Monish vs State Of U.P. And 2 Others
2018 Latest Caselaw 1183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 53								  A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 1521 of 2018
 

 
Revisionist :- Monish
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Kamlesh Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. Supplementary affidavit filed today on behalf of Smt. Roshani is taken on record.

2. Heard Sri Kamlesh Tiwari, learned counsel for the revisionist and Sri J.B. Singh, learned A.G.A. appearing for the State.

3. This revision has been filed against a judgment and order dated 17.04.2018 passed by the learned Chief Judicial Magistrate, Pilibhit rejecting an application by the revisionist to permit the victim Smt. Roshani, wife of the revisionist, Monish to accompany him and instead giving her into the custody of her father and mother, Danveer and Smt. Indra Devi holding her to be a minor.

4. The short facts of the case are that the revisionist is alleged to have married Roshani on 15.03.2018 claiming that she is major aged about 19 years and the two have fallen in love. It is claimed that the revisionist and Smt. Roshani in the face of opposition to the marriage from her parents eloped. Roshani's mother, opposite party no.3, filed an FIR giving rise to Case Crime no.103 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Neoria, District Pilibhit alleging that the victim Roshani is a minor going by her date of birth, which she claimed to be 14.08.2000. Faced with an FIR, the revisionist and Smt. Roshani approached this Court by way of Criminal Misc. Writ Petition No.7204 of 2018 challenging the FIR aforesaid, wherein this Court vide order dated 23.03.2018 directed that Smt. Roshani would be produced before the Chief Judicial Magistrate concerned within 20 days from the date of the order last mentioned, and, on an application for her medical examination being made, a date shall be fixed for the purpose. Thereafter, she would be produced before the Chief Medical Officer concerned by the Police Officer, Incharge of investigation. After her medical examination, Smt. Roshani was directed to be produced before the Chief Judicial Magistrate for recording of her statement under Section 164 Cr.P.C. on an application to be made by the Investigating Officer for the purpose. It was directed that till the aforesaid proceedings are over, no coercive action shall be taken against the petitioners of the said writ petition (the revisionist, Smt. Roshani and other writ petitioners). It was also ordered that in case the petitioners do not take steps by producing Smt. Roshani before the Chief Judicial Magistrate or are in default, it shall be open to the police to arrest the petitioners of the writ petition. It was as a follow up directed that in case Smt. Roshani was found to be a major during her medical examination and does not support the FIR version, the petitioners of the writ petition under reference shall not be arrested till submission of police report under Section 173(2) Cr.P.C. but the petitioners shall cooperate with the investigation. It was also provided that in case Smt. Roshani is found to be a minor or if she was a major but supports the prosecution case, it would be open to the police to arrest the petitioners of the writ petition as aforesaid. Amongst other things, the last direction carried in the order dated 23.03.2018 was that the issue of custody of the alleged kidnapped girl (Smt. Roshani) would be decided by the Chief Judicial Magistrate concerned in accordance with law.

5. It is the last part of the direction carried in the order dated 23.03.2018 in Criminal Misc. Writ Petition No.7204 of 2018 that placed the entire case on board of the Chief Judicial Magistrate, Pilibhit for a decision about the custody of Smt. Roshani. The issue whether Smt. Roshani was a major or a minor was alone to be decided. The issue of custody always concerns itself with a minor or a person under a disability.

6. Before the Chief Judicial Magistrate, Pilibhit, an application was made on behalf of Smt. Roshani that she was a major and, therefore, wanted to accompany the revisionist, her husband, whereas there was another application on behalf of father and mother of Smt. Roshani that she was a minor and, therefore, she may be given into their custody. The Chief Judicial Magistrate in passing the impugned order regarding custody of Smt. Roshani depended upon the date of birth of Smt. Roshani recorded in her date of birth certificate relating to school records, where she had studied upto Class 8th. He took into account a transfer certificate issued by the Uccha Prathamik Vidyalaya, Bithara Marauri Kshetra, Pilibhit, where the date of birth of Smt. Roshani was recorded as 14.08.2000.

