioner Km. Manglesh, who is kept in the protective home, shall be given in the custody of her father Vijai Singh. The incharge of the protective home shall comply with the order.