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2019 DIGILAW 187 (ALL)

Rakhi Sharma v. State Of U. P.

2019-01-23

AJIT SINGH, VIPIN SINHA

body2019
ORDER : 1. Heard Shri Upendra Nath Mishra, learned counsel for the petitioner, learned AGA for the State and Shri Mahipal Singh, learned counsel who has put in appearance on behalf of respondent no.3 and also filed a counter affidavit. 2. The present is a habeas corpus writ petition filed on behalf of corpus Rakhi Sharma through her husband Ajay Sharma with the following prayer: “A. Issue a writ, order or direction in the nature of habeas corpus commanding the respondent no.2 i.e. Superintendent of Government Women Protection Home, District Allahabad to release the corpus petitioner Rakhi Sharma, who has been detained illegally in the Government Women Protection Home, District Allahabad and set her at liberty. B. Issue any such other and further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case. C. Award the cost of the petition in favour of the petitioners.” 3. Contention of the learned counsel for the petitioner is to the effect that Rakhi Sharma, the corpus has solemnized marriage with Ajay Sharma of her own sweet will without any fear, threat or coercion and as per the Hindu religion on 20.7.2018. A copy of the marriage certificate in this regard, issued by Arya Samaj Mandir, Lucknow has been annexed as Annexure-1 to the writ petition. 4. It appears that subsequently the father of the victim lodged an FIR with the allegation that his minor daughter Rakhi Sharma aged about 16 years was kidnapped by Ajay Sharma. The FIR was registered as case crime no.136 of 2018 under Section 363, 366 IPC. The copy of the FIR has also been annexed as Annnexure-2 to the writ petition. From the record it appears that being aggrieved against the lodging of the FIR, a writ petition being Misc. Bench No.24227 of 2018 Ajay Sharma and another vs State of UP through Principal Secretary, Home and others, in which an order was passed on 27.8.2018 with the direction that petitioners be not taken in custody till the next date of listing and the petitioners were directed to join the investigation which shall be conducted under the supervision of Circle Officer concerned. The Circle Officer was directed to file affidavit as to under what circumstances it is being concluded that the petitioner has committed any offence. The copy of the order dated 27.8.2018 has been annexed as Annexure-3 to the writ petition. The Circle Officer was directed to file affidavit as to under what circumstances it is being concluded that the petitioner has committed any offence. The copy of the order dated 27.8.2018 has been annexed as Annexure-3 to the writ petition. A perusal of the said order shows that while passing the said order the Division Bench of this Court at Lucknow Bench had relied upon the judgment dated 23.7.2015 passed in Writ Petition No.3519 (M/B) of 2015. 5. The attention of the Court has also been drawn to the statement of the girl recorded under Section 164 CrPC which has been annexed as Annexure-4 at page 25 of the writ petition. In the said statement the girl categorically says as under: ,s/kk Fkkuk egs'kxat us l'kiFk c;ku fd;k fd & 04-07-18 dks eSa Hkkxdj fnYyh pyh x;h FkhA 07-30 cts lqcg ls fudyh Fkh Ldwy tkus ds fy,A ghjkxat ogkW esjk Ldwy gS] ogkW igqWpsA igqWpdj VsyhQksu ls vt; 'kekZ ls ckr djds mls cqyk;kA fQj mlds lkFk fnYyh xbZA fnYyh esa 06-07-18 dks larks"kh ekrk ds eafnj] mRreuxj esa eSus vt; ds lkFk 'kknh dj yhA ge muds cqvk ds ;gkW jgrs FksA vt; us esjs lkFk dksbZ xyr dk;Z ugh fd;k vkSj u gh dksbZ tksj tcjnLrh dhA vt; us esjs lkFk dksbZ 'kkjhfjd lEcU/k ugha cuk;kA eSa viuh ethZ ds lkFk vt; ds lkFk x;h FkhA esjs ikik Ldwy esa esjh mez de fy[kok;s gSA okLro esa bl le; esjh mez 19 o"kZ ds yxHkx gSA eSa vius dks 18 o"kZ ls Åij dh le>rh gwW] blfy, ftrsUnz dqekj 'kekZ o /kesZUnz dqekj dk esjs fnYyh tkus esa dksbZ jksy ugha gSA ,Q0vkbZ0vkj0 esa budk xyr uke fy[kk fn;k gSA eSa fnYyh viuh ethZ ls x;h FkhA eSa vt; ds lkFk gh jguk pkgrh gwWA esjs ?kj okys eq>s tku ls ekjuk pkgrs gSA 6. From the aforesaid statement, it is clear that it was the girl herself who has taken initiative and called Ajay Sharma on telephone and thereafter solemnized marriage with him. The said statement also shows that the girl is an adult aged about 19 years. She has also mentioned in her statement that “mere papa school me meri umra kam likhwaye hain”. The said statement also shows that the girl is an adult aged about 19 years. She has also mentioned in her statement that “mere papa school me meri umra kam likhwaye hain”. However, the Court has been informed that ignoring the wishes of the victim Rakhi Sharma, the Child Welfare Committee, Pratapgarh which has no jurisdiction has passed the order dated 1.8.2018, in pursuance of which the victim was sent to Government Women Protection House, Khuldabad, Allahabad where she is presently detained. 