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Pushpa Thakur vs The State Of Madhya Pradesh on 31 May, 2018

THE HIGH COURT OF MADHYA PRADESH
W.P.No.12031/2018
(Pushpa Thakur and others Vs. State of M.P. and Another)
1

Jabalpur, Dated : 31-05-2018
Shri Ahadulla Uamani, learned counsel for the
petitioners.
Shri Girish Kekre, learned Govt. Adv. for the
respondents/State.

The matter is taken up after 2.30 pm as the report of
the ossification test has been received later on.

The petitioners preferred this writ petition for
adequate protection and not to take any coercive action
against them and family members of the petitioner No.2
by the police.

Allegedly, the petitioner No.1 Pushpa Thakur
eloped with petitioner No.2. Petitioner No.2 is ITI
diploma holder and an Electrician. He has two elder
sisters who are married. He is living with his father. The
petitioners lived in the same vicinity. Both decided to live
together as husband and wife and when the proposal of
marriage was placed by petitioner No.1 before her family
members, they refused to accept her proposal of marriage
with petitioner No.2 on the ground that he belongs to a
different community. Her family members arranged
marriage of the petitioner No.1 with another boy of
village Dhiwani. Her family members including her father
and brother became annoyed on petitioner No.1 and they
misbehaved with her, scolded and treated her with cruelty.

On 11.05.2018, Petitioner No.1 had gone to her
elder sister’s house at Katni and from there she called
petitioner No.2 to save her life and to accompany her,
therefore, petitioner No.2 came to Katni on 17.05.2018.
THE HIGH COURT OF MADHYA PRADESH
W.P.No.12031/2018
(Pushpa Thakur and others Vs. State of M.P. and Another)
2

From that date they started living together in live-in
relationship as husband and wife and want to continue this
relationship.

Petitioner No.1 is a major. Her real date of birth is
10.08.1999 whereas as per Board of Secondary Education
Certificate, her date of birth is 9.8.2000 which is
prevailing in her Higher Secondary mark-sheet therefore,
class-3,4 and 5 i.e. Annexures P/1, P/2 and P/3 show date
of birth to be 10.08.1999 which is real date of birth. The
petitioners claim that the registration of FIR against the
petitioner is liable to be quashed and the right to live and
personal liberty of the petitioner guaranteed under article
21 of the Constitution may be protected. The petitioners
further claim that the respondent authorities be directed to
ensure the security of the petitioners to protect their life
and dignity. A writ of mandamus be issued directing the
respondents authorities not to take any coercive action.

On behalf of respondents/State, learned Govt.
advocate vehemently opposed and contended that
petitioner No.1 is a minor; her real date of birth is
09.08.2000. She is minor even now. Therefore, she cannot
be treated as “adult” as per law. It is also contended that
determination of age of the petitioner No.1 can ne done
only according to sub-rule 3 of Rule 12 of the Juvenile
Justice(Care and protection of Children) Rules, 2007. It is
also contended that the petitioner No.1 being a minor can
not choose to live separately from the natural guardians
till she attains the age of majority.

THE HIGH COURT OF MADHYA PRADESH
W.P.No.12031/2018
(Pushpa Thakur and others Vs. State of M.P. and Another)
3

It would be appropriate to mention that in the case
of Jarnail Singh Vs. State of Haryana reported in
(2003) 7 SCC 263. The Apex Court had held that the
determining age both for child in conflict with law and
child who is victim of crime or case of kidnapping and
gang rape, age of prosecutrix determination age has to be
done adopting the procedure under Rule 12 of the Juvenile
Justice(Care and protection of Children) Rules, 2007.

Relevant Sub rule (3) of rule 12 of the Juvenile
Justice(Care and protection of Children) Rules, 2007
provides as under:-

(3) In every case concerning a child or Juvinile in
conflict with law, the age determination inquiry
shall be conducted by the Court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining-

(a)(i) the matriculation or equivalent
certificates, if available, and om the absence
whereof,

(ii) the date of birth certificate from the
school(other than a play school) first attended, and
in the absence whereof,

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (I), (ii)
or (iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical
Board, which will declare the age of the juvinile or
child. In case exact assessment of age cannot be
don, the Court or the Board or, as the case may be,
the Committee, for the reasons to be recorded by
them, may, if considered necessary, give benefit to
the child or juvinile by considering his/her age on
lower side within a margin of one year.

If the age of the the Juvenile in conflict with law is
found to be 18 years on the date of offence on the basis of
THE HIGH COURT OF MADHYA PRADESH
W.P.No.12031/2018
(Pushpa Thakur and others Vs. State of M.P. and Another)
4

conclusive proof specified in sub-rule(3), the Court or the
Board or as the case may be or the Committee shall in
writing pass an order stating age of declaring
circumstances of the juvinility or otherwise.

The school certificate Annexures P/1, P/2 and P/3
have been produced by the petitioners, wherein private
school as “Vivekanand English Medium School”, Nainpur
and Mother Teresha English Medium School have
entered her date of birth of petitioner No.1 in the report
card as 10.08.1999, can not be considered for determining
the age of the petitioner No.1.

The determining of age has to be followed in
accordance with sub rule 3 of rule 12 of the Juvenile
Justice(Care and protection of Children) Rules, 2007. No
other procedure for determining age is permissible when
the higher secondary school examination mark sheet is
available. There is no necessity to enter into other
investigation. The higher secondary school certificate
shows the date of bith as 9.8.2000, therefore on the date of
filing of the petition i.e 22.05.2018, petitioner No.1 was
17 years 7 months and 13 days old. Hence the petitioner
No.1 is a “minor”.

The petitioner No.1 has been produced by Police
Station Nainpur, therefore, the petitioner No.1 has been
found to be minor. She be handed over to her
parents/natural guardians.

Accordingly, this petition is dismissed.

(Sushil Kumar Palo)
Judge

Digitally signed by SARSWATI MEHRA
Date: 2018.05.31 19:37:16 -07’00’
THE HIGH COURT OF MADHYA PRADESH
W.P.No.12031/2018
(Pushpa Thakur and others Vs. State of M.P. and Another)
5
SM

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