Allahabad High Court
Kajal And Another vs State Of U.P. And 4 Others on 22 February, 2019
Bench: Vipin Sinha, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 23.01.2019 Delivered on : 22.2.2019 Court No. - 51 Case :- HABEAS CORPUS WRIT PETITION No. - 3914 of 2018 Petitioner :- Kajal And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Mirza Ali Zulfaqar,Shujauddin Counsel for Respondent :- G.A.,Dinesh Kumar,Dinesh Kumar Mishra Hon'ble Vipin Sinha,J.
Hon'ble Ajit Singh,J.
(Delivered by Hon. Ajit Singh, J.) Counter affidavit filed on behalf of respondent no. 5 in the Court today is taken on record.
Rejoinder affidavit filed on behalf of petitioners is also taken on record.
Heard Sri Mirza Ali Zulfaquar, learned counsel for the petitioners, Sri Dinesh Kumar Mishra, learned counsel for the complainant and Sri Patanjali Mishra, learned AGA appearing for the State.
This habeas corpus writ petition has been filed on behalf of corpus Smt. Kajal, wife of Shivam Kumar through her father-in-law Kanti with the following prayer:
"I. Issue a writ, order or direction in the nature of habeas corpus commanding the respondents to produce the corpus before this Hon'ble Court and save the right of personal liberty of the corpus from the illegal detention of respondents.
II. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 18.10.2018 passed by Chief Judicial Magistrate, J.P. Nagar (Amroha.
III. Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.
IV. Award the cost of the petition in favour of the petitioners."
Learned counsel for the petitioners submitted that Kajal, the corpus is major aged about eighteen years and she fell in love with Shivam Kumar and she has solemnized marriage with Shivam Kumar of her own sweet will without any fear, threat or coercion as per the Hindu religion on 15.09.2018. A copy of the marriage certificate in this regard, issued by Arya Samaj Mandir, Fatehgarh (Uttar Pradesh) has been annexed as Annexure-4 to the writ petition.
It appears that subsequently the father of the victim Charan Singh, respondent no. 5 lodged an FIR alleging therein that his minor daughter Kajal, aged about 15 years, had left the house on 16.9.2018 for throwing the garbage, but she did not return. He suspected that Shivam Kumar might have enticed away his daughter. The FIR was registered as case crime no. 574 of 2018, under Sections 363 and 366 I.P.C. The copy of the FIR has also been annexed as Annnexure-1 to the writ petition. From the record it appears that being aggrieved against the lodging of the FIR, the petitioner no. 1, Kajal and her husband Shivam Kumar preferred a writ petition being criminal misc. writ petition no. 27073 of 2018 (Kajal and another vs. State of U.P. and another) before another Division Bench of this Court and this Court vide its order dated 1.10.2018 had directed that in case the alleged kidnappee Kajal appears/produced before the Court of learned Chief Judicial Magistrate, Amroha within 20 days from today and moves an application for her medical examination, recording her statement under Sections 161 and 164 Cr.P.C., the learned Magistrate concerned shall fix a date for the same prupose, on that date the first informant and officer in charge of the police station concerned shall be summoned, she shall be produced before C.M.O. Concerned by the concerned police officer for her medical examination thereafter she shall be produced before C.J.M. Concerned for recording her staement under Section 164 Cr.P.C., the same shall be recorded on the application filed by the I.O./Officer in charge of the police station concerned, till then no coercive step shall be taken against the petitioners. It was further directed that if the detenue Kajal is found major and does not support the F.I.R. version, the petitioners shall not be arrested till submission of police report under Section 173(2) Cr.P.C. but the petitioners shall co-operate with the investigation. It was further directed that in case the alleged kidnapped girl appears to be minor or if she is major but supports the prosecution version, it shall be open to the police authority to arrest the petitioner. It was also directed that issue of custody of the alleged kidnapped girl shall also be decided by the CJM concerned in accordance with law.
The further contention is that the Chief Judicial Magistrate, Amroha vide its order dated 18.10.2018 directed the Juvenile Justice Board, Amroha for determination of the age of the corpus Kajal and send the relevant papers to the Board and send the corpus to Nari Niketan, Amroha.