7. When the matter was taken up as a fresh case, a detailed order was passed by this Court on 4.12.2018 which reads as under: “The present habeas corpus writ petition has been filed on behalf of corpus Smt. Rakhi Sharma through her husband, Ajay Sharma. The corpus Smt. Rakhi Sharma has been illegally detained at Government Women Protection Home, Allahabad, even though she is an adult, her date of birth is 2.5.2002 as the same is evident from the order dated 1.8.2018 and she has solemnized marriage out of her own sweet will without any fear, threat or coercion. Much reliance has been placed upon the statement of the corpus recorded under section 164 Cr.P.C., contents of which are self explicit. The copy of the said statement has been annexed at page no. 27 of the writ petition. In view of the aforesaid facts and circumstances, a case for grant of indulgence is made out. Learned AGA has accepted notices on behalf of respondent nos. 1 and 2. Issue notice to respondent no. 3, which shall be served through CJM, concerned. The notice will clearly reflect the next date fixed in the matter is 11.12.2018, on which date respondent no.3 shall be personally present before this Court. The notice shall also specify that on the said date, the matter shall be heard and decided finally. The CJM concerned after effecting service upon respondent no. 3 shall submit a report before this Court through the office of Registrar General of this Court. It has been informed that corpus Smt. Rakhi Sharma is presently detained at Nari Niketan, Allahabad and she has been medically examined but the age proof has not been annexed to the writ petition. However, the same is evident from the order dated 1.8.2018. It has been informed that corpus Smt. Rakhi Sharma is presently detained at Nari Niketan, Allahabad and she has been medically examined but the age proof has not been annexed to the writ petition. However, the same is evident from the order dated 1.8.2018. In view of the averments as made in the habeas corpus petition, the learned AGA is directed to ensure the presence of corpus Smt. Rakhi Sharma, who is presently detained at Nari Niketan, Allahabad, before this Court on the next date of listing i.e. 11.12.2018. List on 11.12.2018, on which date corpus Smt. Rakhi Sharma shall be produced before this Court and in this regard the learned AGA to take immediate steps. Let a copy of the order be communicated to the office of Government Advocate.” 8. Subsequently, it appears that a supplementary affidavit was filed which is dated 11.12.2018 and along with the said affidavit a certificate of Radiologist of District Hospital, Pratapgarh has been annexed and as per the report of the said Radiologist, the age of the girl is between sixteen to eighteen years. 9. However, in the meantime Shri Mahipal Singh, Advocate has put in appearance on behalf of the complainant. 10. When the case was again taken up earlier, an order was passed on 11.12.2018 by means of which the case was adjourned, however as the corpus was present on the said date she was examined by this Court. The order dated 11.12.2018 is being reproduced herein as under: “Heard learned counsel for the petitioner and learned AGA appearing for the State. The case has been taken up today in compliance of the order of this Court dated 04.12.2018. The Court has been informed that the father of the girl is not available at the moment as he is working in Karnataka. However, Sri Mahipal Singh, Advocate submits before the Court that he could not file vakalatnama, as the father is working out of the State, but he has an instruction to represent the father of girl and he sought time to file his reply. A copy of Scholar's Register and Transfer Certificate Form has been shown to this Court showing the date of birth of the girl as 02.05.2002. However, we have perused the same to ensure that the copy of the same has been obtained on 19.07.2018. No sanctity accorded to him at this stage. A copy of Scholar's Register and Transfer Certificate Form has been shown to this Court showing the date of birth of the girl as 02.05.2002. However, we have perused the same to ensure that the copy of the same has been obtained on 19.07.2018. No sanctity accorded to him at this stage. On the other hand, a supplementary affidavit has been filed by the learned counsel for the petitioner, in which the report of Radiologist has been annexed, which shows that the age of girl is 16-18 years. The Court has been further informed that the corpus-Smt. Rakhi Sharma is present before this Court, thus with the consent of learned counsel for the petitioner as well as learned AGA, the Court proceed to examine the corpus namely, Smt. Rakhi Sharma, who is present before this Court. On being asked that 'aap ka naam kya hai', she informed the Court that 'mera naam Rakhi Sharma hai'. On being asked that 'aap ke pita ji ka kya naam hai', she informed the Court that 'mere pita ji ka naam Chhote Lal Sharma hai'. On being asked that 'aap ki kitni umra hai', she informed the Court that 'meri umra 19 saal hai' On being confronted with the entry made in the Scholar's Register and Transfer Certificate with regard to date of birth of the girl which is mentioned as 02.05.2002 she informed the Court that 'mai school me padhi hu lekin meri date of birth pita ji ne peeche