Varun vs Addl. District/Session Judge And ...
2018 Latest Caselaw 3014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Reserved
 
Court No. - 53								A.F.R.
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 3686 of 2017
 

 
Petitioner :- Varun
 
Respondent :- Addl. District/Session Judge And 3 Others
 
Counsel for Petitioner :- Antesh Dwivedi,Lal Ji Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble J.J. Munir,J.

1. This writ petition is directed against an order dated 21.02.2017 passed by the Additional Sessions Judge/ F.T.C.-I, Meerut in Criminal Revision no.419 of 2016 dismissing the revision preferred by the petitioner and affirming an order dated 01.10.2016 passed by the Additional Chief Judicial Magistrate, Court no.1, Meerut made in Case Crime no.145 of 2016, under Sections 363, 366 IPC, Police Station Dehali Gate, District Meerut, ordering Ariba whom the petitioner claims to have lawfully married, to be detained in the Nari Niketan, Meerut, until further orders or until further orders of the Appellate Court.

2. Heard Shri Lal Ji Pandey for the petitioner and the learned AGA on behalf of the State.

3. The case of the petitioner, Varun is that he has married Ariba, the daughter of respondent no.4, Ayaz Khan on 22.06.2016 in accordance with his free will and that of his wife, Ariba. It is stated that the petitioner, Varun is a Hindu whereas his wife, then known as Ariba, professed the Muslim faith. Thus, Ariba converted to the Hindu faith on 22.06.2016 taking the name, Jyoti, and, married the petitioner according to Hindu rites at the Arya Samaj Mandir, Vijay Nagar, Ghaziabad on 22.06.2016. The petitioner has placed on record the conversion certificate relating to his wife, Ariba @ Jyoti (who is hereinafter referred to as the detenue) as Annexure 4 to the writ petition, at page no.33 of the paper book. Likewise, placed at page no.34 is the photostat copy of a marriage certificate issued by the Arya Samaj Mandir, Greater Noida, Gautam Budh Nagar.

4. It has been asserted by the learned counsel for the petitioner, that at the time of marriage, the detenue was aged 19 years whereas the petitioner was aged 24 years. The marriage of parties has been duly registered in accordance with the Uttar Pradesh Marriage Registration Rules, 1973, by the Registrar of Hindu Marriages, Ghaziabad on 04.07.2016. He has invited attention of the Court to a certificate of registration of marriage, that is on record as Annexure 5 to the writ petition. It is submitted by the learned counsel for the petitioner that respondent no.4, the father of the detenue revolted on learning of the relationship and went berserk. He was out to do the couple to death in an act of honour killing, but with some better sense prevailing, contented himself by lodging a First Information Report on 28.06.2016 against the petitioner and five members of his family, including brothers and sisters, and, one unknown offender, alleging commission of offences punishable under Sections 363, 366 IPC.

5. It is submitted by the learned counsel for the petitioner that the First Information Report is a stock pile of falsehood, where the fourth respondent has in brazen falsehood said, that the detenue is aged 14 years whereas her elder sister, Alisha is aged 15 years; that Monti son of Rajesh and Varun son of Prem Chandra (the petitioner) had by blandishment taken away both his daughters, in relation to which he had earlier lodged an FIR giving rise to case crime no.68 of 2016, under Section 363 IPC wherein the court had handed over custody of both his daughters to the fourth respondent; that Monti and Varun (the petitioner) upon being released on bail have made life hell for both his daughters and resorted to myriad kind of threats to the family; that out of fear of Monti and others, the fourth respondent has abandoned his tenanted accommodation situate near the Jain Dharamshala and moved away to house no.99/1, Khair Nagar, Chauraha, which too, he has rented to house his family; that on 21.06.2010 in the evening hours at about 4.00, his daughters Alisha and Ariba, had gone over to Beli Bazar in order to buy some wares on the festival of Eid but have since not returned; that the fourth respondent launched a hunt for his daughters, and, after much effort, one Abdul Salam and another Yashir, allegedly told the fourth respondent that they had seen his two minor daughters, Alisha and Ariba, being taken away by Monti and Varun (petitioner) along with Varun's brother Jeetu, Pramod, Lalit and sister Pooja and another man, moving from the Kabadi Bazar proceeding towards Dehli Gate; that the informant immediately sought the whereabouts of Monti and Varun only to find that they had fled home along with their family members and took away his daughters; that he went to the police of Police Station Dehli Gate where his FIR was not registered, whereupon he approached the S.S.P., Meerut and the District Magistrate, Meerut that also did not lead to any fruitful result; that Varun and others have fled home; that an apprehension was expressed that Varun and Monti, may not do the fourth respondent's daughters to death; and that in the past also the informant said that he had entreated the authorities at all levels, to take action, to protect him and his daughters, but to no avail. The First Information Report closed with a request addressed to the S.S.P., Meerut to order registration of a case. It is on the basis of the said information that case crime no.145 of 2016 was registered on 28.07.2016, regarding the occurrence being shown as one dated 21.06.2016.

