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Allahabad High Court · body

2016 DIGILAW 4039 (ALL)

Manju v. State of U. P. .

2016-12-15

AJAI LAMBA, VIJAY LAXMI

body2016
JUDGMENT The gist of the issue raised by way of this petition is reflected in order dated 18.11.2016. The order is extracted here below for brevity sake : - 1. The petition seeks issuance of a writ in the nature of Habeas Corpus directing respondent No. 4 (Superintendent, Children Protection Home (Women), Sultanpur, to release the petitioner. 2. It has been pleaded that the petitioner willingly got married to Arvind. The marriage has not been accepted by respondent no.5, therefore, in abuse of process of the law and process of the court, criminal proceedings were initiated vide Crime No.579 dated 15.7.2016, Police Station Kotwali Nagar, District Pratapgarh. In the course of investigation statement of the petitioner was recorded under Section 164 Criminal Procedure Code, placed on record as Annexure-5. In the statement it has been stated by the petitioner that she stayed in Pratapgarh with her Mama (respondent no.5). She called Arvind by borrowing telephone from a lady at Allahabad. It has been stated by the petitioner that she already knew Arvind. Petitioner told Arvind to keep her with him or else the petitioner would get First Information Report registered. Arvind, however, said that the petitioner should return home. The petitioner responded by saying that she is going to commit suicide. On this Arvind asked her to come to the railway station. The petitioner went to Jaipur alone. Arvind stays in Jaipur. Arvind came to the station to receive her. The petitioner got married to Arvind of her own free will. It has clearly been stated that Arvind is not at fault and petitioner has neither been induced nor coerced by Arvind. The petitioner had physical relations with Arvind and wants to live with Arvind. 3. Learned counsel for the petitioner has also referred to document placed on record as Annexure-7 to demonstrate that the petitioner has attained age of 19 years. It has been pleaded that confinement of the petitioner in a Women Protection Home is depriving the petitioner of her liberty under Article 21 of the Constitution of India. It has been contended that the case of the petitioner is squarely covered by judgment rendered in Writ Petition No. 156 (H/C) of 2015 titled Smt. Poonam v. State of U.P. and others decided on 17.9.2015. 4. Issue notice to serve respondent no.5 through Station House Officer, Police Station Kotwali Nagar, District Pratapgarh returnable on 29.11.2016. 5. Respondent no. It has been contended that the case of the petitioner is squarely covered by judgment rendered in Writ Petition No. 156 (H/C) of 2015 titled Smt. Poonam v. State of U.P. and others decided on 17.9.2015. 4. Issue notice to serve respondent no.5 through Station House Officer, Police Station Kotwali Nagar, District Pratapgarh returnable on 29.11.2016. 5. Respondent no. 5 is directed to remain present in Court. Respondent no.4 is directed to produce the petitioner in court on the next date of listing. 6. Investigating officer of Case Crime No.579 of 2016 (supra) is directed to file his affidavit. 7. List on 29.11.2016." 2. In deference to above extracted order, the petitioner has been produced in court. On questioning by the court, the detenue states that she is married to her husband namely Arvind and wants to stay in her in-laws' house and not with respondent No. 5, who happens to be maternal uncle of the detenue. 3. Learned counsel for respondent No. 5 has filed short counter affidavit. In the affidavit, it has been pleaded that the detenue is a minor and therefore is required to be released in the company of respondent No.5. 4. Short counter affidavit has been filed on behalf of the investigating agency in court, which is taken on record. It is the case of the investigating agency that the investigation of Crime No. 579 of 2016 (supra) has been concluded. In the statement of the proescutrix/detenue, the prosecutrix has not supported the prosecution case. As per medical examination, age of the detenue has been found in between 18 to 22 years. Statement of the prosecutrix has been recorded under Section 164 Cr.P.C. in which the prosecutrix has made it evident that Arvind did not kidnap her. In the statement, the detenue/prosecutrix has stated that she wants to live with Arvind and not go to her parental house. 5. Learned counsel for the parties are ad idem that the case of the petitioner is squarely covered by judgment rendered by this Court dated 17.9.2015 while dealing withWrit Petition No.156 (H/C) of 2015 titled Smt. Poonam v. State of U.P. and others. 