# Km. Chhavi (Minor) & Anr v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-10
- **Case number:** Habeas Corpus Writ Petition No. 340 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-chhavi-minor-anr-v-state-of-u-p-ors-46944
- **Pages:** 13

## Headnote

A.G.A., Sri Pankaj Kumar Govil, Sri Pankaj
Govil

Father claimed custody of minor girl as
recorded by high school certificate-and
alleged her abduction by opposite partiesminor sttated she wants to live with
opposite party and has married out of her
free will-she has life threat with her
father-unil she atains majority she has to
be housed in shelter home-and upon
attaining majority -she is free to go
wherever she likes-Petition allowed.(E-7)

Cases cited:

## Text

_Characters 0–39,911 of 45,224. This is a partial read: ask again with offset=39911 for what follows._

304 INDIAN LAW REPORTS ALLAHABAD SERIES
shown, as held in Mohammad Ikram
Hussain v State of U.P. and others1 and
Kanu Sanyal v District Magistrate
Darjeeling2.

8. The writ of habeas corpus has been
held as a festinum remedium and accordingly
the power would be exercisable in a clear case.
The remedy of writ of habeas corpus at the
instance of a person seeking to obtain
possession of someone whom he claims to be
his wife would therefore not be available as a
matter of course. The observations made in the
decision in Mohammad Ikram Hussain
(supra) in this regard are as follows:-

"13. Exigence of the writ at the
instance of a husband is very rare in English
Law, and in India the writ of habeas corpus is
probably never used by a husband to regain his
wife and the alternative remedy under S. 100 of
the Code of Criminal Procedure is always used.
Then there is the remedy of civil suit for
restitution of conjugal rights. Husbands take
recourse to the latter when the detention does
not amount to an offence and to the former if it
does. In both these remedies all the issues of
fact can be tried and the writ of habeas corpus is
probably not demanded in similar cases if
issues of fact have first to be established. This is
because the writ of habeas corpus is festinum
remedium and the power can only be exercised
in a clear case. It is of course singularly
inappropriate in cases where the petitioner is
himself charged with a criminal offence in
respect of the very person for whose custody he
demands the writ."

9. In view of the other remedies available
for the purpose under criminal and civil law,
issuance of a writ of habeas corpus at the behest
of a husband to regain his wife may not be
available as a matter of course and the power in
this regard may be exercised only when a clear
case is made out.

10. In view of the facts of the present
case, the petitioner no.1 having left her
matrimonial home on her own on account of a
matrimonial discord, the present petition for a
writ of habeas corpus at the behest of the
petitioner no.2 (husband) would not be
entertainable.

11. The petition stands accordingly dismissed.
----------
(2021)03ILR A304
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 340 of 2020

Km. Chhavi (Minor) & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajay Kumar

Counsel for the Respondents:
A.G.A., Sri Pankaj Kumar Govil, Sri Pankaj
Govil

Father claimed custody of minor girl as
recorded by high school certificate-and
alleged her abduction by opposite partiesminor sttated she wants to live with
opposite party and has married out of her
free will-she has life threat with her
father-unil she atains majority she has to
be housed in shelter home-and upon
attaining majority -she is free to go
wherever she likes-Petition allowed.(E-7)

Cases cited:

1. Jarnail Singh Vs St. of Har., (2013) 7 SCC 263

2.Smt. Priyanka Devi Vs St. of U.P. & ors., 2018
(1) ACR 1061
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
305
3. Suhani Vs St. of U.P.,8 2018 SCC OnLine SC
781

4. Nisha Naaz @ Anuradha & anr. Vs St. of U.P.
& ors., 2019 SCC OnLine All 4062

5. Independent Thought Vs U.O.I. & anr., (2017)
10 SCC 800

(Delivered by Hon'ble J.J. Munir, J.)

This Habeas Corpus Writ Petition has
been instituted on behalf of Km. Chhavi by
her father Chhanga, praying that this Court
do issue a rule nisi, ordering respondent
nos. 2, 3 and 4 to produce Km. Chhavi
before this Court, and order her to be set at
liberty, according to her will and wish.

