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2021 DIGILAW 904 (PNJ)

Mohd. Iliyash v. State of Haryana

2021-04-27

AMOL RATTAN SINGH

body2021
Judgment Mr. Amol Rattan Singh, J. (Oral):- Case heard via video conferencing. 2. By this petition, the petitioners seek protection of life and liberty at the hands of respondents no.4 to 12, upon the petitioners having married each other (as contended) against the wishes of the said respondents, on 2.1.2021. 3. On 7.1.2021, the following order had been passed by this court:- “Case heard by video conferencing. By this petition, the petitioners seek protection of life and liberty at the hands of respondents no.4 to 12, upon the petitioners having married each other (as contended) against the wishes of the said respondents, on 02.01.2021. Upon query to learned counsel for the petitioners as regards proof of age of the petitioners, he points to Annexures P-1 and P-2 which are shown to be copies of the Aadhar cards issued in favour of the petitioners, showing the year of birth of petitioner no.1 to be 1986 thereby making him about 34 years of age, with the date of birth of petitioner no.2 being shown to be April 28, 2002 thereby making her about 18 years and about 8 months of age. As regards the previous marital status of the petitioners, learned counsel for the petitioners submits that even as per the petition, petitioner no.1 has been married earlier and in fact has four children from that marriage, whereas it is the first marriage of petitioner no.2. Notice of motion. Mr. B. S. Virk, learned DAG, Haryana, accepts notice on behalf of respondents no.1 to 3 at the asking of the court, with Mr. Sunil Saharan, Advocate, appearing for respondents no.4 to 12 and accepting notice. Mr. Saharan submits that as per the attested copy of the birth certificate of petitioner no.2, as has been given to him, her date of birth is August 01, 2003 thereby making her 17 years and about 4½ months as of today. The Superintendent of Police, Palwal and the SHO of Police Station City Palwal, are directed to have the age of petitioner no.2 verified from the educational institution that she last attended, with a gazetted officer directed to file a reply to the petition as regards the age of petitioner no.2 and the marital status of both petitiones. Adjourned to 25.01.2021. The Superintendent of Police, Palwal and the SHO of Police Station City Palwal, are directed to have the age of petitioner no.2 verified from the educational institution that she last attended, with a gazetted officer directed to file a reply to the petition as regards the age of petitioner no.2 and the marital status of both petitiones. Adjourned to 25.01.2021. In the meanwhile, since protection of life and liberty is fundamental right enshrined under Article 21 of the Constitution of India, obviously such life and liberty of the petitioners shall be protected from respondents no.1 to 3. However, having said that, learned counsel for the parties would address arguments on the following three issues specifically (and any other arguments that they wish to raise):- (i) As to why, despite both the petitioners being obviously subject to Muslim personal law, they should not be prosecuted in terms of the provisions of the Prohibition of Child Marriage Act, 2006, if either of them (specifically petitioner no.2) is found to be below the legally marriageable age for females in terms of the provisions of the said Act, that Act not making any distinction as regards prosecution under the provisions thereof, on the basis of any caste, community and religion etc., and with the offences punishable under the said Act being cognizable offences in terms of Section 15 thereof; (ii) As to why, if the age of petitioner no.2 is actually found to be below 18 years of age, the petitioners should not be proceeded against under the provisions of the Contempt of Courts Act, 1971, for deliberately misleading this court and in addition thereto, why proceeding under the provisions of Section 340 of the Cr.P.C. should not be initiated; (iii) As to why the petitioners should also not be similarly prosecuted if the statement, Annexure P-3, shown to be made by the first wife of petitioner no.1, i.e. Shabnam, is found to be actually a forged document, with Mr. Saharan submitting that the said wife specifically made a statement that she never gave any such consent. Obviously, though such consent may not be required under Muslim personal law from the first wife before marrying a second time, that still would not absolve the petitioners from trying to mislead this court by furnishing a false document (if it is found to be actually false).” 4. Obviously, though such consent may not be required under Muslim personal law from the first wife before marrying a second time, that still would not absolve the petitioners from trying to mislead this court by furnishing a false document (if it is found to be actually false).” 4. Thereafter, on 9.2.2021, the following order had been passed:- “Case heard by video conferencing. Pursuant to the order dated 07.01.2021, a status report dated 22.01.2021 has been filed by the DSP, Palwal, on behalf of the respondent State, annexing therewith a copy of the certificate shown to be issued by the Headmaster of the Government Middle School, Village Saral(6038), Block Nagina, Nuh (Mewat), dated 11.01.2021, stating therein that petitioner no.2, Ruqsar, attended that school upto class VIII, with her having been admitted to that school on 07.04.2008, and that as per the school records her date of birth is 28.04.2002. Hence, counsel for the petitioners submits that the marriage of the petitioners with each other having taken place on 02.01.2021, petitioner no.2 was more than 18 years and 8 months old at that stage and therefore, even though it is the second marriage of petitioner no.1, as they both belong to the Muslim community, as per Muslim personal law the marriage cannot be held to be invalid, regardless of whether the the first wife consented thereto or not. Mr.Abdulla, learned counsel for respondent no.4, however refers to Section 35 of the Indian