JUDGMENT 1. - In both these petitions, the same impugned order, namely order dated 18.10.2012 passed by the Civil Judge (Sr. Div.) andAdditional Chief Judicial Magistrate, Niwai, District Tonk, has been challenged. Therefore, both the petitions are being decided by this common order. 2. The facts are being taken from S.B. Criminal Misc. Petition No. 3748/2012. Briefly stated the facts of the case are that on 26.9.2012, Smt. Heera Devi lodged a report at the Police Station Datwas, District Tonk for offence under Sections 143, 363 and 366 Indian Penal Code In the report, she claimed that in the morning of 25.9.2012 while she was milking her cows at 4.00 A.M., she heard screams of her daughter. When she rushed to her room, she found her daughter Foranti, a 14 years old child, missing from her room. When she rushed outside, she saw a car standing about a field away. When she and her family members started searching for her daughter, they were told that her daughter has been taken away by Sohan, Kanwarpal, Bhanwarlal, Sheoji, Kishanlal, Kedar, Ramraj, Harkesh and Pukhraj. On the basis of the said report, a formal F.I.R., F.I.R. No. 77/2012 was registered at Police Station Datwas for the aforesaid offences. During investigation, Foranti, the petitioner in Criminal Misc. Petition No. 3748/2012, was recovered. She was lodged in Balika Grah. Subsequently, Foranti and Sohan, one of the accused persons in the aforesaid F.I.R., and Foranti's mother Smt. Heera Devi, the complainant, all three of them filed applications for handing over the custody of Foranti. While Foranti expressed her desire to go with Sohan, Sohan pleaded that- her custody should be given to him. On the other hand, Forantis mother pleaded that Foranti's custody should be given to her. By order dated 18.10.2012, the learned Magistrate dismissed the applications filed by all the three persons. Instead, he directed that Foranti should be kept at Balika Grah, Ajmer. Since both, Foranti and Sohan, are aggrieved by the said order, they have filed these petitions before this Court. 3. By order dated 15.1.2013, this Court directed the Investigation Officer to produce Foranti before this Court. Consequently, she was produced on 21.1.2013. This Court directed the Deputy Registrar (Judl.) to record her statement. The statement was duly recorded and forms the part of the judicial record. On 21.1.2013, this Court also had an occasion to speak to Foranti. 3. By order dated 15.1.2013, this Court directed the Investigation Officer to produce Foranti before this Court. Consequently, she was produced on 21.1.2013. This Court directed the Deputy Registrar (Judl.) to record her statement. The statement was duly recorded and forms the part of the judicial record. On 21.1.2013, this Court also had an occasion to speak to Foranti. She informed this Court that her actual date of birth is 8.8.1993. Thus, she is 19 years old. She further informed this Court that her father had expired about six to seven years ago. She has lost her brother about one and a half years ago. She further informed this Court that her elder sister was married to Sohan. Her sister has also expired leaving behind Sohan and two children. According to her, about seven to eight years ago, she was married to one Ghanshyam. However, her husband is an alcoholic. He continuously abuses her both physically and mentally. Therefore, she has no desire to stay with him. She does not want to live with her parental family either as they are forcing her to go back to her husband. In fact, she has gone of her own free will to Sohan in order to look after his children and to live with him as his wife. She dearly expressed her willingness that even now she wants to go back to Sohan. 4. On 5.2.2013, this Court also had an occasion to speak to Sohan. He has explained to the Court that after the death of his wife and of his father-in-law, he had been looking after his mother-in-law and her daughters. For, with the death of his brother-in-law, there was no male member in the family. It is during this period that affection grew between him and Foranti. Out of her own free will, she came to stay with him. She has been looking-after his children and him. However, due to the pressure built by her husband's family, a false case has been registered against him. According to him, he is willing to marry Foranti according to customary law prevalent in the community. He also assures this Court that he shall keep Foranti and look after her welfare. 5. In appearance both, Foranti and Sohan appear to be major. They are both independent and articulate. They both understand the consequences of their acts. According to him, he is willing to marry Foranti according to customary law prevalent in the community. He also assures this Court that he shall keep Foranti and look after her welfare. 5. In appearance both, Foranti and Sohan appear to be major. They are both independent and articulate. They both understand the consequences of their acts. Even according to the medical report of Foranti, she is between 18-19 years old. 6. The order dated 18.10.2012 is a rather curious order. For, on the one hand, the learned Magistrate claims that on the basis of the statement of Smt. Heera Devi and on the basis of the school documents, Foranti is minor. Yet he denies the mother custody of the child on the ground that Foranti is refusing to go with her mother. Similarly, he denies Sohan the custody of Foranti, although in her statement recorded under Section 164 Cr.P.C. and in her statement given before the Magistrate in the Court, she had clearly expressed her desire to go with Sohan. 7. Once Foranti was produced before the learned Magistrate, he should have looked at the build of her body, should have considered her mental alertness and articulation to decide whether she appears to be major or minor. Instead, the learned Magistrate has taken a pedantic view of the case and has relied on the statement of the mother who claims that Foranti is only 14 years old. By no means does Foranti appear to be a child when she was produced before this Court. This Court is convinced that she is above 18 years. This view is further fortified by the finding of the medical opinion. Moreover, as mentioned above, Foranti is very clear about what she wants, about what would be the consequences of her action. Similarly, even Sohan is very clear that he wants to marry Foranti so that she will be able to look after him and his children. 8. For the reasons stated above, these petitions are, hereby, allowed. The order dated 18.10.2012 passed by the Additional Chief Judicial Magistrate, Niwai, District Tonk is, hereby quashed and set aside. The stay applications are also disposed of. 9. Since, the petitioner, Fori @ Foranti @ Foranta, is a major, she is free to move, as per her wish and desire. For the reasons stated above, these petitions are, hereby, allowed. The order dated 18.10.2012 passed by the Additional Chief Judicial Magistrate, Niwai, District Tonk is, hereby quashed and set aside. The stay applications are also disposed of. 9. Since, the petitioner, Fori @ Foranti @ Foranta, is a major, she is free to move, as per her wish and desire. The Investigating Officer, present in person, is directed to ensure that she is no longer confined in Balika Grah, Ajmer, but is left at the destination told to him by her.Petitions allowed. *******