2. It is asserted in the Habeas Corpus
Writ Petition that Chhavi is a minor, who
was born on 18.07.2003. She is Chhanga's
daughter, who is the second petitioner here.
This petition has been effectively brought
by Chhanga. A First Information Report1
was lodged by Chhanga on 20.03.2020 and
registered with Police Station - Barsana, in
the District of Mathura, at 01:53 p.m.,
against one Laxman, son of Kamal Yadav,
Vishnu, son of Kamal Yadav, and Girdhari
Yadav, son of Gopal, with allegations that
on 18.03.2020 at 4 O' clock in the
afternoon,
Chhanga's
minor
daughter,
Chhavi, aged about 16 years, had gone to
fetch her cattle, when the three accused
were seen around her by Seema, wife of
Prem Chandra. Chhavi went traceless ever
since. A hunt was launched, but to no avail.
It was reported that Seema had told the
informant that she had seen the three
accused talking to Chhavi, and further that
she had seen Chhavi accompanying the
three men towards bus stand. It was said in
the First Information that Seema thought
that Chhavi was going with the accused in
connection with some errands. It is further
reported that when co-accused Girdhari
Yadav was asked about Chhavi by the
informant and his family, he confessed that
Chhavi had gone along with his nephew
(reference to Laxman). It was said in the
First Information further that Chhavi was a
minor, and the three accused had taken her
away by blandishment. The aforesaid
information was registered as Crime No. 84
of 2020, under Sections 363 and 366 of
Indian Penal Code, 18602, Police Station -
Barsana, District - Mathura. There is a
further information lodged about some kind
of a video relating to Chhavi, that was
made viral by co-accused Girdhari Yadav.
The video shows that Chhavi was in the
company of Laxman. This FIR was
registered on 15.05.2020 separately as
Crime No. 133 of 2020, under Section 66
of the Information Technology Act, 2000,
Police Station - Barsana, District -
Mathura.

3. It appears that Chhavi was
recovered by the police and produced
before the Magistrate on 20.05.2020, where
her statement under Section 164 of the
Code of Criminal Procedure, 1973, was
recorded. The statement unequivocally says
that
on
18.03.2020,
Chhavi
had
accompanied Laxman of her freewill,
whom she knew for the past 3-4 years. She
also said that she was in love with him. It is
clearly indicated that she was not taken
away by blandishment, but had gone of her
freewill. It was also said that she has
married Laxman and is now in the family
way. Chhavi was then forwarded, in
custody, to the Child Welfare Committee,
Mathura3. It is asserted in the writ petition
that the CWC handed over Chhavi, who is
a victim, into the care and custody of
Meena, wife of Kamlesh. Meena is
Laxman's sister. It is also said that there is
no document available to the petitioner to
306 INDIAN LAW REPORTS ALLAHABAD SERIES
show that any written order was made by
the CWC, entrusting custody of Chhavi to
the fourth respondent. It is asserted that it is
in collusion between the Investigating
Officer, the Chairperson of the CWC and
the accused Laxman, that Chhavi has been
entrusted into the custody of Laxman's
sister Meena, the fourth respondent. It is
also
brought
on
record
that
after
investigation, a charge-sheet has been filed
against Laxman under Sections 363, 366,
376 of IPC and Section 7/4 of the
Protection
of
Children
from
Sexual
Offences Act, 20124. Chhanga asserts that
his daughter is, for the time being, in
Meena's custody, who is, as already said,
the accused's sister, under some kind of an
order of the CWC. It is asserted that
Chhavi's custody with Meena is absolutely
illegal, and she ought to be liberated
therefrom.

4. This petition was admitted to
hearing on 08.10.2020, and a rule nisi was
issued, ordering the Senior Superintendent
of Police, Mathura to cause Chhavi to be
produced from the custody of respondent
no. 4, before the Court on 14.10.2020. The
Chairperson of the CWC, respondent no. 3,
was also directed to file a counter affidavit,
showing cause how Chhavi's custody, who
is a minor, was entrusted by her in her
capacity as the Head of the CWC, to a
stranger, as against the father.

