Allahabad High Court
Km. Chhavi (Minor) And Another vs State Of U.P. And 3 Others on 10 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 304
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 74 Case :- HABEAS CORPUS WRIT PETITION No. - 340 of 2020 Petitioner :- Km. Chhavi (Minor) And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajay Kumar Counsel for Respondent :- G.A., ,Pankaj Kumar Govil,Pankaj Govil Hon'ble J.J. Munir,J.
This Habeas Corpus Writ Petition has been instituted on behalf of Km. Chhavi by her father Chhanga, praying that this Court do issue a rule nisi, ordering respondent nos. 2, 3 and 4 to produce Km. Chhavi before this Court, and order her to be set at liberty, according to her will and wish.
2. It is asserted in the Habeas Corpus Writ Petition that Chhavi is a minor, who was born on 18.07.2003. She is Chhanga's daughter, who is the second petitioner here. This petition has been effectively brought by Chhanga. A First Information Report1 was lodged by Chhanga on 20.03.2020 and registered with Police Station - Barsana, in the District of Mathura, at 01:53 p.m., against one Laxman, son of Kamal Yadav, Vishnu, son of Kamal Yadav, and Girdhari Yadav, son of Gopal, with allegations that on 18.03.2020 at 4 O' clock in the afternoon, Chhanga's minor daughter, Chhavi, aged about 16 years, had gone to fetch her cattle, when the three accused were seen around her by Seema, wife of Prem Chandra. Chhavi went traceless ever since. A hunt was launched, but to no avail. It was reported that Seema had told the informant that she had seen the three accused talking to Chhavi, and further that she had seen Chhavi accompanying the three men towards bus stand. It was said in the First Information that Seema thought that Chhavi was going with the accused in connection with some errands. It is further reported that when co-accused Girdhari Yadav was asked about Chhavi by the informant and his family, he confessed that Chhavi had gone along with his nephew (reference to Laxman). It was said in the First Information further that Chhavi was a minor, and the three accused had taken her away by blandishment. The aforesaid information was registered as Crime No. 84 of 2020, under Sections 363 and 366 of Indian Penal Code, 18602, Police Station - Barsana, District - Mathura. There is a further information lodged about some kind of a video relating to Chhavi, that was made viral by co-accused Girdhari Yadav. The video shows that Chhavi was in the company of Laxman. This FIR was registered on 15.05.2020 separately as Crime No. 133 of 2020, under Section 66 of the Information Technology Act, 2000, Police Station - Barsana, District - Mathura.
3. It appears that Chhavi was recovered by the police and produced before the Magistrate on 20.05.2020, where her statement under Section 164 of the Code of Criminal Procedure, 1973, was recorded. The statement unequivocally says that on 18.03.2020, Chhavi had accompanied Laxman of her freewill, whom she knew for the past 3-4 years. She also said that she was in love with him. It is clearly indicated that she was not taken away by blandishment, but had gone of her freewill. It was also said that she has married Laxman and is now in the family way. Chhavi was then forwarded, in custody, to the Child Welfare Committee, Mathura3. It is asserted in the writ petition that the CWC handed over Chhavi, who is a victim, into the care and custody of Meena, wife of Kamlesh. Meena is Laxman's sister. It is also said that there is no document available to the petitioner to show that any written order was made by the CWC, entrusting custody of Chhavi to the fourth respondent. It is asserted that it is in collusion between the Investigating Officer, the Chairperson of the CWC and the accused Laxman, that Chhavi has been entrusted into the custody of Laxman's sister Meena, the fourth respondent. It is also brought on record that after investigation, a charge-sheet has been filed against Laxman under Sections 363, 366, 376 of IPC and Section 7/4 of the Protection of Children from Sexual Offences Act, 20124. Chhanga asserts that his daughter is, for the time being, in Meena's custody, who is, as already said, the accused's sister, under some kind of an order of the CWC. It is asserted that Chhavi's custody with Meena is absolutely illegal, and she ought to be liberated therefrom.