7. On the other hand the revisionist depended upon the date of birth of Smt. Roshani found during her medical examination by the Chief Medical Officer, who found her to be more than 17 years of age and less than 18 years. The revisionist also relied upon the statement of Smt. Roshani recorded under Section 164 Cr.P.C., wherein she has stood by her marriage to Monish according to her free will and indicated her desire to go along with him and live as his wife.

8. The learned Chief Judicial Magistrate, however, relying upon the decision of the Hon'ble Supreme in Muraggan alias Settu Vs. State of Tamil Nadu, 2011(3) JIC 144 (SC) (AIR 2011 SC 1961) and the decision of this Court in Parvana Bano Vs. State of U.P. and others, 2015 Dand Nirnay Sangrah 584, held that the date of birth recorded in the educational records took primacy over medical evidence. He further held that even according to the medical report the victim was less than 18 years and, therefore, her custody had to be handed over to her parents. The learned Chief Judicial Magistrate, accordingly, ordered the custody of Smt. Roshani to be handed over to her parents by means of the impugned order.

9. Aggrieved by the said order the present revision has been filed.

10. This Court ordered Smt. Roshani to be produced before this Court vide order dated 09.05.2018, primarily on account of the fact that the medical evidence indicated her to be above 17 years and below 18 years, about which the rule is that there is an invariable margin of one year in the assessment of age on either side, which has to be construed in favour of exculpation. Thus, going by the medical assessment, she would be 18 years or slightly above that age.

11. This Court was mindful of the fact that medical determination of age for a long time had been placed on a low priority, even in cases of a victim, in view of different pronouncements by their Lordships of the Supreme Court and this Court following the rule in Section 94 of the Juvenile Justice Act, 2015, which requires that the age has to be determined with reference to the date of birth, in the first place, as found recorded in the school records or the record of the Board from where High School or equivalent examination is passed. If no evidence as to age in school records or Board records is available, the next in order of priority is the age recorded in the Corporation, the Municipal Records or records of the Panchayat. It is only if the first two categories of evidence is not available, that medical determination of age is permissible. But all the said authorities appear to have lost their force in view of a very recent decision of their Lordships of the Supreme Court in Suhani and another Vs. State of U.P., Civil Appeal No.4532 of 2018 decided on 26.04.2018, which was a case of a girl who was recorded to be a minor aged 13 years and 8 months in her High School certificate issued by the C.B.S.E. and claiming herself to be a major aged about 19 years, she had married a man of her choice. An FIR was lodged on the one hand and she was detained in connection with that case and ordered to be interned in the Nari Niketan. A Habeas Corpus Writ Petition filed before this Court being Habeas Corpus Petition No.52290 of 2017 requiring her to be produced and released from the Nari Niketan, filed by the second petitioner, her husband, before this Court was dismissed on the ground of her recorded date of birth in her High School certificate. On an appeal by Special Leave, their Lordships sent the girl for a medical assessment of age by the All India Institute of Medical Sciences, who opined her to be between 19 - 24 years. Their Lordships going by the conclusions arrived at regarding age based on her medical examination held her to be a major and reversed the decision of this Court. Their Lordships noticing the fact that parties (the husband and wife) had admitted the factum of marriage before the Hon'ble Supreme Court also, allowed the girl to accompany her husband.

12. On 30.05.2018 Smt. Roshani appeared before this Court, and reported that she had escaped from the custody of her parents sensing danger to her life, virtually violating the order of the Chief Judicial Magistrate. She offered for a justification, danger to her life from her parents; she informed the Court that she had joined the company of her husband, Monish, who also appeared in Court.

13. Bearing in mind the fact that the medical examination report of the Chief Medical Officer, Pilibhit had opined Smt. Roshani to be above 17 years and below 18 years, which was not a very certain estimation of her age, and, further to be doubly assured about the medical estimation of age, this Court ordered Smt. Roshani to be medically examined by a Board of Doctors to be constituted by the Chief Medical Officer, Allahabad, who would examine her and submit a report about her age based on a scientific assessment.

