Allahabad High Court
Neelam Nigam @ Nagma Parveen And ... vs State Of U.P. And 3 Others on 5 June, 2017
Bench: Pankaj Mithal, Mukhtar Ahmad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 45
Case :- HABEAS CORPUS WRIT PETITION No. - 26264 of 2017
Petitioner :- Neelam Nigam @ Nagma Parveen And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Shashi Dhar Shukla
Counsel for Respondent :- G.A.
Hon'ble Pankaj Mithal,J.
Hon'ble Mukhtar Ahmad,J.
Heard learned counsel for the parties.
The petitioners claim themselves to be the husband and wife. They have married on 27.11.2016 after the petitioner no. 1 had left her parental house and had reached Mumbai where petitioner no. 2 was said to be based.
The Child Welfare Committee passed an order on 25.4.2017 holding her to be a major. Thus, the father of petitioner no. 1 who is fourth respondent in this petition preferred a representation/appeal under Section 27 (10) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short of the Act) before the District Magistrate.
On the aforesaid representation/appeal District Magistrate has passed the impugned order dated 4.5.2017 and on the basis of the High School certificate of petitioner no. 1 has held that her date of birth is 26.1.2001 and therefore she has not completed the age of 18 years rather she is only 16 years and 3 months of age. Accordingly, the order the Child Welfare Committee has been set aside and the petitioner no. 1 has been directed to be lodged in Nari Niketan, Faizabad as she refused to go with her parents.
The above order passed by the District Magistrate has been challenged with the prayer to quash the same and to direct production of petitioner no. 1 in Court so as to release her from Nari Niketan.
The production of petitioner no. 1 in court and for her release from Nari Niketan would only arise if the order of the District Magistrate is held to be illegal and is quashed.
The first argument of learned counsel for the petitioner is that the impugned order has been passed in an appeal under Section 27 (10) of the Act whereas there is no provision for appeal before the District Magistrate.
The aforesaid Act vide Chapter V provides for constitution of Child Welfare Committee and lays down the functions and responsibilities of the Committee. In addition to the above, Section 94 of the Act provides that where the Child Welfare Committee has reasonable grounds to doubt the age of a person before it, the Committee shall undertake the process of age determination by seeking evidence by obtaining the date of birth certificate from the School or the Matriculation or equivalent certificate from the concerned examination Board or the birth certificate given by a Corporation or a Municipal Authority or a Panchayat and only in the absence of the above shall determine the age on the basis of ossification test or any other medical age determination test.
In view of the above, apparently the Child Welfare Committee is vested with the power to determine the age in the manner prescribed.
Section 27 (10) of the Act provides that the District Magistrate shall be the grievance redressal Authority for the Child Welfare Committee and any one connected with the child may file a petition before the District Magistrate who is obliged to consider it and to pass appropriate orders. Therefore, the District Magistrate has not only the authority to Act at the behest of the Child Welfare Committee but also on a petition made by any one connected with the child. Therefore, under Section 27 (10) of the Act though strictly no appeal is provided but the District Magistrate is not denuded of the power to entertain, consider and pass appropriate orders on the petition filed by any one connected with the child.
Accordingly, if the father of petitioner no. 1 had filed a petition before the District Magistrate, disputing her date of birth as determined by the Child Welfare Committee, the District Magistrate was competent to consider it and to pass an order thereof in accordance with law. In such as situation, if the District Magistrate has passed the impugned order, it can not be said to be without jurisdiction merely for the reason that the order describes it to have been passed in an appeal preferred under Section 27 (10) of the Act rather than the petition of the father of petitioner no. 1.
As regards the merits of the petition is concerned, there is no dispute that the High School Certificate of petitioner no. 1 was before the Child Welfare committee as well as the District Magistrate and it clearly mentioned the date of birth of petitioner no. 1 as 26.1.2001.
There is no other material which could establish the date of birth of petitioner no. 1 to be otherwise except for her own statement wherein she stated her date of birth as 1.1.1998.
In view of Section 94 of the Act, the age of child/person has to be determined on the basis of the birth certificate issued by the Corporation/Municipal Authority or a Panchayat or on the basis of the date of birth certificate of the School, Matriculation or any equivalent certificate from any examination Board.
Thus, in the presence of the High School Certificate on record and in the absence of any other certificate, the District Magistrate is justified in holding that the date of birth of petitioner no. 1 is 26.1.2001 and that she is only 16 years and 3 months of age. The ossification test for the purpose of determining the age of petitioner no. 1 is not relevant when the High School Certificate is on record. Similarly, the statement of petitioner no. 1 herself is of no value.
The Apex Court in the case of Parag Bhati Vs. State of Uttar Pradesh and another 2016 (12) SCC 744 has considered the entire case law on the subject of determination of age of a Juvenile and held that it is settled position of law if the Matriculation or equivalent certificate is available, the date of birth mentioned in the Matriculation Certificate has to be treated as a conclusive proof of the date of birth.It is only where any doubt is raised regarding correctness of the Matriculation Certificate an inquiry for determination of age may be permissible in accordance with law.
In view of the aforesaid facts and circumstances, we find no merit in this petition and it is accordingly dismissed.
Order Date :- 5.6.2017
SKS