6. Learned counsel for the petitioner has emphasized the fact that this First Information Report was registered, immediately after the detenue converted to the Hindu faith on 22.06.2016, and, married the petitioner in accordance with Hindu rites, also on 22.06.2016. It is urged by the learned counsel for the petitioner that the entire basis of registration of the crime is not that the fourth respondent's daughter is a minor aged 14 years, who has been enticed away by the petitioner. To his knowledge, she is a major. The edifice of all actions taken by the fourth respondent is the fact that the fourth respondent's daughter contrary to his hide bound beliefs, has married of her free will, a person from another faith, and, converted to that faith.

7. Learned counsel for the petitioner submits that the detenue is a major, now aged about 21 years, and, at the time of marriage, aged 19 years. She is entitled to marry any person of her choice, as a free citizen of the country. The fact that she has married the petitioner, according to her untrammelled free will, is best expressed in the victim's statement under Section 164 Cr.P.C. recorded in relation to case crime no.145 of 2016, under Sections 363, 366 IPC, Police Station Dehli Gate, District Meerut, before the court of the Additional Chief Judicial Magistrate, Court no.1, Meerut on 30.09.2016, a copy of which is on record as Annexure 8 to the writ petition.

8. Learned counsel for the petitioner has invited the attention of the Court to the said statement of the detenue, where she has said that her age is 19 years, and, she has passed the VIIIth standard. She has said that on 21.06.2016, in the night hours at 8.00 o' clock, she and her sister, Alisha proceeded to Ghaziabad from home, and, called Varun and Monti over telephone. Monti's mother, Sunita came over to meet them. Both the sisters stayed with Sunita, and, Sunita went back to Meerut to fetch Monti and Varun to Ghaziabad. Both of them went to the Tehsil, where they married. Thereafter, they married at the Arya Samaj Mandir, Vijay Nagar. She said that she has converted to the Hindu faith, according to her free will, without any threat, undue influence or coercion. The detenue has further stated that she has married Varun, and, her sister, Alisha has also converted faith to marry Monti. After marriage both sisters parted ways, and on the 4th of July, the detenue and the petitioner had their marriage registered at Ghaziabad, and, since then she had been staying with her husband, Varun (the petitioner).

9. It is also stated that the detenue and the petitioner have been staying together as husband and wife, for the time being at Delhi. It is also said in the statement that she has known Varun for one and a half year, past. Earlier, they would stay nearby Varun's home. She came to know him by this proximity. She has categorically said in her statement that the detenue has converted faith of her free will, and, married Varun. She has also said that her father is troubling her. She has also stated that her father has brought a false prosecution against her in-laws. It is said further in the statement that her in-laws do not know anything. In the closing words of the statement, under Section 164 Cr.P.C., the detenue has said that she wants to live with her husband, and, has nothing else to say.

10. The Court has been taken through the aforesaid statement of the detenue, recorded under Section 164 Cr.P.C. on 30.09.2016 by the Additional Chief Judicial Magistrate, and, what has been extracted above, is an English translation of the statement of the detenue, recorded by the Magistrate under Section 164 Cr.P.C. The statement, at the foot of it carries a certificate from the Magistrate, that it is a statement in verbatim, of what the detenue has said. It has further been certified by the Magistrate that it has been recorded in his presence, and, within his hearing. It is also certified that it has been read over and explained to the maker of the statement who, after hearing the same, has acknowledged its correctness. It is also certified that the statement carries the entire version of the maker.

