Smt. Noor Bano Through Her Husband ... vs State Of U.P.Through ...
2017 Latest Caselaw 7399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9                                                                                       A.F.R.
 

 
Case :- HABEAS CORPUS No. - 27198 of 2017
 

 
Petitioner :- Smt. Noor Bano Through Her Husband Sri Mubarak
 
Respondent :- State Of U.P.Through Secy.Deptt.Of Home Lko.And Ors.
 
Counsel for Petitioner :- Ram Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Dinesh Kumar Singh,J.

(Per Dinesh Kumar Singh, J.)

1.     The petition seeks issuance of a writ in the nature of Habeas Corpus directing respondent no.4 to produce the petitioner detenue before this Court.

The petition also seeks issuance of a writ in the nature of certiorari quashing of the impugned order dated 25.10.2017 passed by learned Additional Sessions Judge/Special Judge Room No.1, Sultanpur.

2. On 13.11.2017 this Court passed the following order:-

?1. The petition seeks issuance of a writ in the nature of Habeas Corpus directing respondent no.4 to produce the detenue in Court and after taking statement set free the detenue at her liberty.

The petition also seeks issuance of a writ in the nature of certiorari quashing impugned order dated 25.10.2017 passed by learned Additional Sessions Judge/Special Judge Room No.1, Sultanpur.

2. It has been asserted on behalf of the petitioners that the case is squarely covered by judgment rendered by this court in Writ Petition No.156(H/C) of 2015: Smt. Poonam versus State of U.P. and others decided on 17.09.2015.

3. Let respondent no.5 be served through S.H.O. Police Station Kotwali Nagar, District Sultanpur.

4. Respondent no.4 is directed to produce the petitioner in Court.

5. The deponent and respondent no.5 shall also remain present in Court.

6. The Investigating Officer of Case Crime No.656 of 2017 under Section 363, 366, 354A, 504, 506 I.P.C. and Section 7/8 of the Protection of Children From Sexual Offences Act, Police Station Kotwali Nagar, District Sultanpur shall file his affidavit.

7. List on 29.11.2017. ?

3.     In deference to above extracted order, the petitioner has been produced in court. We have questioned the petitioner. The petitioner has reiterated her statement recorded under Section 164 Cr.P.C. The petitioner states that she is married to Mubarak and wants to live with her husband Mubarak.

4.     Respondent no.5, father of the petitioner has not appeared in Court despite notice having been received.

5.     Short counter affidavit has been filed on behalf of the State by Umakant Shukla, Sub-Inspector, Investigating Officer of the Case Crime No.656 of 2017, under Sections 363, 366, 354A, 504,506 I.P.C., Police Station Kotwali, District Sultanpur. In the affidavit filed by the Investigating Officer, the statement of the detenue recorded under Section 161 Cr.P.C. has been quoted wherein she says that she has been in touch with Mubarak Ali who is her neighbour for the last two years and on 13.09.2017 they ran away from their homes and reached Raebareli where they started living on a rented house.

6.       She has further said that they have performed Nikah and her father got her age mentioned in the school record two year less than her actual age. She has aslo said that she and Mubarak Ali are living together and her date of birth in the Aadhar Card is mentioned as 03.06.1997.

7.       The Investigating Officer in his statement says that the investigation of the case is yet to be concluded.

8.       As per the medical examination report of the detenue, her age has been found to be 17 years whereas in educational testimonials her date of birth is mentioned as 15.12.2000.

9.        The detenue in her statement recorded under Section 164 Cr.P.C. has been specific and categorical about her relationship with Mubarak and made her statement as under :-

"My name is Noor Bano. My father's name is Naseebdar. I am 21 years old. I am high school passed. I out of my own free will and choice have performed marriage with Mubarak on 21.09.2017. I have been knowing Mubarak for last four years. I am in love with Mubarak. I want to live with Mubarak."

10.       On an application given by the complainant, respondent no.5, father of the detenue claiming the custody of his daughter/detenue, the learned Additional Sessions Judge/Special Judge observing that the detenue is minor on the basis of the educational certificates and further taking note of the fact that she does not want to go with her father vide order dated 25.10.2017 directed the Investigating Officer to produce the detenue before the Child Welfare Committee. Child Welfare Committee considering the date of birth of the detenue is 15.12.2000 on the basis of the educational certificates, finding her to be minor directed her to be sent to Rajkeeya Mahila Sharanalaya, Ayodhya. Presently she is housed in the aforesaid Rajkeeya Mahila Sharanalaya, Ayodhya, Faizabad.

11.         This petition as mentioned above has been filed by the detenue through her husband with prayers made hereinabove.

12.        The question, in the facts and circumstances of the case, which arises for consideration in the case is whether it be just, proper and reasonable and in the interest of justice as well as the fundamental rights of the detenue to keep her in the Rajkeeya Mahila Sharanalaya, Ayodhya in pursuance of the order dated 25.10.2017 passed by Additional Sessions Judge/Special Judge on the ground that as per the school record her date of birth is 15.12.2000 and therefore, she is a minor.

