Gujarat High Court
Parulben Dhirubhai Makwana vs State Of Gujarat & 3 on 16 December, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
R/SCR.A/9374/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 9374 of 2016
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PARULBEN DHIRUBHAI MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR HIREN R SHARMA, ADVOCATE for the Applicant(s) No. 1
MR K P RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 16/12/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner, mother of one Anjuben, has filed this habeas corpus petition seeking her custody. Her mother's contention is that Anjuben is born on 1.6.2000 and therefore, even today a minor. According to the petitioner, which is not in dispute, the girl had left the house on or around 22.3.2016.
2. In response to the notice issued, the authorities have brought Anjuben before the Court. She was carrying a small child with her aged about one and half months. We spoke to the girl in the chamber who clearly stated that she had voluntarily and willingly gone with respondent no.3 Kamlesh Kalubhai Koli and she has been residing with him Page 1 of 3 HC-NIC Page 1 of 3 Created On Sat Dec 17 00:04:42 IST 2016 R/SCR.A/9374/2016 ORDER ever since. He is father of the child. She is happy with him and refused to go to her mother. Additionally, stating that her mother has remarried and the stepfather had misbehaved with her on numerous occasions when she was at her mother's house.
3. The crucial question of ability of the Anjuben to make this decision however remains. According to the School Leaving Certificate, the date of birth shown is 1.6.2000. If that be so, it would be difficult to rely on her declarations before us. However, even earlier she was produced before the Government doctors. The panel doctor at the department of Radiology, G.G. Hospital, Jamnagar, in his certificate dated 2.4.2016 had certified that on the basis of fusion of the epiphyses, the girl would be around 18 years with an error margin of +/ 6 months. This was on the basis of xray dated 30.3.2016. Thus the error margin would also not be significant since we are considering the choice of the girl for the month of December 2016. It is not unknown that the date of birth shown in School Leaving Certificate is often extremely inaccurate looking to the illiteracy of parents registering such date in the school.
4. In addition to these factors, we also have been guided by the fact that the girl has been residing with respondent no.3 ever since 23.3.2016 in the same village in which even the petitioner is residing. This is therefore, not a case where the girl and the boy had disappeared for months together before they were found. Despite, this habeas petition came to be filed nearly nine months later. The girl is also carrying a young child, respondent no.3 being the Page 2 of 3 HC-NIC Page 2 of 3 Created On Sat Dec 17 00:04:42 IST 2016 R/SCR.A/9374/2016 ORDER father. Last but not least, she has voiced serious apprehensions about her wellbeing in the house of her mother where her stepfather is also residing. We do not wish to elaborate on this aspect.
5. Considering such facts, this habeas corpus petition is dismissed.
6. IO is requested to drop the girl from where she was brought.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) raghu Page 3 of 3 HC-NIC Page 3 of 3 Created On Sat Dec 17 00:04:42 IST 2016