11. An application dated 01.10.2016 was moved by the Investigating Officer of case crime no.145 of 2016, saying that the detenue is aged 14 years, going by her date of birth recorded in her educational certificates, her date of birth mentioned in those certificates being 05.10.2002. The application carried a prayer addressed to the Additional Chief Judicial Magistrate, Meerut, that appropriate orders be made about the custody of the detenue. Another application was made on behalf of the petitioner, also dated 01.10.2016, to the effect that the date of birth of the detenue is 20.01.1997, and, that she is aged 19 years 9 months and 20 days. She is a major, and, of her free will has married the petitioner, according to Hindu rites. He has referred to the fact that the marriage between the parties has been registered by the Registrar of Hindu Marriages, Ghaziabad, and, also referred to some writ petition filed before this Court, whereby the parties were allowed to stay together. He asserted that the petitioner and detenue were living together as husband and wife until their conjugal bliss was interrupted by the disrupting arm of the law, galvanized by her father through a false information laid before the police. It was prayed that the petitioner may be permitted to stay with the detenue as lawfully wedded man and wife, and, for that purpose, so to speak, if that be the form, her custody may be given to the petitioner. A third application was made on behalf of the father of the detenue, respondent no.4, where surprisingly, the prayer is not to seek her custody. It asks the court to send her to the Nari Niketan.

12. The aforesaid prayer made on behalf of fourth respondent shows that he has disowned the detenue, to all seeming on account of her conversion to another faith, and, marrying a person across the barriers of her native religion. It almost reflects, at least so far as the father is concerned, an ex-communication for the detenue. The prayer in the application made by the father is telltale. But, it is not that that the father has not pursued that application or left the detenue free to be dealt with by the law. He has, through the impartial face of the State galvanized resources to prove, on the basis of her date of birth recorded in her school records, that she was born on 05.10.2002. Those school records produced by the prosecution, at the instance of the father, from the Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut is a certificate from the Principal of the said school that according to the school records, her date of birth was 05.10.2002. The Magistrate vide his order impugned has accepted the aforesaid date of birth on the certification of the Principal, and, held the detenue to be a minor who could not be set free.

13. The Magistrate has recorded the fact that in the past also the detenue had gone along with the petitioner that led to registration of case crime no.68 of 2016, wherein the Additional Chief Judicial Magistrate, Court no.1, Meerut, vide order dated 15.04.2016 had given the detenue into the custody of the fourth respondent, her father, but the detenue had breached that custody and joined the company of the petitioner, described by the Magistrate as an accused, on 21.06.2016, leading to registration of the case crime no.145 of 2016. The Magistrate has reasoned that looking to the facts that the detenue is a minor; that in the past her custody was given to her father which she breached; and, that the father of the detenue had prayed that she be sent to the Nari Niketan, there was no option but to go by the law settled by the Division Bench of this Court in Ali Mohammad vs. State of U.P. and others, 2015(8) ADJ 414, and, to send her to the Nari Niketan. He has, accordingly, ordered her to be detained in the Nari Niketan by the order impugned dated 01.10.2016. The said order was challenged by the petitioner through Criminal Revision no.145 of 2016 before the Sessions Judge, Meerut. The aforesaid revision came up for determination before the Additional Sessions Judge/ FTC-1, Meerut on 21.02.2017, who has proceeded to dismiss the revision relying on the provisions of Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, and, the decision in re Ali Mohammad (supra), going by the recorded age of the detenue in her educational certificates that show her to be a minor, then aged 14 years.

14. The Magistrate has not all adverted to the fact that the detenue was also sent for medical examination to determine her age, to the Chief Medical Officer, Meerut. The Chief Medical Officer, Meerut on the basis of a radiological examination done by Dr. A.K. Jain, Senior Radiologist, P.L. Sharma Hospital, Meerut, has through his certificate and opinion dated 22.04.2016, certified that the age of the detenue was about 17 years. The Revisional Court, in the order impugned, has mentioned in the passing that according to medical certification also, the detenue is a minor, unlike the Magistrate who has not at all adverted to medical evidence in support of his conclusions. However, like the Magistrate, the Sessions Judge has relied entirely, on whatever kind of school certificate about her date of birth was filed, at the sponsorship of the fourth respondent, by the prosecution, going by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, and, the law laid down in Ali Mohammad (supra).

15. The result of all this has been that loved and wanted by the petitioner but hated by the father, the detenue is languishing in the Nari Niketan.

16. The learned AGA has supported the orders impugned, and, submits that the Courts below have rightly determined the age of the detenue, in accordance with S. 94(2) of the Act of 2015, relying on her date of birth certificate from the school.

