Shalu Mishra married Sunil Mishra against her parents’ wishes, and her parents wished to forcibly break up the couple. Shalu’s husband and her parents both claimed to be her rightful guardians and wanted to claim her custody, even though Shalu claimed that she was a major and wanted to stay with her husband. Amid custody disputes, Shalu was forcibly detained at Nari Niketan as the court tried to determine her age. The age on her educational certificate differed from the age determined in a medical exam, which further delayed the process.
Shalu Mishra filed this habeas corpus petition with the Allahabad High Court for release from Nari Niketan. The high court demanded her release regardless of her age, on the basis that even minors cannot be detained against their wishes unless they are considered in conflict with the law. The court also determined that Shalu and Sunil’s marriage was not void even if Shalu was a minor at the time, and thus her husband had the right to seek her custody.
This Habeas Corpus petition has been filed under Article 226 of the Constitution of India seeking the release of Shalu Mishra from Naari Niketan, Lucknow.
Briefly stated petitioner’s case is that Sunil Kumar Mishra married Shalu Mishra on 16.05.2013… Parents of Shalu Mishra are trying to marry her with some other person, although she is married wife of Sunil Mishra.
It is stated that mother of Shalu Mishra lodged an F.I.R. against Sunil Mishra… alleging that Sunil Mishra had enticed Shalu Mishra, aged about 16 years.
Apprehending his arrest, Sunil Mishra filed a Writ Petition No. 4189 of 2013 (MB) in this Court wherein following order was passed on 21.05.2013 : ‘… We have been taken through the allegations contained in the F.I.R. and the material on record. The victim petitioner no.2 is present in the Court and has been identified by her counsel. It is submitted by learned counsel for the petitioners that she has married with petitioner no.1 out of her own free will and both are major.’
After obtaining interim order of this Court, when they were returning, Jai Prakash Tiwari, Rajendra @ Bawali intercepted and assaulted them. Bhola Mishra, father of the girl and one Anoop dragged Shalu and her husband and took them in a Bolero vehicle forcibly and beat them up. Shalu was taken to her parental house forcibly where she was detained against her wishes.
Matter was reported to DGP by Kailash Mishra, father of Sunil Mishra by means of application dated 24.05.2013, with copy to S.P., Unnao and concerned police station. It is submitted that since Shalu Mishra is major, she cannot be detained by respondents, as such order of her release may be passed.
Shalu Mishra who was directed to appear in the Court stated that she wants to go with Sunil Mishra.
So far as the investigation is concerned, it is going on and no comment is required from this Court. So far as habeas corpus petition is concerned, learned counsel for the petitioner submitted that Shalu Mishra and Sunil Mishra both are major, having married, have a right to live together without any interference from anybody. She cannot be detained against her wishes.
Learned counsel for the private respondents submits that according to educational certificate, Shalu Mishra is minor, as such, her marriage was illegal. Moreover, she is now detained in ‘Naari Niketan’ in pursuance of order passed by Sessions Judge, Unnao on 01.06.2013. Consequently, her detention is not illegal and petition is not maintainable.
[I]t appears that date of birth of Shalu Mishra recorded in High School Marksheet is 21.02.1996, as such, she was less than 18 years on 16.05.2013 i.e. date of marriage. She was medically examined by the Police in district hospital, Unnao. According to medical report, she was found to be more than 19 years.
It further appears that Investigating Officer produced Shalu Mishra before the Sessions Judge, Unnao on 01.06.2013 where Sunil Mishra claimed her custody. Raj Kumari, mother of Shalu also claimed her custody. Sessions Judge, Unnao directed Shalu Mishra to be placed in Naari Niketan and fixed 04.06.2013 for further orders. On 04.06.2013, learned Sessions Judge recorded the statement wherein Shalu Mishra disclosed her date of birth 21.02.1996, however, she disclosing her actual age to be 19 years, expressed her willingness to go with her husband. Sessions Judge observed that according to medical report, she was about 19 years. Learned Sessions Judge believing the age recorded in High School Certificate to be correct, treated her minor and directed her to be detained in Naari Niketan.
Except under the provisions of Juvenile Justice Act where question regarding determination of age of juvenile in conflict with law is concerned, there is no law that age mentioned in educational certificate has to be preferred over the age recorded by doctor on the basis of radiological observations, while determining the age of a victim or witness.
It is not clear as to under what provisions of law, Sessions Judge has sent Shalu Mishra to Naari Niketan. Even minor cannot be detained against her wishes in Naari Niketan. Shalu Mishra categorically stated before Sessions Judge that she wants to go with her husband. She has specifically stated that she does not want to go Naari Niketan. Her detention in Naari Niketan is absolutely illegal.
