Court No. - 51
Case :- HABEAS CORPUS WRIT PETITION No. - 4038 of 2018
Petitioner :- Ranjana And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Mamta Sen,Rajesh Kumar Pandey
Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.
Despite orders of this Court dated 21.12.2018 and 13.2.2019 by means of which notice was served upon wife of respondent no. 5. However, neither any counsel has put in appearance on behalf of respondent no. 5 nor any counter affidavit has been filed on his behalf.
The present habeas corpus writ petition has been filed on behalf of corpus Smt. Ranjana through her husband, Kishan Kumar, alleging that although the petitioner is aged about nineteen years and she is being illegally detained in Nari Niketan, Allahabad.
Contention of the learned counsel for the petitioner is to the effect that Ranjana, the corpus has solemnized marriage with Kishan Kumar of her own sweet will without any fear, threat or coercion.
We have also perused the statement of the girl recorded under Section 164 Cr.P.C. (Annexure2), wherein she has categorically stated that "eaS fd'ku dks pkj lky ls tkurh gw¡A fd'ku ls 'kknh djuk pkgrh gw¡A vius ?kj ls 05-08-2018 dks 'kke 7 cts fd'ku ds lkFk xbZA geus fd'ku ls pyus ds fy, dgk FkkA fd'ku dh ekSlh ds ;gka x;h ogka 2 jkst :dh fQj ogka ls bykgkckn xbZA fQj iqfyl mBk ys xbZA fd'ku us esjs lkFk esjh ethZ ls 'kkjhfjd lEcU/k cuk,A eaS fd'ku ds lkFk tkuk ugh pkgrh g¡wA esjs firk us fjiksVZ fy[kokbZ gSA og xyr gSA eq>s vkSj dqN ugh dgukA tSls fd ihf<rk }kjk crk;k x;k esjs }kjk v{kj'k% c;ku vafdr fd;k x;kA c;ku ihf<rk dks i<+dj lquk;k x;k lqudj rLnhd fd;kA"
The contention is that the girl is adult; further contention is that even a minor can not be detained at Nari Niketan against her wishes; reliance has been placed on the medical certificate, copy of which has been annexed at page 2728 of the writ petition. The CMO, Allahabad has certified that the age of the girl Ranjana is about 19 years. The thumb impression of the girl is there with the certificate. The certificate of the Consultant Radiologist, T.B. Sapru Hospital, Allahabad has also been annexed along with the said certificate. The certificate dated 14.8.2018 which shows that the radiological age of the girl Ranjana is about 19 years.
We have also perused the order by means of which the girl was sent to Nari Niketan, which shows that the court concerned has given a categorical finding to the following effect:"og eka cki ds lkFk ugha tkuk pkgrh gaS] D;ksafd og mls ekjrs ihVrs o izrkfM+r djrs gS vkSj bl izdkj dk c;ku Hkh mlus foospd ds le{k fn;k gSA vc pw¡fd mls vfHk;qDr ds lkFk Hkstk ugh tk ldrk vkSj eka cki ds lkFk og tkuk ugh pkgrh gSA vU; dksbZ fj'rsnkj mls ys tkus ds fy, rS;kj ugh gS ,sls esa ihfM+rk jatuk ,d ifjR;Dr Abondened ckyd dh Js.kh esa vk;sxhA"
In this factual scenario and in view of the fact that the Court has been informed that the corpus is produced before this Court from Nari Niketan, Allahabad in the custody of head constable Mahesh Chandra Sahu and lady constable Sheetal Tomar. The Court proceed to examine the corpus:
On being asked by this Court from the girl "aap ka kya naam hai." She said "mera naam Ranjana hai." On being asked "kya aap kisi school me padi hain." She said "nahi mai kabhi school nahi gayee" and she was being confronted with the school certificate she said "mere mata-pita ne umar kam karke likhaya hai."
On being asked "abhi aap kahan jana chahati hain." She replied "main apne pati ke saath jana chahati hoon."
However, keeping in view the contention as has been raised at the bar of the Court and the objection as has been taken by the complainant, this Court after going through the entire record comes to the factual position that as per the medical report the girl is 18 years of age and she is an adult and she has expressed her desire before this Court that she may be released from custody and she would like to go with her husband Ajay Sharma.
Learned counsel for the petitioner has placed reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No.13037 of 2014 Mohini Gupta vs. State of UP and others, Habeas Corpus Writ Petition No.36519 of 2015 Smt. Neelam vs. State of UP and others, Habeas Corpus Writ Petition No. 19037 of 2011 Smt. Saroj versus State of U.P. And Others and the judgments passed by the Apex Court in Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 and Shafin Jahan vs Ashokan K.M. and others, reported in AIR 2018 SC 1933.
Learned counsel for the complainant has placed reliance upon the judgment passed in Habeas Corpus Writ Petition No.55317 of 2017 Smt. Priyanka Devi vs State of UP and others.
However, at this stage it may be appreciated that the said judgment was rendered before the judgment of the Apex Court in Suhani's case (supra). If we look into the legal consistent position we find that in the present case the girl has clearly stated that her age is 19 years and has given her statement under Section 164 CrPC which is in favour of Ajay Sharma and as per the medical certificate also the age of the girl is 18 years.
Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296".
It may be further appreciated that a victim of offence under section 363, 366A, 366 or 376 I.P.C. could not be falling in the category of an accused and as such no court could be authorised under any provisions of law to authorise the detention of such a lady even into protective custody if the lady objects to such detention. In various decisions this Court opined that generally an order was passed sending the girl to Nari Niketan being ignorant of the constitutional provisions on the procedure being reasonable and liberty being the most valuable fundamental right of a person. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties, of course within the caring custody of parents. No law could be upheld even in a case of a child if he is deprived of the right to life and valued the right to liberty. (order dated 8.5.2012 in Habeas Corpus Writ Petition No. 19037 of 2011 Smt. Saroj versus State of U.P. And Others).
It may also be appreciated that the issue whether the victim/detenue who is a minor, can be sent to Nari Niketan against her wish, is no longer resintegra and has been conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary Versus State of U. P. reported in 1978 Cr. L. J. 1003 (D.B.), a Division Bench of this Court has taken the view that:
"no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, 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."
In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 a Division Bench of this Court has enunciated the same principle as hereunder:
"In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it.
We have no mind to enter into the question and decide as to when a particular minor is to be set at liberty in respect of her person or whether she shall be governed by the direction of her parents. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate.
Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though, it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen should be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Sections 363 and 366 I. P.
C. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no law at least now has been quoted before us whereunder the Magistrate may direct dentition of a witness simply because he does not like him to go to any particular place.
In such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors."
In the case of Smt. Raj Kumari Versus Superintendent, Women Protection, Meerut and others House reported in 1997 (2) A. W. C. 720 another Division Bench of this Court has laid down the following dictum:
"In view of the above, it is well settled view of this Court that even a minor cannot be detained in Government Protective Home against her wishes. In the instant matter, petitioner has desired to go with Sunil Kumar besides this according to the two medical reports, i. e. of the Chief Medical Officer and L. L. R. M., College Meerut, the petitioner is certainly not less than 17 years and she understands her well being and also is capable of considering her future welfare. As such, we are of the opinion that her detention in Government Protective Home, Meerut against her wishes is undesirable and impugned order dated 23.11.96 passed by the Magistrate directing her detention till the party concerned gets a declaration by the civil court or the competent court of law regarding her age, is not sustainable and is liable to be quashed."
Thus in view of the above, it is clear that it is the consistent view of this Court that a minor cannot be detained in a protective home against her wishes."
As far as the question of maintainability of the writ petition is concerned, while considering the same question, a Division Bench of this Court in Habeas Corpus No. 146 of 2015; Smt. Preeti Nishad through her Husband, Mahendra Kumar Versus State of U. P. has held as hereunder:
"The main objection of Sri S. N. Tilhari, learned A.G.A. that the petitioner should be asked to file revision at this stage will be defeating the spirit of Article 21 of the Constitution of India. The petitioner is neither an accused nor an offender of law. She is simply a citizen of this country who has done no wrong. She is major. The C.M.O. concerned has given her age to be around 20 years. This is based on medical examination and x-ray report. So far the certificate submitted by the father is concerned, it appears to be fabricated. Detenue has clearly mentioned that she has never studied in the school from where the age certificate has been obtained. It is not a matriculation certificate. It is a lower class certificate issued recently after the controversy arose. It cannot be trusted compared to the C.M.O. report and her own version before the Court.
She has made statement before this Court that she does not want to live in any Nari Niketan or Sudhar Griha. She does not even want to live with his father. Somehow due to incorrect judicial order she is languishing in Nari Niketan for the last seven months. It will be a travesty of justice if this Court dismisses this petition on any alternative remedy. The law on the subject is very clear. The Court cannot shut its eyes and relegate a citizen to further harassment and illegal detention. Neither the S.D.M. nor the A.D.J. had any jurisdiction to send a lady to a protective home without her consent. The respective orders passed by them are set aside."
The boy Kishan Singh who is also present before this Court has been identified by the girl as her husband who in turn has identified the girl as his wife. Both have been identified by their counsel on the basis of documents produced before this Court.
In view of the statement made by the corpuse befoe this Court and in view of the desire expressed by the corpus that she wants to go with her husband Kishan Singh a case for grant of indulgence has been made out.
The corpus Ranjana who is present before this Court, proudced in the custody from Nari Niketan, Allahabad is hereby released from custody forthwith. Accordingly, the girl being adult is free to go whereever and with who she wants to go.
Since the corpus Ranjana want to go with her husband Kishan Singh she is free to go with him and no hindrance will be caused in her movement by any of the respondents. The respondents are restrained and they are also injuncted from interfering in any manner whatsoever in married life of petitioner no. 1 and her husband.
Thus, in view of the consistent legal position, in view of the fact that girl is an adult as per the medical certificate and in view of the statement of the girl under Section 164 CrPC, a case for grant of indulgence has been made out.
Accordingly, the habeas corpus writ petition is allowed. Corpus Ranjana is set at liberty forthwith.
Order Date :- 25.2.2019 Faridul