Allahabad High Court
Smt. Khusbu And 2 Others vs State Of U.P. And 3 Others on 8 May, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:97959-DB Court No. - 67 Case :- HABEAS CORPUS WRIT PETITION No. - 382 of 2023 Petitioner :- Smt. Khusbu And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Roopesh Kumar Nigam,Udantika Counsel for Respondent :- G.A. Hon'ble Rahul Chaturvedi,J.
Hon'ble Gajendra Kumar,J.
1. Heard Shri Roopesh Kumar Nigam and Ms. Udantika, learned counsel appearing for the petitioners and learned Additional Government Advocate for the State-respondents.
2. This is a fresh case in supplementary list.
3. Pursuant to our earlier order dated 25.04.2023, learned A.G.A. has given us a sealed cover letter containing the age certificate of prosecutrix Ms. Khushboo Bind. In the open Court, the sealed cover was opened and we have perused the said certificate.
4. To start with the incident, F.I.R. was lodged by respondent no. 4/Mrs. Ramawati Devi on 10.07.2020 alleging that on 06.06.2020 the named accused Brijesh Bind (petitioner no. 3) has illegally enticed away her minor daughter-Khushboo. Accordingly, an F.I.R. was registered as Case Crime No. 235 of 2020, under sections 363, 366 I.P.C., Police Station-Bairiya, District-Ballia. Eventually after the great delay and effort the girl was finally recovered on 12.07.2020 and she was put for her 161 & 164 Cr.P.C. statements. In addition to this, her statement was also recorded as PW-1 in SST No. 366 of 2020, under sections 363, 366, 376 I.P.C. and Section 3/4 of POCSO Act (State Vs. Brijesh Bind and Others).
5. We have an occasion to peruse her statement under section 164 Cr.P.C. as well as her testimony before the court as PW-1. To start with in the 164 Cr.P.C. statement, she states that she is aged about 17-1/2 years, resident of village Thekaha, Police Station Bairiya, District Ballia. She in no uncertain terms states that she on her own volition and accord left her parental house, as her parent and brother brutally beaten her and were planing to marry her per force with some other person. She was in affair with petitioner no. 3-Brijesh Bind, for last two years. After leaving her house, she immediately have joined the company of her beloved. There was no element of any compulsion from the side of the petitioner no. 3-Brijesh Bind. Whatever the action had been taken by petitioner no. 3-Brijesh Bind is at her instance and since she was not getting a proper treatment from her parent and thus she on her own joined the company of her friend Brijesh Bind and married her. Her mother has lodged a false F.I.R. against petitioner no. 3-Brijesh Bind. In the statement as PW-1 she claims that she is aged about 20 years. She is a school drop out, after class 5th and she has blasted the prosecution story to the Court. She further submits that she is carrying a pregnancy of eight months.
6. After recovering the girl, she candidly refused to go alongwith her parent and therefore she was referred to the Shelter House, Nidhariya, District Ballia by Child Welfare Committee, Ballia vide order dated 06.08.2020.
7. Under these unfortunate incident the poor girl is residing in the Shelter House since July, 2020. Not only this she has given birth to a baby, while her stay in the Shelter House. After the delivery of baby, now the question of three lives are involved. On the insistence of learned A.G.A. regarding her age, we have requested the Chief Medical Officer, Ballia to conduct an Ossification Test so as to ascertain the approximate age of the victim on the date of incident i.e. 06.06.2020.
8. Today we have received the Ossification Test Report from the Chief Medical Officer, Ballia dated 03.05.2023, whereby the Chief Medical Officer, Ballia has calculated the approximate age of the girl is around 17-18 years. Presently, she is 21-22 years and mother of a small kid.
9. Today the victim is before us and we have got an opportunity to have a conversation with her, she submits that on account of an atrocities committed by her parent and brother, who are compelling her to marry with some other person, she on her own left the company of her parent and after accompanying her beloved-petitioner no. 3, she left to some unknown destination and where they have performed marriage and started living as husband and wife. She still wants to go with her husband but as per judicial order of Child Welfare Committee, Ballia, she has been compelled to reside in the Government Shelter House at Ballia since 14.07.2020. Today her husband is present in the Court and has taken responsibility to carry her. She too is willing to join the company of her husband.
