Madhya Pradesh High Court
Azhar Ahmad Siddiqui vs The State Of Madhya Pradesh on 26 June, 2018
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THE HIGH COURT OF MADHYA PRADESH
W.P. No.12100/2018
Jabalpur, Dated- 26.06.2018
As the Lawyers are abstaining from work today
due to the call given by the State Bar council, the
petition is being heard and decided on the basis of
arguments advanced by both the sides.
The petitioner in person.
Miss Kiran Kiro, the SDO(P) and Mr. Bhupendra
Singh, T.I. of Police Station Nagod, Distt. Satna are
present in person before this Court pursuant to the
order passed by this Court on 18.6.2018.
The present petition has been filed by the
petitioner Azhar Ahmad Siddiqui, who is
brother of the corpus. The corpus is being
referred herein as 'R' in order to protect her
privacy. It would be necessary to shortly
recapitulate the observations made by this
Court on 18.06.2018. In the said order, it is
observed that the learned Government
Advocate has admitted that the missing girl is
a minor and that she has performed marriage
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with respondent No.5 without attaining the age
of majority. This Court had also observed that respondent No.6, who is uncle of respondent No.6 to cooperate with the Police authorities, failing which the offence be also registered against him. It was also brought to the notice of this Court that the Quazi had solemnized the marriage, without specifying the addresses of the parties and of the girl, who is a minor. In this regard, this Court had given the liberty to the Police to take recourse under the law against the Quazi. Lastly, the Government Advocate was directed to produce the corpus on the next date of hearing failing which the SHO of Police Station Nagod, District Satna shall personally remain present before this court.
2. Today, the corpus 'R' has appeared on her own volition before this Court and has levelled several allegations against the petitioner. She has levelled allegations against her own mother and brother saying that they used to beat her 3 and that earlier also, she had made complaints to the Police. In order to substantiate her contentions, she has drawn the attention of this Court to the reply filed by the respondent No.6 in which he has stated that the corpus 'R' is not in illegal custody as she is a major aged 18 years. In support of his contention, the respondent No.6 has filed Annexure R/1 at page 12, which is a non-cognizable report under Section 155 Cr.P.C., which has been registered by respondent No.5 Mohammad Naeem Bux, in which the respondent No.5 has alleged that the family of the petitioner are opposing his marriage to the corpus 'R' and are threatening him with dire consequences if he tries to get married to the corpus R.
3. On page 15 is Annexure R/2, an affidavit stated to have been executed by the corpus 'R' in which she has stated that her age is 18 years, having been born on 25.1.2000. Thereafter, Annexure R/3 at page 24 of the reply is a birth certificate reflecting the date of birth of the 4 corpus 'R' as January 25, 2000. On page 25 is Annexure R/4, which is the "Nikahnama", conducted between the corpus 'R' and the respondent No.5. On page 29 is the order of the Registrar of Births and Deaths, dated 29.11.2017, in which the date of birth of the corpus 'R' is reflected as 25.1.2000. Page 31 is Annexure R/6, which is an order passed by this Court on 16.4.2018 in W.P. No.8085/2018 by which Police protection was directed to be given to the respondent No.5 and the corpus 'R' upon producing documents relating to age proof and marriage. On page 38 is Annexure R/7, which is a copy of the Aadhar Card of Corpus R which shows her date of birth as 25.1.2000.
4. Per contra , the petitioner states that the corpus 'R' is his real sister, who is a minor. He says that his sister was enticed by the respondent No.5 and that she is a minor. The petitioner who has appeared in person and has drawn the attention of this Court to page 12 5 Annexure P/1 to the petition, which is an F.I.R. bearing Crime No.111/2018 registered on 5.3.2018, after the corpus went missing for an offence U/s.363 of I.P.C. The respondent No.5 has been named as an accused in the said F.I.R. The petitioner submits that the respondent No.5 is a driver and is engaged in such work where his regular income is not guaranteed and that as a brother, he was concerned about the well-being of his sister and on account of the respondent No.5 not having a regular or proper source of income and also on account of the alleged bad reputation of the respondent No.5 in the locality, he was against the marriage of his sister to the respondent No.5. The respondent No.5 and the corpus are both from the Muslim community.
5. The petitioner has drawn the attention of this Court to Annexure P/3 at page 15, which is the birth certificate issued by the Nagar Parishad, Nagaud, which reflects the date of birth of the 6 corpus as 25.1.2001. The petitioner has also drawn the attention of this Court to page 17 which is the Aadhar Card issued in the name of the corpus 'R' which shows her date of birth as 25.1.2001. Both the Aadhar Card bear the same number 4807 0849 8984. Thereafter, the petitioner has further drawn the attention of this Court to page 18 of the petition, which is a certificate issued by the Swaraswati Shishu Mandir Higher Secondary School, Nagaud, Distt. Satna, in which also, her date of birth is shown as 25.1.2001. This certificate was issued on 15.2.2018. Most importantly, the petitioner has filed a copy of High School certificate of the corpus 'R', which is the mark-sheet cum certificate issued by the Board of Secondary Education, Madhya Pradesh, Bhopal, relating to the 10 t h standard marks of the corpus issued on 12.5.2017, of the examination conducted in March, 2017, which is at page 16 of the petition, which shows her date of birth as 25.1.2001 . The mark-list of the corpus shows 7 that she is a good student who has secured reasonably good marks in all the subjects with the exception of Mathematics. Overall, she has passed in second division.