17. The certificate of age issued by the Principal of the Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut, annexed as Annexure no.11 to the writ petition, was perused by this Court as it is the foundation for the Magistrate to hold the detenue a minor. The certificate evinced some interest of this Court to determine its veracity, as the document in the cast and mould it was placed, did not stand to the formal trappings of a document of that character. The document did not inspire confidence with this Court, and, accordingly, on 03.04.2018 the following order was made:

"It is said in the order of the Magistrate dated that the alleged victim who is now confined to Nari Niketan passed her Class-VIII examination from the "Uchch Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut" and that the principal of the said institution has issued a certificate in relation to her date of birth certifying her date of birth to be "5th October, 2002".

There is on record an age certificate purporting to be in relation to the victim, a copy of which is enclosed as Annexure-11 to the present writ petition. However, a perusal of the said certificate shows that it is written upon some nondescript paper without a letter head, not disclosing the identity of the institution or the identity of the authority issuing the same. It is difficult to say that it is certificate issued by the Principal of Uchch Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut referred to in the impugned order of the Magistrate dated 1st October, 2016. The certificate that is enclosed as Annexure-11 to the writ petition is a document dated 24th August, 2016. There is no other certificate on record.

Under the circumstance, the Principal/Head Master of Uchch Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut is directed to appear before this Court on 11th April, 2018 along with records such as the Scholar Register, Admission Register, Fee Register or other records relating to the victim Kumari Ariba D/o Ayaz Khan. In case she had issued the said certificate, she will demonstrate before this Court by her original records that the victim was a scholar in her school and that her date of birth was consistently recorded as "5th October, 2002" from the date of admission, until she left the school. In case the certificate has not been issued by her and the victim has not read in her institution, the Principal will file an affidavit to that effect at the time when she appears.

Put up this matter on 11th April, 2018 at 02:00 p.m. in the additional list."

18. The Principal of the School appeared before this Court, along with the requisite documents, on 18.04.2018. Though, she generally stood by the date of birth certificate for the detenue in the document dated 24.08.2016, she did not have much to offer about the basis of the date of birth recorded in the school records that she had brought along, and, produced before the Court. The details of proceedings of the day on 19.04.2018 would show, what she said, in support of the certificate of age, issued by the Principal of the School dated 24.08.2016. The order dated 18.04.2016 passed by this Court reads:

"Shri Shivam Yadav, Advocate, has filed his appearance on behalf of Ms. Sabana Aftab, Head Mistress, In-charge of School. The same is taken on record.

Even though, she is not a party but she has been heard through her counsel in the writ petition in accordance with Chapter XXII, Rule 5A of the Rules of Court.

In compliance of the orders of this Court dated 3.4.2018 and 11.4.2018, Ms. Sabana Aftab, the Head Mistress, In-charge of Uchch Prathmik Kanya Vidyalaya Pathshala, Swamipada, Meerut, is present in Court along with records, which is relevant to the prosecutrix Kumari Ariba in this case where the date of birth is mentioned as 5.10.2002. However, the documents placed along with the register show that the student was admitted to the school in question to Class- VII and left school in Class VIII. Rather, the application form seeking admission to the school has been appended to the register at the relevant page for convenience of the Court for perusal. The said document shows that the date of birth of the prosecutrix has been filled in apparently by the guardian of the student, at that time by Mr. Ayaz Khan, father of the prosecutrix. The said application carries with it no basis for the date of birth mentioned there except a copy of an earlier certificate from another institution, a certain Jamat Nisha Academy, where the same date of birth has been mentioned but it does not show what kind of institution that is, and, there is also a scoring out of date of the issue of the date mentioned on the transfer certificate issued by the said institution.

Ms. Sabana Aftab, the Principal of Uchch Prathmik Kanya Vidyalaya Pathshala, Swamipada, Meerut, was shown a copy of the certificate issued by the Principal of the said school that has been relied upon before the court below to establish the age of the prosecutrix, which is a certificate scribed on a plain paper not on a letter head. She says that she had not issued the same and the said document was issued by former Principal Smt. Meera Yadav. Ms. Sabana Aftab, on being asked, if she has any basis for the entry of age made in the register, she says that her school is not the one, which was first attended by the prosecutrix but one where the prosecutrix studied for one year and whatever is written in the school records is on the information supplied by the parents.

The register and the records, which have been produced before the Court stand returned to Ms. Sabana Aftab.

Put up tomorrow, i.e., 19.4.2018."

