P. Seenivasagam vs S.P. Sankaran and ten Others

K.M. Natarajan, J.—This Writ Petition is filed by the father of the alleged detenu Yasodai Avudaiyammal under Article 226 of the Constitution of India seeking for the issuance of a Writ of Habeas Corpus directing the respondents to produce his minor daughter Yasodai Avudaiyammal before this Court and set her at liberty.

The brief facts which led to the filing of the Writ Petition can be stated as follows: The case of the petitioner is that he has got five children, namely, two sons and three daughters, and the detenu is the eldest among the three daughters and she is aged about 15 years and 11 months. It is his further case that his daughter Yasodai Avudaiyammal who went out of the house to answer calls of nature on 2.12.1991 at about 9 P.M. did not return home. Thereupon he was Informed by the villagers that his daughter was kidnapped by respondents 3 to 7 After making a Search for her, he gave a complaint to the 8th respondent, Sub Inspector of Police, Kadayam on 4.12.1991 about the kidnapping of his minor daughter. A case was registered in Crime No. 478 of 1991 under S. 366-A I.P.C. against respondent 3 to 7. It is the further case of the petitioner that the first respondent is an advocate and the second respondent is the brother of the first respondent. They are influential persons. Misunderstandings arose between them and him in respect of demanding accounts with regard to registering of a Society "Makkal Nala Committee" by the villagers in 1989. Since the first respondent challenged that he has put the petitioner in shame by kidnapping his daughter through the third respondent, his brother-in-law Narayanan went to the house of the first respondent and found his daughter in the house of the first respondent. When Narayanan requested release of the detenu, the first respondent is alleged to have refused. The above fact was also brought to the notice of the Sub Inspector and thereupon representations were made to the police authorities and other authorities including the Chief Minister. It is stated that even though respondents 4 to 7 were arrested, the police were unable to apprehend respondents 1 to 3 and recover detenu because of the influence of respondents 1 and 2. Hence this petition.

The said petition was opposed by respondents 1 to 7. They filed separate counter affidavits. Respondents 1 and 2 emphatically denied the allegation with regard to the misunderstanding between them and the petitioner on account of registering of a society. The first respondent denied the allegation that they instigated respondents 3 to 7 to kidnap the daughter of the petitioner and that the daughter of the petitioner was found by one Narayanan in the house of the first respondent. It is staled by the first respondent that since he appeared for respondents 3 to 7 and got anticipatory bail for them and on account of the misunderstandings between him and his brother and the eighth respondent on the other hand, they have been unnecessarily dragged. It is averred that it is only at the instigation of the eighth respondent this petition is filed against them who are responsible persons in the village.

In the counter-affidavit filed by the third respondent, it is stated that the petitioner is his uncle. , Since the petitioner tried to give the detenu, his daughter, in marriage to a rich old man and since the detenu wanted to marry the third respondent and since she was unable to bear the ill-treatment. She came away out of her own accord on 2.12.1991 and insisted him to marry her. Thereupon, both of them went to Madurai and got married on 10.12.1991 by tying tali in front of the deity and kuthuvilakku and after exchanging garlands. They also registered their marriage on the next day, namely on 11.12.1991. They also sent petitions and telegrams to the authorities as well as Courts. He further stated that he engaged the first respondent as his advocate for getting anticipatory bail for him before the Sessions Court, Tirunelveli. Though anticipatory bail was granted on 17.12.1991, he was not able to produce sureties within the time granted by the Sessions Court. So he could not execute bail bond. On 20.4.1992 when he went to the Judicial Magistrate''s Court. Ambasmudram, to produce the detenu under S. 98, Cr.P.C. he was told that the detenu was to be produced before this Court during the pendency of the Writ Petition. He also moved for anticipatory bail before this Court and obtained an order on 12.5.1992 and as per the condition, he is staying at Kodambakkam and signing at the R-2 Police Station. According to him respondents 4 to 7 have nothing to do with the incident on 2.12.1991. He would state that the date of birth of the girl given in the school certificate is wrong. The detenu says that is aged 21. According to S. 5 (iii) of the Hindu Marriage Act the age of the girl must be above 18 as a condition of marriage. However, the violation of the said condition would not vitiate the marriage. Hence even if the detenu is supposed to be a minor, it is valid. In view of the Hindu Minority and Guardianship Act, he is entitled to the custody of the detenu. If the custody of his wife is given to any other person. It may endanger her life also. The petitioner is not the fit person to have the custody of the alleged detenu since he has no natural affection towards his daughter. He has further stated that he has studied upto VIII Standard. He is a cooly and he is earning Rs. 30/- daily by doing electrical work. Hence, he prayed for dismissal of the petition.