To prove the marriage, marriage certificate has been filed, thus this marriage is not void, even if, wife is minor. Therefore, husband has a right to seek the custody of his wife being her natural guardian. It has been held by this Court in the case of Sonu Paswan Vs. State of U.P. and Another passed in Criminal Misc. Case No. 1705 of 2012 (u/s 482 Cr.P.C.) that:
It has been held by Andhra Pradesh High Court in the case of Kokkula Suresh Vs. State of A.P. and others AIR, 2009 AP 52 that husband being natural guardian under the provisions of Hindu Minority and Guardianship Act, 1956, is entitled to have the custody of his minor wife as marriage is neither void nor voidable.
A Division Bench of this Court in the case of Smt. Saroj Vs. State of U.P. and others (Habeas Corpus writ petition no. 19037 of 2011) faced with the similar problem concluded that:
‘Victim of an offence under Sections 363, 366-A, 366 or 376 I.P.C. could not be falling in the category of an accused, as such no court could be authorized under any provisions of law to authorize the detention of such a lady even into protective custody if the lady objects to such detention … There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties.
In view of the above decision, it is apparent that detention of Shalu Mishra in Naari Niketan, despite her objection, merely on the ground that according to High School certificate she is less than 18 years although medical report suggested her age to be 19 years, cannot be treated as legal.
Taking into consideration the marriage certificate, educational certificate, medical reports regarding age and her categorical statement, this Court is of the opinion that this petition deserves to be allowed.
Petition is allowed.
There is no age bar when it comes to valuing the liberty of a person be she a woman or be he a gent. Even a child has a right to avail of his or her liberties.
While Kanchan Verma was leaving her workplace with Nasir Ali, a crowd gathered around as Verma’s family tried to stop her. The family reportedly opposed their relationship on the basis of religion. Verma and Nasir, a Hindu woman and a Muslim man, were detained under Section 151 of Cr.P.C. (“Arrest to prevent the commission of cognizable offences”). Verma filed a petition of habeas corpus claiming she was being wrongly detained. After a month in detention on the sub-divisional magistrate’s orders, the Allahabad High Court affirmed that her detention was unconstitutional and ordered her immediate release.
This petition has been filed by Smt. Kanchan Verma… alleging that she has wrongly been detained in Nari Niketan at Moradabad.
[T]he Sub-Inspector … had submitted two reports on 27th April, 2015 under Section 151 Cr.P.C. alleging that he … found in front of Ramabai Degree College that there was a gathering of several persons in which the parents of the petitioner Kanchan Verma were resisting the petitioner from allowing her to go with Nasir Ali. A crowd had gathered and since there was an apprehension of breach of peace, the petitioner along with Nasir Ali were produced before the Sub-Divisional Magistrate.
The order of the Sub-Divisional Magistrate indicates that the petitioner is an adult, a divorcee and living with her parents. The petitioner is a Hindu and has fallen in love with Nasir Ali, a Muslim by religion. The order further indicates that Nasir Ali is married and has four children and that Nasir Ali’s wife is opposed to this relationship. The impugned order further records that the petitioner’s father, mother and brother are also against this relationship but, the petitioner, in her statement, has recorded that she wants to live with Nasir Ali. Nasir Ali has also stated that he will look after the welfare of the petitioner and would like to marry her.
The petitioner was produced before this Court and she made a statement in Court that she has been sent to Nari Niketan against her wishes since 27th April, 2015 and her freedom has been curtailed on account of this illegal detention. She further stated before us that she was teaching in Northern India Public School, Gajraula and has not been allowed to go to the school to give her lectures. The petitioner further stated that she is an adult and she wants to live with Nasir Ali, in spite of the fact that he is a married man.
The question for determination … is whether the detention of the petitioner in Nari Niketan is in accordance with law. … Article 21 of the Constitution [guarantees] that the executive cannot deprive a person of his life or personal liberty without authority of law. … The Supreme Court further held that even in the absence of Article 21 of the Constitution, the State has no power to deprive a person of his life or liberty without the authority of law.
The report in the instant case has been given by the Sub-Inspector under Section 151 Cr.P.C. For facility, the said provision is extracted hereunder:-
(1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.
(2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force.”
A perusal of the aforesaid provision indicates that a power has been given to the Police Officer to arrest a person in order to prevent a commission of a cognizable offence. In the instant case, we find that the ingredients of Section 151 Cr.P.C. are totally lacking. The report does not indicate any cognizable offence that may occur.
