Smt. Shifa @ Mannu @ Shifa Malik (Corpus/Detenue)) Vs State of U.P. and 5 Others

A.F.R.

Court No. - 29

Case :- HABEAS CORPUS WRIT PETITION No. - 842 of 2019

Petitioner :- Smt. Shifa @ Mannu @ Shifa Malik (Corpus/Detenue)) Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Shamsuddin Ahmad Counsel for Respondent :- G.A.,Chandrakesh Mishra

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Hon'ble Pankaj Mithal,J. Hon'ble Pradeep Kumar Srivastava,J.

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Heard learned counsel for the petitioner, learned A.G.A. for the respondent nos. 1 to 5 and Sri Chandrakesh Mishra, learned counsel for the respondent no.6.

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The pleadings exchanged between the parties have also been perused.

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The petitioner through her alleged father-in-law has applied for issuance of a writ in the nature of habeas corpus so as to produce her corpus before the Court and to set her at liberty from the custody of the Nari Niketan.

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The petitioner alleges that she is a major and has solemnized her marriage on 30.7.2019 with Bashit Mirza and as such she is not liable to be kept in Nari Niketan against her wishes.

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The record of the writ petition reveals that the father of the petitioner namely Mahtab Ali has lodged a first information report on 3.8.2019, which has been registered as Case Crime No.265 of 2019, under Sections 363, 366 IPC, Police Station Behat, District Saharanpur. In the said FIR, it has been alleged that her daughter i.e. petitioner aged about 14 years had gone to school in the morning of 2.8.2019 and had not returned. Her school authorities on telephone informed that she had not attended the school on the said date. Accordingly, he made efforts to trace out his daughter. The inquiries revealed that a boy named Bashit Mirza son of Naushad Ali had enticed her away with the purposes of marriage.

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It is in pursuance of the aforesaid first information report that the petitioner was presented before the Child Welfare Committee, Saharanpur constituted under the Juvenile Justice (Care and Protection of Children) Act. The said Committee vide

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its order dated 17.8.2019 opined that the petitioner is aged about 13 years 11 months. Accordingly, in her interest ordered to keep her in Nari Niketan i.e. Bal Grih Balika, Pushpanjali Vihar, Janta Road, Saharanpur.

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In view of the aforesaid order of the Child Welfare Committee, it cannot be said that the petitioner is in unlawful custody of the Nari Niketan. The aforesaid order of the Child Welfare Committee is appealable under Section 101 of the Juvenile Justice Act but admittedly no appeal has been preferred.

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The contention of learned counsel for the petitioner is that according to the report of the Chief Medical Officer, Saharanpur, the petitioner is aged about 19 years and as such it is incorrect to hold that she is still a minor.

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The counter affidavit filed on behalf of the respondents reveal that the petitioner was a student of Highschool and according to her school register, her date of birth is 4.9.2005.

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In view of the date of birth of the petitioner recorded in her school register, she is a minor.

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This Court in exercise of its extraordinary jurisdiction is not suppose to weigh the evidence of either of the parties so as to come to any definite conclusion with regard to the date of birth or the age of any person.

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The petitioner has not brought on record any authentic material such as the birth registration certificate, Highschool Certificate, her passport or any other document much less even the adhar card, which could have prima facie established her age.

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It is well established in law that a writ of habeas corpus would not lie where imprisonment or detention of a person is in accordance with a decision of a Court of law or of an authority and such an order is appealable as subject to review.

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In view of the above legal position as the petitioner has been kept in Nari Niketan pursuant to an order of the Child Welfare Committee and no appeal or review against it has been preferred, we are of the opinion this petition for Habeas Corpus is not maintainable.

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In the aforesaid facts and circumstances of the case, we are of the opinion that as the housing of the petitioner in the Nari Niketan is not unlawful rather is in her interest as she is a child in need of care and protection under the provisions of Juvenile Justice Act, there is no substance in the petition.

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Accordingly, the writ petition is dismissed with liberty to the petitioner to apply for the recall/review of the order of the Child Welfare Committee by submitting proof of her age/maturity or to challenge it in appeal.

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Order Date :- 18.2.2020 Mini

Smt. Shifa @ Mannu @ Shifa Malik (Corpus/Detenue)) v. State of U.P. and 5 Others

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Smt. Shifa @ Mannu @ Shifa Malik (Corpus/Detenue)) v. State of U.P. and 5 Others

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