Respondents 4 to 7 filed a counter denying the alleged kidnapping of the detenu by the 3rd respondent.

The eighth respondent, the Sub Inspector of Police, filed a counter wherein it is stated that on the basis of the complaint given by the petitioner against respondents 3 to 7, he registered a case in Crime No. 478 of 1991 on the same day, that is, on 4.12.1991. He took up investigation of the case and arrested respondents 5, 6 and 7 and examined witnesses. On 17.1.992 the Writ Petitioner filed a petition complaining that respondents 1 and 2 threatened him with dire consequences and to kill him and also openly challenged the petitioner that they have abetted the kidnapping of the detenu. The petitioner sent similar petitions to the other authorities also. A statement under S. 164 Cr.P.C. was recorded from the petitioner by the Judicial Magistrate. Cheranmahadevi on 31.1.1992 Subsequently, on 13.2.1991 the statements of three other witnesses were also recorded by the magistrate. According to him, the investigation is in progress and there is ample evidence in regard to the involvement of respondents 1 and 2 in the matter.

Subsequently the girl was produced before us by the third respondent on 15.6.1992 and we examined hen She would state that she has studied upto VIII Standard. She does not know her date of birth. But, she says that she is aged 20 years. She denied that she was taken forcibly by the third respondent. She would state that the third respondent is her uncle''s son and that she went along with the third respondent voluntarily in a bicycle and that she was not taken forcibly by anybody. She and the third respondent got married at Madurai at Meenakshiamman Temple on 10.12.1991. On the date of her production in Court, both of them came from Tuticorin to Madras and that she was away from the house of her parents for 7 months. She denied that she was wrongly confined by any of the respondents. When she was asked about the reason for her leaving the house of her parents, she would state that her father tried to get her married with a old man. When further asked as to how she could give her age as 20, she said that she came to know of the same from the school records. She denies any quarrel between her and her parents. When a question was put as to whether she wants to go to her father, she answered that she does not want to go with her father, but she only wants to go with her husband.

A report was also called for from the Professor of Forensic Medicine, Medical College, Madras, with regard to the age of the detenu after examining her. The Professor of Forensic Medicine gave the age certificate on 2.7.1992 to the effect that the alleged detenu is aged above 18 years but below 20 years.

Now the questions that arise for consideration are:

Whether the alleged detenu is a minor or a Major.

If she is found to be a minor, to whose custody she is to be entrusted.

The Writ Petitioner is the father of the alleged detenu and on his side, he has produced the birth extract of the detenu obtained from the Sub Registrar''s Office, which shows the date of birth of the detenu as 29.9.1976. The name of the detenu itself is mentioned in the birth extract. The birth of the detenu was registered on 4.10.1976. The eighth respondent, Sub Inspector of Police also obtained an extract from the said Sub Registrar''s Office with regard to the birth of the said detenu and the same is also produced in Court. It is also to the same effect. Thus, in view of the fact that the name of the child is shown as Yasodai Avudaiammal the detenu herein and the date of birth is given as 29.9.1976 and it has been registered within four days, the birth extract being a public document, it has to be accepted as prima facie evidence relating to the date of birth of the detenu. In addition, on the side of the petitioner, the school record sheet is produced which shows that the date of birth of the girl is 10.4.1976 and she has been promoted from VIII standard in K.C. Middle School, Vengadampatty. This also shows that the birth of the girl was in 1976 and she is a minor even today.