likhai hai'. She informed the Court that 'maine Ajay Sharma se shadi kari hai, she next informed the Court that 'maine shadi apni marzi se kari hai bina kisi darr aur dabav ke'. On being asked by the Court that 'apke brother yaha aye hai kya aap milna chahenge unse', she informed the Court that 'nahi'. In view of the statement made by the girl before this Court a case for grant of indulgence has been made out. However, since the counsel of respondent No.3 has made a request for short adjournment, accordingly, the case is adjourned for the day and list this case on 20th December, 2018 by which date the counter affidavit may be filed on behalf of the respondent no.3, if any, failing which the Court may proceed to hear the matter on merits. However, since the counsel of respondent No.3 has made a request for short adjournment, accordingly, the case is adjourned for the day and list this case on 20th December, 2018 by which date the counter affidavit may be filed on behalf of the respondent no.3, if any, failing which the Court may proceed to hear the matter on merits. In view of the above, the corpus-Smt. Rakhi Sharma is directed to be taken back to Nari Niketan, Khuldabad, Allahabad, from where she has been brought before this Court where she will continue to stay till further order communicated to the authority concerned of the concerned Nari Niketan from this Court. Let a copy of the order be communicated to the parties concerned, within two days from today. It is however made clear that no further time shall be given to respondent No.3 to contest the matter.” 11. A counter affidavit has been filed on behalf of respondent no.3 complainant by Shri Mahipal Singh and it has been contended in the said counter affidavit that the girl is minor and her date of birth as mentioned in the Transfer certificate is 2.5.2002. It has been further contended that girl was sent to Nari Niketan in pursuance of the judicial order and thus, the present habeas corpus writ petition is not maintainable. However, Shri Mahipal Singh learned counsel for respondent no.3 has failed to demonstrate as to how and under what circumstances an order which has been passed by Child Welfare Committee is being deemed as a judicial order. 12. However, keeping in view the contention as has been raised at the bar of the Court and the objection as has been taken by the complainant, this Court after going through the entire record comes to the factual position that as per the medical report the girl is 18 years of age and she is an adult and she has expressed her desire before this Court that she may be released from custody and she would like to go with her husband Ajay Sharma. 13. 13. Learned counsel for the petitioner has placed reliance upon the judgment of this Court rendered in Habeas Corpus Writ Petition No.13037 of 2014 Mohini Gupta vs. State of UP and others, Habeas Corpus Writ Petition No.36519 of 2015 Smt. Neelam vs. State of UP and others, Habeas Corpus Writ Petition No. -19037 of 2011 Smt. Saroj versus State of U.P. And Others and the judgments passed by the Apex Court in Suhani & Another v. State of U.P. & Ors. passed in Civil Appeal No. 4532 of 2018 decided on 26.04.2018 and Shafin Jahan vs Ashokan K.M. and others, reported in AIR 2018 SC 1933 . 14. Learned counsel for the complainant has placed reliance upon the judgment passed in Habeas Corpus Writ Petition No.55317 of 2017 Smt. Priyanka Devi vs State of UP and others. 15. However, at this stage it may be appreciated that the said judgment was rendered before the judgment of the Apex Court in Suhani's case (supra). If we look into the legal consistent position we find that in the present case the girl has clearly stated that her age is 19 years and has given her statement under Section 164 CrPC which is in favour of Ajay Sharma and as per the medical certificate also the age of the girl is 18 years. 16. Reliance has also been placed on the judgment passed by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors, reported in AIR 1982 SC 1296. 17. It may be further appreciated that a victim of offence under section 363, 366-A, 366 or 376 I.P.C. could not be falling in the category of an accused and as such no court could be authorised under any provisions of law to authorise the detention of such a lady even into protective custody if the lady objects to such detention. In various decisions this Court opined that generally an order was passed sending the girl to Nari Niketan being ignorant of the constitutional provisions on the procedure being reasonable and liberty being the most valuable fundamental right of a person. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties, of course within the caring custody of parents. No law could be upheld even in a case of a child if he is deprived of the right to life and valued the right to liberty. (order dated 8.5.2012 in Habeas Corpus Writ Petition No. -19037 of 2011 Smt. Saroj versus State of U.P. And Others). 