5. In compliance with the rule nisi
issued on 08.10.2020, an affidavit of
compliance
has
been
filed
by
the
Investigating Officer, but Chhavi was not
produced. The defence for not carrying out
the rule was that Chhavi is in the family
way, and not in a position to be produced
before the Court. The Court, vide order
dated 14.10.2020, accepted the aforesaid
explanation, but in order to prevent the rule
from being frustrated, modified it to
provide that the District Judge, Mathura,
would depute a lady Judicial Officer posted
in his judgeship to go over to Chhavi, for
the time being residing at Baldev ka Bansh,
Police Station - Sikri, District - Bharatpur,
Rajasthan, and record her stand about the
case of illegal detention by the fourth
respondent, Meena. Necessary assistance to
the Judicial Officer was ordered to be
provided
by
the
District
Magistrate,
Mathura and the Senior Superintendent of
Police, Mathura. The two were also
required to get in touch with their
respective
counterparts
in
District
Bharatpur, State of Rajasthan, to facilitate
execution of the Court's commission. No
return was filed by the Chairperson, CWC,
in compliance with the order dated
08.10.2020 and, therefore, she was granted
further time to file a counter affidavit. The
matter was directed to come up on
20.10.2020,
along
with
the
Judicial
Magistrate's report. There was some delay
in
the
restoration
of
the
Judicial
Magistrate's report to the record, on
account of which, there were short
adjournments. The matter was taken up on
22.10.2020, when we had before us, the
Judicial
Magistrate's
report
dated
15.10.2020, carrying Chhavi's statement
recorded on commission at Bharatpur. It
would be relevant to extract the stand that
Chhavi took before the Judicial Magistrate,
Mathura,
acting
as
this
Court's
commissioner. The said statement recorded
on 15.10.2020 reads :

Ukke& Nfo mez& 20 o"kZ firk& NXxk
fuoklh& cjlkuk eFkqjk }kjk vkt fnukafdr 1510-2020 dks LoSPNk ls c;ku fn;k tk jgk gS
fd& esjh mez 20 o"kZ gSA eSaus 12th dh i<+kbZ
czts'ojh ckfydk ,.Vj dkWyst cjlkuk eFkqjk ls
dh gSA esjh dkxt ij 18-07-2003 tUefrfFk
vafdr gSA esjs firk us dkxtksa ij de mez
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
307
fy[kkbZ gSA eSa y{e.k dks 3&4 lky ls tkurh
FkhA eSaus fgUnw jhfr fjokt ls 24-3-2020 dks
Hkksiky esa viuh ethZ ls y{e.k ls 'kknh dj yhA
esjs xHkZ dks 9 ekg iwjs gks pqds gSA 'kknh ds le;
eSa 2 ekg dh xHkZorh FkhA 4 ekg iwoZ eSaus Lo;a
viuh uun ehuk dks Qksu fd;k vkSj
ukjh&fudsru ls ys tkus dks dgkA 4 ekg iwoZ eSa
viuh ethZ ls ehuk ds lkFk cYnso okl vk xbZA
eSa ehuk ds lkFk fdlh ncko esa ugha vk;h FkhA
rc ls eSa LoSPNk ls ehuk ds llqjky cYnso ckl
esa jg jgh gwaA ehuk }kjk eq>s cYnso okl esa fdlh
ncko esa ugha j[kk x;kA eSa ;gka LoSPNk ls jg jgh
gwaA eSa LoSPNk ls fcuk fdlh ncko ds ehuk ds
ikl jguk pkgrh gwaA fQj eSa vius ifr y{e.k ds
ikl tkmaxhA esjs ikik eq>s o Yk{e.k dks tku ls
ekjus dh dgrs gSA blds vykok eq>s dqN ugha
dguk gSA

iz'u& vki tks vkt c;ku ns jgh gS
oks fdlh Hkh izdkj ds ncko esa rks ugha ns jgha gS\

mRrj& eSa viuh LoSPNk ls fcuk fdlh
ncko ds c;ku ns jgh gwaA

Date- 15/10/2020

g0 (Archana Singh)

g0 Nfo U;kf;d eftLVsaV

Nfo gLrk{kj eFkqjk

izekf.kr fd;k tkrk gS fd mDr c;ku
Nfo ds LoSPNk iwoZd cksyus ij esjs }kjk vafdr
fd;k x;kA Nfo us mDr c;ku LoSPNk ls fcuk
fdlh ncko ds fn;k gSA Nfo }kjk c;ku i<+dj
lqudj rLnhd fd;k x;kA

Date- 15/10/2020

g0 (Archana Singh)

