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Shahzad vs State Of U.P. And 2 Others on 28 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

RESERVED : 08.05.2018

DELIVERED : 28.05.2018

Case:-HABEAS CORPUS WRIT PETITION No.- 32498 of 2017

Petitioner :- Shahzad

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Araf Khan,Lihazur Rahman Khan

Counsel for Respondent :- G.A.,Kamlish Kr Tripathi,Santosh Kr Panday

Hon’ble Harsh Kumar,J.

Heard Shri Araf Khan and Shri Lihazur Rahman Khan learned counsel for the petitioner, Shri Kamlesh Kumar Tripathi, learned counsel for respondent no.2 and learned A.G.A. for State.

The petition for Habeas Corpus has been filed by petitioner Shahzad with following prayers :-

“(I) Issue writ, Order or direction in the nature of MANDAMUS commanding the Respondent No.2 to produce the corpus of the Respondent No.3 before this Hon’ble Court and her custody be placed with the Petitioner.

(II) Alternatively, issue Writ, Order or direction in the nature of MANDAMUS commanding the station officer-Navadi, District-Ghaziabad, to produce the corpus of the Respondent No.3 before this Hon’ble Court and her custody be placed with the Petitioner.

(III) Pass such other and further orders which this Hon’ble Court may deem fit and proper in the fact of circumstances of the case.

(IV) Award Costs.”

The learned counsel for petitioner contended that the petitioner and respondent no.3 Varsha Saini are major and have made marriage on 15.12.2016 in accordance with customs, rites and rituals under Mohammedan Law and a Nikahnama, Annexure-1 was also prepared on the same day; that the petitioner and respondent no.3 preferred a joint Criminal Misc. Writ Petition No.60466 of 2016 before this court seeking protection for safety security of their life and liberty, and obtained an order Annexure-2 by this court on 21.12.2016; that in compliance with order at A-2, the petitioner and respondent no.3 have got their marriage registered with the office of Sub-Registrar, Ghaziabad on 26.12.2016 and started leading their matrimonial life; that on 23.3.2017 the respondent no.2 who happens to be father of respondent no.3, lodged a F.I.R. at case crime no.79 of 2017 under Sections 363 and 366 I.P.C. in which the petitioner was arrested and respondent no.3 was forced to go with respondent no.2 despite her unwillingness; that on 28.3.2017 the respondent no.3 was medically examined for determination of her age and her radiological age was assessed as 17 years, as per radiological report at Annexure-3; that after being released on bail when the petitioner went to fetch respondent no.3, he was beaten and threatened, and the corpus is also being tortured by respondent no.2; that in High School marks sheet of corpus at CA-2 the date of birth of corpus Varsha Saini is mentioned as 5.11.2001, according to which she comes to 15 years 1 month and 10 days old at the time of marriage/Nikah with petitioner while as per radiological test she was 17 years old; that in cases of Idrish Mohd. vs. Memam and Another (2000) 10 SCC 333, Juhi Devi vs. State of Bihar and Others (2005) 13 SCC 376 as well as latest pronouncement dated 26.4.2018 in Civil Appeal No.4532 of 2018, Suhani Another vs. State of U.P. and Others, the Apex Court has laid down settled principle of law to the effect that, in case of conflict of age of girl between academic certificate and radiological report, the age mentioned in radiological report will prevail over the date of birth mentioned in the High School certificate; that in the radiological report dated 28.3.2017 at Annexure-3 the approximate age of corpus has been determined as about 17 years and since there can be variation of two years, she is to be treated as 19 years old and major as on date of Nikah/marriage and is required to be released from custody of her father respondent no.2, and set free to go with the petitioner.

The learned counsel for the petitioner, during arguments contended that, the petitioner does not claim genuineness of the High School Certificate of corpus from Uttarakhand at page 26 of the petition and does not press the correctness of her date of birth 15.11.1996 mentioned therein. However he contended that even in absence of marks sheet of State of Uttarakhand at page 26 of the petition, the date of birth 5.11.2001 mentioned in High School Certificate of corpus at C.A.-2, may not be relied, as radiological report has to prevail, according to which she may be treated to be adult of 19 years old with relaxation of two years in her approximate radiological age.

