Mahendra Singh Gurjar vs State of M.P. and others

Sujoy Paul, J.—By filing this petition (Habeas Corpus) under Article 226 of the Constitution, the petitioner, father of Ku. Seema (hereinafter called as "corpus") preferred this petition for her protection from wrongful confinement of respondent No. 4 and for getting her custody. The case of the petitioner is that the date of birth of corpus is 5.12.1995, which is clear from school leaving/transfer certificate issued by Government Primary School on 13.10.2011 (Annexure P-1). It is alleged that the corpus was in wrongful confinement of respondent No. 4 and, therefore, she be released and handed over to the petitioner/father.

Shri Balwant Singh, learned counsel for the petitioner, relied on the orders passed by this Court in various Writ Petitions including W.Ps. No. 6429/2012, 7711/2012 and 8140/2012. On the strength of these judgments, it is stated that the welfare of the corpus is to remain with the father and a minor, by no stretch of imagination, can be permitted to reside with respondent No. 4.

Shri Praveen Newaskar, learned Deputy Government Advocate, submits that the date of birth of the corpus is 5.12.1995. The school leaving certificate, Annexure P/1, is a genuine document and police has verified about its genuineness. Apart from this, it is stated that the admission register of the school from where Annexure P/1 is issued also shows that date of birth of the corpus is 5.12.1995. Apart from this, Shri Newaskar by placing reliance on a certificate dated 19.2.2013, issued by Secretary, Gram Panchayat Jakhoda, submits that the name of mother of the corpus is Mohandevi @ Mahantibai. Both the names are of same lady, i.e., mother of the corpus. On the strength of this, it is stated that stand of respondent No. 4 that the certificate, Annexure P/1, is not genuine because it contains name of some other lady as mother, is without any basis. He submits that the corpus herself appeared before the Judicial Magistrate First Class (JMFC) from where she was sent to Nari Niketan and, in turn, produced before this Court. He submits that the corpus be handed over to the petitioner because it will be in her welfare.

Shri B.S. Chouhan, learned counsel for respondent No. 4, submits that the corpus married respondent No. 4 and a writ petition seeking protection, bearing WP No. 1998/2012, was filed by the corpus and present respondent No. 4 and this Court even provided protection to the corpus. He further submits that the genuineness of Annexure P/1 is doubtful whereas he has filed ossification report issued by a Digital X-ray Clinic, which should be treated as final. For this purpose, he relied on (2012) 2 SCC (Cri) 666 (Omprakash vs. State of Rajasthan). In addition, he submits that u/s 49 of Juvenile Justice (Care and Protection of Children) Act, 2000, the petitioner has an alternative remedy.

I have heard learned counsel for the parties and perused the record.

Annexure P/1 is a school leaving certificate, which contains date of birth of corpus as 5.12.1995. The police authorities have examined the correctness of this document from the school, which had issued the said certificate. Shri Newaskar, learned Deputy Government Advocate has taken a specific stand that the concerned admission register also contains the same date of birth of the corpus. The difference/discrepancy in the name of corpus''s mother is also ruled out in view of the certificate issued by the Gram Panchayat. It is doubted by respondent No. 4 only on the ground that the x-ray certificate/ossification report dated 12.3.2012 says otherwise. In my opinion, there is no discrepancy in Annexure P/1. Its genuineness is verified by police authorities from the school concerned. On the contrary, the x-ray report filed by the respondent No. 4 contains a declaration which reads as under:-

This report is not valid for medico-legal purpose.

This certificate also obtained from some private x-ray clinic and it is neither issued by the medical board nor by any government agency. Thus, the judgment in Omprakash (supra) has no application in the present case because validity of Annexure P/1 cannot be doubted in these proceedings. In absence of ambiguity or discrepancy in Annexure P/1, the said document can be treated as prima facie evidence about the age of the corpus. Apart from this, the writ petition which was filed by the corpus was not prosecuted by her and respondent No. 4 and was ultimately dismissed.

Thus, for the purpose of a limited satisfaction under the habeas corpus jurisdiction, it appears that the corpus is minor. Now the question is whether her custody should be given to the petitioner or to respondent No. 4.

This Court in a recent judgment reported in Manohar Jatav Vs. State of M.P. and Others, has considered various judgments on this aspect and also the statutory provisions governing the field. On the basis of the said analysis, it is opined that while exercising habeas corpus jurisdiction, the paramount consideration for this Court is the welfare of the corpus. In the said case, initially the corpus was adamant and was not willing to go with parents and, therefore, the State authorities were directed to provide her adequate counseling. However, later on, this Court disposed of the said petition and handed over the custody of the corpus to the father. In Manohar Jatav (supra), this Court considered a full Bench judgment of Madras High Court reported in T. Sivakumar Vs. The Inspector of Police, Thiru. Anbu and Thiru. Samandan, . The following portion of the said judgment is worth mentioning:-

32...There have been several studies conducted and papers submitted on the ill-effects of child marriages. In one such study paper let by one Dr. Anitha Raj, a Doctor at Boston University School Public Health in Massachusetts she says:-

child marriage has serious consequences for national development, stunning education and vocational opportunities for a large sector of the population. Furthermore, marriage at a very young age has grave health consequences for both the young women and their children.

Almost it is widely accepted world over that child marriage is a human rights violation. Consummation at the young age affects the health of the girl as well as the children born out of the said child marriages. It is because of these reasons, more stringent law by way of the Prohibition of Child Marriage Act was put in place. In this totally changed scenario since we are called upon to interpret the law, we have no hesitation to hold that section 6(c) of the Hindu Minority and Guardianship Act, impliedly stands repealed by the provisions of the Prohibition of Child Marriage Act and so, it cannot be held any more that the bridegroom of a marriage with a female child is the natural guardian of such minor female child.

The corpus is a minor. For the reasons stated above, in my opinion, it will not be proper in the larger interest of corpus to hand over her to respondent No. 4 at this stage. She is minor and it may cause more harm than good if she is handed over to respondent No. 4. In the opinion of this Court, in the factual background of this matter, the welfare of the corpus is to remain with the petitioner/father. Consequently, this petition is allowed. The police authorities are directed to hand over the custody of corpus to the petitioner at his residence forthwith. No costs.