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2018 DIGILAW 1360 (ALL)

BHOORA DEVI v. STATE OF U. P.

2018-05-28

DEVENDRA KUMAR UPADHYAYA, RAJNISH KUMAR

body2018
JUDGMENT : Devendra Kumar Upadhyaya, J. The present writ petition has been filed by the petitioner for issuing a writ in the nature of habeas corpus directing the opposite parties for producing the detenue/petitioner before this Hon'ble Court and after recording the statement of the detenue/petitioner she may by set at liberty to go according to her will. Further a prayer has been made to quash the order dated 27.02.2018, passed by Chief Welfare Committee, Lakhimpur Kheri. 2. Pursuant to our order dated 08.05.2018 the detenue has been brought before this Court by Constable Dev Kumari. The Superintendent, State Women Protection Home, Lucknow has produced a Demand Draft of Rs.40,000/- in the name of Ms.Laxmi Devi, the detenue/petitioner in Union Bank of India for a period of three years vide fixed deposit receipt No.EM/TDR/G/No.881517 dated 24.05.2018. The original of the draft has been handed over to the detenue Ms.Laxmi Devi and a photocopy of the same alongwith instructions dated 25.05.2018 are taken on record. 3. This Court after considering the submissions of learned counsel for the parties had passed the following order on 08.05.2018:- "Shri Suresh Chandra Srivastava, has filed his 'Vakalatnama' on behalf of Munna Lal-respondent No.6, which is taken on record. Pursuant to our order dated 25 April, 2018 the detenue has been produced before this Court, who has been brought by Constable Saili Chaudhary. Respondent No.6 Munnao Lal-the complainant is also present. Learned A.G.A. has filed an affidavit, which is taken on record. In the affidavit filed today the statement of the detenue recorded under Section 161 Cr.P.C. as also under Section 164 Cr.P.C. has been extracted. In both her statements the detenue has stated that she has been in love with Ghanshyam and that she has married with him and that she wants to live as his wife. She has further stated that she had gone with Ghanshyam on her own will and that Ghanshyam has not enticed her away. The detenue was medically examined, on the basis of which the office of Chief Medical Officer, Kheri has issued a certificate, wherein her age has been determined between 16-18 years. We have also inquired from the detenue as to whether she wants to go with her father. The detenue has categorically stated before us that she does not want to go with her father, rather wants to go with Ghanshyam. We have also inquired from the detenue as to whether she wants to go with her father. The detenue has categorically stated before us that she does not want to go with her father, rather wants to go with Ghanshyam. This petition has been filed by the detenue through her alleged father-in-law Shiv Ram, who is also present. Shiv Ram has stated before us that to instill a sense of security in the detenue, he is ready to get a fixed deposit made in her name in a Nationalized Bank for an amount of Rs.40,000/-. We, accordingly, direct Shiv Ram to make fix deposit in a Nationalized Bank in the name of detenue for a sum of Rs.40,000/- for an initial period of three years with auto renewal facility. The Superintendent, Nari Niketan, Lucknow is directed to facilitate the aforesaid deposit in a Nationalized Bank, for which purpose Shiv Ram shall contact the Superintendent, Nari Niketan, Lucknow, who shall accordingly get the formalities completed for making the fix deposit in the name of the detenue in a Nationalized Bank here at Lucknow. The Bank officer concerned shall also be bound by this order. The receipt of the said fix deposit shall be retained by the Superintendent, Nari Niketan, Lucknow, who shall produce the same before the Court on the next date. The bank deposit as directed in this order shall also be made before the next date fixed in this case. List this case on 28th of May 2018, on which date Shiv Ram, the detenue and Munna Lal shall be present. Learned A.G.A. will communicate this order to the Superintendent, Nari Niketan, Lucknow. When the case is next listed, the name of Shri Suresh Chandra Srivastava, shall also be shown as counsel for the respondents." 4. Heard learned counsel for the parties and perused the record. 5. The detenue, who is present before this court, categorically affirmed her statement that she does not want to go with her father; rather wants to go and live with Ghanshyam. 6. The petitioner/detenue was medically examined and her radiological age has come between 16-18 years. The detenue in her statements recorded under Section 161 Cr.P.C. as well as also 164 Cr.P.C. has not supported the prosecution case. 7. 6. The petitioner/detenue was medically examined and her radiological age has come between 16-18 years. The detenue in her statements recorded under Section 161 Cr.P.C. as well as also 164 Cr.P.C. has not supported the prosecution case. 7. The Hon'ble Apex Court considered the aforesaid issue in Alamelu and another versus State and other connected matters, reported in (2011) 2 SCC 385 and held that the expert's evidence does not rule out the possibility of the girl being major though the medical evidence can only fix the age approximately which would be with the variance of two years. 8. In a recent Division Bench judgment passed by this Court, in Habeas Corpus Writ Petition No.52290 of 2017: Suhani & Another versus The State of U.P.