Per contra, learned A.G.A and learned counsel for respondent no.2 vehemently opposed the prayer and contended that the petition for habeas corpus has been filed with wrong and baseless allegations and malafide intentions; that the corpus is an innocent minor girl of tender age of 15 years whose date of birth is 5.11.2001 as mentioned in her High School certificate/marks sheet at CA-2; that the corpus passed her High School examination from Chameli Devi Kanya Inter College, Sonda, Ghaziabad in the year 2016; that the corpus is Hindu by religion and never converted to or adopted Muslim religion and moreover being minor she was not capable of giving consent for conversion to Muslim religion or for alleged Nikah; that the petitioner has got prepared a forged High School Marks Sheet of the year 2016 of corpus, copy at page 26 of the petition as part of Annexure-2, allegedly issued from Uttarakhand State Open School mentioning therein her date of birth as 15.11.1996 and the name of School as Meenakshi Public School, Alok Nagar, Tehri; that respondent nos.2 and 3 never resided in Tehri, State of Uttarakhand and neither she studied there nor appeared in any High School examination from Meenakshi Public School, Alok Nagar, Tehri, Uttarakhand; that during investigation in Case Crime No.79 of 2017 parcha dated 10.5.2017 at CA-3 the I.O. has mentioned that upon verification from Education officer of Tehri-Garhwal State of Uttarakhand, it was found that no school of the name of Meenakshi Public School Alok Nagar Tehri is in existence in Tehri and for fabricating forged marks sheet, addition of offences u/s 420, 467, 468 and 421 I.P.C. was made against petitioner; that the petitioner had enticed away the minor respondent no.3 from the lawful guardianship of respondent no.2 and on F.I.R. lodged against him at Case Crime No.79 of 2017 he is being prosecuted for the offences u/s 363, 366, 376 (2)(jha) I.P.C. and 3/4 POCSO Act as well as Sections 420, 467, 468 and 471 I.P.C for fabricating forged marks sheet; that during investigation, the respondent no.3 in her statement u/s 161 Cr.P.C., at CA-4 has stated that

“she is about 15 years old and since her Nikah was not possible due to her tender age hence her forged marks sheet was got prepared by petitioner from Allahabad”

and in her statement u/s 164 Cr.P.C., copy at RA-1 recorded on 27.3.2017, the corpus respondent no.3 has stated that

“her age is 15 years and has passed High School from Chameli Devi Balika Inter College, Sonda, Ghaziabad on 14.12.2016 after school, petitioner fetched her on his motor bike, provided her some cold drink etc. on way and brought her to Allahabad and solemnized Nikah on 15.12.2016”

He further submitted that vide order dated 27.3.2017, at annexure-1, the Special Judge (POCSO Act), Ghaziabad has handed over custody of 15 years old minor Varsha Saini respondent no.3 to her father, the respondent no.2; that the corpus respondent no.3 is living with her parents, (who are her well wishers and are keeping her with all care comfort) with her sweet will; that the corpus was never tortured by respondent no.2 and never made any such complaint; that Sub-Registrar, Ghaizabad has no jurisdiction to register the marriages and registration of alleged illegal marriage with Sub-Registrar, may not be considered to be in accordance with law; that the corpus was produced by respondent no.2 before this Court and upon being enquired by Court, though she stated herself to be 21 years old claiming her date of birth as 15.11.1996 under apprehensions from petitioner, but her such statement is meaningless in view of the fact that above High School Marks-sheet has been found to be forged and the learned counsel for petitioner has also contended that he does not claim genuineness of above marks-sheet of Uttarakhand or correctness of date of birth mentioned therein and does not claim her to be major as per above marks sheet; that since the marks sheet issued from State of Uttarakhand at page 26 of the petition under A-2 has been found to be forged fabricated, the averments of her date of birth being 15.11.1996 are absolutely false and her statement in this respect has no substance; that the judgments relied by petitioner are based on different facts and are not applicable to the facts of this case; that in above judgements or otherwise the Apex Court has not laid down any settled principle of law that in case of conflict between age mentioned in academic certificate and radiological report, the age mentioned in radiological report will prevail and such argument advanced by petitioner, is wrong and misconceived; that in cases relied by petitioner, the corpus had attained majority during pendency of proceedings; that since the respondent no.3 is minor of just 15 years, the alleged proceedings of Nikah or conversion are wrong, illegal and null void; that the writ court in its order dated 21.12.2016 at A-2 has not gone into validity of alleged marriage; that the corpus is living under the guardianship of respondent no.2 by order of Court and is not under illegal detention.