4. This petition was admitted to hearing on 08.10.2020, and a rule nisi was issued, ordering the Senior Superintendent of Police, Mathura to cause Chhavi to be produced from the custody of respondent no. 4, before the Court on 14.10.2020. The Chairperson of the CWC, respondent no. 3, was also directed to file a counter affidavit, showing cause how Chhavi's custody, who is a minor, was entrusted by her in her capacity as the Head of the CWC, to a stranger, as against the father.
5. In compliance with the rule nisi issued on 08.10.2020, an affidavit of compliance has been filed by the Investigating Officer, but Chhavi was not produced. The defence for not carrying out the rule was that Chhavi is in the family way, and not in a position to be produced before the Court. The Court, vide order dated 14.10.2020, accepted the aforesaid explanation, but in order to prevent the rule from being frustrated, modified it to provide that the District Judge, Mathura, would depute a lady Judicial Officer posted in his judgeship to go over to Chhavi, for the time being residing at Baldev ka Bansh, Police Station - Sikri, District - Bharatpur, Rajasthan, and record her stand about the case of illegal detention by the fourth respondent, Meena. Necessary assistance to the Judicial Officer was ordered to be provided by the District Magistrate, Mathura and the Senior Superintendent of Police, Mathura. The two were also required to get in touch with their respective counterparts in District Bharatpur, State of Rajasthan, to facilitate execution of the Court's commission. No return was filed by the Chairperson, CWC, in compliance with the order dated 08.10.2020 and, therefore, she was granted further time to file a counter affidavit. The matter was directed to come up on 20.10.2020, along with the Judicial Magistrate's report. There was some delay in the restoration of the Judicial Magistrate's report to the record, on account of which, there were short adjournments. The matter was taken up on 22.10.2020, when we had before us, the Judicial Magistrate's report dated 15.10.2020, carrying Chhavi's statement recorded on commission at Bharatpur. It would be relevant to extract the stand that Chhavi took before the Judicial Magistrate, Mathura, acting as this Court's commissioner. The said statement recorded on 15.10.2020 reads :
Ukke& Nfo mez& 20 o"kZ firk& NXxk fuoklh& cjlkuk eFkqjk }kjk vkt fnukafdr 15-10-2020 dks LoSPNk ls c;ku fn;k tk jgk gS fd& esjh mez 20 o"kZ gSA eSaus 12th dh i<+kbZ czts'ojh ckfydk ,.Vj dkWyst cjlkuk eFkqjk ls dh gSA esjh dkxt ij 18-07-2003 tUefrfFk vafdr gSA esjs firk us dkxtksa ij de mez fy[kkbZ gSA eSa y{e.k dks 3&4 lky ls tkurh FkhA eSaus fgUnw jhfr fjokt ls 24-3-2020 dks Hkksiky esa viuh ethZ ls y{e.k ls 'kknh dj yhA esjs xHkZ dks 9 ekg iwjs gks pqds gSA 'kknh ds le; eSa 2 ekg dh xHkZorh FkhA 4 ekg iwoZ eSaus Lo;a viuh uun ehuk dks Qksu fd;k vkSj ukjh&fudsru ls ys tkus dks dgkA 4 ekg iwoZ eSa viuh ethZ ls ehuk ds lkFk cYnso okl vk xbZA eSa ehuk ds lkFk fdlh ncko esa ugha vk;h FkhA rc ls eSa LoSPNk ls ehuk ds llqjky cYnso ckl esa jg jgh gwaA ehuk }kjk eq>s cYnso okl esa fdlh ncko esa ugha j[kk x;kA eSa ;gka LoSPNk ls jg jgh gwaA eSa LoSPNk ls fcuk fdlh ncko ds ehuk ds ikl jguk pkgrh gwaA fQj eSa vius ifr y{e.k ds ikl tkmaxhA esjs ikik eq>s o Yk{e.k dks tku ls ekjus dh dgrs gSA blds vykok eq>s dqN ugha dguk gSA iz'u& vki tks vkt c;ku ns jgh gS oks fdlh Hkh izdkj ds ncko esa rks ugha ns jgha gS\ mRrj& eSa viuh LoSPNk ls fcuk fdlh ncko ds c;ku ns jgh gwaA Date- 15/10/2020 g0 (Archana Singh) g0 Nfo U;kf;d eftLVsªV Nfo gLrk{kj eFkqjk izekf.kr fd;k tkrk gS fd mDr c;ku Nfo ds LoSPNk iwoZd cksyus ij esjs }kjk vafdr fd;k x;kA Nfo us mDr c;ku LoSPNk ls fcuk fdlh ncko ds fn;k gSA Nfo }kjk c;ku i<+dj lqudj rLnhd fd;k x;kA Date- 15/10/2020 g0 (Archana Singh) g0 Nfo U;kf;d eftLVsªV Nfo gLrk{kj eFkqjk