As against the above documents, the third respondent relied on the marriage certificate in regard to the marriage between him and the detenu which took place on 10.12.91 after the alleged kidnapping in respect of which a criminal case has been given against the third respondent and others and investigation is pending. Therein the date of birth of the detenu is given as 12.2.1970 and her age is given as 21. When we asked the learned counsel appearing for the third respondent. On what basis the date of birth and age were given in the marriage extract, he would state that it was only on the basis of the information furnished by the detenu. We examined the detenu in the presence of the learned counsel in our chamber, and when we asked whether he knew her date of birth, she has categorically stated that she did not know the date of birth. Though she would state that she is aged about 20 years. When we specifically put a question as to how she gave her age as 20. She would state that she knew it from the school records. As already stated, the very school record itself is produced in Court and it shows that she was born in 1946. The detenue admitted that she studied upto VIII Standard which tallied with the record-sheet produced on behalf of the petitioner. The genuineness of the said School record sheet is also not disputed. After her examination in court we sent her for medical examination with regard to her age at the instance of the counsel for the third respondent since at that time the birth extract was not produced. The Professor of Forensic Medicine, Medical College, Madras, issued a certificate to the effect that the girl is aged about 18 and below 20. But the doctor has not given any reason in the certificate for arriving at the said opinion and the skiagrams taken with regard to the bones were not produced. The certificate does not contain any reason for arriving at the said opinion. It is only at that stage the question arises for consideration whether the age certificate given by the Professor of Forensic Medicines is to be preferred to that of the birth extract and the school record. The learned Counsel appearing for the petitioner. Mr. B. Kumar drew our attention to two decisions of this Court and submitted that the birth extract and the school record are to be preferred to that of the medical opinion with regard to the age. In Shanmugham v. State 1984 L.W. (Crl.) 12 it was held by a Division Bench of this Court.

The determination of age on the basis of radiological examination can only be an approximate factor and it cannot be taken as a decisive and incontrovertible feature. Even Modi has pointed out that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the evidence afforded by the radilogal examination. Courts have taken judicial notice of the fact that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person, by the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error.

In the above case, reliance was placed on the decision of the apex court in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, wherein it was observed as follows:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

In the above case, reliance was also placed on the ruling of the Kerala High Court in Chathu Vs. P. Govindan Kutty, wherein it was observed as follows:

We are not at all satisfied that the learned Magistrate was right in preferring the opinion of the Radiological to the positive evidence furnished by the Municipal Birth register the school admission register and the evidence of the girl''s father particularly when medico-legal opinion is that owing to the variations in climatic, distetic, hereditary and other facts affecting the people of the different States of India, it cannot be reasonably expected to formulate a uniform standard for the determination of the age by the extent of classification and the union on epiphyses in bones.

It was also pointed out in that decision that the Privy Counsel in Md. Syedol Ariffin v. Y.O. Gark AIR 1916 P.C. 242 has held that a doctor''s certificate as to age is no proof since it is only as an assertion of an opinion. Again, it was pointed out that the same view was taken in Mohd. Ikram Hussain v. State of U.P. 1964 S.C. 1625 . The learned counsel for the petitioner drew the attention of this Court to the decision in Bhoop Ram v. State of U.P. AIR 1989 S.C. 1327 wherein it was held that the opinion of the doctor with regard to age is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. It was further held that the School certificate cannot be rejected on surmises that it is not unusual for parents to understate the age of their children at the time of school admission. Ultimately, Their Lordships in that case preferred the school certificate to that of the report of the Medical Officer with regard to the age and allowed the appeal. In view of the ratio Laid down in the decisions of the apex Court and this court and in view of the birth extract as well as the school record sheet produced by the petitioner with regard to the age of the detenu, we have no hesitation in holding that those documents have to be preferred to that of the age certificate issued by the doctor and accordingly we hold that the alleged detenu is a minor who has not even completed 16 years of age.