The learned counsel for opposite party further contended that radiological age can only be taken into consideration in absence of high school certificate, and if the same is available, the date of birth mentioned therein will be relied as proof of age and radiological report will have no significance; that there is no whisper in the petition or rejoinder affidavit that the date of birth of corpus mentioned in her High School certificate at C.A.2 is wrong or incorrect and only on the strength of a forged marks sheet allegedly issued by Uttarakhand State Open School, (which has been found and conceded to be forged), she may not be treated major; that since the petitioner has conceded to the ingenuineness of above Uttarakhand State marks-sheet, there is no other educational certificate on record to dispute the correctness of date of birth mentioned in her High School certificate at C.A.-2; that the cases relied by petitioner do not lay down any principle of law giving preference to age in radiological report over the age in academic certificate and above cases have been decided on their peculiar facts which are different and not applicable in this case.

Upon hearing parties counsel and perusal of record, I find that in this petition for habeas corpus filed by petitioner Shahzad seeking custody of corpus Smt. Shama Parveen @ Varsha Saini respondent no.3, it has been contended that the marriage/nikah between petitioner and respondent no.3 was solemnized on 15.12.2016 vide Nikahnama at Annexure No.1 and in furtherance of the order dated 21.12.2016 at Annexure No.2 on their petition seeking protection to the effect that “it will be open for the parties to get their marriage registered in accordance with law within two months from date”, they claims to have got the Nikah-Mehar-Ikrarnama registered in the office of Sub-Registrar, Ghaziabad on 26.12.2016 copy filed at page 17 to 24 under Annexure No.2 of the petition alongwith copy of High School Marks Sheet/certificate of the corpus respondent no.3 allegedly issued on 24.5.2016 from Uttarakhand State Open School showing date of birth of Varsha Saini 15.11.1996 having passed High School Examination from Meenakshi Public School Alok Nagar, Tehari at page 26 of the petition under Annexure No.2, which marks-sheet has been accepted to be not genuine.

It is pertinent to mention that in order dated 21.12.2016 at Annexure No.2, this Court has made it clear that ” the Court has not gone into the validity of the marriage” and the registration of Nikah-Mehar-Ikrarnama at page 17 to 24 of the petition in the office of Sub-Registrar, Ghaziabad, may not be considered to be valid registration of marriage in accordance with law, as the Sub-Registrar has jurisdiction for registration of deeds relating to immovable properties as well as power of attorney etc. and has no jurisdiction to register marriages, which are required to be registered with Registrar Marriages in the District and not with Sub-Registrar.

As per parcha of case diary dated 10.5.2017 at C.A.3, upon investigation in Case Crime No.79 of 2017, under sections 363, 366, 376 IPC and 3/4 POCSO Act upon verification from Education Officers of Tehari-Garhwal, State of Uttarkhand, it was found that no School of above name is in existence in District Tehari. Moreover, in her statement under section 161 Cr.P.C. at C.A.-4, the corpus respondent no.3 has stated that she is aged about 15 years and when she disclosed her age to be 15 years, (at which age her Nikah was not possible), the petitioner got prepared her forged marks sheet from Allahabad for the purpose of Nikah. It is also noteworthy that respondent nos.2 and 3 are residents of Ghaziabad and High School Marks Sheet of corpus from Tehari, State of Uttarakhand, is false and bogus on the face of the record.

Perusal of record shows that in her statement before Magistrate under section 164 Cr.P.C. at R.A.-1, the corpus has stated herself to be 15 years old and of having passed High School from Chameli Devi School. The copy of High School Marks Sheet/Certificate of corpus at C.A-2 shows to have been issued by the Board of High School and Intermediate Education, Uttar Pradesh on 15.5.2016 showing her date of birth as 5.11.2001 and passing of High School Examination from C.D.D.P.S. Kanya Inter College i.e. Chameli Devi Girls Inter College, Sonda, Ghaziabad. The petitioner has not disputed the correctness of date of birth of corpus mentioned in her High School Marks Sheet at C.A.-2.

The Juvenile Justice Act lays down provisions for determination of age of person in conflict with law and same provisions are applicable in case of determination of age of victims also. The date of birth mentioned in High School Certificate has accepted and in case the correctness of date of birth appears incorrect, the radiological age may be taken into consideration.

As per radiological report of corpus dated 28.3.2017 at Annexure No.3 which is alleged to have been obtained after a period of more than three months from 15.12.2016, the date of alleged Nikah, her age has been assessed about 17 years and learned Special Judge, POCSO Act, Ghazaibad has handed over the custody of minor prosecutrix (the corpus) to her father vide order dated 27.3.2017 at C.A.1.

