Smt. Takabul Jahan and Others vs State of U.P. and Others

Binod Kumar Roy and R.C. Deepak, JJ.—The Petitioners have come up with a prayer to quash the first information report dated 19th February, 2002, lodged by informant-Respondent No. 3, who is father of Petitioner No. 1, giving rise to registration of Case Crime No. 263 of 2002, P. S. Asmoli, district Moradabad, under Sections 363 and 366, Indian Penal Code, against Petitioner Nos. 2 to 4 appending its copy as Annexure-4 to this writ petition, asserting, that Petitioner No. 1 is major and has married Petitioner No. 2, they being in love, in presence of witnesses, advocate and molvi on 20.2.2002 at New Delhi as per the Muslim customs, who had also sworn affidavits before the Notary and filed them before S.D.M., Parliament Street, New Delhi and that since Respondent No. 3, the father of Petitioner No. 1 did not agree, hence he lodged the first information report in order to harass them and on account of frustration.

Heard learned Counsel and perused the writ petition and the counter-affidavit filed by Respondent No. 3.

A perusal of the impugned first information report shows, inter alia, that the informant Bhura [Respondent No. 3 herein] alleged to the effect that his daughter Km. Takabul (Petitioner No. 1) is aged 14 years, who has been enticed away by the remaining Petitioners.

In paragraph 5 of this writ petition, it has been asserted to the effect that the date of birth of Km. Takabul is 30.12.1980. The affidavit accompanying this writ petition asserts that this statement is based on information received without disclosing who was the alleged informer, and whether the alleged information was given in writing and/or otherwise. Reliance has also been placed on the affidavits of Petitioner No. 1 as contained in Annexure-2.

The Petitioners have also brought on record Medical Certificate dated 5.3.2002 granted by the Chief Medical Officer, Moradabad. We find that the doctor found the numbers of her teeth to be 11/14, who has not stated in regard to presence of axillary hair and pubic hair on her person, though he has opined that she is about 19 years.

As per the decision of the Apex Court in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, , there can be a margin of error of two years on either side in ascertainment of age on the basis of radiological examination.

It is not possible for us to place reliance on the affidavit dated 20th February, 2002 of Petitioner No. 1, which she has sworn before Sri Gian Singh, Advocate, Notary Public, Parliamentary Street, New Delhi for several reasons. Firstly, in paragraph 2 she has stated her date of birth as 30.12.1980 declaring aforementioned statement as true to the best of her knowledge and belief. She has not disclosed therein as to how she had knowledge of the fact hat she was born on 30th December, 1980. Her second affidavit is of the same date wherein she asserts that her true and actual date of birth is 30.12.1980 again asserting that this statement is true and correct to the best of her knowledge and belief. Surprisingly, she has also asserted in this affidavit that she does not possess any other documentary proof in support of her date of birth except this affidavit.

In Sukhwinder Pal Bipan Kumar and Others Vs. State of Punjab and Others, , it was held that Order XIX, Rule 3, Code of CPC requires the deponent to disclose the nature and source of knowledge with sufficient parti-cularity. In Shivajirao Nilangekar Patil Vs. Dr Mahesh Madhav Gosavi and Others, the Apex Court had held that the affidavit should be properly verified either on knowledge or from sources and the basis of such knowledge and sources must have been clearly stated ; the provision of Order XIX, Rule 3 of the Code of CPC must be strictly observed ; every affidavit should clearly express how much is the statement of the deponent''s knowledge and how much of the statement was in his belief, the grounds of which must be stated with sufficient particularity.

On the other hand Respondent No. 3, who is father of Petitioner No. 1, states in his counter-affidavit that his daughter Km. Takabul is minor, who was born in 1988. His affidavit comes within the purview of Section 50 of the Evidence Act. He has also brought on the record Pariwarik Register (Family Register) showing the year of her birth as 1988 with which is attached the presumption of correctness.

In the backdrop afore-mentioned, we are not in a position to hold Petitioner No. 1 major ignoring the affidavit of Petitioner No. 1 and the entries in the Family Register.

Consequently, this writ petition is dismissed but without cost.

Let a copy of this order be handed over within two weeks to Sri A. K. Verma, learned Additional Government Advocate for its intimation to the police authority concerned.