JUDGMENT 1. - This criminal Misc. petition under section 482 Cr.P.C. is directed against the order dated 31.07.2014 passed by Judicial Magistrate, First Class, Siwana, District Barmer (for short 'the court below' hereinafter) in CR No.169/2014, whereby the application filed by the petitioner seeking custody of Ms. Geeta has been rejected. 2. Brief facts of the case are that respondent No.2 filed a written complaint on 04.07.2014 before the Station House Officer, Police Station, Siwana, inter alia, alleging therein that about 15-20 days back Guman Singh, Chhhel Singh, Narayan Singh, wife of Guman Singh and Asa Ram son of Nava Ram came to his agricultural field and requesed him that marriage of his daughter Geeta Kumari be solemnized with Ramesh Kumar son of Asa Ram, upon which, the complainant told him that his daughter is minor and he will not marry her. It is alleged that all those persons threatened him that if he will not marry his daughter with Ramesh Kumar, they will forcibly take her away and get her marriage solemnized with Ramesh Kumar and thereafter all the persons went away. On 03.07.2014 at about 12:00-1:00 A.M., all the persons along with some other persons came to the agricultural field of the complainant and kidnapped his daughter. It is alleged that when he tried to stop them, they threatened him to kill and thereafter ran away from there. It is also alleged that while running away, the accused-persons took away a sum of Rs. 50,000/- and some ornaments along with them. 3. On receiving the aforesaid report, the police has registered the FIR No.169/2014 dated 04.07.2014 at Police Station, Siwana, District Barmer for the offences punishable under sections 363, 384, 366A, 457, 380 and 120-B IPC. Police recovered Ms. Geeta on 09.07.2014 and produced her before the court below on the very day. When Ms. Geeta refused to go with her father, the court below has ordered that Ms. Geeta be sent to Balika Sudhar Grah, Jodhpur. 4. The petitioner, who is claiming himself to be the husband of Ms. Geeta, filed an application before the court below and sought her custody being his married wife but that application was rejected by the court below vide order dated 31.07.2014, against which, this criminal misc. petition has been filed. 5. Learned counsel for the petitioner Mr Rakesh Arora has argued that Ms. Geeta, filed an application before the court below and sought her custody being his married wife but that application was rejected by the court below vide order dated 31.07.2014, against which, this criminal misc. petition has been filed. 5. Learned counsel for the petitioner Mr Rakesh Arora has argued that Ms. Geeta is legally wedded wife of petitioner and she is major, therefore, the petitioner is entitled for her custody. The learned court below has wrongly rejected the application of the petitioner seeking custody of Ms. Geeta. The learned counsel for the petitioner has further argued that during the course of investigation, statements of Ms. Geeta were recorded under section 164 Cr.P.C. on 11.07.2014, wherein she has clearly stated that she has married to the petitioner and wants to live with him. It is also contended by the learned counsel for the petitioner that before the Magistrate, at the time of recording of her statement, Ms. Geeta has disclosed her age as 19 years and, therefore, she is major and cannot be detained in Balika Sudhar Grah without her consent. The learned counsel for the petitioner has placed reliance on decisions of this Court in Bhaga Ram v. State of Rajasthan & Ors., 2009(1) Cr.L.R. (Raj.) 297 and Sayar & Anr. v. State of Rajasthan & Anr., 2012(1) Cr.L.R. (Raj.) 168 and prayed that impugned order passed by the court below may kindly be set aside and the application filed by the petitioner seeking custody of Ms. Geeta may kindly be allowed. 