6. We have considered the facts and circumstances of the case. Similar facts and circumstances have been considered by this Court while dealing with Writ Petition No.156 (H/C) of 2015 (supra). 6. We have considered the facts and circumstances of the case. Similar facts and circumstances have been considered by this Court while dealing with Writ Petition No.156 (H/C) of 2015 (supra). The following has been held in the relevant portion of the said judgment: - "17. The petitioner apparently has attained the age of discretion, as also age of majority. On questioning by this Court, the petitioner has reiterated the stand taken in her statement recorded under Section 164, Cr.P.C. The petitioner refuses to go with her mother while saying that she feels threatened. 18. We are faced with a situation wherein there are various inputs in regard to the age of the petitioner, as noticed above. Somewhat similar facts came up for consideration before the Hon'ble Supreme Court of India in (2015) 13 SCC 376, Juhi Devi v. State of Bihar and Others In the judgment , the following has been held in paragraph Nos.-2 and 3 : - "2. The petitioner herein is alleged to have married another person of her age and the 5th respondent herein, the father of the petitioner, objected to the said marriage. It seems that the petitioner had eloped with that person and the father of the petitioner-5th respondent, has filed a complaint and the petitioner was produced before the C.J.M., Patna. The petitioner claims that she was major and voluntarily left with her husband. The father of petitioner alleged that the petitioner was a minor and the question of age was referred to a Medical Board. The Medical Board opined that as on 17.05.2003, the petitioner must have been aged between 16 and 17 years. However,the father of the petitioner produced two certificates before the Revisional Court and contended that her date of birth is 12.10.1985 and she has not attained majority. However, the medical report shows that she must have been aged more than 16 years,even on 17.05.2003. Having regard to these facts,we are of the view that she must have attained majority and her stay at the remand home would not be in the interest of justice and we think that her continued stay at the remand home would be detrimental and she would be in a better environment by living with the person whom she had allegedly married. 3. 3. In the circumstances, we direct that the Respondent 3 Superintendent, Rajkiya Nari Uttar Raksha Sansthan, Gaighat, Patna to release the petitioner from the remand home forthwith. The petitioner would be at liberty to produce a copy of this order before the third respondent for appropriate action." (Emphasised by us) 19. A Division Bench of this Court has also considered facts and circumstances, that are similar to the case under consideration, in Smt. Reena v. State of U.P. and Others (Habeas Corpus Writ Petition No. 10180 of 2012 decided on 24.5.2012) The following has been held in relevant portion of the judgment: - "It appears that the lady, petitioner was apprehended by the police and was produced before the Sub Division Magistrate, Sadar, Maharajganj. The father of the lady was also present in the court. He filed a petition seeking custody of his daughter. The statement of the petitioner was recorded and that of her father was also recorded by the Sub Divisional Magistrate, Sadar, Maharajganj. In her statement the petitioner, Smt. Reena stated that she was major and she had eloped with accused Rabdullah and had gone into his house to reside there. The father of the petitioner, Hari Lal, in his statement also stated that his daughter had eloped with Rabdullah on 3-3-2011 and refused to take the petitioner with him. The learned Sub Divisional Magistrate found that the date of birth of the petitioner, Smt. Reena, as recorded in the certificate was 3-4-1998. As such, she was only 13 years of age when her father was not ready to take her back who was desirous that her custody be authorised to the Nari Niketan Jaitpura, District – Varanasi. We find from facts of the case that it was a pure and simple case of elopement of petitioner, Smt. Reena with Rabdullah and the petitioner, thereafter went straight away to his house from where she appears recovered. There was some dispute in respect of the age of the girl but we find from argument appearing at page 20 of the present petition that the Chief Medical Officer, Maharajganj had assessed her 18 years of age. Thus, the lady was undisputedly above 18 years of age, if we add three years to the medically assessed age. There was some dispute in respect of the age of the girl but we find from argument appearing at page 20 of the present petition that the Chief Medical Officer, Maharajganj had assessed her 18 years of