In the light of the aforesaid, we find that … there was no occasion for the Magistrate to detain her in a Nari Niketan. This order, in our opinion, is patently without any authority of law.
We are of the opinion that the liberty to move, mix, mingle, talk, share through company cannot be substantially curtailed and the action taken was totally violative of Article 21 of the Constitution.
[W]e are of the opinion that the action of the Sub-Divisional Magistrate was not only arbitrary but there was total deprivation of the personal liberty of the petitioner, which was issued without any authority of law… We find there is no legal justification for the detention of the petitioner and, accordingly, we issue a writ of habeas corpus … to release the petitioner forthwith. The Superintendent of Police, Amroha will ensure that the petitioner is escorted and taken to her parents residence from where the petitioner would be at liberty to live either with her parents or live according to her own choice and freewill.
We are of the opinion that the liberty to move, mix, mingle, talk, share through company cannot be substantially curtailed and the action taken was totally violative of Article 21 of the Constitution. …[W]e are of the opinion that the action of the Sub-Divisional Magistrate was not only arbitrary but there was total deprivation of the personal liberty of the petitioner, which was issued without any authority of law.
Gajraj Singh’s daughter and Ajit Singh married against her parents’ wishes while she was still a minor, and she was being forcibly detained at Nari Niketan throughout the custody disputes. Gajraj and Ajit both filed applications to claim her custody, while the girl herself indicated to the court that she wanted to leave with her husband. The lower court rejected both applications to claim the girl’s custody and decided to detain her until she attained majority, at which point they would release her. Gajraj Singh then filed this petition to quash the lower court’s order and have his daughter released into his custody. The high court determined that the girl’s detention at Nari Niketan was illegal and that she should be released and allowed to go according to her own wish.
1. The present application under Section 482 Cr.P.C. has been filed for quashing of the impugned order dated 26.5.2014 passed by Special Judge/Additional Sessions Judge.
2. [T]he First Information Report lodged by applicant who is father of the victim girl on 23.2.2014 … with an allegation that on 23.2.2014 her minor daughter whose date of birth is 18.8.1996, was enticed away by one Ajit … along with Rajveer and Virendra. … On 20.5.2014 daughter of the applicant was recovered from the possession of co-accused Ajit and charge-sheet has been submitted in the case against Ajit. … The applicant thereafter moved an application … to release his minor daughter and simultaneously as he is her natural guardian being father and on 20.5.2014 girl be given in his custody. The accused Ajit also moved an application on 24.5.2014 for the custody of the victim on the ground that he was her husband. … The accused Ajit as well as the victim girl filed a writ petition … which was disposed of by this Court on 10.3.2014 with a direction that restraining any person from interfering in their matrimonial life as she is major. The Court rejected the application of the applicant as well as the accused Ajit and come to the conclusion that the girl was minor who was sent to Nari Niketan and further order that when she attain majority, the victim girl should be released. Hence the present petition has been filed by the applicant for quashing of the impugned order passed by the Court below.
5. [A]s per the high school certificate her date of birth is 18.8.1996 and at the time of incident she was 17 year six months and 5 days. [The applicant] further submits that as per the medical report the girl has also found to be less than 18 years on the date of incident but she, as per her statement recorded under Section 164 Cr.P.C. stated her age is 21 years and further stated that she had voluntarily gone with the applicant and on her own sweet will marriage with accused Ajit and the said fact was also informed by her parent that she would marry with Ajit Singh but her parents were against the said marriage. In her statement she also stated that Ajit had not enticed her away and she has voluntarily accompanied with Ajit. The Court below while deciding the custody of the victim on the application filed by the applicant as well as Ajit Singh had also tried to know wish of the victim who has stated that she wants to go with her husband Ajit Singh but finding her to be minor, it found proper for sending her Nari Niketan till she attained majority. It is well-settled law that a minor cannot be confined in Nari Niketan against her wishes.
7. In the case in hand, the question of the applicant being a minor is irrelevant as even a minor cannot be kept in protective home against her will. … Thus, it is clear cut case of illegal confinement of minor against her wishes violating fundamental right. Hence, … it is directed the Superintendent of Nari Niketan, Mathura to release the victim Dolly daughter of Gajraj Singh be set at liberty to go in according to her own wish.
It is well-settled law that a minor cannot be confined in Nari Niketan against her wishes. … In the case in hand, the question of the applicant being a minor is irrelevant as even a minor cannot be kept in protective home against her will.