Evidence Act, to submit that only in the absence of a birth certificate of any individual, would proof of age be required by way of any record of any educational qualification etc., and in fact there is no board examination that petitioner no.2 has ever taken, for her to have been issued a certificate by any competent board and simply because at the time of her admission to school her date of birth was wrongly given by her father, i.e. respondent no.4, because otherwise she could not have been admitted to school, does not mean that she was actually of the age of majority at the time of her marriage, her actual date of birth being 01.08.2003. Even if that is so, learned counsel for the parties would still be required to address arguments in terms of the judgement of the Supreme Court in “Hardev Singh vs. Harpreet Kaur and another” (Crl. Even if that is so, learned counsel for the parties would still be required to address arguments in terms of the judgement of the Supreme Court in “Hardev Singh vs. Harpreet Kaur and another” (Crl. Appeal no.1331 of 2013 decided on 07.11.2019), as to how proceedings under the provisions of the Prohibition of Child Marriage Act, 2006, can continue even against petitioner no.1. For arguments to be addressed on that or any other issue that learned counsel may wish to address arguments pertaining to the case, adjourned to 26.04.2021. Interim order to continue. To be taken as the first case of the day.” 5. Today, Mr.Abdullah, learned counsel for respondent no.4, again reiterates that in terms of Section 35 of the Indian Evidence Act, 1872, the birth certificate of petitioner no.2 being a relevant document, that cannot be ignored. 6. The said provision reads as follows:- “35. Relevancy of entry in public record or an electronic record made in performance of duty.- An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.” 7. Upon query to Mr.Abdullah, he submits that as per the said birth certificate, the date of birth of petitioner no.2 is 1.8.2003, therefore making her 17 years and about 4-1/2 months of age at the time that she and petitioner no.1 got married to each other on 2.1.2021. 8. However, even in the 2 months and 17 days that have gone by since the last date of hearing, no application has been filed by respondent no.4 (or any of the other respondents), even seeking to place on record any such birth certificate. 9. Hence, even today, such averment is only in the air. 10. It is to be noticed here that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, reads as follows:- “94. 9. Hence, even today, such averment is only in the air. 10. It is to be noticed here that Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, reads as follows:- “94. Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 10. Thus, even for the purposes of that Act, it is the “date of birth certificate” issued by a school, or the matriculation or equivalent certificate from the concerned examination board, which is to be looked at for the purpose of determining the age of any person to determine if he/she is a juvenile/child; and only in the absence thereof; is the birth certificate issued by a municipal authority or a panchayat to be looked at. 11. 11. Thus, unless that the school certificate itself can be disproved by evidence being led before a competent court to show that the date of birth is wrongly recorded in the certificate issued by the school (as has been issued by the Headmaster of the Government Middle School, Village Saral, District Nuh), obviously this court would be, for the purpose of this petition at least, bound to accept that certificate, it having been verified by the DSP, Palwal. 12. Mr.Abdullah next submits that petitioner no.2 is almost half the age of petitioner no.1, and with petitioner no.1 having no source of income and this being his second marriage, it cannot be allowed to continue. 13. Whereas this court can obviously understand the concern of any father and family members of petitioner no.2 in that regard, however the court is first bound by the provisions of law and admittedly, as per Muslim Law, a male is permitted to enter into a second marriage (with the consent of the female) and further, as regards Muslim Personal Law itself, even the age of puberty is sufficient to allow the parties to enter into a marriage. 14. Of course, the Prohibition of Child Marriage Act, 2006, does not distinguish between caste/community/religion for the purpose of prosecution qua the cognizable offences enumerated in that Act (such offences being cognizable in terms of Section 15 thereof); however, as already observed herein above and in the previous orders, at least at this stage, the certificate issued by the aforesaid school not having been disproved before this court, I would see no reason to issue any direction for registration of any FIR under the provisions of that Act either (on the prayer of counsel for respondent no.4). 15. Yet further, this being a petition seeking protection of life and liberty, and with no law is shown to have been violated so far at least before this court, other than directing the official respondents to ensure the protection of life of the petitioners, which in any case is a fundamental right enshrined in Article 21 of the Constitution of India, even as regards protection of liberty, they are bound to be give such protection as per law. 16. 16. Mr.Sood, learned counsel for the petitioners, has submitted that at the instance of respondent no.4, an FIR has also been registered against petitioner no.1 and other family members alleging therein the commission of offences punishable under the provisions of Sections 363 and 366-A of the IPC, for quashing of which petitioner no.1 and his co-accused therein have already filed CRM-M-8500 of 2021 before this court. 17. Naturally, that being so, that petition would take its own course before the appropriate bench. 18. As regards this petition seeking protection of life and liberty of the petitioners, it is allowed, with respondents no.1 to 3 directed to ensure that such life and liberty of the petitioners is duly protected, as per law.