Court No. - 3
Case :- HABEAS CORPUS WRIT PETITION No. - 3329 of 2018
Petitioner :- Varsha Devi And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vinod Kumar Srivastava,Gulab Chandra
Counsel for Respondent :- G.A.
Hon'ble Rajesh Dayal Khare,J. Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioners, Sri Jitendra Pratap Singh, learned counsel for the respondent no. 4 and learned A.G.A. for the State respondent.
The present habeas corpus petition has been filed by the petitioner no. 2 alleging that the petitioner no.1, corpus, is his legally wedded wife and has been illegally detained in Government Protection House/Nari Niketan, Varanasi.
When the matter was earlier taken up on 28.6.2018 following order was passed:
"It is contended that without any order of the Court the petitioner no. 1 (Smt. Varsha) has been put in Nari Niketan, Varanasi. The petitioner no. 2 claims to be her husband.
Issue notice to respondent no. 4.
The second respondent- Superintendent, Nari Niketan, Varanasi is directed to produce the corpus before this Court on the next date.
Put up this case on 26th July, 2018 in the additional cause list."
Today the corpus is present before this Court. Learned A.G.A. has also filed counter affidavit/affidavit of compliance and has drawn attention of this Court to annexure CA-7 and has stated that as per the desire of corpus, Child Welfare Committee, Varanasi released the corpus in favour of her father, respondent no. 4, vide order dated 30.6.2018, copy of the said order has been annexed as annexure CA-8. Learned A.G.A. has also drawn attention of this Court to the medical report of corpus issued by the Medical Officer, Varanasi dated 7.5.2018 and has stated that according to which the age of corpus is assessed 16 1/2 to 17 1/2 years, copy whereof has been filed as annexure CA-6.
Learned counsel for the petitioners has stated that as per Aadhar Card, copy of which has been field as annexure-1 to the affidavit, corpus is major. Learned counsel for the petitioner has drawn attention of this Court to annexure-4 to the affidavit, which is the statement of corpus recorded under Section 164, Cr.P.C., wherein corpus has stated that she had gone with the petitioner no. 2 out of her own freewill.
The corpus Varsha is present before the Court, who has been identified by the learned counsel for the petitioner and upon being inquired she has stated that she had gone with the petitioner no. 2 out of own freewill and had married him and wants to go and live with her husband. The statement of corpus has been separately recorded in the order sheet.
It is contended by the learned counsel for the petitioner that the corpus is major and she wants to go and live with her husband. It is also contended that the corpus, who is major, cannot be forced to live in Nari Niketan against her wishes. Learned counsel for the petitioners has relied upon judgment of Hon'ble Apex Court in the matter of Daya Chand Vs. Sahib Singh, reported in AIR 1991 SC 930, wherein it has been held that the date of birth recorded in the school at two places are variant and shows less than 16 years and according to medical evidence the age shows more than 16 years. It was further held that the date of birth as recorded in the school can be appreciated but cannot be accepted because the same is clearly in conflict with the medical report and the tendency of many parents to record lesser age in school is well known. Learned counsel for the applicants has further relied upon judgment of Hon'ble Apex Court in the matter of Smt. Parvati Devi vs. State of U.P., reported in 1992 All Cri C 32, wherein it has been held that confinement of victim in Nari Niketan against her wishes cannot be authorised either under Section 97 or under Section 171, Cr.P.C. and the respondents have failed to bring to the notice of the Court any legal provision where under the Magistrate has been authorised to issue direction that a minor female shall against her wishes, be kept in Nari Niketan. Identically in the case of Smt. Kalyani Chowdhar Vs. State of U.P., reported in 1978 Cri L J 1003, 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.
It is further contended by the learned counsel for the petitioners that the most important aspect is as to whether any authority for detention of corpus is present in law, though it is said that she has been detained in Nari Niketan under the direction of Magistrate concerned but first case is to be seen whether the Magistrate can direct for detention of person in the situation in which the corpus is and no Magistrate has absolute right to pass order of detention unless it is justified by some law or procedure. Thus, a direction passed by the Magistrate for detention of corpus in Nari Niketan, is illegal. Learned counsel for the petitioners has relied upon judment in the case of Smt. Raj Kumar Vs. Superintendent, Women Protective Home, reported in 1998 Cri L J 654, in which this Court has held that even a minor cannot be detained in Government Protective Home against her wishes.
It is argued by the learned counsel for the petitioners that in the present case, as the corpus is major, as per medical evidence and aadhar card and according to the statement recorded under Section 164, Cr.P.C., she wanted to go with her husband out of love and affection, therefore, order of Magistrate, sending her in Nari Niketan is bad in law.
After hearing the submissions as made by the learned counsel for the petitioners and learned A.G.A., it is born out that the custody of the corpus was directed to be given in Nari Niketan by the Magistrate on the basis of medical report of the corpus to authenticate that she is minor. After going through the records we find that legally the age of the girl is assessed between 16 1/2 to 17 1/2 years by the concerned Chief Medical Officer. The medical assessment of age may not be a conclusive and determination of age is also being held in the matter of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir, reported in AIR 1982 SC 1297, wherein it has been held that if the age has been determined by the doctor medically then three years have to be added to such assessed age. The said judgment has consistently been followed in such cases as the present one to give weightage to assess the age of the corpus. It has also noted that if a girl, who is at the verge of majority, walks out of her parent's house to go with any person out of love and affection, then it could not be a case of kidnapping as the same can not be said to be an act of taking away or enticing away a women below 18 years of age. It could be a mere case of elopment as has also been held by Hon'ble Supreme Court in the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942. However, this Court is merely concerned as to whether the girl is 18 years or more years of age and could be directed to be confined against her wishes, specially, keeping in view the fact that she is not an accused, who has committed any offence. Legally custody of the girl cannot be authorized by any court in connection with commission of any offence alleging taking away of the victim or enticing her away from her lawful guardianship. In the opinion of this Court, it would have been in the fitness of things that the Magistrate should have considered the factual and legal position before directing the prosecutrix to be confined in Nari Niketan. Liberty of any person cannot be curbed by an order, which might not be having any juridical sanctity. The balance of reasonableness, which is the hallmark of judging such orders, convince this Court that any judicial order, which failed the scrutiny on reasonableness can not be upheld.
In view of the above, the order impugned directing the custody of the prosecutrix to be given in Nari Niketan, whereby she is confined cannot be upheld. Accordingly, we direct that the corpus be set at liberty immediately so that she could go to place or to a person, she likes or chooses to go and the Magistrate concerned shall make arrangement for her to be sent to place where she chooses to go with full safety considering the circumstances and environment prevailing.
Accordingly the present petition is allowed.
Order Date :- 26.7.2018 Ashish