# Furkan Revisionist v. State of U.P. & Anr

- **Citation:** (2015) 3 ILRA 1038
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-08
- **Case number:** Criminal Revision No. 55 of 2015
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/furkan-revisionist-v-state-of-u-p-anr-43341
- **Pages:** 4

## Headnote

Cr.P.C.-Section 397/401-Criminal Revisiongiven custody of Muslim girl to her fathermedical certificate as well as statement
recorded before magistrate shows 18
years-according
to
school
certificate
minor-magistrate
given
preference
to
school certificate with a view of variation
of age about 2 years on medical certificate
custody
to
her
father-held-when
Nikahnama not disputed-girl willing to join
company of her husband-husband entitled
for custody-revision allowed.
Held: Para-15 & 16

## Text

1038
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. The Division Bench that
entertained this appeal, admitted the same
and stayed the operation of the judgment
of the learned Single Judge.
6.
Section 12 of the Contempt of
Courts Act, 1971 read with the other
provisions thereof makes a provision for
punishment after holding a contemnor guilty
of charges and provides for a maximum
punishment by way of imprisonment for six
months and in addition thereto a fine of Rs.
2,000/-. There is no other mode of
punishment or statutory power conferred on
the court so as to impose damages on a prima
facie finding of guilt.
7. The learned Single Judge did not
finally hold the appellant to be guilty nor
was the appellant punished, as is evident
from a perusal of the judgment itself.
8.
In the wake of the aforesaid facts,
we do not find any justification for
imposition of damages to be deducted from
the salary of the appellant without holding
the appellant to be guilty of having
committed the contempt. A prima facie
opinion is not an order of conviction on
satisfaction that the charge was proved.
9. Consequently, we set aside the
said direction of imposition of Rs. 5,000/-
damages and deduction of salary as
directed by the learned Single Judge.
10. The appeal is allowed on the
aforesaid terms.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2015
BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.
Criminal Revision No. 55 of 2015
Furkan
 ...Revisionist
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Revisionist:
Sri Ishwar Chandra Tyagi, Sri Nirvikar
Gupta
Counsel for the Opp. Parties:
A.G.A., Sri Sushil Kumar Pandey
Cr.P.C.-Section 397/401-Criminal Revisiongiven custody of Muslim girl to her fathermedical certificate as well as statement
recorded before magistrate shows 18
years-according
to
school
certificate
minor-magistrate
given
preference
to
school certificate with a view of variation
of age about 2 years on medical certificate
custody
to
her
father-held-when
Nikahnama not disputed-girl willing to join
company of her husband-husband entitled
for custody-revision allowed.
Held: Para-15 & 16
15.
In view of the above, it is apparent
that opinion of the Doctor in respect of
age should have been given preference.
Moreover when girl was expressing
apprehension, Magistrate should have
been careful in sending her with father.
As
stated
above,
marriage
i.e.
nikahnama
is
not
disputed.
Consequently, as wife, she is ready to
live with her husband, husband is
entitled to have her custody.
16. It is settled law that against the
wishes, even minor cannot be sent to
Nari Niketan and husband being natural
guardian is entitled to custody of wife.
Case Law discussed:
[2005 Law Suit (SC) 1541]; Habeas Corpus
Writ Petition No. 10180 of 2012; AIR 1982 SC
1297; [2014 (2) All. Cr.J. 664]
(Delivered by Hon'ble Sudhir Kumar
Saxena, J.)
3 All] Furkan Vs. State of U.P. & Anr.
1039
1. This revision under Section 397/401
Cr.P.C. is directed against the order dated
23.12.2014
passed
by
Chief
Judicial
Magistrate, Muzaffarnagar, ordering custody
of victim in favour of her father.
2. Heard Sri Nirvikar Gupta, learned
counsel for the revisionist and learned
AGA for the State.
3. Briefly stated facts of this case are
that an FIR was lodged under Sections
363/366 IPC (crime no. 230 of 2014, P.S.-
Sikheda, District Muzaffarnagar) arising out
of kidnapping of Kumari Sitara. Aforesaid
FIR was challenged by revisionist and others