18. It may also be appreciated that the issue whether the victim/detenue who is a minor, can be sent to Nari Niketan against her wish, is no longer resintegra and has been conclusively settled by a catena of decisions of this Court. In the case of Smt. Kalyani Chowdhary Versus State of U. P. reported in 1978 Cr. L. J. 1003 (D.B.), a Division Bench of this Court has taken the view that: "no person can be kept in a Protective Home unless she is required to be kept there either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law permitting her detention in such a home. In such cases, the question of minority is irrelevant as even a minor cannot be detained against her will or at the will of her father in a Protective Home." 19. In the case of Pushpa Devi Versus State of U. P. and others reported in 1994 HVVD (All) C. R. Vol. II page 259 a Division Bench of this Court has enunciated the same principle as hereunder: "In any event, the question of age is not very material in the petitions of the nature of habeas corpus as even a minor has a right to keep her person and even the parents cannot compel the detention of the minor against her will, unless there is some other reason for it. We have no mind to enter into the question and decide as to when a particular minor is to be set at liberty in respect of her person or whether she shall be governed by the direction of her parents. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate. The question of custody of the petitioner as a minor, will depend upon various factors such as her marriage which she has stated to have taken place with Guddu before the Magistrate. Apart from the above factors, the more important aspect is as to whether there is any authority for detention of the petitioner with any person in law. Though, it is said that she has been detained in the Nari Niketan under the directions of the Magistrate, the first thing to be seen should be as to whether the Magistrate can direct the detention of a person in the situation in which the petitioner is. No Magistrate has an absolute right to detain any person at the place of his choice or even any other place unless it can be justified by some law and procedure. It is very clear that this petitioner would not be accused of the offence under Sections 363 and 366 I. P. C. We are taking the version because she could only be a victim of it. A victim may at best be a witness and there is no law at least now has been quoted before us whereunder the Magistrate may direct dentition of a witness simply because he does not like him to go to any particular place. In such circumstances, the direction of the Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal. Even the Magistrate is not a natural guardian or duly appointed guardian of all minors.” 20. In the case of Smt. Raj Kumari Versus Superintendent, Women Protection, Meerut and others House reported in 1997 (2) A. W. C. 720 another Division Bench of this Court has laid down the following dictum: "In view of the above, it is well settled view of this Court that even a minor cannot be detained in Government Protective Home against her wishes. In the instant matter, petitioner has desired to go with Sunil Kumar besides this according to the two medical reports, i. e. of the Chief Medical Officer and L. L. R. M., College Meerut, the petitioner is certainly not less than 17 years and she understands her well being and also is capable of considering her future welfare. In the instant matter, petitioner has desired to go with Sunil Kumar besides this according to the two medical reports, i. e. of the Chief Medical Officer and L. L. R. M., College Meerut, the petitioner is certainly not less than 17 years and she understands her well being and also is capable of considering her future welfare. As such, we are of the opinion that her detention in Government Protective Home, Meerut against her wishes is undesirable and impugned order dated 23.11.96 passed by the Magistrate directing her detention till the party concerned gets a declaration by the civil court or the competent court of law regarding her age, is not sustainable and is liable to be quashed." 21. Thus in view of the above, it is clear that it is the consistent view of this Court that a minor cannot be detained in a protective home against her wishes.” 22. As far as the question of maintainability of the writ petition is concerned, while considering the same question, a Division Bench of this Court in Habeas Corpus No. 146 of 2015; Smt. Preeti Nishad through her Husband, Mahendra Kumar Versus State of U. P. has held as hereunder: "The main objection of Sri S. N. Tilhari, learned A.G.A. that the petitioner should be asked to file revision at this stage will be defeating the spirit of Article 21 of the Constitution of India. The petitioner is neither an accused nor an offender of law. She is simply a citizen of this country who has done no wrong. She is major. The C.M.O. concerned has given her age to be around 20 years. This is based on medical examination and x-ray report. So far the certificate submitted by the father is concerned, it appears to be fabricated. Detenue has clearly mentioned that she has never studied in the school from where the age certificate has been obtained. It is not a