& 3 others, after considering the provisions of Section 94 of the Juvenile Justice Care and Protection of Children Act, 2015 held that the date of birth certificate from school or matriculation certificate from the concerned examination board shall be given precedence to the medical opinion as to age. The relevant portion of which, on reproduction, reads as:- "According to Section 94 of the Juvenile Justice Care and Protection of Children Act, 2015, the date of birth certificate from school or matriculation certificate from the concerned examination board shall be given precedence to the medical opinion as to age. Admittedly, petitioner No.1 according to the C.B.S.E. Certificate, she is around 13 years 8 months old on the date of occurrence, as such she was minor. Considering the facts and circumstances of the case and keeping in view the age of the petitioner No.1, we do not see any illegality or irregularity in the order passed by the C.J.M., Allahabad. The Court below was fully justified in sending the petitioner No.1 to Nari Niketan, Allahabad, as she was found minor and had refused to accompany her parents." 9. The aforesaid order was put to challenge before the Hon'ble Apex Court in Civil Appeal No.4532/2018 arising out of SLP(C) No.8001/2018: Suhani & Anr. versus State of U.P.& Ors. The Hon'ble Apex Court in the said case got the medical examination conducted of the detenue from All India Institute of Medical Sciences, New Delhi. The aforesaid order was put to challenge before the Hon'ble Apex Court in Civil Appeal No.4532/2018 arising out of SLP(C) No.8001/2018: Suhani & Anr. versus State of U.P.& Ors. The Hon'ble Apex Court in the said case got the medical examination conducted of the detenue from All India Institute of Medical Sciences, New Delhi. The All India Institute of Medical Sciences, New Delhi submitted a report of radiological examination and the final report/opinion and as per the above report/opinion of the All India Institute of Medical Sciences, New Delhi the age of the detenue was reported to be between 19-24 years. Considering the conclusion arrived at by the All India Institute of Medical Sciences, New Delhi the Hon'ble Apex Court held that the detenue is major and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. Since the factum of marriage was admitted by the detenue, therefore, she is entitled to accompany her husband. Accordingly the Apex Court recorded a finding that the detenue is an adult and since she had gone voluntarily with her husband and entered into wedlock, the Hon'ble Apex Court has been pleased to quash the criminal proceedings and set aside the order passed by the High Court. The relevant portion of which is extracted here-under:- "In view of the conclusion arrived at by the All Indian Institute of Medical Sciences, we are of the considered opinion that the petitioner no.1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner No.1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no.2, who is her husband. In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no.2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no.2 stands quashed. We have passed this order of quashing the proceedings to do complete justice. The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of." 10. We have passed this order of quashing the proceedings to do complete justice. The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of." 10. In view of above we find that the petitioner has attained the age of discretion, which has been found between 16-18 years in the medical examination and she has not supported the prosecution case in the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. Accordingly, we are of the view that since the petitioner had married to Ghanshyam on her own volition and she has categorically and in unambiguous terms has stated before this Court that she wants to go with her husband and does not want to go with her father. 11. The Supreme Court in somewhat similar facts in the case of Juhi Devi Vs. State of Bihar and Others reported in (2005) 13 SCC 376 , while dealing with the confinement of the girl in the remand home in para 2 opined as under:- "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, the 5th respondent, has filed a complaint and the petitioner was produced before the CJM, Patna. The petitioner claims that she was a major and voluntarily left with her husband. The father of the 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 17-5-2003, 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 17-5-2003. 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 17-5-2003. 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." 12. Accordingly, we are of the opinion that the petitioner is major in age. Since she has married to her next friend Ghanshyam on her own volition and she has categorically and in unambiguous terms stated before this Court also, on being produced today, that she wants to go with her husband-Ghanshyam and she does not want to go with her father, opposite party No.6, therefore, we are of the considered opinion that the petitioner is entitled to be released from the Women Protection Home and set her free to go according to her sweet will. 13. Accordingly, the writ petition is allowed. The order dated 27.02.2018, passed by Child Welfare Committee, Lakhimpur Kheri, contained in Annexure No.4 to the writ petition is hereby quashed. A writ of habeas corpus is issued. The opposite party No.5 is directed to release and set the detenue free forthwith, to go according to her sweet will. The petitioner will be at liberty to encash/use the amount of demand draft (Supra) according to her sweet will after three years. 14. No order as to costs.