6. An affidavit of compliance was filed by Ms. Archana Varshney, Chairperson, CWC dated 19.10.2020. A perusal of this affidavit shows that it is the Chairperson's stand on behalf of the CWC that on 08.10.2020, Chhavi submitted an application before the CWC that she went along with Laxman of her freewill, and that she was in the family way. She further disclosed to the CWC that she did not want to go to her parents, as they would murder her and cause a pre-mature termination of her pregnancy. She also disclosed to the CWC that Laxman's parents and his sister would look after her well, as also her child. She said that she wants to go with them. She made a request that she may be entrusted to Meena's care. A copy of the application made on behalf of Chhavi has been annexed as Annexure-1 to the counter affidavit filed by the Chairperson of the CWC. It is also said in the affidavit under reference that on 22.05.2020, respondent no. 4 Meena, Laxman's sister, submitted an application to the CWC, with a request that she wants to take Chhavi in her care and custody, and that she would take proper care of Chhavi and her child. A copy of that application too, is annexed to the return filed by the Chairperson, CWC. There is a specific assertion in paragraph no. 8 of the affidavit filed under reference, that neither Chhavi's parents nor any of her family members made an application to the CWC, asking for her custody.
7. The CWC, taking into account the proliferation in the number of active CoViD-19 cases, and bearing in mind Chhavi's welfare and that of her child, that could be best secured under the circumstances, directed that she be placed in the custody of the fourth respondent, Meena. Meena was put under a direction to take all proper care of Chhavi and to periodically apprise the CWC with regard to her welfare. The CWC also directed the Investigating Officer to submit a report to them from time to time regarding Chhavi's welfare. There is a specific assertion in paragraph no. 9 of the Chairperson, CWC's affidavit that the fourth respondent, Meena, is regularly updating the CWC with regard to Chhavi's welfare. It is also asserted that the Investigating Officer has also submitted a report with regard to the victim's care. A copy of the order of the CWC dated 22.05.2020, entrusting her care and custody to the fourth respondent, is annexed, as also an undertaking furnished by respondent no. 4 Meena, attested by two witnesses, to wit, Sushil, son of Ami Chand and Amar Singh, son of Late Gopal. A copy of the Investigating Officer's report dated 24.08.2020 submitted to the CWC regarding Chhavi's welfare is also annexed. The Chairperson of the CWC has also asserted in paragraph no. 11 of her affidavit that Chhavi has made an application to the District Magistrate, Mathura, asserting that her parents would do her to death, and that they are threatening to do so by an acid attack. She has also expressed an apprehension about a threat to her child's life, then still in her womb, informing the District Magistrate that she does not want to meet her parents.