It is pertinent to note here that when the order in this writ petition was about to be pronounced on 20.7.1992, the learned counsel for the third respondent look time and later filed an additional counter-affidavit wherein it is stated that the detenu in this case is the second child of her parents, that she was born in 1974 that her birth has not been registered in the birth register, that the third child of the petitioner is a daughter whose name was Yasodai Avudaiammal, that she was born in 1976, that her birth has been registered in the birth Register and that the said girl died one year after her birth. It is stated that in memory and remembrance of the deceased girl, the previous second girl was given the name Yasodai Avudaiammal and the birth extract produced in court relates only to the deceased third daughter. It is further slated that while admitting the detenu in the Shatriya Committee Middle School, Vengadampatli, her date of birth is given as 10.4.1974 and in the school certificate produced in court the year ''1974'' has been corrected into ''1976'' and the same can be seen by a lens. The fourth child of the petitioner is a female by name Balabirajapathy and her name is not registered in the Birth Register. The filth child is a male by name Palvannanathan at present. Initially his name was not Palvannanathan. His name has been registered as Narayanan. Till the birth of the sixth female child Naryana Vadivu, the name of the fifth child Narayanan continued and after the birth of the sixth female child, her name was given as Narayana Vadivu hence, it is a stated that the Birth extract produced by the petitioner is a suspicious document and it cannot be relied on to fix the age of the girl. It is also stated that the school certificate also cannot be relied on.

In the reply affidavit filed by the petitioner, the above allegations were stoutly denied and it was inter alia contended that it is true that the petitioner has an elder son who is now aged 20 years. But, it is absolutely false to state that a girl was born in 1974. Only a male child was born in 1974 but was born and died at the birth itself and therefore there was no question of giving any name to that child. The detenu here in, namely, Yasodai Avudayammal was born in 1976 and her birth was entered in the birth Register in 1976 itself. In the face of the birth extract which was produced in court by the petitioner, the allegations now levelled in the counter statement are not only false but out of figment of imagination. As far as the school certificate is concerned, it is submitted that the original school certificate is available which contained the contemporaneous entries made on 10.4.1976 at the time of admitting Yasodai Avudaiammal in the school. The averments contained in paragraph 6 in respect of the school certificate are absolutely false and there is no basis for the same. A perusal of the certificate would dispel the theory mentioned in paragraph 6 of the additional affidavit. It is nothing but a crude attempt to show a doubt on the impeccable document that has been produced by the petitioner. As regards the other allegations with regard to the birth of the other children, it insisted that it is true that the fourth child was born by name Bala Pirajaphy. The fifth child was named as Palvannanathan from the beginning and there was no change. Then a female child was born and her name was Narayana Vadivu and there was no change between Palvannanathan and Narayana Vadivu.

The 3rd respondent produced the birth extract of one Narayanan, the fifth child of the petitioner born on 25.7.1979 and registered on 30.7.1979. No other birth extract or death extract has been filed. Except the ipso dixit of the third respondent there is nothing to show that the name of the detenu who was born in 1976 was not given to the petitioner at the time of birth. It is too much to say that the name of the fourth child was given to the second child, since whenever a child is born, the child would be named and nobody would be waiting for the birth of the next child for naming the previous child. In the instant case, it is seen that the name of the child is given even in the birth extract in the year 1976 and it corresponds to the year of birth given in the school register. In the face of the two records, the belated version put forward by the third respondent, after the matter was originally heard and was posted for orders, as rightly contended by the learned counsel for the petitioner, is nothing but a figment of imagination. The deponent of the additional counter-affidavit has no personal knowledge, and it is not known on what basis and on which source of information, he made the above allegations which are not supported by any documentary evidence. Hence we reject the contention put forward by the third respondent and the additional counter affidavit is devoid of any merit.