Nfo U;kf;d eftLVsaV

Nfo gLrk{kj eFkqjk

6. An affidavit of compliance was
filed
by
Ms.
Archana
Varshney,
Chairperson, CWC dated 19.10.2020. A
perusal of this affidavit shows that it is the
Chairperson's stand on behalf of the CWC
that on 08.10.2020, Chhavi submitted an
application before the CWC that she went
along with Laxman of her freewill, and that
she was in the family way. She further
disclosed to the CWC that she did not want
to go to her parents, as they would murder
her and cause a pre-mature termination of
her pregnancy. She also disclosed to the
CWC that Laxman's parents and his sister
would look after her well, as also her child.
She said that she wants to go with them.
She made a request that she may be
entrusted to Meena's care. A copy of the
application made on behalf of Chhavi has
been annexed as Annexure-1 to the counter
affidavit filed by the Chairperson of the
CWC. It is also said in the affidavit under
reference that on 22.05.2020, respondent
no. 4 Meena, Laxman's sister, submitted an
application to the CWC, with a request that
she wants to take Chhavi in her care and
custody, and that she would take proper
care of Chhavi and her child. A copy of
that application too, is annexed to the
return filed by the Chairperson, CWC.
There is a specific assertion in paragraph
no. 8 of the affidavit filed under reference,
that neither Chhavi's parents nor any of her
family members made an application to the
CWC, asking for her custody.

7. The CWC, taking into account the
proliferation in the number of active
CoViD-19 cases, and bearing in mind
Chhavi's welfare and that of her child, that
could
be
best
secured
under
the
circumstances, directed that she be placed
in the custody of the fourth respondent,
Meena. Meena was put under a direction to
take all proper care of Chhavi and to
periodically apprise the CWC with regard
to her welfare. The CWC also directed the
Investigating Officer to submit a report to
them from time to time regarding Chhavi's
welfare. There is a specific assertion in
paragraph no. 9 of the Chairperson, CWC's
affidavit that the fourth respondent, Meena,
308 INDIAN LAW REPORTS ALLAHABAD SERIES
is regularly updating the CWC with regard
to Chhavi's welfare. It is also asserted that
the Investigating Officer has also submitted
a report with regard to the victim's care. A
copy of the order of the CWC dated
22.05.2020, entrusting her care and custody
to the fourth respondent, is annexed, as also
an undertaking furnished by respondent no.
4 Meena, attested by two witnesses, to wit,
Sushil, son of Ami Chand and Amar Singh,
son of Late Gopal. A copy of the
Investigating
Officer's
report
dated
24.08.2020
submitted
to
the
CWC
regarding Chhavi's welfare is also annexed.
The Chairperson of the CWC has also
asserted in paragraph no. 11 of her affidavit
that Chhavi has made an application to the
District Magistrate, Mathura, asserting that
her parents would do her to death, and that
they are threatening to do so by an acid
attack.
She
has
also
expressed
an
apprehension about a threat to her child's
life, then still in her womb, informing the
District Magistrate that she does not want
to meet her parents.

8. It must be noticed that the order of
the CWC, which is signed by the Chairman
and two members, is one passed under Rule
18(8) and 19(7) of the Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016. The order is made in Form 19
to the Rules. It is an order apparently made
pending inquiry and directs Chhavi to be
placed in the foster care of respondent no.
4, temporarily. Apart from the standard
directions
carried
in
the
order,
the
following directions have been specifically
made :

fd'kksjh dks Foster care esa fn;k tk
jgk gSA firk i{k ls dksbZ Hkh izkFkZuk i= lqiqnZxh
esa ysus gsrq ugha fn;k x;k gSA fd'kksjh dk
Follow-up izfrekg fd;k tk,xkA I.O. ,slk
djuk lqfuf'pr djsaA