8. It must be noticed that the order of the CWC, which is signed by the Chairman and two members, is one passed under Rule 18(8) and 19(7) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016. The order is made in Form 19 to the Rules. It is an order apparently made pending inquiry and directs Chhavi to be placed in the foster care of respondent no. 4, temporarily. Apart from the standard directions carried in the order, the following directions have been specifically made :
fd'kksjh dks Foster care esa fn;k tk jgk gSA firk i{k ls dksbZ Hkh izkFkZuk i= lqiqnZxh esa ysus gsrq ugha fn;k x;k gSA fd'kksjh dk Follow-up izfrekg fd;k tk,xkA I.O. ,slk djuk lqfuf'pr djsaA सूचनार्थZ& 1- I.O. Fkkuk cjlkuk 2- D.P.O. eFkqjk
9. This Court has perused the record and considered the stand of parties, including the stand of the CWC, expressed through its Chairperson. There is little issue on facts between Chhanga, Chavi's father, on one hand, and Chhavi and Meena on the other. Chhavi's stand, recorded by the learned Judicial Magistrate, Mathura, spares no doubt that she is staying of her freewill with respondent no. 4, without any compulsion, duress or pressure. Speaking in simple terms, for a fact, Chhavi cannot be said to be in any kind of illegal confinement. Rather, it is apparent that she is staying with Meena of her freewill. The statement also makes it vivid that Chhavi has married Meena's brother, Laxman, of her freewill. The sole question, therefore, to determine is, whether Chhavi is within her rights under the law to stay of her freewill with Meena, who is Laxman's sister, the man she has married. Now, Chhavi is claimed to be a minor and she has acknowledged her date of birth recorded in her high school certificate to be 08.07.2003, with the qualification that she is aged 20 years for a fact, and that her date of birth has been incorrectly recorded at her father's instance. Now, if it were to be held that Chhavi was a minor on the date she married Laxman, a subsidiary question that would also be of same consequence to the parties' future is, whether the marriage would be void or voidable.
10. In the opinion of this Court, it is very difficult to accept the submission advanced on behalf of both Chhavi and Smt. Meena, that this Court may hold her to be a major, by considering evidence contrary to Chhavi's recorded date of birth in her high school certificate. To our mind, Chhavi cannot be referred to a medical examination for the determination of her age, so long as her date of birth founded on her high school certificate is available. This Court has perused the high school certificate relating to Chhavi, where she appeared in the examination of 2018 conducted by the U.P. Board of High School and Intermediate Education. A copy of the said certificate is on record as a part of Annexure no. 3 to the writ petition. There, Chhavi's date of birth is clearly mentioned as 08.07.2003. This fact is acknowledged by Chhavi in her statement made before the Judicial Magistrate, too. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 20155 provides :
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."
11. Section 94(2) of the Act of 2015, which provide for the determination of a juvenile's age, have been extended in their application to the victim as well in Jarnail Singh v. State of Haryana6. The issue was considered in a Division Bench decision of this Court in Smt. Priyanka Devi v. State of U.P. and Others7 to which I was a party. It was held in Priyanka Devi (supra) thus :
13. Learned counsel for the petitioner lastly urged that provisions of Section 94 of the Juvenile Justice Act, 2015 do not apply to the case in hand as the same are available for the purposes of determination of age for a juvenile or a child in conflict with the law but would not apply to the determination of age in the case of a victim.
14. We are afraid that the aforesaid submission is not correct. The issue was examined by the Supreme Court in the case of Mahadeo S/o Kerba Maske v. State of Maharashtra and Another; (2013) 14 SCC 637 where in paragraph no. 12 of the report it was held as under:
"Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well."
(Emphasis supplied)
15. This issue has also been considered in an earlier judgment of the Supreme Court in Jarnail Singh v. State of Haryana; 2013 (7) SCC 263, where too it has been held that rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 must apply both to a child in conflict with law as well as to a victim of a crime. Paragraph 23 of the said report reads thus:
"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 for a child who is a victim of crime. For, in our view, there is hardly any difference in so far 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-PW6. 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 concerned child, 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 concerned child, on the basis of medical opinion."
16. Thus, principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well. It may be pointed out that at the point of time when Mahadeo (supra) was decided by their lordships of the Supreme Court, the Juvenile Justice Act, 2000 was in force and their lordships were interpreting the provision of Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007. The said Act of 2000 has since been repealed and has been replaced by the Juvenile Justice Act, 2015. The rules framed under the Act of 2000 are thus no longer on the statute book. However, the provisions that found place in Rule 12(3) of the Juvenile Justice (Care and Protection of Child) Rules, 2007 framed under the Juvenile Justice Act, 2000 are now, with certain modifications engrafted into the the Principal Act vide section 94 of the Juvenile Justice Act, 2015. The inter se priority of criteria to determine age under Rule 12(3) of the Rules, 2007 (supra) and section 94 of the Act, 2015 remains the same albeit with certain modifications which are of no consequences to the facts in hand. In short, provisions of Rule 12(3) of the Rules, 2007 framed under the Juvenile Justice Act, 2000 are para meteria to the provision of Section 94 of the Juvenile Justice Act, 2015. This being the comparative position, the principles of law laid down by their lordships in the case of Mahadeo (supra) would apply with equal force to the provisions of section 94(2) of the Juvenile Justice Act, 2015 while determining the age of a victim of an offence under Sections 363 and 366 IPC. Thus, the submission of the learned counsel for the petitioners, on this score, is not tenable."