14. Today, the report from the Chief Medical Officer, Allahabad has been produced before this Court under a covering memo dated 31.05.2018. The report is signed by three doctors comprising the Medical Board, which includes the Chief Medical Officer, Allahabad and two Deputy Chief Medical Officers. The report opines Smt. Roshani to be aged about 19 years. Enclosed with the report is a copy of a report from the department of Radiology, which gives the basis for the opinion and also indicates the age to be about 19 years. The aforesaid report in original is taken on record and is made part of these proceedings.

15. It has been brought to the notice of this Court that the revisionist is a Muslim and the marriage solemnized on 15.03.2018 is a Nikah; it is a marriage in accordance with Muslim rites. A Muslim marriage is exposed to the peril of a unilateral divorce by the husband even after a triple Talaq is outlawed.

16. This Court is constrained to observe that two citizens of India to whatever religious persuasion they belong, are entitled to marry a person of their choice, in case under the law, they are otherwise competent to marry. But, marriage is one thing and conversion to a different religion quite another. Marrying a person of one's choice belonging to a different religion should not work in a way that it pro-tanto involves one party converting to the others' faith. If parties who marry a fellow citizen of another religion find themselves uncomfortably placed, or so to speak more conveniently placed with the law and the society, if one converts to the other's faith, it shows a weak adherence by the citizens to the most cherished Constitutional values of Equality, Fraternity, Liberty and all of them. It is in fact to cater to a situation of the present kind, to uphold the constitutional values above mentioned, and, to give to the citizens a facet of the Common Civil Code awaiting redemption of a promise to secure for all the citizens of India a Common Civil Code, that the Parliament has enacted the Special Marriage Act, 1954. The statute is an early instance of that legislative endeavour.

17. Looking to the said fact, this Court is of opinion that the revisionist and Smt. Roshani would be well advised to seek registration of their marriage under Section 15 of the Special Marriage Act as soon as the parties turned eligible to have their marriage registered under that Act.

18. Looking to the statements made before the Court by Roshani, the fact that she has indicated a danger to her life from her parents, the fact that she had said in her statement under Section 164 Cr.P.C. that she stands by her marriage to Monish and wants to live with him as his wife, and, above all, the medical certification of her age as per the report of the Medical Board constituted by the Chief Medical Officer, Allahabad pursuant to the direction of this Court dated 30.05.2018 (report dated 31.05.2018), where her age has been found to be 19 years, this Court following the authority of their Lordships of the Supreme Court in Suhani and another (supra) is inclined to act on the medical estimation of the age of Smt. Roshani in preference to her recorded date of birth in the Class 8th Transfer Certificate depended upon by the learned Chief Judicial Magistrate while passing the order impugned. This Court is of opinion that the impugned order based on the recorded date of birth in the Class 8th Transfer Certificate loses significance in view of preponderant medical evidence. The impugned order, therefore, is not found sustainable.

19. This revision succeeds and is allowed. The impugned order dated 17.04.2018 passed by the Judicial Magistrate, Pilibhit in Case Crime no.103 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Neoria, District Pilibhit is hereby set aside and reversed.

20. It is ordered that Smt. Roshani, who is present in Court is free to go wherever she likes and with whom she wants. Since she has indicated her preference to accompany her husband, Monish son of Babu, she may do so.

21. The opposite party no.3, Smt. Indra Devi or her father Danveer Baba will not interfere in any manner with the married life of the revisionist and Smt. Roshani.

22. Under the facts and circumstances of the case, this Court is of opinion that the revisionist and Smt. Roshani would be well advised to seek registration of their marriage under Section 15 of the Special Marriage Act as soon as the parties turned eligible to have their marriage registered under that Act.

23. It is further directed that if and when the revisionist Monish and Smt. Roshani approach the Marriage Officer, Bareilly appointed under the Special Marriage Act and apply for registration of their marriage in accordance with law, the Marriage Officer shall entertain their application, process and register their marriage under the Special Marriage Act, 1954, ignoring the fact that Case Crime no.103 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Neoria, District Pilibhit, lodged at the instance of Smt. Indra Devi, mother of Smt. Roshani, is pending investigation or trial.

Order Date :- 31.5.2018

Anoop