Allowed

Neha and Another v. State of U.P. and 3 Others

Allahabad HC17 Sept 2020HABC/367/2020

Case brief

AI extract

What is this about?

This court disposed of a habeas corpus petition filed by a married petitioner seeking her release from custody. The court rejected documentary evidence regarding her age as unreliable and accepted a medical report indicating she is a major. Using the 'date of majority' principle under Section 484 CrPC, the court held her factual major and ordered her release to her husband.

What did the court decide?

Petitioner set at liberty forthwith to go with the second petitioner, her husband.

Neha and Another Vs State of U.P. and 3… — Child Custody and Guardianship | Allahabad HC (2020)

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Court No. - 66

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Case :- HABEAS CORPUS WRIT PETITION No. - 367 of 2020

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Petitioner :- Neha And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shami Ullah Counsel for Respondent :- G.A.,Jawahar Lal Maurya

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Hon'ble J.J. Munir,J.

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This is a habeas corpus writ petition effectively filed by the second petitioner, Ramu claiming that the first petitioner whom he has married according to Hindu Rites on 14.01.2020 at the Arya Samaj, Chowk, Prayag, has been ordered by the Chief Judicial Magistrate, Kaushambi in Case Crime No.09 of 2020, under Sections 363, 366 I.P.C., Police Station Sarai Akil, District Kaushambi, to be given into the custody of the father, respondent no.4. It is claimed that the first petitioner is a major aged about 18-19 years. She is in unlawful detention by dint of the said order.

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In compliance with the rule nisi issued by this Court on 01.09.2020, the first petitioner Smt. Neha was initially produced before this Court on 03.09.2020. This Court proceeded to ascertain her stand in the matter which is recorded in the order dated 03.09.2020. She affirmed the fact of marriage to the second petitioner and stated that she is 18 years old. She indicated her preference to go to her husband, the second petitioner, Ramu and expressed her disinclination to go to her father. Her statement was recorded verbatim in Court on 03.09.2020.

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At that stage, Sri J.L. Maurya, learned counsel put in appearance on behalf of respondent no.4 and disputed the first petitioner's age. He said that she is a minor aged about sixteen and half years. He produced a birth certificate issued by Assistant Development Officer Panchayat, District Kaushambi. This Court examined the said certificate and by a detailed order that was recorded on 03.09.2020 condemned the said certificate as a suspicious document got up by the fourth respondent, Neha's father, for the purpose of this case. The relevant part of the said order regarding the birth certificate issued by the Assistant Development Officer Panchayat, District Kaushambi recorded on 03.09.2020, is extracted below:

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"The other document is a birth certificate issued by the A.D.O. Panchayat, District - Kaushambi dated 22.01.2020. What is

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most notable is that Neha was born on 15.05.2004, but her birth was got registered with the panchayat authority on 20.01.2020. The certificate was, thereafter, issued on 22.01.2020. It ex-facie lends itself to grave doubt and, in fact, is not at all a dependable document. Mr. Maurya, learned counsel for the respondent, has not been able to come up with any plausible reason, as to why Neha's birth was not got registered with the panchayat authority at the time she was born, or within a reasonable time thereafter. Rather, it was got registered after Neha got married on 14.01.2020. The evidence, therefore, appears to be one created for the purpose of supporting the fourth respondent's case regarding Neha's age. It does not inspire any confidence with this Court. In the opinion of this Court, the said document, though relevant under Section 94(2) of the Juvenile Justice Act, ranking above the medical evidence, it is by its character and the circumstances of its issue and its content, not one on which any reliance can be placed."

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Now, what remains to be examined are the school records on the basis of which the School Leaving Certificate issued by the Head Master, Primary Vidyalaya, Nandauli, District Kaushambi dated 09.01.2020 has been placed reliance upon by learned Counsel for the fourth respondent in support the fact that Smt. Neha is a minor, aged about sixteen and half years. The School Leaving Certificate dated 09.01.2020 shows the date of birth of the first petitioner, Neha to be 15.05.2004. The Head Master, Primary Vidyalaya, Nandauli, District Kaushambi appeared before this Court on 09.09.2020, and earlier on 07.09.2020, alongwith the Basic Shiksha Adhikari, Kaushambi.