12. The provisions of Section 94(2) of the Act of 2015 spare no room for the Court to look into any evidence, in the face of a date of birth certificate from the school or the matriculation, or an equivalent certificate from the examination board. In the event, evidence about the date of birth postulated in Clause (i) of sub-Section (2) of Section 94 of the Act of 2015 is not available, the birth certificate given by the corporation or municipal authority or a panchayat, as the case may be, is the next evidence, in order of priority, that would become relevant and can be considered to determine the prosecutrix's age. If the evidence envisaged in Clause (ii) of sub-Section (2) of Section 94 is also not forthcoming, the age of the victim/prosecutrix is required to be determined by an ossification test or any other medical test for the determination of age that may have gained scientific acceptability. That test is to be conducted on the orders of the CWC or the Juvenile Justice Board. In a given situation, the jurisdiction to order a medical test may also be exercised by a court before whom an issue about the victim's age arises. Therefore, notwithstanding the prosecutrix's stand that she is 20-years-old and has married Laxman of her freewill, she cannot be heard to prove her age anything different from what it is recorded in her high school certificate. There is no scope for her to be referred to a medical board for the determination of her age, for that reason. After the decision of their Lordships of the Supreme Court in Suhani v. State of U.P.8 there was some uncertainty, whether a victim could be referred to the medical examination of a board of doctors for the determination of her age, in the face of a recorded date of birth in the high school certificate. The decision of the Supreme Court in Suhani (supra) did lead to some doubt whether a victim could be referred for a medical determination of her age, notwithstanding the availability of her recorded date of birth in the high school certificate. That doubt, however, is no longer there, after the decision of the Division Bench of this Court in Nisha Naaz alias Anuradha & Another v. State of U.P. & Others9 where it has been held that the decision in Suhani does not lay down any law, but is one on facts. The consequence of the holding in Nisha Naaz (supra) is that the principles in Priyanka Devi, following Jarnail Singh emerge as the law to govern the field. In Nisha Naaz, it was held :
14. A plain reading of Section 94 of the 2015, Act would reveal that only in absence of: (a) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board; and (b) the birth certificate given by a corporation or a municipal authority or a panchayat, age is to be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board. A Division Bench of this court in the case of Smt. Priyanka Devi Vs. State of U.P. and others in Habeas Corpus Petition No.55317 of 2017, decided on 21st November, 2017, after noticing the provisions of the 2015, Act and the earlier 2000, Act and the rules framed thereunder, came to the conclusion that as there is no significant change brought about in the 2015, Act in the principles governing determination of age of a juvenile in conflict with law, in so far as weightage to medico legal evidence is concerned, the law laid down in respect of applicability of those provisions for determination of a child victim would continue to apply notwithstanding the new enactment. The Division Bench in Priyanka Devi's case (supra) specifically held that as there is on record the High School Certificate, the medico legal evidence cannot be looked into as the statute does not permit.
15. The judgment of the apex court in Suhani's case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani's case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani's case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined."