in W.P. No. 22776 of 2014 before Allahabad
High Court, which was finally disposed of
on 26.11.2014. Division Bench of this Court
directed petitioners to produce the girl before
Chief Judicial Magistrate, Muzaffarnagar,
who will get her medically examined for
determination of her age. Her statement will
also be recorded under Section 164 Cr.P.C.
4. Sitara in her statement recorded
under Section 164 Cr.P.C. stated that she
had left her house alone in the morning of
30.10.2014.
She
went
to
Sikheda,
Muzaffarnagar, Roorkee and Ambala.
After reaching Ambala, she called Furkan
and both went to Doraha on her own
volition. It was clearly stated that she
wants to live with Furkan and report has
been wrongly lodged. Furkan has not
kidnapped her and both are innocent. This
statement was recorded on 17.12.2014.
5. Report of Medical Officer shows
that victim was found to be about
eighteen years old.
6. In the statement recorded under
Section 161 Cr.P.C., it was stated that she
was enticed by Furkan and he married her
by extending threats. She made allegation
of rape against Sabu as well.
7. An application was given by
Firozuddin, father of the girl seeking her
custody on the ground that her daughter is
minor as her date of birth is 10.07.1999.
Furkan's brother had also moved an
application claiming her custody, who
filed copy of the Pariwar register to show
that she is major. Concerned Investigating
Officer moved an application for passing
appropriate order in respect of custody.
8. Learned Magistrate came to the
conclusion that Educational Certificate
was preferable over medical report.
Moreover, application was not supported
with affidavit and age opined by Doctor
can be reduced by two years. Treating her
to be minor, he directed the custody of the
girl in favour of her father. This very
order has been assailed by Sri Nirvikar
Gupta on various grounds.
9.
It was submitted that even
according to transfer certificate, which
shows that victim has passed class- 2 in the
year 2010 and left the school was above
fifteen years. According to medical report,
she is about eighteen years. In her statement
recorded under Section 164 Cr.P.C. before
Magistrate she categorically stated that she
wants to live with Furkan with whom she
had married. She along with Furkan had
come to High Court to file writ petition. It is
thus evident that victim is not willing to go
with her father. Affidavit filed by her shows
that in the village in a similar case, a girl
was murdered by the members of her
family. Thus, she expressed threat to her life
if she was sent with father.
10. A muslim girl having attained
the age of puberty can enter into a
1040
 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage contract. It is settled law that
husband is the natural guardian of wife.
Even in the case of minor, marriage does
not become ipso facto void as such,
custody should have been in consonance
with the will of the victim-wife. As a
proof of marriage nikahnama was filed,
which has not been denied by the victim.
Respondents have not set up a case of
divorce. Consequently, custody of the girl
should have been given to husband or the
members of the family or her in-laws. She
cannot be sent to a place against her
wishes.
11. Hon'ble Apex Court in the case
of Juhi Devi vs. State of Bihar [2005 Law
Suit (SC) 1541] was considering similar
controversy where medical board has
found the age of the victim between 16-17
years while educational certificates were
showing her minor. Hon'ble Apex Court
ordered that she should be allowed to live
with her husband. Relevant extract of the
judgment
is
being
reproduced
hereinbelow:-
"The Medical Board opined that as
on 17.05.2003, the petitioner must have
been aged between 16 and 17 years.
However, the father of the petitioner
produced two certificates before the
Revisional Court and contended that her
date of birth is 12.10.1985 and she has
not attained majority. However, the
medical report shows that she must have
been aged more than 16 years, even on
17.05.2003. Having regard to these facts,
we are of the view that she must have
attained majority and her stay at the
remand home would not be in the interest
of justice and we think that her continued