matriculation certificate. It is a lower class certificate issued recently after the controversy arose. It cannot be trusted compared to the C.M.O. report and her own version before the Court. She has made statement before this Court that she does not want to live in any Nari Niketan or Sudhar Griha. She does not even want to live with his father. Somehow due to incorrect judicial order she is languishing in Nari Niketan for the last seven months. She has made statement before this Court that she does not want to live in any Nari Niketan or Sudhar Griha. She does not even want to live with his father. Somehow due to incorrect judicial order she is languishing in Nari Niketan for the last seven months. It will be a travesty of justice if this Court dismisses this petition on any alternative remedy. The law on the subject is very clear. The Court cannot shut its eyes and relegate a citizen to further harassment and illegal detention. Neither the S.D.M. nor the A.D.J. had any jurisdiction to send a lady to a protective home without her consent. The respective orders passed by them are set aside." 23. Now coming to the second objection canvassed by learned A. G. A. before this Court that the detention of the petitioner cannot be said to be illegal as she has been sent to Nari Niketan in pursuance of a judicial order, we hold that the second objection raised by learned A. G A. is also without any merit in view of the principle laid down by the a Division Bench of this Court in the case of Pushpa Devi (supra) that a victim may at best be a witness and there is no law at least now has been quoted before us whereunder the Magistrate may direct detention of a witness simply because he does not like him to go to any particular place. 24. Thus, merely because the petitioner has been sent to Nari Niketan pursuant to a judicial order which per se appears to be without jurisdiction, her detention cannot be labelled as "legal" rendering this Habeas Corups writ petition liable to be dismissed as not maintainable. 25. We next proceed to examine the third objection raised by learned A.G. A. before this Court that the detenue being a minor cannot be set at liberty and allowed to go with her husband merely on account of her having solemnized marriage with him. The detenue-petitioner as per her date of berth recorded in her High School certificate, is at present aged about seventeen and half years. There is nothing on record showing that the mother or the father of the corpus had made any application before the learned Magistrate for her custody. The detenue-petitioner as per her date of berth recorded in her High School certificate, is at present aged about seventeen and half years. There is nothing on record showing that the mother or the father of the corpus had made any application before the learned Magistrate for her custody. There is also no dispute that the petitioner has solemnized marriage with Manoj @ Manoj Kumar and were living as husband and wife till the petitioner was snatched away from her husband's custody and sent to Nari Niketan. A Division Bench of this Court in the case of Sonu Paswan Versus State of U. P. and another reported in 2013 (31) LCD 1107 has held that a child marriage will be voidable at the instance of the minor. Otherwise, the marriage is not void ipso facto. In this view also the Magistrate does not have any right to snatch the custody of the detenue from the husband and place her in a protective home. 26. It is not the case of the respondent that the petitioner has instituted any suit for her marriage with Manoj being declared void on the ground of the same being child marriage. The detenue in her statement recorded under Section 164 Cr. P. C. as well as in her statement recorded before this Court, has stuck to her stand that she is major and she had left her home on her own accord and solemnized marriage with Manoj @ Manojh Kumar on her own sweet will without any pressure or fear. Thus, the A.C.J.M., Court No. 7, Aligarh did not have any right to snatch the custody of the detenue from the husband and place her in a protective home. The detenue/petitioner is not an accused of the offence under Section 363 and 366 IPC. She is only a victim. A victim, as held by the Division Bench of this Court in the case of Pushpa Devi (supra), may at best be a witness and there is no law whereunder the Court may direct detention of a witness simply because he or she does not like him to go to any particular place. In such circumstances, the direction of the learned Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal as he is not a natural guardian or duly appointed guardian of minors. 27. In such circumstances, the direction of the learned Magistrate that she shall be detained at Nari Niketan is absolutely without jurisdiction and illegal as he is not a natural guardian or duly appointed guardian of minors. 