As regards custody of the detenu, even though the petitioner happens to be the natural guardian, in view of the statement of the detenu that she is not willing to go with her father, that she apprehends that she would be given in marriage to an old man against her wish and that she also apprehends danger to her life, we feel that it is not safe to entrust the custody of the girl to the petitioner. However, it is submitted on behalf of the petitioner that in case the court is not inclined to hand over custody of the detenu to the petitioner, the detenu may be sent to any home and the petitioner will bear all the expenses till she attains majority. It is contended that the detenu cannot be allowed to stay with the third respondent who is an accused facing criminal charge for kidnapping the detenu and a case is pending before a competent criminal court. The learned counsel for the petitioner also submitted that the proceedings under the Writ of Habeas Corpus is not the writ of course even though it is a writ of right and hence this court can pass the order in its discretion considering the facts and circumstances of the case. In this connection, the learned counsel drew the attention of this court to the decision reported in Mohd. Ikram Hussain Vs. State of U.P. and Others, wherein the apex Court held as follows:

In these circumstances, with a prosecution pending against Mahesh the learned Judges might well have satisfied themselves first about the factum of the marriage and the age of the girl with more circumspection. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course especially when a man seeks the assistance of the Court to regain the custody of a woman. Before a Court accedes to this request, it must satisfy itself at least prima facie that the person claiming the writ is in fact the husband and further whether valid marriage between him and the woman could at all have taken place.

Per Contra, learned counsel for respondents 1 and 2 would state the respondents 1 and 2 were impleaded as respondents only with a view to harass them, that they are respectable persons and that their interest has to be safeguarded. At the outset, we would state that we do not propose to go into the truth or otherwise of the allegation of the offence of kidnapping since the matter is pending before a competent criminal court. Now we are only concerned with the safety and custody of the alleged detention. Suffice to say here that our order regarding the custody of the alleged detenu is passed without prejudice to the contentions of both parties in the criminal proceedings.

Next we have to consider the contentions of the third respondent. It was consented by the learned counsel for the third respondent that under S. 5 of the Hindu Marriage Act, 1955, conditions for a Hindu marriage are stipulated and as per one of the conditions, the bride should have completed 18 years of age at the time of marriage. The learned counsel also submitted that Ss. 11 and 12 of the Hindu Marriage Act deal with void marriages and voidable marriages for contravention of certain conditions Laid down in S. 5 of the Hindu Marriage Act. The learned counsel pointed out that those conditions do not include conditions No. (iii) of S. 5 relating to the age of the bride or the bridegroom and as such, even though the girl has not completed 18 years of age, yet the marriage is valid. In support of his contention, the learned counsel relied on three decisions. The decision in Durjyodhan v. Bangabali Dei AIR 1977 Ori 360 was rendered by a learned single Judge of Orissa High Court. Therein the bride claimed maintenance and the contention of the bridegroom was that the marriage between him an the bride was not a valid one in view of the contravention of S. 5(iii). It was held that the girl is entitled to maintenance even though she was a minor of 15 years, as the contravention of the said provision may only result in the punishment of the marrying spouses as prescribed in S. 18. The decision in Md. Idris v. State of Bihar 1980 Crl.L.J. 764 was rendered by the Patna High Court. There was a marriage between the parties of Muslim community. It was held that though the girl may be a minor on the relevant date under the Indian Majority Act or within the meaning of S. 361 other Indian Penal Code, certainly she being a muslim could have married without the consent of her natural guardian. In such a situation, the order directing the custody of the girl with the husband cannot be said to be erroneous. The decision in Pinninti Venkataramana and Another Vs. State, relates to a case where the girl who was below 15 years of age at the time of marriage filed a complaint against her husband alleging that he has committed an offence under S.494 IPC. It was held that the complaint cannot be dismissed on the ground that there was no valid marriage. These decisions are not helpful to the case of the third respondent. In the instant case, admittedly the detenu is a minor and she has not even completed 16 years of age. A complaint has been given by the petitioner-father alleging that the girl was kidnapped by the third respondent. Subsequent to the kidnapping, the alleged marriage is said to have taken place. The question as to whether the third respondent has committed the offence under S.366-A I.P.C. is a matter to be decided by the competent court after adducing necessary evidence. In such a situation, having committed the offence of kidnapping, the accused cannot take shelter and contend in this petition that the girl consented to the marriage even though she was a minor, that the marriage was celebrated, that he has not committed any offence and that he is entitled to custody of the girl. It is worthwhile to quote the observations in the decision in Mohd. Ikran Hussain v. State of U.P. wherein it was observed:

