Allowed

Smt. Divya and Another v. State of U.P. and 3 Others

Allahabad HC16 Jan 2019HABC/3747/2018

Case brief

AI extract

What is this about?

This court quashed the custody of petitioner Divya, finding her to be an adult based on an ossification report. The habeas corpus petition was allowed, releasing her from Nari Niketan. The court directed the Registrar General to release her to her husband and restrained her family from interference or violence.

What did the court decide?

Corpus Divya released from custody of Nari Niketan to petitioner No. 2; family members restrained from interfering with marital life.

Smt. Divya and Another Vs State of… — Constitutional and Fundamental Rights | Allahabad HC (2019)

¶1

¶2

Court No. - 51 Case :- HABEAS CORPUS WRIT PETITION No. - 3747 of 2018 Petitioner :- Smt. Divya And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Manvendra Narain Pathak Counsel for Respondent :- G.A., ,Murli Dhar Mishra

¶3

Hon'ble Vipin Sinha,J. Hon'ble Ajit Singh,J.

¶4

Counter affidavit filed today on behalf of the respondent no.5 is taken on record.

¶5

We have heard Sri Manvendra Narain Pathak, Sri Murli Dhar Mishra, learned counsel for the respondent no.5 and Sri Patanjali Mishra, learned AGA appearing for the State.

¶6

In compliance of the earlier order of this Court dated 10.10.2018, passed by another Bench of this Court the corpus namely Divya has been produced before this Court today in police custody.

¶7

The counsel for the petitioner informed the Court that in earlier petition being Criminal Misc. Writ Petition No. 24042 of 2018, another Bench of this Court vide order dated 31.08.2018 has passed an interim order directing that till the next date of listing or till the filing of police report the petitioners shall not be arrested. By the said order time was also granted to the respondents to file counter affidavit. The copy of the said order is annexed at page no 23 of the writ petition. The attention of the also been drawn to the subsequent order dated 02.01.2019 passed in said writ petition by another Bench of this Court, in which the Court has clearly observed that as per ossification test report, the age of the girl is 19 years. The said order is extracted herein below:-

¶8

“Ossification report supplied by learned A.G.A. is taken on record.

¶9

Heard learned counsel for the petitioners and learned A.G.A. for the State.

¶10

¶11

The age of the victim Divya (petitioner no.1), as per ossification test report which has been produced by the learned A.G.A. today, is found to be about 19 years, whereas, according to the High School certificate which has been produced by the respondent no.4, her age is about 13 years.

¶12

The High School certificate is issued under the signatures of the Principal Janta Inter College and it shows the date of birth of Divya Kumari as 01.08.2005.

¶13

The Court is quite surprised as to how a person aged just about 13 years would be able to pass High School examination which is a class 10th examination and ordinarily for taking admission in class-I, a child should be about 5 years of age.

¶14

Under the circumstances, this Court deems it appropriate to require the learned A.G.A. to obtain an affidavit of a responsible officer of the U.P. High School and Intermediate Board, disclosing as to on what basis the date of birth of Divya Kumari was recorded as 01.08.2005 in the High School certificate and what was the document on the basis of which the College concerned had disclosed to the Board that the date of birth of Divya is 01.08.2005. The affidavit shall also indicate as to whether the Board has prescribed any minimum age for a child to get admitted in class-I of the school which is recognized by the Board. Such affidavit be filed within three weeks. List this matter on 30.01.2019.

¶15

Let a copy of this order be supplied to the learned A.G.A. for compliance.

¶16

Interim order, granted earlier shall continue till the next date of listing.”

¶17

It is not in dispute that the corpus Divya is 19 years of age as per the ossification report.

¶18

The Court has been further informed that the corpus namely Divya is present before the Court and she has been brought before this Court from Nari Niketan Ballia, in the custody of Constable Rajendra Yadav (P.No.982091254) and Lady Constable Ritu

¶19

¶20

(P.No.152090889). The order dated 17.11.2018, reads herein as under:-

¶21

The attention of the Court has been drawn to the statement of the corpus namely Divya recorded under Section 164 Cr.P.C., copy of which is annexed on page no. 24 of the writ petition, the same is extracted herein below:-