13. In view of what the consistent position of law appears to be, Chhavi has to be held a minor on the date of her marriage and till date. Her recorded date of birth in her high school certificate is 08.07.2003 and she would turn a major on 09.07.2021. The CWC have ordered her to be given in the foster care of Laxman's sister. Laxman is an accused in Crime No. 84 of 2020, under Sections 363, 366 IPC, Police Station - Barsana, District - Mathura. Even if Chhavi's case that she has married Laxman of her freewill were accepted, she cannot be permitted to live in the foster care of his sister, where access to each other cannot be guarded. So long as Chhavi is a minor, irrespective of the validity of her marriage to Laxman, she cannot be permitted to be placed in a position where there is a likelihood of carnal proximity. If it were permitted, it would be an offence both under the Penal Code and under the Act of 2012. In no eventuality, so long as Chhavi is a minor, can she be placed in a situation where any exposure of the kind indicated above cannot reasonably be expected to be guarded against. The decision of the Supreme Court in Independent Thought v. Union of India & Another10 completely excludes the possibility of sanctioning or decriminalising carnal relations between a man and his wife, the wife being below the age of 18 years. The entire protective regime of the Act of 2012 is not compatible with an arrangement of the kind of foster care ordered for Chhavi by the CWC. Of course, as soon as Chhavi turns a major, she would be free to go wherever she likes and stay with whomsoever she wants, but till she attains the age of majority, in the considered opinion of this Court, she cannot be permitted to stay in the foster care of Meena, Laxman's sister.
14. The conclusion on facts that Chhavi is not inaccessible to Laxman in the foster care of Meena, is particularly based on a note of the Judicial Magistrate, Mathura, while proceeding to examine Chhavi on this Court's commission, on 15.10.2020. This note reads thus :
ekuuh; mPPk U;k;ky; ds fjV fiVh'ku la[;k 340 lu~ 2020 esa vkns'k fnukafdr 14-10-2020 ds izdk'k esa ekuuh; ftyk U;k;k/kh'k eFkqjk ds vkns'k fnukafdr 15-10-2020 izkIr gksus ij eSa vpZuk flag U;kf;d eftLVªsV] eFkqjk] cYnso okl lhdjh Hkjriqj jktLFkku ehuk iRuh jk/kkd`".k ds ?kj mifLFkr vkbZA ehuk ds llqj jktsUnz] ifr jk/kkd`".k] uun iwue feys o xkao ds lHkzkUr yksx lR;iky] y{e.k] cyjke] xksih mifLFkr vk;sA mijksDr us voxr djk;k fd ehuk o Nfo ;gha jgrs gSA ehuk o Nfo dks 13-10-2020 dks S.I. ftrsUnz flag ds lkFk bykgkckn tkus ds fy;s xbZ FkhA jkLrs esa xHkZorh Nfo dh rch;r [kjkc gksus ij mls dqEgsj Hkjriqj jktLFkku esa ljdkjh vLirky ys x;s gSA blh vLirky esa gh Nfo dk bykt py jgk gSA g0 (Archana Singh) U;kf;d eftLVªsV eFkqjkA
15. The circumstances indicated in the note above extracted show that Chhavi is staying in a home in the foster care of Meena, where, besides Meena, she has her father-in-law Rajendra, husband Radha Krishna and her sister-in-law (nanad) Poonam. Meena, being Laxman's sister, who is staying with her in-laws, cannot be trusted with that kind of a foster care for Chhavi, where she is not inaccessible to Laxman. Going by Chhavi's stand that she has validly married Laxman, the fact that at the time of the Magistrate's visit, she had begotten a child from Laxman, are also circumstances which point to the possibility of carnal relations between the two. It is not difficult to infer that in the home, where Laxman's sister Meena stays with her in-laws, Chhavi cannot be extended the protective cover envisaged for a girl below the age of 18 years, insulating her from any kind of sexual activity, even with her husband.
16. There is one more facet of the matter that deserves note. Chhavi was reported to be in the family way by the learned Judicial Magistrate, Mathura, and by now, may have been blessed with a child. Therefore, wherever Chhavi is placed until time that she turns a major, the child would have to stay with her and be taken care of as well.
17. Now, what is required to be examined is the validity of Chhavi's marriage to Laxman. As said earlier, the validity of that marriage would have consequences for the parties later in life. Chhavi is not far away from attaining majority and if she elects to go along with Laxman, accepting him as her husband, the validity of that marriage would be decisive. In the opinion of this Court, the validity of the marriage must be examined in order to do substantial justice to the parties. Given that Chhavi was a minor on the date of marriage, which she claims to have solemnized with Laxman, the provisions of Sections 3 and 12 of the Prohibition of Child Marriage Act, 200611 are required to be surveyed. Sections 3 and 12 of the Act of 2006 read :
"3. Child marriages to be voidable at the option of contracting party being a child.--(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage:
Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.
