Ashok Singh Gurjar vs State of M.P. and Others

Sujoy Paul, J.—Since these matters are inter-connected, with the consent of parties, matters are analogously heard and decided by this common order.

WP No. 3853/2013 (H.C.)

This habeas corpus petition is filed by the father of the corpus stating that the corpus is minor (16 years) and is kidnapped by respondent No. 4 Mukesh Gurjar. Thus, it is prayed that her custody be provided to the petitioner. The FIR in this context was also registered by the official respondents.

The petitioner has filed an application for taking additional facts and documents on record (IA No. 5788/13). Along with the said application, marks sheet of High School Examination (10th) for the year 2011 is filed. It contains date of birth of the corpus as 26.08.1995. On the basis of this document, it is submitted that the corpus is minor and, therefore, her best welfare would be to remain with the petitioner and, therefore, her custody be provided to him.

WP No. 4691/2013

This petition is filed by Pooja (Corpus in WP No. 3853/2013) with Mukesh Singh Gurjar. It is stated in this petition that they have married each other and, therefore, they be provided protection. It is canvassed that Pooja is major. In support of this contention, a hand written document dated 18.07.2013 is filed which is issued by Block Medical Officer, Community Health Centre, Noorabad, Morena. It is mentioned that according to X-Ray report, the age of the corpus is above 18 years.

The aforesaid factual backdrop of both the matters shows that there is diametrically opposite stand taken by the parties with regard to age of corpus Pooja. Corpus Pooja was produced before this Court and since she was not willing to go with father, she was directed to be kept in Nari Niketan till next date of hearing.

The pivotal question is about determination of age of the corpus. The father has relied on High School Marks sheet issued by statutory Board of Secondary Education whereas the corpus has relied on the certificate issued by Block Medical Officer. Recently, the Apex Court in Ashwani Kumar Saxena Vs. State of M.P., opined as under:-

Age determination inquiry" contemplated u/s 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable.

In light of this judgment, it is clear that only in absence of matriculation or equivalent certificate showing date of birth Court may be required to obtain birth certificate from any other body like Municipal Corporation, Panchayat or duly constituted medical board. In the present case, the father has filed marks sheet issued by the statutory board. Its genuineness is not disputed by the other side. The certificate issued by Block Medical Officer is not a certificate by competent medical board. Thus, as per Ashwini Kumar Saxena (supra), in my opinion, the age mentioned in the High School marks sheet can be safely accepted as correct date of birth of the corpus. Accordingly, I treat the said date of birth as correct for the purpose of this matter. Thus, treating the said date of birth as correct will make it clear that corpus is minor.

Next question is, to whom custody of the corpus is to be given. The FIR has already been registered against Mukesh Gurjar. In exercise of habeas corpus jurisdiction the paramount consideration for this Court is welfare of the corpus. This Court in Manohar Jatav Vs. State of M.P. and Others, , has considered the almost similar situation and opined that the best welfare of the corpus would be to remain with the parents. Initially corpus was directed to be kept in Nari Niketan and thereafter her custody was given to the parents. On the basis of aforesaid, in my opinion, the corpus must be handed over to the father/parents. I order accordingly. Police and Nari Niketan authorities are directed to handover the corpus to the petitioner of 3853/13 forthwith. Accordingly, WP No. 3853/2013 (H.C.) is allowed. WP No. 4691/13, for the reasons stated above is rejected.