6. Per contra, learned Public Prosecutor and the counsel appearing for the respondent No.2 have opposed the prayer of the petitioner and submitted that custody of Ms. Geeta cannot be handed over to the petitioner because she is minor and her consent or the statement regarding marriage with the petitioner are of no relevance. The learned counsel for the respondent No.2 has placed reliance on decision of Hon'ble Supreme Court in Jarnail Singh v. State of Haryana, 2013 CRI.L.J.3976 and argued that in view of the school record (Transfer Certificate) of Ms. Geeta, wherein her age is mentioned as 15.05.1998, there is no doubt that she is minor and her age is liable to be determined only on the basis of the said school certificate as per the provisions of Juvenile Justice (Care and Protection of Children) Rules, 2007. Geeta, wherein her age is mentioned as 15.05.1998, there is no doubt that she is minor and her age is liable to be determined only on the basis of the said school certificate as per the provisions of Juvenile Justice (Care and Protection of Children) Rules, 2007. The learned counsel for the respondent No.2 has also argued that a criminal case is pending against the petitioner and the investigation is going on, therefore, in such circumstances, the petitioner is entitled for custody of Ms. Geeta and this criminal misc. petition is liable to be dismissed. 7. Heard learned counsel for the parties and perused the impugned order as well as the case diary produced by the learned Public Prosecutor in connection with the investigation conducted by the police into the allegations contained in FIR No.169/2014 of Police Station, Siwana. 8. When Ms.Geeta was produced before the court by the Investigating Officer on 09.07.2014, she refused to go with her father and, therefore, the Court has ordered that she may be sent to Balika Sudhar Grah, Jodhpur. On 11.07.2014, statements of Ms. Geeta were recorded under section 164 Cr.P.C. before the court below, wherein she has clearly stated that she was married to the petitioner and she wants to live with him. In her statements, she has further stated that her father wants to marry her with someone else and, therefore, this false FIR has been filed against the petitioner. 9. From the case diary, it reveals that for the purpose of ascertaining the age of Ms. Geeta, the police has collected a Transfer Certificate (T.C.) issued by the Headmaster of Government Upper Primary School, Chulli Bera (Dharna) on 05.07.2014. From the said Transfer Certificate, it is not clear that who had recorded the date of birth of Ms. Geeta as 15.05.1998 at the time of her admission in the said school. A photostat of admission form said to have been submitted at the time of admission of Ms. Geeta in school is also available on case diary, however, in place of signature of parent/guardian, there are signatures of one Ranchhod Ram. The Investigating Officer present in person has informed that Ranchhod Ram is elder brother of Ms. Geeta but has fairly conceded that at the time of submission of admission form of Ms. Geeta, he was of 10-11 years. The Investigating Officer present in person has informed that Ranchhod Ram is elder brother of Ms. Geeta but has fairly conceded that at the time of submission of admission form of Ms. Geeta, he was of 10-11 years. In such circumstances, it cannot be concluded that the date of birth of Ms. Geeta was recorded by her parents or guardian at the time of her admission in the school. 10. Looking to the above facts and circumstance, it cannot be concluded that the exact date of birth of Ms. Geeta is 15.05.1998 and she was minor at the time of incident. It is also to be noticed that the Transfer Certificate was issued on 05.07.2014 and apparently, there was no occasion to obtain Transfer Certificate on 05.07.2014 after filing of the FIR No.169/2014 dated 04.7.2014. On the other hand, from her physical appearance and as per her statement recorded before the Magistrate under section 164 Cr.P.C., she appears to be more than 18 years of age. 11. In such circumstances, it cannot be believed that Ms. Geeta was just 16 years old at the time of incident particularly when she appears to be of 18 years. On earlier occasions and today also, Ms. Geeta is persent before this Court and categorically stated that she is wife of the petitioner and wants to live with him. 12. Looking to the above facts and circumstances of the case, the impugned order passed by the court below is not sustainable in the eye of law. 13. Accordingly, this criminal misc. petition is allowed and the impugned order dated 31.07.2014 passed by Judicial Magistrate, First Class, Siwana, District Barmer is set aside. The girl Ms. Geeta is set at liberty to go wherever she wants. The police is directed to provide her protection until she reaches at her destination of her choice.Stay petition stands disposed of.Petition allowed. *******