19. The statement of Ms. Sabana Aftab, Headmistress, In-charge, Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut before this Court dated 19.04.2018 is good enough to show, for the best, that in the school record, the date of birth of the victim mentioned is 05.10.2002. It, however, does not indicate as to what is the basis for the said date to be entered in the record, where the detenue, admittedly, read in the course of two standards from Class VII to Class VII. As admitted by the Headmistress of the School, the date of birth was entered in the records on the basis of entries from a certain Jamat Nisha Academy, about which there is nothing on record to show, as to what kind of an institution, it is. There is also scoring out of the date of issue, mentioned on the transfer certificate issued by the Jamat Nisha Academy, that was filed by the parents of the detenue, at the time when she was admitted to the Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut. The Headmistress has, in unqualified terms accepted before the Court, that the School attended by the detenue, was not the first attended but one where she read, during the course of two standards, for a period of one year. She also admitted in Court that whatever was written in the school records, is on the basis of information supplied by the parents. It is, thus, evident that the record of age of the detenue in the records of Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut is not a record from the school first attended, or the earliest attended by the detenue.

20. In the opinion of this Court, it does not have that inherent credibility about the date of birth of the detenue, which a school record would have, where the entry is supported by documentation of origin, or dates back to such an early age of the ward, that it would be difficult, if not almost impossible, to furnish an inaccurate date of birth. This Court, therefore, holds that the date of birth mentioned in the school records of the detenue, maintained with the Uchcha Prathamik Kanya Vidyalaya Pathshala, Swamipada, Meerut, is not good proof of her date of birth, even for the purpose of determination under Section 94(2) of the Act, 2015.

21. There is, admittedly, no evidence of the recorded date of birth in a birth certificate issued by the Corporation or Municipal Authority or a Panchayat, and, that is nobody's case, either before the courts below or before this Court. There being no valid date of birth certification from the school, or the matriculation or equivalent certificate from the concerned Examination Board, or by a Corporation, a Municipal Authority or a Panchayat, medical determination of age by virtue of Section 94(2)(iii) of the Act, 2015, is the only available option to determine the detenue's age.

22. Apart from the fact that within the four corners of Section 94(2) of the Act, 2015, medical determination of age is the rightful course of action, in the present case, it would be the rightful course of action even if that were not the case, looking to the guidance of the Hon'ble Supreme Court in Suhani and another vs. State of U.P. and others, Civil Appeal no.4532 of 2018, decided on 26.04.2018. In Suhani (supra), there Lordships, hearing an appeal by special leave from a judgment of a Division Bench of this Court in Habeas Corpus Petition no.52297 of 2017, reversed the judgment of this Court that denied custody of the wife to her husband on ground that her date of birth recorded in her High School Certificate was 13 years and 8 months, and, held on the opinion of a Medical Board, to which she was referred by their Lordships, to be a major aged between 19 - 24 years. Their Lordships in that case, preferred medical opinion over the certification of age in the High School Certificate, and, relieved the detenue of her confinement in the Nari Niketan, Allahabad allowing her to go along with her husband.

23. The legal position in Suhani (supra) can be best appreciated by a ready reference to their Lordships short judgment there:

"Leave granted.

The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no. 1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3.

It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363 and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no. 2.

On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she would be allowed to reside in the Nari Niketan, Allahabad.

When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On 23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh.

We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-

"Radiological Examination

X-Rays advised for age estimation:-

X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine -Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department.

Report of Radiological Examination-

All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years.

Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years.

Medial end of clavicle not fused, suggestive of age 22-27 years.

S1 of sacrum not fused with S2, suggestive of age 17-24 years.

Imp.:-Estimated Bone age is between 19-24 years.

FINAL REPORT/OPINION:

Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years."

In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.

In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.

The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."

24. In the present case, there is already on record, a medical determination of age for the detenue done adopting the ossification test by Dr. A.K. Jain, Senior Radiologist, P.L. Sharma Hospital, Meerut under the authority of the Chief Medical Officer, who on the basis of the report of Dr. Jain, has issued the certificate dated 22.04.2016, a copy of which is annexed to the writ petition as Annexure 12, that opines the age of the detenue to be 17 years as on 22.04.2018. Normally, there is a variation of two years in the medical estimation of age, that is to be construed in favour of the person, whose liberty is dependent on that question. This question fell for consideration of this Court in Naveen Goshwami vs. State of U.P. and 2 others, Criminal Revision no.683 of 2018, decided on 20.07.2018, where it was held:

"19. ........... According to the said report as noted above, the prosecutrix is aged about 18 years, and, on the date of marriage with the revisionist i.e. 07.12.2017, the age, would, therefore, not be much different giving allowance for the usual variation of two years on either side that is to be construed in favour of the person claiming such liberty and here too the same principle would apply as the question is one of liberty. It was argued by the learned A.G.A. and learned counsel appearing for opposite party no.3 that the variation of two years is for the purpose of judging criminal liability and not for the determining the right of a person to marry or to stay with a person of her choice.

