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.