(2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer.
(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.
(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:
Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.
12. Marriage of a minor child to be void in certain circumstances.--Where a child, being a minor--
(a) is taken or enticed out of the keeping of the lawful guardian; or
(b) by force compelled, or by any deceitful means induced to go from any place; or
(c) is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void."
18. Now, Chhavi, in her stand about her marriage to Laxman recorded by the Judicial Magistrate on 15.10.2020, has clearly said that she has married Laxman according to Hindu rites, on 24.03.2020, of her free will. There are, thus, no circumstances indicating enticement of the prosecutrix, taking her out of the keeping of the lawful guardian, or a case of compelling her by force, or inducing her by deceitful means to go to any place along with Laxman. There is also no case about the prosecutrix being sold for the purpose of marriage, and made to go through a form of marriage. There is nothing there in Chhavi's stand, recorded by the Judicial Magistrate, that may attract the provisions of Section 12 of the Act of 2006. Thus, Chhavi's marriage to Laxman is not a void marriage; rather it is a marriage which is voidable at the option of Chhavi, by virtue of Section 3 of the Act last mentioned. Chhavi, after she turns a major or even before that, can petition the competent court to have the marriage annulled, and she can do so within two years of attaining majority. Of course, she can acknowledge and elect to accept the marriage. All that Chhavi chooses to do is not this Court's determination, but it is to clarify the inter se rights of parties vis-à-vis their marriage, that the Court has ventured to examine the legal status of the marriage, which Chhavi supports as her voluntary act, while a minor.
19. So far as the question of custody or care for Chhavi, while she is a minor different from the foster care of Meena is concerned, one possible option for Chhavi would be to go back to her father Chhanga, who has petitioned this Court. That option, however, stands foreclosed in unqualified terms, in view of Chhavi's unequivocal stand in her statement to the Judicial Magistrate made on 15.10.2020. There, she has clearly indicated that her father would do her and Laxman to death. Apparently, she has a serious threat perception from her father and apprehends an honour killing. In the circumstances, she cannot be placed in the custody of her father, or even within his reach.
20. In the opinion of this Court, under the circumstances, Chhavi has to be housed in a State facility or shelter home, ideally at Agra, which shall be other than a Nari Niketan or a home meant for delinquents. She has to be accommodated in a safe home/shelter home with all necessary facilities, where she and her child can stay comfortably, till she attains the age of eighteen years, that is to say, until 09.07.2021. During this period of time, the learned District Judge, Agra shall depute a lady Judicial Officer in his judgeship to visit Chhavi, on a fortnightly basis, and ascertain her welfare - physical and psychological. The lady Judicial Officer would also ascertain the welfare of the child. If there be any shortcoming reported to or noticed by the Judicial Officer, it will be her duty to report the matter to the learned District Judge, who will take immediate steps to remedy it. The District Magistrate, Agra, shall extend all cooperation to the learned District Judge and the lady Judicial Officer, in the terms required by them.
21. In the result, this habeas corpus writ petition succeeds and stands allowed. The rule nisi is made absolute, in the terms that Chhavi will be caused to be liberated from the foster care of Meena, respondent no. 4, forthwith, and housed in a suitable safe home/shelter home, within the district of Agra, where she will stay until 09.07.2021. She will be free to go, on 09.07.2021, wherever she likes and stay with whomsoever she wants, including her husband Laxman. Until then, she will be housed and taken care of, in terms indicated hereinabove.
22. Before parting with this matter, this Court places on record its appreciation for the very conscientious and careful execution of this Court's commission undertaken by Ms. Archana Singh, Judicial Magistrate, Mathura.
23. Let this order be communicated to the learned District Judge, Mathura, the Senior Superintendents of Police of Agra and Mathura and the District Magistrate, Agra by the Joint Registrar (Compliance), forthwith.
Order Date :- March the 10th, 2021 I. Batabyal / BKM/-