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A perusal of the book carrying the School Leaving Certificate dated 09.01.2020 shows that scholar's name was struck off the school records on 31.03.2012 but the certificate was applied for and obtained by Neha's father on 09.01.2020. It thus suggest that the certificate was secured after the event when Neha got married, as it is not a duplicate certificate, but the first issue.

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The fourth respondent has not filed any counter affidavit to explain why the School Leaving Certificate was not secured earlier. Moreover, a perusal of the School Leaving Certificate shows that many columns there, are left blank. One of the most decisive column of the School Leaving Certificate that has been left blank, is about the age of the scholar at the time when she left school. The Court asked the Head Master why the column was left blank. He answered that the date of birth having been entered, there was no need to fill it up. If that were the case, there was no need for the said column to be there at all. The column about the age of the scholar is different from the

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column about the date of birth. If both columns are there, each of these have to be filled up. Any column left blank in such an important document casts doubt on its authenticity. It is not just that the column provides for the age of the scholar to be mentioned. There is a further column which requires the number of years and months of the scholar's age to be entered while leaving school. That column too, has been left blank. This adds to the suspicion. There is another column in the Transfer Certificate which mentions the last date for admission in the school to be entered. This column also has been left blank. There are then some four columns under a general heading which reads " Anya Aavashyak Suchna ". Here, there is a column about the number of days during which school remained open, the attendance of the scholars by numerical figures, the days when the scholar was sick and the occupation of the father. All these columns have been left blank. The Head Master was asked to explain why these column have been left blank. He has not given any convincing reply.

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In the opinion of this Court, the School Leaving Certificate dated 09.01.2020 does not appear to be a dependable document on the basis of which Neha's age can be determined. Number of other registers have been produced by the Head Master, Primary Vidyalaya, Nandauli, Kaushambi, one of them being the Admission Register. This register carries the scholar's particulars at serial no.806. It is one for the Session 2010-2011. This register does not mention the date of birth of the scholar at all. Therefore, it has no relevance. There is a register entitled "S.R. Register" where Neha Verma's name finds entry again at serial no.806. This Court finds that in the fifth column, the date of birth of Neha is entered as 15.04.2005. But in the remarks column or elsewhere there is no reference about the basis on which the date of birth has been entered. It does not even show that it is entered on the basis of information supplied by the parents or the guardian. The fourth column in this register again indicates that a numerical of years and months of the scholars' age is required to be mentioned. This column has been left blank. In the absence of the basis to enter the date of birth being mentioned in the S.R. Register and one of the decisive column about being left blank, it is not a dependable document. The Head Master when asked why the column was left blank, has not given any satisfactory reply.

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This Court is not inclined to the reply on the information entered in the S.R. Register, also.

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In the aforesaid circumstances, there being no valid certification of the first petitioner's age based on the date of birth recorded in the school records or from the Panchayat Authority, this Court

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has no option but to accept her date of birth as mentioned in the medico legal report dated 15.02.2020 issued by the Chief Medical Officer, Kaushambi, based on an ossification test. The said medical report estimates the prosecutrix's age to be between 18-19 years. Going by the aforesaid certification of the prosecutrix's age, she is clearly a major. Her stand before this Court on 03.09.2020 is a clear affirmation of her marriage and clearly indicates that she wants to go with her husband and not to her father. Therefore, this Court holds that the first petitioner's custody with her father, Mewa Lal is unlawful and cannot be permitted to continue.

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In the result, the rule nisi dated 01.09.2020 is made absolute. The first petitioner, Neha brought before this Court is ordered to be set at liberty forthwith. She is free to go anywhere she likes and with whomsoever she wants. Since, she has indicated her desire to go with her husband, Ramu, she is free to do so.

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The writ petition stands allowed .

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The original records of Primary School, Nandauli, District Kaushambi that have been lodged with this Court and retained in sealed cover, opened today, shall be caused to be delivered to the Head Master of the school concerned through the Basic Shiksha Adhikari, Kaushambi, by the Registrar General, within 24 hours.

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Order Date :- 17.9.2020 Atul

Neha and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Neha and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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