Furkan vs State Of U.P. And Another
2015 Latest Caselaw 2192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						                          RESERVED									  A.F.R	      
 
Case :- CRIMINAL REVISION No. - 55 of 2015
 
Revisionist :- Furkan
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Ishwar Chandra Tyagi
 
Counsel for Opposite Party :- Govt.Advocate,Sushil Kumar Pandey
 
Hon'ble Sudhir Kumar Saxena,J.

1. This revision under Section 397/401 Cr.P.C. is directed against the order dated 23.12.2014 passed by Chief Judicial Magistrate, Muzaffarnagar, ordering custody of victim in favour of her father.

2. Heard Sri Nirvikar Gupta, learned counsel for the revisionist and learned AGA for the State.

3. Briefly stated facts of this case are that an FIR was lodged under Sections 363/366 IPC (crime no. 230 of 2014, P.S.- Sikheda, District Muzaffarnagar) arising out of kidnapping of Kumari Sitara. Aforesaid FIR was challenged by revisionist and others in W.P. No. 22776 of 2014 before Allahabad High Court, which was finally disposed of on 26.11.2014. Division Bench of this Court directed petitioners to produce the girl before Chief Judicial Magistrate, Muzaffarnagar, who will get her medically examined for determination of her age. Her statement will also be recorded under Section 164 Cr.P.C.

4. Sitara in her statement recorded under Section 164 Cr.P.C. stated that she had left her house alone in the morning of 30.10.2014. She went to Sikheda, Muzaffarnagar, Roorkee and Ambala. After reaching Ambala, she called Furkan and both went to Doraha on her own volition. It was clearly stated that she wants to live with Furkan and report has been wrongly lodged. Furkan has not kidnapped her and both are innocent. This statement was recorded on 17.12.2014.

5. Report of Medical Officer shows that victim was found to be about eighteen years old.

6. In the statement recorded under Section 161 Cr.P.C., it was stated that she was enticed by Furkan and he married her by extending threats. She made allegation of rape against Sabu as well.

7. An application was given by Firozuddin, father of the girl seeking her custody on the ground that her daughter is minor as her date of birth is 10.07.1999. Furkan's brother had also moved an application claiming her custody, who filed copy of the Pariwar register to show that she is major. Concerned Investigating Officer moved an application for passing appropriate order in respect of custody.

8. Learned Magistrate came to the conclusion that Educational Certificate was preferable over medical report. Moreover, application was not supported with affidavit and age opined by Doctor can be reduced by two years. Treating her to be minor, he directed the custody of the girl in favour of her father. This very order has been assailed by Sri Nirvikar Gupta on various grounds.

9. It was submitted that even according to transfer certificate, which shows that victim has passed class- 2 in the year 2010 and left the school was above fifteen years. According to medical report, she is about eighteen years. In her statement recorded under Section 164 Cr.P.C. before Magistrate she categorically stated that she wants to live with Furkan with whom she had married. She along with Furkan had come to High Court to file writ petition. It is thus evident that victim is not willing to go with her father. Affidavit filed by her shows that in the village in a similar case, a girl was murdered by the members of her family. Thus, she expressed threat to her life if she was sent with father.

10. A muslim girl having attained the age of puberty can enter into a marriage contract. It is settled law that husband is the natural guardian of wife. Even in the case of minor, marriage does not become ipso facto void as such, custody should have been in consonance with the will of the victim-wife. As a proof of marriage nikahnama was filed, which has not been denied by the victim. Respondents have not set up a case of divorce. Consequently, custody of the girl should have been given to husband or the members of the family or her in-laws. She cannot be sent to a place against her wishes.

11. Hon'ble Apex Court in the case of Juhi Devi vs. State of Bihar [2005 Law Suit (SC) 1541] was considering similar controversy where medical board has found the age of the victim between 16-17 years while educational certificates were showing her minor. Hon'ble Apex Court ordered that she should be allowed to live with her husband. Relevant extract of the judgment is being reproduced hereinbelow:-

"The Medical Board opined that as on 17.05.2003, the petitioner must have been aged between 16 and 17 years. However, the father of the petitioner produced two certificates before the Revisional Court and contended that her date of birth is 12.10.1985 and she has not attained majority. However, the medical report shows that she must have been aged more than 16 years, even on 17.05.2003. Having regard to these facts, we are of the view that she must have attained majority and her stay at the remand home would not be in the interest of justice and we think that her continued stay at the remand home would be detrimental and she would be in a better environment by living with the person whom she had allegedly married."

12. Division Bench of this Court in the case of Smt. Reena vs. State of U.P and Ors. decided on 24.05.2012 (Habeas Corpus Writ Petition no. 10180 of 2012) has considered the similar controversy where there was conflict between medical certificate and educational certificate. Hon'ble Court has opined that court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific tests to assess the age of a victim. Relevant paragraphs of the judgment is being reproduced below:-

"There was some dispute in respect of the age of the girl but we find from argument appearing at page 20 of the present petition that the Chief Medical Officer, Maharajganj had assessed her 18 years of age. Thus, the lady was undisputedly above 18 years of age, if we add three years to the medically assessed age. In our considered view in case of being a conflict between the age recorded in any school document and that assessed by the doctor then only for the present purposes, the court should lean towards acting upon the opinion of the doctor furnished after carrying out scientific tests to assess the age of a victim. This is necessary as liberty of a person has to be protected. No person could be deprived of his liberty unless reasonable procedure has been adopted. Medical opinion on age may not be exact, but it is generally acceptance and it is based on scientific method of assessing the age. As such, inspite of there being some sort of margin in assessing the age and actual age, there could be chances that the assessed age is almost exact.

We have already noted that the personal liberty of a person should be paramount consideration in such cases and keeping that in view and for protecting the personal liberty of a person, the court should lean towards considering the medical age than to consider the age which is recorded in school documents."

13. Relying upon the case of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir [AIR 1982 SC 1297], another Division Bench of this Court in the case of Smt. Saroj vs. State of U.P. and Others vide judgment and order dated 08.05.2012 (Habeas Corpus Writ Petition No. 19037 of 2011) has taken a similar view i.e. medical report has to be believed.

14. Learned Single Judge of this Court in the case of Asmat Jahan and Another vs. State of U.P. [2014 (2) All. Cr. J. 664] has taken a similar view. Relevant extract of the judgment is being reproduced hereinbelow:-

"Learned Magistrate has not kept in mind the situation that he was not determining the age of a juvenile in conflict with law but was determining the age of prosecutrix who admittedly had eloped with her lover and had married him."

15. In view of the above, it is apparent that opinion of the Doctor in respect of age should have been given preference. Moreover when girl was expressing apprehension, Magistrate should have been careful in sending her with father. As stated above, marriage i.e. nikahnama is not disputed. Consequently, as wife, she is ready to live with her husband, husband is entitled to have her custody.

16. It is settled law that against the wishes, even minor cannot be sent to Nari Niketan and husband being natural guardian is entitled to custody of wife.

17. In view of the discussion made above, this criminal revision is allowed. Order dated 23.12.2014 passed by Chief Judicial Magistrate, Muzaffarnagar is set aside.

18. Learned Magistrate, Muzaffarnagar is directed to pass fresh order regarding the custody of the victim within a week from the date of production of certified copy of this order.

Order Date :- 8/9/2015

Nitesh