27. In Habeas Corpus Writ Petition No. 33676 of 2015 (Smt. Kanchan Singh and another Vs. State of U.P. and others) decided on 14.7.2015 this Court has held as under: "For the aforesaid reasons and in view of the settled law on the issue that even a minor cannot be detained in the Government Protective Home against her wishes, the petitioner No. 1 who is seventeen and half years old as per her High School certificate and as per medical opinion, is aged about nineteen years and she understands her well being, her detention in Nari Niketan against her wishes, is per se undesirable and the order dated 28.2.2015 passed by the Special Judge, POCSO Act, Deoria directing her detention in Nari Niketan without specifying the period of detention is not sustainable." 28. Learned counsel for the petitioner has placed reliance upon the judgment passed by Lucknow Bench of this Court in Shaheen Parveen and another vs The State of UP and others in Misc. Bench No.3519 of 2015 (decided on 23.7.2015) wherein the Court has observed herein as under: “22. If a minor, of her own, abandons the guardianship of her parents and joins a boy without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc and without any offer or promise from the accused, no offence punishable under Section 363 I.P.C. will be made out when the girl is aged more than 17 years and is mature enough to understand what she is doing. Of course, if the accused induces or allures the girl and that influences the minor in leaving her guardian's custody and the keeping and going with the accused, then it would be difficult for the Court to accept that minor had voluntarily come to the accused. In case the victim/prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him. 23. In case the victim/prosecutrix willingly, of her own accord, accompanies the boy, the law does not cast a duty on the boy of taking her back to her father's house or even of telling her not to accompany him. 23. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement, particularly when the case of the victim/girl herself is that it was on her initiative and on account of her voluntary act that she had gone with the boy and got married to him. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 I.P.C. are required to be considered accordingly, and not in mechanical or technical interpretation. 24. Ingredients of Section 361 I.P.C. cannot be said to be satisfied in a case where the minor having attained age of discretion, alleged to have been taken by the accused person, left her guardian's protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian. 25.So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. ( The Court in above regards takes a cue from the judgment rendered by Hon'ble Supreme Court of India reported in (1965)1 SCR 243 S. Varadarajan versus State of Madras). 26. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years. 26. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years. The said petitioner had attained age of discretion, however, not age of majority. Petitioner No.1, the victim in her statement recorded under Section 164 CrPC has clearly demonstrated that it was she who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through.Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him. 27.The writ Court considering totality of fact and circumstances, cannot ignore or disregard the welfare of the petitioners, particularly when the exercise of trial is going to be in futility, as observed hereinabove. 28. In view of the facts and circumstances of the case noted above, the Court is convinced that the impugned proceedings have been initiated in abuse of process of the Court and process of the law. A personal grudge against marriage of choice of the daughter is being settled by virtue of initiating impugned criminal proceedings, which would not be permissible in law. Such prosecution would abrogate constitutional right vested in the petitioners to get married as per their discretion, particularly when there is no evidence to indicate that the marriage is void.” 29. The Court has been further informed that in the present case till date no proceedings have been initiated to get the marriage declared as void. Here it is not the case of the respondents that any suit or proceedings have been instituted for getting the marriage declared as void. 30. The Court has been further informed that in the present case till date no proceedings have been initiated to get the marriage declared as void. Here it is not the case of the respondents that any suit or proceedings have been instituted for getting the marriage declared as void. 30. Thus, in view of the consistent legal position, in view of the fact that girl is an adult as per the medical certificate and in view of the statement of the girl under Section 164 CrPC, a case for grant of indulgence has been made out. 31. Accordingly, the habeas corpus writ petition is allowed. Corpus Rakhi Sharma is set at liberty forthwith. 32. The District Magistrate, Allahabad is hereby directed to ensure the release of corpus-Rakhi Sharma, detained at Government Women Protection House, Khuldabad, Allahabad, from detention forthwith as soon as the present order is communicated upon District Magistrate, Allahabad as well as respondent no.2 (Superintendent of Government Women Protection House, Khuldabad, Allahabad).