Allahabad High Court
Ankit And Another vs State Of U.P. And 3 Others on 10 August, 2021
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 27.07.2021 Delivered on 10.08.2021 Court No. - 32 Case :- WRIT - C No. - 10853 of 2021 Petitioner :- Ankit And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Anubhav Kumar Vimal,Vivek Kumar Singh Counsel for Respondent :- C.S.C.,Ashish Kumar Singh,Sundeep Shukla Hon'ble Rohit Ranjan Agarwal,J.
1. This writ petition has been filed by the petitioners claiming themselves to be major and married on 28.02.2021, and seeking a direction upon the respondent nos. 2 and 3 to protect and enforce fundamental right to life and personal liberty as guaranteed under Articles 21 and 22 of the Constitution of India. Further, a writ of mandamus has been sought upon the respondents not to interfere in the married life.
2. Facts as disclosed by the petitioners in the writ petition are that petitioner no. 1 is aged about 21 years and is Hindu by religion and Jat by caste. A copy of the Aadhar Card as well as PAN Card has been filed to establish his age. Similarly, the age of petitioner no. 2 is disclosed as 19 years and copy of the Aadhar Card and PAN Card has been brought on record as Annexure-2 to the writ petition. It has been stated that respondent no. 4 as well as other family members are creating trouble for petitioners and respondent no. 4 along with other villagers had tried to take forcible possession of petitioner no. 2.
3. It is contended by learned counsel for the petitioners that when there appeared to be threat on the life of petitioners, they on 28.02.2021 had moved application before concerned police station. He further contended that respondent no. 4 had tried to lodge a First Information Report against the petitioners, as such, petitioners had informed the police authorities regarding their intention.
4. It is further submitted that petitioner have already applied for registration of marriage with the marriage registration officer on 22.03.2021, copy of the online submission of form for registration of marriage has been brought on record as SA-1 to the supplementary affidavit filed by the petitioners on 24.03.2021.
5. Reliance has been placed upon decision of this Court in Habeas Corpus Writ Petition No. 10180 of 2012, Smt. Reena vs. State of U.P. and others, decided on 24.05.2012, Habeas Corpus Writ Petition No. 24814 of 2013, Smt. Indra @ Suhani vs. State of U.P. and 5 others, decided on 20.05.2013, as well as judgment of Apex Court in Suhani and another vs. State of U.P. and others, 2018 SCC Online SC 781.
6. Sri Sundeep Shukla, learned counsel had appeared on behalf of respondent no. 4 and filed counter affidavit wherein it has been stated that the date of birth of petitioner no. 2 is 03.11.2004 and she is a minor in view of Section 5(iii) of the Hindu Marriage Act, 1955. He further contended that the said date of birth has been recorded in the High School certificate of the girl, issued on 27.10.2020 by the Board of High School and Intermediate Education, U.P., copy of the High School Marks Sheet has been brought on record as SA-1 to the supplementary affidavit filed on 19.04.2021.
7. Further, a second supplementary affidavit has been filed on behalf of respondent no. 4 on 19.07.2021 bringing on record the four First Information Reports lodged against petitioner no. 1 at various police stations as well as Gangster Act which has been imposed by the State Government upon him. It is contended by learned counsel for respondent no. 4 that petitioner no. 1 is a man of criminal antecedents and has enticed away the minor girl who is only 17 years of age.
8. Reliance has been placed upon decision of this Court in Criminal Misc. Writ Petition No. 20816 of 2018, Nisha Naaz alias Anuradha and another vs. State of U.P. and others, decided on 06.02.2019; Habeas Corpus Writ Petition No. 611 of 2019, Smt. Mamta @ Mamta Yadav vs. State of U.P. and three others, decided on 15.07.2019; Habeas Corpurs Writ Petition No. 390 of 2021, Vandana @ Bandana Saini and another vs. State of U.P. and 5 others, decided on 30.06.2021 and Matter under article 227 No. 4804 of 2020, Pradeep Tomar and another vs. State of U.P. and another, decided on 27.01.2021.
9. Replying to the counter affidavit and supplementary affidavit, a reply has been filed on behalf of petitioners wherein it has been stated that the date of birth in school certificate was manipulated by respondent no. 4 as earlier her date of birth was shown as 24.08.2001 as mentioned in school certificate upto Class VIII but different date has been recorded from Class IX onwards. Petitioners have also brought on record the First Information Report that has been lodged by the mother of petitioner no. 2 against respondent no. 4 wherein mention of false date of birth of petitioner no. 2 is mentioned.