¶22

^^fifM+rk us l'kiFk c;ku fd;k fd ;g c;ku os viuh ethZ ls fcuk fdl Hk; ;k ncko ds ns jgh gwaW ?kVuk fnukad 01-08-18 dh gS eSa viuh LosPNk ls vius ifr vejs'k dqekj ds ikl x;h Fkh esjh ekaW us >wBk dsl esjs ifr ds fo:) fy[kk;k gS fd mUgksaus esjk vigj.k fd;k o cgyk Qqlykdj ys x;s] vejs'k dqekj dks eSa ,d lky ls tkurh gwaW rFkk tc ge yksxksa dks dsl ds ckjs es irk pyk rks geyksx bykgkckn LVs ds fy;s x;s vejs'k dqekj us esjs lkFk dksbZ tks tcjnLrh ugh fd;k gSA esjh ekaW cksy jgh gS fd rqEgkjs isV esa tks 7 eghus dk cPpk gS eSa mls fxjok ns jgh gwaWA rqe esjs lkFk pyksA eSa vius ifr ds lkFk jguk pkgrh gwaWA eq>s vkSj dqN ugh dguk gSA**

¶23

The Court has been informed that the corpus Divya is present before the Court, thus with the consent of learned counsel for the parties, the Court proceeds to examine the corpus namely Divya, keeping in view the statement of the girl under Section 164 Cr.P.C.

¶24

On being asked ^^fd vki dk uke D;k gS** she informed the Court ^^fd esjk uke fnO;k g S ** On being asked ^^fd vki dh mez fdruh g S ' She informed the Court ^^fd esjh mez 19 lky gS On being asked ^^fd vki ;gkaW ls dgkaW tkuk pkgsaxh** she informed the Court ^^fd eS vius ifr vejs'k ds lkFk tkuk pkgqaWxhA**

¶25

The said Amresh Kumar is petitioner no.2 in the present petition.

¶26

On being asked ^^fd vki viuh ekaW ls feyuk pkgsaxh**' She informed the Court ^^ugh] D;ksafd esajs ikik] pkpk o cM+s ikik us dgk gS fd ge rqEgsa tku ls ekj MkysaxsA On being asked ^^fd cPps dk D;k gqvk*

¶27

¶28

She informed the Court ^fd og ukjh fudsru esa gh fxj(abort) x;kA**

¶29

The Court has been informed that the petitioner no.2 namely Amresh Kumar is not present in the Court as of now, however, he is on the way to this Court today itself.

¶30

Thus, keeping in view the facts and circumstances of the case i.e. age of the girl which is admittedly 19 years as per the ossification report and also keeping in view the statement made by the girl under Section 164 Cr.P.C. as well as statement before this Court today, this Court does not deem it fit to send the girl bact to Nari Niketan, Ballia and no purpose will be served in keeping the matter pending before this Court any further.

¶31

The corpus Divya, who is present before the Court, is an adult and as such she is free to go wherever she wants to go and with whomsoever she wants to go and no hindrance in her free movement will be placed by any of the respondents. She is accordingly released from the custody forthwith.

¶32

In the present case the corpus has expressed her desire to go with her husband Amresh Kumar – petitioner no. 2, who is on the way to this Court, as informed. It is made clear that no hindrance will be caused in this regard and corpus is free to move from this Court along with her husband i.e. petitioner no. 2.

¶33

The Habeous corpus writ petition is accordingly stands, allowed.

¶34

In view of the apprehension that has been expressed by by the corpus Divya before this Court that there are likelihood of her being assaulted by her family members or she might become a victim of honor killing, it is directed that the corpus, who is present before this Court, will be taken from this Court premises to the office of Registrar General of this Court.

¶35

¶36

The Registrar General is hereby directed that on he being approached by the learned counsel for the petitioner as well as petitioner no. 2 – Amresh Kumar himself, the corpus Divya will be given / released in custody of petitioner no. 2 – Amresh Kumar.

¶37

The family members of the corpus are hereby restrained and they are injuncted from interfering in any manner whatsoever with the married life of the petitioners and the family member of the corpus are also restrained and injuncted from indulging in any act of violence with the petitioners and in case they flout the order of this Court, they will be personally answerable to this Court.

¶38

With the aforesaid observations and directions, the instant habeas corpus writ petition is allowed. Order Date :- 16.01.2019 VKG

Smt. Divya and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Smt. Divya and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Rohit and 7 Others Vs State of U.P. and 2 Others

Smt. Madhu and 2 Others Vs State of U.P. and 2 Others

Mohammmad Imran Vs State of U.P. and 3 Others

Tanu Vs State of U.P. and 3 Others

Abdul Mabood and Another Vs State of U.P. and 3 Others

Ravi Yadav and 4 Others Vs State of U.P. and 2 Others