This Court does not think so. The reason is that in case allowance of two years in medical estimation of age for the purpose determining the right of a person to marry or to stay with a person of her choice, and, more particularly, in this case to be forced to live in a Nari Niketan were to be construed on the other side, it would be construing the variation in a manner that curtails personal liberty that is otherwise one of the most sacrosanct constitutional guarantees under Article 21 of the Constitution. Thus, where the issue is whether a person medically estimated to be aged about 18 years is to be put in incarceration because she has married a person of her choice or be left free to go and stay with him, in the opinion of this Court the medical estimated age of about 17 or 18 years ought to be construed in favour of liberty, and, fortiori [sic a fortiori] in favour of the person seeking restoration of her liberty. Here it is the prosecutrix."

25. In the facts of the present case, the event would have depended much on the law in this regard, and, certainly, what has been held above, would go in favour of the petitioner. Now, even that legal issue has somewhat become academic, inasmuch as, the variation of two years in the medically estimated age goes out of context, in the facts of the case. It is so because the detenue going by her medical certification of age dated 22.04.2016 was aged about 17 years, that would chronologically reckon her above the age of 18 years, now.

26. In the considered opinion of this Court, going by the medical estimation of her age, the detenue at the time she was sent to the Nari Niketan, due to her father's stand, was above the age of 18, and, entitled to her freedom.

27. Looking to the aforesaid aspect, the detenue being an adult is entitled to the restoration of her liberty and is free to go wherever she likes, and, with whomsoever she wants.

28. Before parting with the matter, this Court is inclined to think that the genesis of this unfortunate situation where the detenue, who was of the age of majority, forced through devices to be confined to the Nari Niketan by the father, is the outcome of a retrograde, hide bound, religion separated and caste divided society that strikes at the roots of the idea of every citizen of this country being an Indian first and Indian last; not in just what he says, but in all that he does and practices. The action of the father, in this case, has convinced this Court that he has forced his daughter to stay in the Nari Niketan without even asking for her custody, not because he believed her to be a minor; he has done so for the sole reason that she may not, as per her indicated choice, stay with a husband from a different religious background. This is not acceptable under the Constitutional Scheme, and, therefore, uncompromisingly unacceptable to this Court.

29. Looking to the fact that respondent no.4 has made much of an issue about the choice of a person his daughter has decided to marry, which apparently is on account of religious barriers, it may legitimately be apprehended that there would be serious threat to the security of the couple, once the detenue is liberated from the Nari Niketan. It shall, therefore, be the responsibility of the Senior Superintendent of Police, Meerut to ensure the safety and security of the detenue and the petitioner, both, and, in all eventuality, without fail. In case the petitioner or the detenue come to any harm at the hands of respondent no.4, or any member of her family, or the religious community to which the detenue belongs, the Senior Superintendent of Police, Meerut shall be personally answerable to this Court. The Senior Superintendent of Police, Meerut, shall in the matter discharge all obligations, apart from what has been said above, as directed by their Lordships of the Supreme Court in Shakti Vahini vs. Union of India (UOI) and others, AIR 2018 SC 1601.

30. In the result, this writ petition succeeds and is allowed. The impugned order dated 21.02.2017 passed by the learned Additional Sessions Judge/ Fast Track Court 1, Meerut in Criminal Revision no.419 of 2016 (Annexure no.15 to the writ petition) and the order dated 01.10.2016 passed by the In-charge Additional Chief Judicial Magistrate, Court no.1, Meerut in Case Crime no.145 of 2016, under Sections 363 & 366 IPC, Police Station Dehli Gate, District Meerut (Annexure no.13 to the writ petition) are hereby quashed. It is ordered that the detenue, Ariba @ Smt. Jyoti detained at Nari Niketan, Meerut shall be forthwith released from custody and the Superintendent of the Nari Niketan, Meerut is ordered to do so. Upon her release, Smt. Ariba/ Smt. Jyoti shall be free to go wherever she likes and with whomsoever she wants, including the petitioner, Varun.

31. Let a copy of this order be forwarded forthwith by the Registrar General to the learned Sessions Judge, Meerut, the learned Chief Judicial Magistrate, Meerut, the Senior Superintendent of Police, Meerut and the Superintendent, Nari Niketan, Meerut, for necessary information and strict compliance.

Order Date :- 03.10.2018

Anoop