stay at the remand home would be
detrimental and she would be in a better
environment by living with the person
whom she had allegedly married."
12. Division Bench of this Court in
the case of Smt. Reena vs. State of U.P
and Ors. decided on 24.05.2012 (Habeas
Corpus Writ Petition no. 10180 of 2012)
has considered the similar controversy
where there was conflict between medical
certificate and educational certificate.
Hon'ble Court has opined that court
should lean towards acting upon the
opinion of the doctor furnished after
carrying out scientific tests to assess the
age of a victim. Relevant paragraphs of
the judgment is being reproduced below:-
"There was some dispute in respect
of the age of the girl but we find from
argument appearing at page 20 of the
present petition that the Chief Medical
Officer, Maharajganj had assessed her 18
years of age. Thus, the lady was
undisputedly above 18 years of age, if we
add three years to the medically assessed
age. In our considered view in case of
being a conflict between the age recorded
in any school document and that assessed
by the doctor then only for the present
purposes, the court should lean towards
acting upon the opinion of the doctor
furnished after carrying out scientific
tests to assess the age of a victim. This is
necessary as liberty of a person has to be
protected. No person could be deprived of
his liberty unless reasonable procedure
has been adopted. Medical opinion on
age may not be exact, but it is generally
acceptance and it is based on scientific
method of assessing the age. As such,
inspite of there being some sort of margin
in assessing the age and actual age, there
could be chances that the assessed age is
almost
exact.
3 All] Smt. Poonam Vs. State of U.P. & Ors.
1041
We have already noted that the
personal liberty of a person should be
paramount consideration in such cases
and keeping that in view and for
protecting the personal liberty of a
person, the court should lean towards
considering the medical age than to
consider the age which is recorded in
school documents."
13. Relying upon the case of Jaya
Mala vs. Home Secretary, Government of
Jammu and Kashmir [AIR 1982 SC
1297], another Division Bench of this
Court in the case of Smt. Saroj vs. State
of U.P. and Others vide judgment and
order dated 08.05.2012 (Habeas Corpus
Writ Petition No. 19037 of 2011) has
taken a similar view i.e. medical report
has to be believed.
14. Learned Single Judge of this
Court in the case of Asmat Jahan and
Another vs. State of U.P. [2014 (2) All.
Cr. J. 664] has taken a similar view.
Relevant extract of the judgment is being
reproduced hereinbelow:-
"Learned Magistrate has not kept in
mind the situation that he was not
determining the age of a juvenile in
conflict with law but was determining the
age of prosecutrix who admittedly had
eloped with her lover and had married
him."
15. In view of the above, it is apparent
that opinion of the Doctor in respect of age
should
have
been
given
preference.
Moreover
when
girl
was
expressing
apprehension, Magistrate should have been
careful in sending her with father. As stated
above, marriage i.e. nikahnama is not
disputed. Consequently, as wife, she is
ready to live with her husband, husband is
entitled to have her custody.
16. It is settled law that against the
wishes, even minor cannot be sent to Nari
Niketan and husband being natural
guardian is entitled to custody of wife.
17. In view of the discussion made
above, this criminal revision is allowed.
Order dated 23.12.2014 passed by Chief
Judicial Magistrate, Muzaffarnagar is set
aside.
18. Learned Magistrate, Muzaffarnagar
is directed to pass fresh order regarding the
custody of the victim within a week from the
date of production of certified copy of this
order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ASHOK PAL SINGH, J.
Habeas Corpus No. 156 of 2015
Smt. Poonam
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Pawan Kumar Dubey
Counsel for the Respondents:
Govt. Advocate
Constitution of India, Art.-21-Habeas
Corpus-detention
in
Nari
Niketan-on
pertext in her statement under Section
164 Cr.P.C. Different stand taken-in
occification
test found more than 18
years-petitioner detained in Nari Niketan
ignoring
her
will-held-illegal-none