age. Thus, the lady was undisputedly above 18 years of age, if we add three years to the medically assessed age. In our considered view in case of being a conflict between the age recorded in any school document and that assessed by the doctor then only for the present purposes, the court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific tests to assess the age of a victim. This is necessary as liberty of a person has to be protected. No person could be deprived of his liberty unless reasonable procedure has been adopted. Medical opinion on age may not be exact, but it is generally acceptance and it is based on scientific method of assessing the age. As such, in spite of there being some sort of margin in assessing the age and actual age, there could be chances that the assessed age is almost exact. We have already noted that the personal liberty of a person should be paramount consideration in such cases and keeping that in view and for protecting the personal liberty of a person, the court should lean towards considering the medical age than to consider the age which is recorded in school documents. Besides, there is no dispute in the fact that the petitioner, Smt. Reena had eloped with Rabdullah on 3-3-2011 and had wet into his house and was living there. We very often refer to S. Varadarajan v. State of Madras reported in AIR 1965 SC 942 to point out the distinction between an act of elopement and act of taking or enticing away a woman below 18 years of age from her lawful guardianship. Under the present set of facts, there could not be any doubt that it is a simple and pure case of elopement and as such no offence or offences could be said to be constituted under the admitted facts. Under the present set of facts, there could not be any doubt that it is a simple and pure case of elopement and as such no offence or offences could be said to be constituted under the admitted facts. It is true that the lady was not ready to go with her father and her father for some unknown reasons, was not ready to take her back, but for that reason the lady ought not have been confined in the Nari Niketan as was directed by the learned Sub Divisional Magistrate Sadar, Maharajganj. There is no age, as regards the personal liberty of a person. Anyone who is born as a human being and who is found living in India even if he is not an Indian, has a right to enjoy his or her liberties by virtue of the constitutional guarantees. Any order which curtails or encroaches upon the liberties of such a person and has always to be held falling short of the constitution requirements and safeguards and, as such, we have to struck down the same in exercise of the powers Under Article 226 of the Constitution of India. In the result, we quash the order dated 6-6-2011 passed by the Sub Divisional Magistrate, Sadar, Maharajganj and direct that the petitioner Smt. Reena be immediately released from custody of respondent no. 4, so that she enjoys her liberties and goes to what ever place she likes." (Emphasised by us) xxxxxx 21. We are coming across a large number of cases in which parent/parents of a girl do not accept marriage of choice of their daughter, on account of different reasons, be it the caste , financial conditions, social status or religion. Although, the girl elopes with the boy voluntarily, however, criminal proceedings are initiated with allegation of abduction, kidnapping or inducing the girl to get married. In most of such cases the complainant takes a ground that his daughter is a minor. For showing that his or her daughter is a minor, school certificates are relied upon. 22. The facts and circumstances of the present case are required to be considered in context of the law , as noticed above. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty. 23. 22. The facts and circumstances of the present case are required to be considered in context of the law , as noticed above. While considering the same, the Court is required to take into account the most Cherished Right of a citizen of the country, which is personal liberty. 23. As noticed above, various documents have come on record indicating different dates of birthge of the petitioner. Be that as it may, there is a conflict between the age of the petitioner determined on the basis of school documents, and the age assessed through ossification test. The Court is required to lean towards the report furnished by the Doctor, on the basis of scientific tests. This is particularly so because liberty of the petitioner is required to be protected, it being most precious Constitutional Right of the petitioner. x.x.x.x. 26. We have considered that there is consistency in the results of medical/ossification test reports, whereas the basis of making entry in school record in regard to date of birth, is generally not brought on record. In the circumstances, so as to consider whether a person has attained age of majority/ age of discretion in cases such as the present one, it is safer to rely on medical /scientific / ossification test reports. 27. Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. A person living in India has a Right to enjoy his or her liberty, as guaranteed by the Constitution of India. Any order which curtails or encroaches upon the liberty of such a person is required to be struck down, if it is not in accordance with procedure established by law. 28. Article 21 of the Constitution of India promises every citizen that he shall not be deprived of his life or personal liberty except according to procedure established by law. Petitioner not being an accused , it cannot be held that her personal liberty has been curtailed as per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice. 29. Petitioner not being an accused , it cannot be held that her personal liberty has been curtailed as per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice. 29. While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated , with a view to promote substantial justice. x.x.x.x. 31. Allegation against Suneel Kumar Singh is that the petitioner had been induced, kidnapped or abducted. From the statement of the alleged victim recorded under Section 164, Cr.P.C., it becomes evident that the petitioner was neither induced nor abducted or kidnapped. 32. The entire sequence of events, from initiation of criminal proceedings by the parent of the petitioner, to confining the petitioner in a protection home by the Magistrate, has resulted in subverting the right of the petitioner to choose a life partner of her choice. The order passed by the Magistrate directing detention of the petitioner in a protection home is a clear violation of right to liberty of the petitioner. The impugned order Annexure No.-1, passed by the Magistrate, under the circumstances is illegal, and dehors the relevant considerations. 34. We have also taken note of the fact that the petitioner is a Hindu and even if it is concluded that at the point in time when the petitioner was married, she was a minor, the marriage would not be void under Hindu Marriage Act, 1955. 35. When the facts are cumulatively considered, we find that liberty of the petitioner is being curtailed without any legal cause. Order Annexure No.-1 has been passed by the Magistrate without giving due importance to the personal liberty of the petitioner. The desire of the petitioner has been ignored without any legally tenable reason. The age determined through Medical/ossification test has been overlooked for the wrong reasons. 36. Consequently, we allow this petition. Impugned order dated 7.1.2015 passed by Additional Chief Judicial Magistrate IIIrd, Hardoi, is hereby quashed." (Emphasised by us) 7. The desire of the petitioner has been ignored without any legally tenable reason. The age determined through Medical/ossification test has been overlooked for the wrong reasons. 36. Consequently, we allow this petition. Impugned order dated 7.1.2015 passed by Additional Chief Judicial Magistrate IIIrd, Hardoi, is hereby quashed." (Emphasised by us) 7. Considering the facts and circumstances of the case, as noted above, we are of the considered opinion that there is no reason in facts or law to curtail liberty of the petitioner and house her in respondent No. 4 facility. Further custody of the petitioner would deprive her of her right under Article 21 of the Constitution of India. 8. The court is conscious of the fact that the conditions in Nari Niketan are not ideal for girls and housing young girls in Nari Niketan should be as a last resort. The petitioner wants to live in her matrimonial house. There is no reason in law or in facts to deprive the petitioner of her wishes. 9. For the reasons given in judgement rendered in Smt. Poonam v. State of U.P. and others (2016) (1) ALJ 547 (supra), we hereby allow this petition. A writ in the nature of habeas corpus is issued directing respondent No. 4 to release the petitioner, forthwith and allow her to go as per her own wishes. 10. Affidavit has been filed by Ms. Rama Srivastava serving as Superintendent of Priyadarshini Bal Grah (Balika), Sultanpur. It has been stated that she has no means to pay cost amount imposed by this court vide order dated 29.11.2016. Even her salary has not been paid for the last five months. 11. Considering humanitarian grounds, payment of costs directed vide order dated 29.11.2016 is hereby waived. 12. Let a copy of this order be released under the signatures of Bench Secretary of this Court. Order accordingly.