10. As the controversy in the present case hovers around the age of petitioner no. 2, as to whether she is a minor or had attained the age of majority in the year 2021. This Court on 25.06.2021 had passed an order for medical examination of the girl i.e. petitioner no. 2 for conclusive proof of her age. The said order is extracted hereasunder:-
"As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.
Heard learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Sri Ashish Kumar Singh, learned counsel for the respondent no. 4 through video conferencing.
Learned counsel for the respondent no. 4 has filed a supplementary affidavit bringing on record the High School certificate of the petitioner no. 2 which shows that her date of birth is 03.11.2004. He has submitted that on her date of marriage, i.e. on 28.02.2021, she was minor.
Learned counsel for the petitioners submits that a photocopy of the High School certificate of the petitioner no. 2 has been filed by the respondent no. 4 along with supplementary affidavit. He has relied upon the judgement of the Apex Court in the case of Suhani Vs. State of U.P., 2018 SCC Online SC 781 and has submitted that the medical examination of the petitioner no. 2 will conclusively prove her age.
Accordingly, petitioner no. 1, Ankit, is directed to produce the petitioner no. 2, Smt. Gudiya Chaudhary, before the Chief Judicial Magistrate, Meerut, within a week who will get the medical examination of the petitioner no. 2 conducted by C.M.O., Meerut. The C.M.O., Meerut will send the copy of the medical report online to the office of Standing Counsel who will produce the same before this Court on the next date fixed.
List this case on 05.07.2021.
In the meantime, the petitioners will not be arrested and respondent no. 4 will not create any hindrance in their life."
11. The medical report of petitioner no. 2 was placed before the Court by learned Standing Counsel on 20.07.2021 wherein it was stated that the age of girl is about 19 years. The matter then came up on 27.07.2021. On the said date, the mother of the girl appeared before the Court, who was identified by counsel for respondent no. 4, Sri Sandeep Shukla and submitted before the Court that petitioner no. 1 had taken away her daughter who was minor and the age of the girl has been correctly recorded in High School Marks Sheet.
12. Having heard learned counsel for the parties and from perusal of record, the question which emerges for consideration by this Court is that, whether petitioner no. 2 whose date of birth is recorded in the High School Marks Sheet, if taken to be correct, is 03.11.2004 then she is minor at the time of alleged marriage to have been performed with petitioner no. 1 or weightage is to be given to medico-legal evidence which has come up before the Court in form of medical report of the girl/petitioner no. 2.
13. The law applicable for determination of age of a child was dealt with exhaustively by Apex Court in case of Jarnail Singh vs. State of Haryana (2013) 7 SCC 263, where Apex Court after noticing the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called as 'Act 2000') and rules framed thereunder held as under:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to herein above reads as under:
12. Procedure to be followed in determination of age. --(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) 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 seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion." (Emphasis Supplied)
14. The same view was reiterated in subsequent decision of Apex Court in case of Mahadeo vs. State of Maharastra (2013) 14 SCC 637. A divsion Bench of this Court in case of Ali Mohammad vs. State of U.P. and 7 others, decided on 25.08.2015 in Special Appeal No. 559 of 2015 held that where there was no pleading to question the authenticity or genuineness of High School Certificate, reliance placed on such certificate to determine the age was proper. It was also observed that where documentary material was doubtful then Court may rely upon medical report.
15. In case of Smt. Priyanka Devi vs. State of U.P. and others in Habeas Corpus Petition No. 55317 of 2017, decided on 21.11.2017, Division Bench of this Court after considering the provision of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter called as 'Act 2015') held that principles governing determination of age of a juvenile in conflict with law, was the same as it was in the previous Act and the medico-legal evidence cannot be looked into where High School Certificate is on record as the statue does not permit for the same.
16. Relying upon the aforesaid judgments, a Division Bench of this Court in Nisha Naaz Alias Anuradha and another (supra) held as under:-
"In view of the decisions noticed above, the law laid down by the apex court in Jarnail Singh's case (supra) that has been followed consistently continues to remain binding and in no way has been diluted or altered by subsequent decision in Suhani's case (supra). The legal position therefore is: (a) that for determination of age of a child victim the same parameters are required to be applied as are applicable to a juvenile in conflict with law; and (b) that while determining the age of child victim primacy is to be attached to the documentary evidence specified in the 2015, Act over medico legal evidence, except where the authenticity or genuineness of the documents relied upon is challenged and, in the enquiry, the Court or the Board, as the case may be, comes to the conclusion that those entries are not reliable."