According to medical jurisprudence, radiological report gives an approximate assessment of age on the basis of ossification test, which assessment may not be accurate and there is possibility of variation of upto two years on either side. As per radiological report dated 29.3.2017, wherein the age of corpus has been assessed at about 17 years, in view of possibility of variation of two years on either side, her age may be around 15 years or may go upto 19 years and since according to her date of birth mentioned in her educational certificate, her age comes to 15 years four months at the time of her ossification test, so there are strong reasons to believe that radiological report corroborate the age mentioned in educational certificate as upon relaxation of 2 years and reducing her approximate age given in above report by 2 years her age come to around 15 years as mentioned in her academic certificate. There is no reason or justification to add 2 years in her approximate age given in above report and in treating her to be around 19 years.

The Juvenile Justice Act, 2015 lays down provisions for determination of age of child in conflict with law and Section 94 of the Act provides that

“in case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining :-

(i) the date of birth certificate from the School, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person”.

Dealing with the issue of determination of age of a Juvenile and considering the date of birth certificate vis-a-vis opinion of Medical Board, in the case of Ram Suresh Singh Vs. Prabhat Singh (2009) 6 SCC 681, the Apex Court held that “opinion of Medical Board will be preferred only when date of birth certificate from school is not available.”

No other procedure has been laid down by legislature for determining the age of prosecutrix/victim/corpus etc. anywhere else. The legislation has given presumption to the correctness of date of birth mentioned in educational certificate in view of the fact that above age would have been mentioned much before the period when controversy would have arisen and there can be no possibility of deliberate mentioning of wrong date of birth in educational certificate with intention and ulterior motive of taking its benefit in future in case some dispute arises. However since the date of birth in academic certificate has to be mentioned by the guardian at the time of admission of child in school and sometimes due to lack of knowledge, illiteracy, loss of memory, or inadvertent error of the guardian, possibility of inadvertent and unintentional mistake on the part of guardians, may not be ruled out. There are cases where neither birth certificate nor any educational certificate is available and in such cases of dispute, where correct age or correct date of birth is not known, by scientific method of ossification test, radiological age of a person may be assessed. As per medical jurisprudence, such assessment may also not be accurate and there may be two years variation either side in above approximate assessment of radiological age. According to legal provisions, if the high school certificate or any document in above preference given in section 94 of Juvenile Justice Act, 2015 is available, the next document may not be taken into consideration for determination of age, but where there is reason to doubt as to whether the date of birth mentioned in such document is correct or not and actual age of the person appears to be much more than that mentioned in the certificate, the Court may go for determination of radiological age of the person concerned. There is no provisions under law that radiological age has to prevail over age/date of birth mentioned in educational certificate or the age of person concerned will be determined by adding 2 in assessment of his radiological age.

In the case of State of Madhya Pradhesh Vs. Anoop Singh (2015) 7 SCC 773, the Apex Court has held that

“For determination of age of prosecutrix for offence under sections 376, 363, 366 – kidnapping and rape – Rule 12 (3) of J.J. Rules 2007 must be relied and

Firstly reliance should be made on documents stipulated under Rule 12 (3) (a) of 2007 Rules and only in absence of such documents, medical opinion under Rule 12 (3) (b) should be sought.”

In above case there were two certificates indicating prosecutrix to be below 16 years of age, but there was two days difference in date of birth mentioned in two certificates while ossification test suggested her to be more than 15 but less than 18 years old. The Apex Court held that High Court erred in acquitting the accused by presuming prosecutrix to be more than 18 years old and by setting aside the judgment of acquittal passed by High Court, it restored conviction order passed by trial court.

It is settled principle of law that a girl must not be placed in Nari Niketan against her wishes. In the cases of Idrish Mohd. (supra) and Juhi Devi (supra) the Apex Court held that the corpus appears to have attained majority and so they were released. Similarly in the latest pronouncement of Apex Court in the case of Suhani and another (supra), upon radiological examination of the corpus at AIIMS, Delhi, age of corpus Suhani was assessed between 19-24 years and there was no reason for Court to treat her minor by relying on her academic certificate, so she was set at liberty to go with her husband as per her wishes.

In this case, the corpus is minor according to her age mentioned in High School Marks-sheet as well as in her radiological report and so she may not be treated to be major even in view of her radiological report.

In view of the discussions made above, I have come to the conclusion that the petitioner has failed to show that the corpus is major or is in unlawful custody or illegal detention of her parents, rather she is living under lawful guardianship of her parents. The writ petition is devoid of merits and is liable to be dismissed.

The writ petition is dismissed accordingly.

Order Date :-28.05.2018

VS/Tamang

 

 

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