Gauhati High Court
WP(C)/6858/2022 on 20 February, 2023
GAHC010217562022
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WP(C) NO.6858 OF 2022
Anjuma Khatun,
Wife of Omar Faruque,
Village: Chenibari, PO & PS: Dhula,
District: Darrang, Assam.
(Former resident of Village: West
Padda Ghat, PS: Dhula, District:
Darrang, Assam.)
........Petitioner
-Versus-
1. The State of Assam, represented
by the Secretary to the Government
of Assam, Home Department, Dispur,
Guwahati - 781006.
2. The Superintendent of Police,
Darrang District at Mangaldoi, Assam.
3. The Officer-in-Charge, Dhula Police
Station, Dhula, District: Darrang,
Assam.
4. Mukibar Rahman Talukdar,
Son of Rajib Ali,
Resident of Village: West Padda Ghat,
District: Darrang, Assam.
5. Rajib Ali,
Son of Late Abul Hussain,
Resident of Village: West Padda Ghat,
District: Darrang, Assam.
-2-
6. The Child Welfare Committee,
represented by the District Child
Welfare Officer, Darrang, Assam.
7. The Abekhan Officer-cum-District
Child Welfare Officer, Darrang,
Bhevar-Ghat, PS: Mangaldoi, District:
Darrang, Assam - 784125.
........Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUMAN SHYAM
For the Petitioner : Mr. A. Chaudhury, Advocate.
For the Respondent : Mr. D. Nath, Senior Government
Advocate, Assam for the
respondent Nos.1 to 3.
: Mr. D.K. Bagchi, Advocate for
the respondent Nos.4 & 5.
Date of Judgment & Order : 20th February, 2023.
JUDGMENT & ORDER (ORAL)
(Chief Justice)
The instant writ petition under Article 226 of the
Constitution of India has been filed by the petitioner
Anjuma Khatun seeking issuance of a Writ in the nature of
Habeas Corpus and a direction to release her from the
illegal custody of her parental house where she was
allegedly facing inhuman torture from her parents,
brothers, etc.
2. Brief facts relevant and essential for disposal of
the present petition may be noted herein below.
The petitioner herein eloped and contracted the
marriage with one Omar Faruque on 05.07.2022. The
paternal family members of the girl lodged an FIR against
Md. Omar Faruque at the Dhula Police Station and during
the course of investigation thereof, the petitioner was
traced out and was presented to the Child Welfare
Committee (CWC) concerned. When the statement of the
girl was recorded by the competent Court during the
course of investigation, she made a categorical deposition
that her date of birth was 03.07.2004. The corresponding
school document, i.e. the Secondary School Certificate, was
presented in support of this statement. Md. Omar Faruque
was apprehended. Custody of the girl was thereafter
handed over to the parents by the Child Welfare
Committee, Darrang. However, she again escaped where
after, another FIR No.220/2022 came to be registered at
the Dhula Police Station. The girl was again traced out and
this time, she was sent to the Child Care Institute, Darrang.
However, custody of the girl was again handed over to her
parents whereupon, she has preferred the captioned writ
petition in this Court seeking a direction to release her from
the illegal custody of her parents. It is also alleged by the
petitioner that she was being tortured by her father
(respondent No.5) and brother (respondent No.4) and
apprehended threat to her life and limb, at their hands.
3. In support of the claim of majority, the petitioner
has placed reliance on a certificate dated 30.07.2021
(Annexure-1) issued by the Board of Secondary Education,
Assam, wherein her date of birth is recorded as
03.07.2004. Copy of the marriage certificate dated
05.07.2022 is filed as Annexure-2 to the writ petition
wherein also, the date of birth of the petitioner is
mentioned as 03.07.2004.
4. Upon entertaining the writ petition, this Court
directed the respondent authorities to produce the corpus
before this Court. On 11.11.2022, this Court was apprised
that the corpus is major and she has been kept in the State
Home for Women at Jalukbari, Guwahati. After repeated
directions, the girl was produced in the Court and she
expressed an unequivocal desire to proceed with her
husband and repelled the suggestion of being sent with her
parents. She was continued to be lodged in the State Home
for Women where she is presently staying. Pleadings have
been completed.
5. Learned counsel representing the petitioner
corpus contended that the age of the corpus recorded in
the school documents conclusively establishes that she was
major when she contracted marriage with Md. Omar
Faruque. He submits that the documents relied upon by the
respondent Nos.4 & 5, i.e. the brother and father,
respectively, of the girl have no evidentiary value because
as per Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter referred as
"2015 Act"), the age recorded in the matriculation
certificate has to be given preference over any other age
related document. He has urged that a direction deserves
to be issued to forthwith release the girl from the State
Home for Women and to allow her to proceed with her
husband.