10. Learned counsel for the petitioners has relied upon the judgment of the Hon'ble Apex Court as well as this Court in the cases of Atul Mishra and State of U.P. & 3 Others (decided on 25.01.2022),in its paragraph no. 15 & 17, quoted as under:-
"15. Reverting back to the facts of the present case, when both the parties (boy as well as girl) who are in their teens and college going, both of them met in the school during NCC parade, developed a natural inclination towards each other, thereafter cutting across the caste barrier between them eventually have decided to marry with each other. No doubt the girl was barely 14 years on the date of incident. Both of them fled away, got married in a shiv Temple at Delhi and remained in company with each other for almost two years during which the girl has given birth to a baby, who is now 7-8 months old. She was clear in her mind that she does not want to go back with her parent but wants to remain in the company of the applicant, to whom she has accepted her husband. This relationship has given birth to a baby on 21.5.2021.
17. No doubt consent of minor girl has got no value in the eyes of law, but in the present scenario where the girl has given birth to a baby from the applicant and in her 164 statement, she has declined to go with her parent and from last 4-5 months residing at Rajkiya Balgrih (Balika) Khuldabad, Prayagraj in most inhuman condition with her infant baby, this by itself is pathetic and would amount to adding to her miseries."
In addition to this learned counsel for the petitioners also relied upon the judgment of Mafat Lal and Another Vs. The State of Rajsthan reported in 2022 Live Law (SC) 362 in Criminal Appeal No. 592 of 2022 (decided on 28.03.2022), paragraph no. 7 is quoted as under:-
"Appellant No.2 has specifically stated before the High Court as also before this Court that she had left her parental home on her own 3 free volition. The appellants are married since December 2006 and have been living happily. They have also been blessed with a son in the year 2014 who would now be 8 years old. No fruitful purpose would be served by relegating the matter for conducting the trial as the same would not be conducive for either of the appellants. It would be a futile exercise. Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age if a female for the offence under Section 363 IPC. In the present case, the abductee had clearly stated that she was neither taken away nor induced and that she had left her home of her own free will. Section 366 IPC would come into play only where there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. This offence also would not be made out once the appellant no. 2 the abductee has clearly stated that she was in love with the appellant no.1 and that she left her home on account of the disturbing circumstances at her parental home as the said relationship was not acceptable to her father and that she married appellant no.1 on her own free will without any influence being exercised by appellant no.1."
In case of Jatin Agarwal Vs. State of Telangana & Another, Crl. Appeal No. 456 of 2022 (decided on 21.03.2022), relevant extract of the judgment is quoted herein below:-
"Considering the aforesaid facts and keeping in view that the respondent no.2/complainant has herself made a statement before us that she has married the appellant and now living happily, we exercise our powers under Article 142 of the Constitution of India and to do complete justice in the matter, we quash the FIR dated 16.08.2020 lodged by the respondent no.2 against the appellant under Sections 417, 420 and 376 IPC."
11. Taking the guidance from the above precedents of own Court as well as Hon'ble Apex Court, we have got no hesitation to quash the impugned order of CWC (Child Welfare Committee). The victim repeatedly insisting to go with her husband with whom she has got a baby, her Ossification Test also indicates that now she is a major girl, who can decide her future, thus according to us, there would be miscarriage of justice if the girl along with her baby is not released from the said Shelter House at Ballia.
12. The instant Habeas Corpus Writ Petition stands ALLOWED on the aforesaid terms. All the concerned parties shall be given a copy of this order as per rules.
13. Age Certificate/Ossification Report by the Chief Medical Officer, Ballia, is taken on record.
14. Ms. Madhu Singh, superintendent from Rajkiya Balika Balgrih Nidharia, Ballia, Lady Constable-Sarita and Head Constable Samar Singh from Police Station-Ballia, are present in person in the court and their presence are hereby dispensed with.
Order Date :- 8.5.2023 Vibha