JUDGMENT : 1. The petition seeks issuance of a writ in the nature of habeas corpus directing respondent no.2 (Superintendent, Rajkiya Mahila Sharnalaya, Prag Narayan Road, Lucknow) to produce the detenue/petitioner and release her from custody. The petition also seeks issuance of a writ in the nature of certiorari quashing order dated 01.09.2018 (Annexure-1) vide which the petitioner was confined to the Nari Niketan. 2. Gist of the issue raised by the petitioner is recorded in order dated 22.11.2018. The order reads as under:- "This is a writ for Habeas Corpus. The petitioner says that by the order of the Child Welfare Committee the petitioner has been lodged in Nari Niketan, Lucknow on 01.09.2018. The case of the petitioner is that her educational documents are not with her. The same are with opposite party no. 5, as such, she has not been able to produce those documents before any court. The argument of the petitioner is that the FIR itself discloses the age of the petitioner as 18 years. The petitioner has annexed Annexure No. 2 which is a marriage certificate being solemnized in Arya Samaj Mandir, Aliganj, Lucknow. The petitioner says that she was pregnant when she was lodged in Nari Niketan on 01.09.2018. As per instructions of learned Additional Government Advocate the medical report dated 31.08.2018 shows her age about 17 years. The petitioner says that she has delivered a baby in the Government Hospital and that child is also with the petitioner. An statement under Section 164 Cr.P.C. has also been made wherein she has categorically stated that she had married on her own will and she is major. Under the circumstances, let the Superintendent, Nari Niketan, Lucknow produce the petitioner before the Court on 26.11.2018. Issue notice to the opposite party no. 5." 3. It has been asserted on behalf of the petitioner that the petitioner being in love with the deponent Sonu Gautam got married to him according to Hindu Rites and Rituals. Learned counsel has drawn attention of the Court towards Annexures-2 & 3 in evidence of the marriage. 4. It has been pleaded that respondent no.5, the brother of the petitioner, did not accept the marriage and therefore, in abuse of process of the law and process of the Court got F.I.R. No.0257 of 2018 registered in Police Station Qasimpur, District Hardoi for committing offence under Sections 363 and 366 Indian Penal Code. 4. It has been pleaded that respondent no.5, the brother of the petitioner, did not accept the marriage and therefore, in abuse of process of the law and process of the Court got F.I.R. No.0257 of 2018 registered in Police Station Qasimpur, District Hardoi for committing offence under Sections 363 and 366 Indian Penal Code. It has been pleaded that in the first information report itself, age of the petitioner has been given as 18 years. It has been pointed out that in the course of investigation of F.I.R. No.0257 of 2018 (supra), the petitioner has already given her statement under Section 164 Cr.P.C. The statement has been appended with Civil Miscellaneous Application No.106668 of 2018 which is available on record. In the statement the petitioner as the prosecutrix has stated that she is 17 years and 9 months of age. She went alongwith Sonu Gautam to Delhi on 04.08.2018 of her freewill and accord. She had been in love with Sonu Gautam for the last two years. The family members of the petitioner knew about the love affair. The petitioner was pregnant even before she left her paternal home. The family members wanted to kill her. It has further been stated by the petitioner in the statement that she got married to Sonu Gautam on 15.08.2018 in Arya Samaj Mandir in Lucknow of her freewill. It has further been stated by the petitioner that she had not been induced by Sonu Gautam nor had been coerced by him. 5. Ms. Nand Prabha Shukla, learned counsel for the State, on the basis of instructions has pointed out that bone age of the petitioner has been found to be 17 years. 6. We have interacted with the petitioner in Court. The petitioner appears to know what is good for her and what is not. The petitioner has in unequivocal terms stated that she is in love with Sonu Gautam and is married to him. The child in her lap was born out of the wedlock. 7. Respondent no.5 has appeared in Court, as identified by Shri A.N. Misra, Advocate. His power of attorney is taken on record. Respondent no.5 has been made aware of the facts and circumstances of the case. Respondent no.5 states that the petitioner is not married to Sonu Gautam. 8. We have considered the facts and circumstances as they emerge from the record. His power of attorney is taken on record. Respondent no.5 has been made aware of the facts and circumstances of the case. Respondent no.5 states that the petitioner is not married to Sonu Gautam. 8. We have considered the facts and circumstances as they emerge from the record. We have also considered the rival contentions of the parties. 9. So far as age of the petitioner is concerned, although the age of the petitioner given in the first information report by her own brother is 18 years, however bone age of the petitioner has been found to be 17 years. When there is discrepancy in age, as in this case, surely the constitutional Court can consider the overall facts and circumstances and give a margin of two years of either side to the bone age. In this regard we would like to refer to relevant portions of the judgments on the issue: 10. In (2009) 6 SCC 681 , Ram Suresh Singh Vs. Prabhat Singh Alias Chhotu Singh and Another, the following has been held in Paragraph 13 (relevant portion): "13. Even if we had to consider the medical report, it is now well known that an error of two years in determining the age is possible. In Jaya Mala v. Government of J and K, this Court held: (SCC p. 541, para 9) "9.....However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." (emphasised by us) 11. In (1982) 2 SCC 538 , Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir and Others, the following has been held in Paragraph 9 (relevant portion): "9. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention; Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in October, 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in October, 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed." (emphasised by us) 12. In (2011) 10 SCC 192 , Mohd. Imran Khan Vs. State Government (NCT of Delhi), the following has been held in Paragraph 20 (relevant portion): 20. The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side. In Jaya Mala v. Government of J & K, this Court held (SCC p. 541, para 9). "9....However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." (See also: Ram Suresh Singh v. Prabhat Singh and State of U.P. v. Chhotey Lal). (emphasised by us) 13. In (2008) 15 SCC 223 , Jyoti Prakash Rai Alias Jyoti Prakash Vs. State of Bihar, the following has been held in Paragraphs 14 to 16 : 14. In a case of this nature, thus, where the delinquent was examined by two different medical boards, who on two different dates have reached the identical opinion, viz, the age of the appellant between 18 and 19 years, and, thus, resulting in two different conclusions, a greater difficulty arises for the court to arrive at a correct decision. In a case of this nature, thus, where the delinquent was examined by two different medical boards, who on two different dates have reached the identical opinion, viz, the age of the appellant between 18 and 19 years, and, thus, resulting in two different conclusions, a greater difficulty arises for the court to arrive at a correct decision. For the said purpose, the court may resort to some sort of hypothesis, as no premise is available on the basis whereof a definitive conclusion can be arrived at. 15. It is in the aforementioned situation, we are of the opinion that the test which may be applied herein would be to take the average of the age as opined by both the medical boards. Even applying that test, the age of the appellant as on 01.04.2001 would be above 18 years. 16. We, however, hasten to add that we have taken recourse to the said method only for the purpose of this case and we do not intend to lay down any general proposition of law in this behalf. As indicated hereinbefore, in so doing, we have also taken into consideration the fact that the appellant had filed documents in support of his claim that he was a juvenile but the same were found to be forged and fabricated which is itself a factor to show that he was making attempts to obtain a benefit to which he might not have been entitled to." (emphasised by us) 14. In (2011) 2 SCC 385 , Alamelu and Another Vs. State represented by Inspector of Police, the following has been held in Paragraphs 39, 40 and 42 to 49 (relevant portion): "39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ext.P4 and Ext.P5. 40. Undoubtedly, the transfer certificate, Ext.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows: (SCC pp. 618-19, para 14). "14.....The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined..........Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted." (emphasised by us) 43. The same proposition of law is reiterated by this Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal where this Court observed as follows: (SCC p.75, para 16) "16......The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW8 Dr. Gunasekaran. However, the High Court failed to notice that in his evidence before the Court, PW8, the X-ray Expert had clearly stated in the cross-examination that on the basis of the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age. 46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. 46. In addition, the High Court failed to consider the expert evidence given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala Vs. Government of Jammu & Kashmir. In the aforesaid judgment, it is observed as follows: (SCC p. 541, para 9) "9...However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." 47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P. held as follows: (SCC p. 595, para 38) "38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." (emphasis supplied) 49. In such circumstances, we are constrained to hold that the High Court without examining the factual and legal issues has unnecessarily rushed to the conclusion that the girl was a minor at the time of the alleged abduction. There is no satisfactory evidence to indicate that she was a minor. (emphasised by us) 15. In the course of interaction with the petitioner we find that the petitioner has attained age of discretion. As noticed above, the petitioner has already given birth to a child which she has openly claimed to have been born out of the wedlock with Sonu Gautam. In the facts and circumstances therefore we are of the clear view that margin of two years on the higher side is required to be given to the bone age of the petitioner. We have no hesitation in holding that for the purposes of considering the rights of the petitioner under Article 21 of the Constitution of India, the petitioner cannot be allowed to be confined in the Nari Niketan. 16. We are of the considered view that confinement of the petitioner in Nari Niketan would be in violation of her rights under Article 21 of the Constitution of India. It is apparent that the petitioner went against the wishes of her family members and got married to Sonu Gautam whereupon criminal proceedings were initiated vide F.I.R. No.0257 of 2018 (supra). We are of the considered view that confinement of the petitioner in Nari Niketan would be in violation of her rights under Article 21 of the Constitution of India. It is apparent that the petitioner went against the wishes of her family members and got married to Sonu Gautam whereupon criminal proceedings were initiated vide F.I.R. No.0257 of 2018 (supra). The petitioner has made her stand clear in the course of investigation of the said case while giving her statement under Section 164 Cr.P.C. to the effect that she was in love with Sonu Gautam and got married to him, and the child has been born out of the wedlock. It is evident from the stand of the prosecutrix/the petitioner that Sonu Gautam has not committed the offence, as alleged. 17. From the above it is also clear that the petitioner does not want to live in her paternal home for the fear of her life, as has been stated by her in the statement recorded under Section 164 Cr.P.C. 18. We are of the categoric view that hyper technicalities cannot be taken into account to allow the petitioner and her child to remain in Nari Niketan. We take judicial view of the matter that confinement of young girl, particularly alongwith child in Nari Niketan would not be conducive for the development of either of them. This is particularly so when the petitioner has an alternate place to live i.e. in her matrimonial home. 19. In view of the above, we hereby allow the petition. Order dated 01.09.2018 (Annexure-1) is quashed, the same being in violation of rights of the petitioner; and dehors the facts and circumstances of the case. We hereby issue a writ of habeas corpus directing respondent no.2 (Superintendent, Rajkiya Mahila Sharnalaya, Prag Narayan Road, Lucknow) to release the petitioner forthwith and allow her to live as per her own wish. 20. Let a copy of this order be released under signatures of the Bench Secretary.