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2011 DIGILAW 396 (MP)

Rajendra Mishra v. State of M. P.

2011-03-29

K.K.LAHOTI, SUSHMA SHRIVASTAVA

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JUDGMENT : Thegirl Ms. Jyoti Mishra hasbeen produced from Short Stay Home. We have inquired from her. She submittedthat she is willing to go along with her parents. Her parents have also shownwillingness to take the custody of Ms. Jyoti Mishra . Shri J.N.Tripathi ,learned counsel for respondent No. 4 submitted that as per the case ofrespondent No. 4 Ms. Jyoti Mishra is his married wife and he is entitled for the custody of wife as per section 6of the Hindu Minority and Guardianship Act, 1956. It is further submitted byhim that Ms. Jyoti Mishra is a person and as she has been brought to this Court, she may be set free tolive as per her wishes. He has also drawn our attention to various documentsproduced by respondent No. 4 to show that at present Ms. Jyoti Mishra is a major. To appreciate the aforesaidcontention, we have perused the record and found that the petitioner hasproduced various documents in the case. The following documents reveals thedate of birth of Ms. Jyoti Mishra as 7.1.1995 : - (1)Annexure P-1 the High School certificate mark sheet of 2009. (2)The transfer certificate Annexure P-4 dated 10.4.2010 issued by Maharani Laxmibai Government Girls Higher Secondary School , Sagar . (3)The marksheet -cum-certificate of Class VIII issued by Shri W.P.No . 5747/2010 Ram Vidhya Mandir Khaddi ,District Chhatarpur . (4)A certificate issued by the In-charge of Aanganwadi Centre, Khaddi , District Chhatarpur . Therespondent No. 4 has also produced certain documents, in which date of birthhas been shown as 7.1.1993 and 7.1.1991 respectively. These are: - (1)Primary School certificate of 2004. (2)Certificate issued by Indira Kala Sangeet Vishwavidyalaya , Khairagarh . 2.From the perusal of aforesaid certificates, it appears that the name of personto whom the aforesaid certificate was issued is appearing as Ms. Sachi Mishra , though in the CourtMs. Jyoti Mishra statedthat Sachi Mishra is alsoher name. So far as the certificate issued by Indira Kala Sangeet Vishwavidyalaya ,there is no column of date of birth. However the date of birth has been writtenat the top of the certificate as 7.1.1991. Even for the arguments, if the dateof birth of Ms. Sachi Mishra is treated as 7.1.1993, then how the date of birth has been written as 7.1.1991has not been explained. However the date of birth has been writtenat the top of the certificate as 7.1.1991. Even for the arguments, if the dateof birth of Ms. Sachi Mishra is treated as 7.1.1993, then how the date of birth has been written as 7.1.1991has not been explained. Though it is stated by Shri J. N. Tripathi , learned counsel for respondent No. 4that it is for the petitioner or the parents of girl to explain how there isdifference of age, but from the perusal of the documents it appears thatconsistently the date of birth was recorded as 7.1.1995. 3.In view of aforesaid, prima facie we find that the date of birth of Ms. Jyoti Mishra is 7.1.1995. So faras the claim of respondent No. 4 that Ms. Jyoti Mishra being the wife of respondent No. 4, she be given inthe custody of respondent No. 4 is concerned, we have examined variousprovisions under W.P.No . 5747/2010the Indian Penal Code and also under the Hindu Marriage Act, 1955. Section 366A of the I.P.C. provides Procuration ofminor girl below 18 years, the aforesaid Act is anoffence. Section 5 (iii) of the Hindu Marriage Act, 1955 provides condition forHindu marriage, which specifically prohibits the marriage when the bride isbelow 18 years. Section 18 of the Hindu Marriage Act provides punishment forthe contravention of condition under section 5(iii) of the Act and makes itpunishable. In these circumstances, at present if the marriage was performed byrespondent No. 4 with Ms. Jyoti Mishra ,then it is an offence under the aforesaid provision. 4.However, we are not considering the question of marriage between Ms. Jyoti Mishra and respondent No. 4 Karan Tiwari at thisjuncture. As Ms. Jyoti Mishra has been produced before this Court, we are deciding the question of custody ofminor girl. Shri Abhijit Bhowmik , learned counsel for petitioner also drawn ourattention to the order passed in W.P.No . 7484/2008 on7.7.2008, about the conduct of respondent No. 4 by this Court and stated thatrespondent No. 4 had filed a writ petition in respect of girl namely Rashmi claiming her to be his wife. This Court consideringthe aforesaid question in a writ petition of habeas corpus, passed an order,which reads thus : - 5.She has denied factum of marriage with thepetitioner. She has clearly started that no marriage has been performed. She ismajor and wants to live with her parents. This Court consideringthe aforesaid question in a writ petition of habeas corpus, passed an order,which reads thus : - 5.She has denied factum of marriage with thepetitioner. She has clearly started that no marriage has been performed. She ismajor and wants to live with her parents. 6.In view of the aforesaid, petition for habeas W.P.No .5747/2010 corpus is dismissed with costs of Rs.5 ,000 /-to be paid to Ms. Rashmi within a period of 15 daysand receipt be filed in this Court. Non-compliance will be taken asdisobedience of order of this Court. 7.From the perusal of aforesaid, it is apparent that earlier respondent No. 4 has madean attempt to claim one Rashmi as his wife and now heis claiming Ms. Jyoti Mishra as his wife. The parents of Ms. Jyoti Mishra have denied marriage and at present we find that Ms. Jyoti Mishra is a minor. Inthese circumstances, we direct that custody of Ms. Jyoti Mishra be given to her parents. The parents who arepresent in the Court have stated that they are ready to take custody of Ms. Jyoti Mishra . So we direct thatMs. Jyoti Mishra be handedover in the custody of parents Rajendra Mishra and Smt.Meena Mishra , who are present in the Court. 8.Accordingly, this petition of habeas corpus is disposed of, with no order as tocosts.