The detenue Kajal has filed her personal affidavit before Chief Judicial Magistrate, Amroha, stating therein that her father Charan Singh is having a habit of consuming liquor and he is a greedy person and for extortion of money he wants to sell her. She was being tortured and maltreated by her father in her parental home and to save herself she has solemnized marriage with Shivam Kumar of her own free will on 15.9.2018 in Arya Samaj Mandir, Fatehgarh with Hindu rituals. She deposed that she does not want to go with her father and if her custody is being given to her father he will kill her.
A counter affidavit has been filed on behalf of respondent no. 5 complainant by Sri Dinesh Kumar Mishra and it has been contended in the said counter affidavit that the girl is minor and her date of birth as mentioned in the school Admission Register as well as Transfer certificate is 1.7.2004, which is annexed as Annexure-1 to the counter affidavit. The parivar register filed by the petitioner no. 2 is forged. The age of petitioner no. 1 has been wrongly mentioned by the authority as 19.2.2000, while the correct date of birth is 1.7.2004 which is shown in transfer certificate.
In compliance of the order of this Court dated 18.12.2018, petitioner no. 1, Smt. Kajal was produced before the Court in the police custody and she has identified Shivam Kumar as her husband, who in turn identified petitioner no. 1 as his wife. Learned counsel for the petitioners has identified both the petitioners on the basis of documents produced before him in his chamber and the Court examined the corpus Smt. Kajal, petitioner no. 1, who has made a statement before this Court that she has solemnized marriage with Shivam Kumar without any pressure, threat or coercion and they are entitled to live happily as husband and wife. She has also made a statement that though she has been brought to this Court by the two police constables but now she wants to go with her husband Shivam Kumar, who is present before this Court.
On that date when the corpus was examined by the Court, respondent no. 5, father of the corpus Kajal was not present in the Court and the Court considered it appropriate that one more opportunity be given to respondent no. 5 (father of the detenue) to appear before this Court.
On 23.1.2019 this Court after hearing the learned counsel for the parties reserved the judgement.
In order to evaluate the rival contentions the foremost to be borne in mind are the provisions of Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 which read as under:
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.
Taking up first the second of the two submissions, of the learned counsel for the petitioner that medico legal evidence is to be considered as the best guide in case of conflict in the date of birth between certification of the said date by the primary school authorities and the High School Board, we are of opinion that the provisions of Section 94 Juvenile Justice Act, 2015 do not permit the Court to look into medico legal evidence of any kind in the face of a date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination Board. It is only if the aforesaid documents are not available, that a birth certificate given by a corporation or a municipal authority or a Panchayat can be looked into for the purpose of determination of age. It is in a situation where the said two categories of documents in their relative priority are not available that medico legal evidence as to the age may be considered.
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 about 17 years (above 17 years) of age 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 Shivam Kumar.
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.
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.
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 in her personal affidavit filed before C.J.M., Amroha that her mother was having three children and difference of age between three children is three years each and his elder brother is aged about 23 years and her age is 20 years and as per the medical certificate also the age of the girl is about 17 years (above 17 years).
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".
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. 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. 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).
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."
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.
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 8 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."
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. 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 law regarding her age, is not sustainable and is liable to be quashed."
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."
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. 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."
Now coming to the second objection canvassed by learned A. G. A. before this Court that the detention of the petitioners 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.
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.
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 Transfer certificate, is minor. 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 Shivam 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.
It is not the case of the respondent that the petitioner has instituted any suit for her marriage with Shivam Kumar being declared void on the ground of the same being child marriage. The detenue in her affidavit deposed that she is major and she had left her home on her own accord and solemnized marriage with Shivam Kumar on her own sweet will without any pressure or fear. Thus, the Chief Judicial Magistrate, Amroha 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.
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."
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 hasobserved 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. 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 ccount 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. 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."
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.
Thus, in view of the consistent legal position, in view of the fact that girl is aged about 17 years (above 17 years) as per the medical certificate and in view of the affidavit submitted before C.J.M., Amroha, a case for grant of indulgence has been made out.
Accordingly, the habeas corpus writ petition is allowed. Corpus Kajal is set at liberty forthwith.
The District Magistrate, J.P. Nagar (Amroha) is hereby directed to ensure the release of corpus-Kajal, detained at Nari Niketan, J.P. Nagar (Amroha) from detention forthwith as soon as the present order is communicated upon District Magistrate, J.P. Nagar (Amroha) as well as respondent no.4 (Adhyaksh/Incharge, Nari Niketan, Moradabad).
Order Date : 22.2.2019 Faridul