Pushpa Thakur and others vs State of Madhya Pradesh and Another

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.

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.

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 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

Schoolâ€, 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 “minorâ€​.

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.