Seema Kumari @APPELLANT@Hash State of Rajasthan & Ors.

Present petition has been filed under Section 482 Cr.P.C. seeking quashing of FIR No.123/2018, registered at Police Station Nawalgarh, District

Jhunjhunu, for offence under Section 363 IPC. A further prayer has been made that petitioner No.1 who performed marriage with petitioner No.2

according to her own free will, be granted protection so that no harm is caused to the newly married couple.

This court on 05.04.2018 had passed the following order:-

“Counsel for the petitioners has contended that petitioner No.1 has performed marriage with petitioner No.2 as per her own free-will and accord.

Seema Kumari, petitioner No.1 is present in court. She has stated that she is living happily with petitioner No.2 as a wife.

Let at first instance statement of petitioner No.1 be recorded by Deputy Registrar(Judicial) of this court.

List the present petition on 27.04.2018. On that date, Investigation Officer shall remain present in court along with the record of the case.

To await statement of petitioner No.1 to be recorded by Deputy Registrar(Judicial) and presence of Investigating Officer, list on 27.04.2018.

Meanwhile, further proceedings arising out of impugned FIR shall remain stayed.â€​

In pursuance of the above said order, statement of petitioner No.1 Seema Kumari was recorded by the Deputy Registrar (Judicial) of this court. The

said statement for facility and ready reference, is reproduced below:-

“fnukad 05@04@2018

eSa lhek dqekjh] iq=h Jh vkse izdk’k] ifRu Jh ;ksxs’k dqekj] vk;q yxHkx 19 o""kZ] tkfr ukbZ] fuoklh& xkao lh;ksVcM+h] ftyk&lhdj] gky

fuoklh& okMZ ua0 10] /kkdk dk ckl] c?ksjk] ftyk&>qa>quw ¼jkt0½A

'kiFk iwoZd c;ku djrh gwW fd esjh tUefrfFk 12-04-1998 gSA eSa 8oha d{kk ikl gwWA eSa vius ekek JhpUnth ds ikl jgrh FkhA tks vDlj esjs lkFk

ekjihV djrs FksA blfy, eSaus ?kj ls Hkkxdj ;ksxs’k dqekj ds lkFk xkft;kckn esa tkdj vk;Z lekt efUnj esa fnukad 23-03-2018 dks 'kknh dj yhA eS

;ksxs’k dqekj dks fiNys 2 lky ls tkurh gwWA esjh ;ksxs’k ls eqykdkr esjs ekek ds csVs dh 'kknh esa gqbZ FkhA eSaus ;ksxs’k ds lkFk

'kknh viuh ethZ ls dh gS vkSj mlh ds lkFk jguk pkgrh gwWA esjs ekek JhpUn ls tks fjiksVZ ntZ djk;h gSA oks xyr gSA eq>s vkSj esjs ifr ;ksxs’k

dks esjs ekek vkSj ifjokj okyksa ls [krjk gSA eq>s vkSj dqN ugha dguk gSAâ€​

After recording of statement of petitioner No.1 Seema Kumari, a dispute arose regarding the age of petitioner No.1.

Learned counsel for respondent No.3 stated that petitioner No.1 is aged 15 years and 7 months. Petitioner No.1 in court stated that her age was

wrongly recorded and she is above 18 years of age.

Learned counsel for the petitioners has relied upon the recent order passed by three Judge Bench of the Supreme Court in Suhani & Anr. v. State of

U.P. & Ors., Civil Appeal No.4532/2018, decided on April 26, 2018. The order passed by the Supreme Court reads as under:-

“Leave granted.

The present appeal, by special leave, calls in question the defensibility of the order dated 5.12.2017 passed by the High Court of Judicature at

Allahabad in Habeas Corpus Writ Petition No. 52290/2017. The said petition was filed for issuance of a direction to produce the present petitioner no.

1 before the Court on the foundation that she is the wife of the petitioner no. 2 and has been kept in illegal detention by the respondent no. 3.

It is necessary to mention here that at the behest of the respondent no. 4 - the father of the petitioner no. 1, an FIR was lodged under Sections 363

and 366 of the Indian Penal Code. It was contended before the High Court that the petitioner no. 1 was about 19 years of age and that her statement

was recorded under Section 164 of the Code of Criminal Procedure, wherein she had stated that she had entered into wedlock with the petitioner no.

2.

On behalf of the contesting respondent no. 3, a certificate issued by the Secondary School Examination (C.B.S.E.), showing the date of birth of the

petitioner no. 1 as 25.9.2003 was filed. The High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on

that basis, treated her as a minor. However, she expressed an unequivocal desire not to accompany her parents. The High Court directed that she

would be allowed to reside in the Nari Niketan, Allahabad. Â

When the matter was listed before this Court on 6.4.2018, this Court directed the authorities to produce the petitioner no. 1 on 23.4.2018. On

23.4.2018, it was thought apposite that she should be examined by the concerned department of the All India Institute of Medical Sciences, New

Delhi, and a further direction was issued that she should be allowed to reside alongwith escorts in the U.P. Bhawan, New Delhi, which was acceded

to by Ms. Aishwarya Bhati, learned AAG for the State of Uttar Pradesh.

We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological

examination and the final report/opinion on the same reads as follows:-

“Radiological Examination

X-Rays advised for age estimation:- X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine

-Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department.

Report of Radiological Examination.

All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age > 16.5 years.

Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years.

Medial end of clavicle not fused, suggestive of age 22-27 years.

S1 of sacrum not fused with S2, suggestive of age 17-24 years.

Imp.:-Estimated Bone age is between 19-24 years.

FINAL REPORT/OPINION:

Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is

between 19-24 years.â€​

In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major,

and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before

us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.

In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings

initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the

proceedings to do complete justice.

The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand

disposed of.â€​

Therefore, this court on 5.5.2018 ordered that age of petitioner No.1 be determined after her ossification test is conducted by SMS Medical College

and Hospital, Jaipur. The order passed by this court on 5.5.2018 reads as under:-

“SHO, Police Station Ashok Nagar, Jaipur, is directed to produce petitioner No.1-Seema Kumari, before the Medical Superintendent, SMS

Hospital, Jaipur.

 Medical Superintendent, SMS Hospital, Jaipur, shall constitute a Medical Board for conducting ossification test of petitioner No.1 Seema Kumari for

determination of her age.

Report of ossification test alongwith the opinion of the Medical Board regarding the age of Seema Kumari, be produced before this court on the next

date of hearing.

List the present petition on 09.05.2018.

Copy of this order be handed over to Mr. Aladeen Khan, ld. PP, under the seal and signature of Court Master for onward transmission and necessary

compliance.â€​

In pursuance of the above said order, Medical Superintendent, SMS Hospital, Jaipur has submitted report of the medical board. As per said report,

Seema Kumari, petitioner No.1, is above 20 years of age. The report of the medical board is taken on record and is made part of the paper book.

Following the judgment rendered by the Supreme Court in Suhani & Anr. (supra), taking into consideration the statement made by petitioner No.1,

Seema Kumari, before the Deputy Registrar (Judicial) of this court and the report submitted by the Board of Doctors of SMS Medical College and

Hospital, Jaipur, present petition is accepted. The impugned FIR is quashed alonwith all subsequent proceedings. A further direction is issued to the

Superintendent of Police, Jhunjhunu to ensure necessary vigil that no harm is caused to the petitioners.