"At common law, a writ of habeas corpus , is available to the husband for regarding the custody of his wife if she is wrongfully detained by anyone without her consent." while dealing with the scope of S. 100 Cr.P.C. which is available to the husband, as well as writ of habeas corpus, it was observed;

"This is because the writ of habeas corpus is Festinum Remedium and the power can only be exercised in a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman". Hence we are of the opinion that the detenu cannot be handed over to the third respondent on the basis of the alleged marriage which took place after kidnapping. In this connection, the learned counsel for the petitioner drew out attention to S.29(3) of the Madras Children Act which deals with the power of court to detain a minor in a home, and submitted that since the detenu in this case is below 16 years, she could be detained in the home. The learned counsel also pointed out that in view of S.29(1)(e) of the Madras Children Act which provides that any person apparently under the age of 16 years who is living in a house used for an immoral purpose or in any other circumstances calculated to cause, encourage or favour the seduction or prostitution of the child, if the court is satisfied on inquiry of that fact and that it is satisfied on inquiry of that fact and that it is expedient so to deal with her, may make an order placing her in suitable custody till she attains the age of 18 years or for any shorter period. There is also a proviso to S.29(3) which is to the effect that a girl coming within the description mentioned in clause (3) of Sub S.(l) may be placed in such custody until she attains the age of 21 years or for any shorter period. On a careful consideration of Ss.29 and 30 of the Act, we cab find that the case of the detenu can also be brought under S.30 which deals with the case of uncontrollable children or young person. As per S.30, where the parent or guardian of a child or young person proves to a court that he is unable to control the child, or young person and that the desires the child or young person to be sent to an approved school, the Court, if satisfied on inquiry that it is expedient so to deal with the child or young person and that the parent or guardian understands the results which will follow, may order the child or young, person to be sent to a junior or senior approved school, as the case may be Ss 29 and 30 deal with children and young persons and not with youthful offenders. "Young person" is defined in S.3 and it would mean a person who is 14 years of age or upwards and under the age of 18 years. "Hence the detenu can be certainly brought under the category of "younger person", As per S.4, the power can be exercised by this court both originally or an appeal. Hence it cannot be said that only in the case of offender, a young person can be detained in junior or senior approved school or home. In the circumstances of the case, we are of the view that it is just and proper that the detenu girl should be detained in the home till she attains majority.

In the result, the writ petition is allowed and the detenu is directed to be kept in Awai Home, Adyar, till she attains majority, namely 29.9.1994 and thereafter she will be produced before court for further orders. The detenu who is present in court to-day is directed to be taken to the said home by the Gr.IPC 944(28) accompanied by the third respondent and the petitioner. The petitioner has to pay the necessary charges to the home for maintaining the detenu. However, we wish to observe that the order in this writ petition will not in any way prejudice the contentions of either party in the criminal prosecution which is pending before the competent criminal court and the magistrate before whom the criminal proceedings is pending is directed to dispose of the criminal complaint according to law uninfluenced, by any of the observations made this order. After pronouncing the Order, learned counsel appearing for the petitioners 3 to 7 represented before us that in case the criminal case filed by the petitioners ends in their favour, they may be given liberty to move this Court for further orders. Accordingly, petitioners 3 to 7 are given liberty to move this Court for necessary directions regarding custody, in case the criminal case filed by them ends in their favour.