13.     We are of the view that while deciding the custody and the freedom of the detenue, the paramount consideration should be the welfare and the right to life and liberty of the detenue if she is of the age where she can reasonably exercise her discretion.

14.        It is no longer res integra that the age determined on the basis of Ossification test is to have margin of 2-3 years either side. As per the medical report she has been found to be around 17 years. With the margins of 2-3 years on higher side she would be 19-20 years of age. While interacting with her, we have found her to be mature enough to exercise her discretion reasonably.

15.       The Supreme Court in several Judgments including in the Case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp) Supreme Court Cases 604 has considered the question of probative value of an entry regarding the date of birth made in the scholar?s register and in school certificate in election cases and has consistently held that the date of birth mentioned in the scholar?s register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined. At this stage when the medical certificate of the detenue is to the effect that she is aged around 17 years, only on the basis of the school testimonials, it would not be proper to keep her in the Women Protection Home. There is disparity with respect to the age of detenue in the school certificate and the medical certificate. Therefore, in absence of conclusive proof that the age which is mentioned in the school certificate was based on some legally admissible evidence, the credence has to be given to the medical certificate and not to the school certificate.

16.    Hon?ble The Supreme Court in somewhat similar facts in the case of Juhi Devi Vs. State of Bihar and Others reported in (2005) 13 SCC 376, in para 2 opined as under:-

?The petitioner herein is alleged to have married another person of her age and the 5th respondent herein, the father of the petitioner, objected to the said marriage. It seems that the petitioner had eloped with that person and the father of the petitioner, the 5th respondent, has filed a complaint and the petitioner was produced before the CJM, Patna. The petitioner claims that she was a major and voluntarily left with her husband. The father of the petitioner alleged that the petitioner was a minor and the question of age was referred to a Medical Board. The Medical Board opined that as on 17-5-2003, 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 17-5-2003. 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.?

17.         The Division Bench of this Court has passed the judgement in the case of Smt. Poonam Through her Husband Sri Bauwa @ Suneel Kr. Singh Vs. State of U.P. Through Secretary Home (Habeas Corpus No. 156 of 2015) relying on the aforesaid judgment of the Supreme Court in para 18 has held as under:-

?27- Perusal of the judgment rendered in Smt. Reena's case (Supra), as extracted above, shows that age cannot be held to be a relevant consideration, while considering Personal Liberty of a person. A person living in India has a Right to enjoy his or her liberty, as guaranteed by the Constitution of India. Any order which curtails or encroaches upon the liberty of such a person is required to be struck down, if it is not in accordance with procedure established by law.

28- Article 21 of the Constitution of India promises every citizen that he shall not be deprived of his life or personal liberty except according to procedure established by law. Petitioner not being an accused , it cannot be held that her personal liberty has been curtailed as per procedure prescribed by law. This is particularly so because she apparently has attained age of discretion and has asserted her right to get married of her own choice.

29- While considering a petition filed for issuance of a writ in the nature of Habeas Corpus, the writ court is not required to go into the complexities of law, once it is made evident to the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair play is not violated , with a view to promote substantial justice.?

18.       Further the Division Bench of this Court in the case of Smt. Renu thru. Her Husband Rinku Vs. State of U.P. thru. Principal Secretary Department of Home Lko. & Others (Habeas Corpus No. 295 of 2015) has held as follows:-

?7- In the case under consideration of this Court, we find that the petitioner is allegedly the victim of offence. The petitioner/ detenue in her statement recorded under Section 164 Cr.P.C. has made it evident that she was neither abducted nor kidnapped, or even induced to get married to Rinku. Under the circumstances it has become prima-facie evident that offence in context of the petitioner has not been committed by the accused Rinku. This is particularly so because radiological age of the petitioner has been found to be about 18 years.

8- As has been held in the judgment rendered in Smt. Poonam's case (Supra), in such cases, it is more appropriate to rely upon the radiological age, particularly because liberty of a citizen is involved.

19.     The detenue has specifically said in her statement recorded under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. that she has performed Nikah with Mubarak and she is in love with him and she has also refused to go with her father. Under the facts and circumstances of the case, it would neither be in her interest nor interest of justice to keep her in  Rajkeeya Mahila Sharanalaya, Ayodhya in pursuance of order passed by Additional Sessions Judge/Special Judge Room No.1, Sultanpur.

20.      The court should not adopt hyper-technical approach while dealing with the detenue in the case of marriage etc., particularly keeping the categorical stand of the detenue. In the facts and circumstances of the case, we allow this petition and set aside the order dated 25.10.2017 passed by Additional Sessions Judge/Special Judge Room No.1, Sultanpur and direct Superintendent of Government Woman Shelter, Ayodhya, District Faizabad (respondent no.4) to release the detenue and allow her to go as per her own wish.

21.   The petition is allowed.

Order Date :- 29.11.2017

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