6. Learned counsel representing the respondent
Nos.4 & 5, on the other hand, vehemently and fervently
contended that the date of birth of the girl as recorded in
the Secondary School Certificate is incorrect. In support of
this contention, the learned counsel relied upon the
following documents:-
(i) A birth certificate dated 10.10.2017 issued by
the Department of Health Services, Government of
Assam wherein, the date of birth of the girl is recorded
as 31.12.2005;
(ii) A certificate issued by the Dhanshirikhah West
Subba Primary School, District - Darrang wherein, the
date of birth of the girl is recorded as 01.12.2005;
(iii) Aadhaaar Card wherein, the date of birth of the
girl is recorded as 31.12.2005.
7. On basis of these documents, the counsel for the
respondent Nos.4 & 5 contended that the date of birth as
recorded in the matriculation certificate cannot be
considered as the affirmative age proof of the girl. As per
him, since the girl is minor, she can either continue to stay
at the Care Institution or else, she can be handed over into
the guardianship of her father.
8. Learned Government counsel adopted the
arguments advanced by learned counsel for the private
respondents and sought dismissal of the petition.
9. In the rejoinder, the learned counsel for the
petitioner drew the Court's attention to a transfer certificate
dated 02.01.2016 issued by Shyamtila Pre-Senior
Madrassa, wherein the date of birth of the girl was
recorded as 03.07.2004.
10. We have given our thoughtful consideration to the
submissions advanced at Bar and have gone through the
documents placed on record as well as the pleadings of the
parties.
11. At the outset, we would like to make a reference
to Section 94 of the 2015 Act, which prescribes the
procedure for determination of date of birth of a person
produced before any Child Care Institution. The language
of Section 94(2) of the 2015 Act makes it clear beyond the
pale of doubt that the options given in this Section are
arranged in the order of priority. Precedence is required to
be given to the school certificate or the matriculation
certificate and if any such documents are not available, the
date of birth certificate issued by the Municipality can be
referred. Last in the order of priority is the ossification test.
12. Apparently, there is no material on record of the
case to doubt the veracity of the matriculation certificate
(Annexure-1) which is relied upon by the petitioner in
support of her claim of being major. Needless to say that
the responsibility to get the girl admitted to the school
would have been of her parents. Thus, the burden to
explain the discrepancy, if any, in the date of birth as
recorded in the different documents placed on record
would be upon the respondents. We have serious doubt on
the veracity of the documents annexed by the respondent
Nos.4 & 5 in the affidavit in reply. The birth certificate
(Annexure-1 to the affidavit-in-opposition) produced by the
respondent Nos.4 & 5 records the date of birth of the girl
as 31.12.2005. The registration number, which is
mentioned in this document is of the year 2013 whereas,
the document itself was issued in the year 2017. In the
school certificate (Anexure-2 to the affidavit-in-opposition),
the date of birth of the girl is recorded as 01.12.2005.
13. Apparently thus, the documents relied upon by
the respondents for disputing the claim of majority of the
petitioner are contradictory and unreliable on the face of
the record. As against this, the petitioner has affirmed that
her the date of birth is 03.07.2004 by annexing the transfer
certificates dated 02.01.2016 and 04.03.2019 with the
rejoinder affidavit.
14. Otherwise also, law is well settled that the date of
birth as indicated in the school certificate or the
matriculation certificate has to be given precedence over
any other document to the contrary. Reference in this
regard may be given to the judgment rendered by the
Apex Court in Rishipal Singh Solanki -Vs- State of
Uttar Pradesh & Ors., reported in (2022) 8 SCC 602.
15. In the wake of the discussion made hereinabove,
we are of the firm view that the date of birth of the
petitioner is 03.07.2004 and she being a major, her
confinement at the Care Institution is grossly illegal. The
petitioner, who is a major as on date, shall forthwith be
released from the State Home for Women at Jalukbari,
Guwahati. The Superintendent of Police concerned shall
ensure that the petitioner is safely escorted to the place
desired by her. A compliance report in this regard be
forwarded to the Registrar (Judicial) of this Court within a
period of 7(seven) days from today.
16. With the aforesaid observations and directions,
the writ petition is allowed.
JUDGE CHIEF JUSTICE
Mukut
Comparing Assistant