6. The only issue before this Court is with regard to the age of the corpus. If she is a minor, it goes without saying that the petitioner and the parents of the corpus would have the right to have her custody in exclusion to the respondent No.5. As regards the birth certificate produced by both the sides, this Court is not relying upon then because both these birth certificates were taken out in the year 2018 itself. The petitioner says that the birth certificate taken by the corpus was done during the time when she was on the run along with respondent No.5. The date of birth given in the Aadhar Card according to the corpus 'R' has been changed by her based upon the birth certificate which shows her date of birth as 25.1.2000.
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7. The judgment of the Supreme Court in Jarnail Singh Vs. State of Haryana , reported in (2013) 7 SCC 263, lays down the law as regards the assessment of the age, be that juvenile/child in conflict with law or a minor who is a victim of crime. The Supreme Court in paragraph 22 of the judgment has referred to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and has referred specifically to Rule 12(3), which is the procedure to be followed for the determination of age. Sub-rule (3) of Rule 12 provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee, by evidence by obtaining firstly , the matriculation or equivalent certificates, if available; and in the absence thereof; (2) the date of birth from the school (other than a play school) first attended by the victim/juvenile in conflict with law; and in the absence thereof; (3) the birth 9 certificate given by the corporation or a municipal authority or a panchayat and; lastly , in the absence of the above three, the opinion of the medical board will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
8. In paragraph 23 of the said judgment, the Supreme Court held that even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, the aforesaid statutory provision should be the basis for determining the age even of a child who is a victim of crime. It further held in the same paragraph that the highest rated option available would conclusively determine the age of a minor under Rule 12(3), which is matriculation or equivalent certificate and where such certificate is available, no other evidence can be relied upon. It further held that only in the absence of the matriculation certificate, the other parameters for the 10 determination of the age should be taken into consideration.
9. Under the circumstances, this Court is bound to follow the unambiguous and unequivocal law laid down by the Supreme Court in Jarnail Singh's case, supra and hold that Annexure at page 16, which is a matriculation certificate/ certificate issued by the Board of Secondary Education, Madhya Pradesh, Bhopal, conclusively establishes for the purpose of this case, that the age of the corpus 'R' is more than 17 years, but not 18 years as on date, as her date of birth in the said certificate is shown as 25.1.2001. Under the circumstances, it is apparent that the corpus 'R' is a minor.
10. Thus, this Court is of the opinion that the petition should be allowed and the custody of the corpus 'R' should be given to the petitioner and his family. However, the petitioner and his family are cautioned, in the facts of the case, that by no means they shall bring to bear any 11 pressure upon the corpus 'R' to perform khula (divorce) with the Respondent No.5. That decision shall be left to the exclusive judgment of the corpus 'R' upon her attaining majority.
11. As regard the direction given by this Court in order dated 18.6.2018 where the Police was given the authority and liberty to proceed against the Quazi, as permissible under the law, the respondents No.1 to 4 are requested to first of all enquire and see if the 'Nikahnama' that was prepared by the Quazi was on the basis of the birth certificate, copy of Aadhar Card and the affidavit executed by the corpus 'R', which documents showed the corpus to be a major, before taking any precipitate action against the Quazi. The corpus shall remain with the petitioner till she attains majority and the petitioner and his family is directed to ensure that they provide her with adequate opportunity for further education by putting her back in school. Upon attaining the age of majority, the corpus 'R' 12 shall be free to decide her own life and the manner in which she wants to live. The Corpus R has voiced grave apprehension against her relation Salman Khan, S/o. Usman, who the Corpus says has an evil eye on her. The Petitioner and his family are directed to ensure that the said person shall not be allowed to meet the Corpus without her consent and neither shall he be allowed in the vicinity of the Corpus without her consent.
12. It is further directed that the corpus 'R' shall be produced before the T.I. of Police Station Nagod twice a month and the SDO(P) is requested to keep an informal surveillance on the corpus 'R' till the time she attains majority on 25.1.2019.
13. The Superintendent of Police, Jabalpur is requested to provide adequate force to the SDO(P) Miss Kiran Kiro of P.S. Nagaud, Distt. Satna, so as to enable her to take the corpus to Nagaud, safely.
13A typed copy of this order be given to the SDO(P) Miss Kiran Kiro, for necessary action.
With the aforesaid observations, the petition is disposed of.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE a Digitally signed by ASHISH DATTA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, ASHISH DATTA ou=P S, postalCode=482008, st=Madhya Pradesh, 2.5.4.20=39687ae2c05d9fbaae8af68cd0db0f2d72ea51435fe1da8 21e718b7963f8eeba, 2.5.4.45=0321009FFBC4775F25A882B8A6233418905D27AA9BE D4D5486CEF84C16DFB5884A7E01, cn=ASHISH DATTA Date: 2018.06.28 13:28:15 +05'30'