17. As noticed above, Section 94 of Act 2015 provides for procedure for determination of age of a juvenile in conflict with law. Relevant Section 94 of Act, 2015 is extracted here 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."
18. From the reading of Section 94 of Act 2015, which is in pari materia to Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter called as 'Rules 2007') framed under Section 68 (1) of Act, 2000 provides that only in absence of certificate from High School or Matriculation or equivalent certificate from concerned examination board or birth certificate given by corporation or municipal authority then only the age shall be determined by an ossification test or any other latest age determination test.
19. The air has been cleared by Apex Court in case of Jarnail Singh (supra) as well subsequent Division Bench judgments of this Court in case of Nisha Naaz alias Anuradha and Another (supra); Smt. Priyanka Devi (supra) and Ali Mohammad (supra) that medico-legal examination of a girl can only be conducted and relied upon once there is a doubt to a High School Certificate, otherwise the medico-legal test report cannot be looked into in view of Section 94 of the Act, 2015.
20. In the present case the petitioners had relied upon the decision of Apex Court in case of Suhani and Another (supra), which was considered by Division Bench of this Court in Nisha Naaz alias Anuradha and another (supra) wherein it was held that the law laid down in Jarnail Singh's case (supra) has been followed consistently, continues to remain binding and in no way has been diluted or altered by subsequent decision in Suhani's case (supra) while determining the age of a child and primacy has to be attached to a documentary evidence enumerated in Act, 2015 over medico-legal evidence, except where the authenticity or genuineness of the document relied upon is challenged and, in the enquiry, the Court or the Board, as the case may be, comes to the conclusion that those entries are not reliable.
21. In the present case, the argument of learned counsel for the petitioners to the extent that in the first information report lodged by the mother of petitioner No.2 against respondent No.4 finds place that the age of the girl given in the High School Marks Sheet was not correct, and according to him relying upon the said first information report the petitioner No.2 was born in the year 2003 cannot be accepted. However, neither any application for correction of date of birth in the High School Marks Sheet has been moved to the concerned Board nor there is any denial on behalf of the petitioners that the age disclosed in the High School certificate is not correct. Further reliance placed by learned counsel upon the decision in case of Smt. Reena (supra) is distinguishable in the facts of the present case as there was no dispute to fact regarding the age of the girl as mentioned in the High School Certificate with the medical test conducted. Moreover, the Court had not taken note of the decision of Jarnail Singh's case (supra). Similarly the case of Smt. Indra @ Suhani (supra) is also distinguishable as the Court has not taken note of the decision of the Apex Court, which is binding upon this Court.
22. Once it has been established from the High School certificate that petitioner No.2 was born on 03.11.2004 and the same having been not challenged by petitioner No.2, no question arises for relying upon the medico-legal evidence for determining the age of the girl and discarding documentary evidence, which according to Section 94 of Act, 2015 has a primacy over the medical examination of a child in conflict with law.
23. Apart from this, the oral statement made by the mother of the girl before this Court that the age recorded in the High School certificate was correct cannot be disbelieved solely on the basis of the date of birth recorded in the AADHAR Card of petitioner No.2 as well as the medical report. A Division Bench of this Court in Misc. Bench No.13419 of 2018, Smt. Parvati Kumari and others vs. State of U.P. and others, decided on 09.01.2019 has held that entry of date of birth in Aadhaar Card is not conclusive.
24. Apart from relying upon Aadhar Card, medical report and decision of Apex Court in case of Suhani & another (supra), nothing was placed before the Court by the petitioners to substantiate their claim as far as the age of petitioner No.2 is concerned. Thus, once the High School certificate has been brought on record, which having not been denied or challenged by petitioner No.2, no question arises for considering the medico-legal evidence or Aadhar Card for determining the age of the girl.
25. Thus, this Court finds that the relief prayed by the petitioners for protection cannot be granted as petitioner No.2 has not become major on the date when it is alleged that she has married petitioner No.1.
26. The writ petition fails and is hereby dismissed.
Order Date :- 10.08.2021 V.S.Singh/Kushal