सूचनाथहZ&

1- I.O. Fkkuk cjlkuk

2- D.P.O. eFkqjk

9. This Court has perused the record
and considered the stand of parties,
including the stand of the CWC, expressed
through its Chairperson. There is little issue
on facts between Chhanga, Chavi's father,
on one hand, and Chhavi and Meena on the
other. Chhavi's stand, recorded by the
learned
Judicial
Magistrate,
Mathura,
spares no doubt that she is staying of her
freewill with respondent no. 4, without any
compulsion, duress or pressure. Speaking
in simple terms, for a fact, Chhavi cannot
be said to be in any kind of illegal
confinement. Rather, it is apparent that she
is staying with Meena of her freewill. The
statement also makes it vivid that Chhavi
has married Meena's brother, Laxman, of
her freewill. The sole question, therefore, to
determine is, whether Chhavi is within her
rights under the law to stay of her freewill
with Meena, who is Laxman's sister, the
man she has married. Now, Chhavi is
claimed to be a minor and she has
acknowledged her date of birth recorded in
her
high
school
certificate
to
be
08.07.2003, with the qualification that she
is aged 20 years for a fact, and that her date
of birth has been incorrectly recorded at her
father's instance. Now, if it were to be held
that Chhavi was a minor on the date she
married Laxman, a subsidiary question that
would also be of same consequence to the
parties' future is, whether the marriage
would be void or voidable.

10. In the opinion of this Court, it is
very difficult to accept the submission
advanced on behalf of both Chhavi and
Smt. Meena, that this Court may hold her
to be a major, by considering evidence
contrary to Chhavi's recorded date of birth
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
309
in her high school certificate. To our mind,
Chhavi cannot be referred to a medical
examination for the determination of her
age, so long as her date of birth founded on
her high school certificate is available. This
Court
has
perused
the
high
school
certificate relating to Chhavi, where she
appeared in the examination of 2018
conducted by the U.P. Board of High
School and Intermediate Education. A copy
of the said certificate is on record as a part
of Annexure no. 3 to the writ petition.
There, Chhavi's date of birth is clearly
mentioned as 08.07.2003. This fact is
acknowledged by Chhavi in her statement
made before the Judicial Magistrate, too.
Section 94 of the Juvenile Justice (Care and
Protection
of
Children)
Act,
20155
provides :

94.
Presumption
and
determination of age.- (1) Where, it is
obvious to the Committee or the Board,
based on the appearance of the person
brought before it under any of the
provisions of this Act (other than for the
purpose of giving evidence) that the said
person is a child, the Committee or the
Board shall record such observation stating
the age of the child as nearly as may be and
proceed with the inquiry under section 14
or section 36, as the case may be, without
waiting for further confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining -

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person."

11. Section 94(2) of the Act of 2015,
which provide for the determination of a
juvenile's age, have been extended in their
application to the victim as well in Jarnail
Singh v. State of Haryana6. The issue was
considered in a Division Bench decision of
this Court in Smt. Priyanka Devi v. State
of U.P. and Others7 to which I was a
party. It was held in Priyanka Devi (supra)
thus :

13. Learned counsel for the
petitioner lastly urged that provisions of
Section 94 of the Juvenile Justice Act, 2015
do not apply to the case in hand as the same
are
available
for
the
purposes
of
determination of age for a juvenile or a
child in conflict with the law but would not
apply to the determination of age in the
case of a victim.

14. We are afraid that the
aforesaid submission is not correct. The
issue was examined by the Supreme Court
in the case of Mahadeo S/o Kerba Maske v.
State of Maharashtra and Another; (2013)
310 INDIAN LAW REPORTS ALLAHABAD SERIES
14 SCC 637 where in paragraph no. 12 of
the report it was held as under:

"Under
rule
12(3)(b),
it
is
specifically provided that only in the
absence of alternative methods described
under Rule 12(3)(a)(i) to (iii), the medical
opinion can be sought for. In the light of
such a statutory rule prevailing for
ascertainment of the age of the juvenile in
our considered opinion, the same yardstick
can be rightly followed by the courts for
the purpose of the ascertaining the age of a
victim as well."
(Emphasis supplied)

15. This issue has also been
considered in an earlier judgment of the
Supreme Court in Jarnail Singh v. State of
Haryana; 2013 (7) SCC 263, where too it
has been held that rule 12(3) of the Juvenile
Justice (Care and Protection of Children)
Rules, 2007 must apply both to a child in
conflict with law as well as to a victim of a
crime. Paragraph 23 of the said report reads
thus:

"Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime.
Therefore,
in
our
considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VWPW6. The manner of determining age
conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is
ascertained, by adopting the first available
basis, out of a number of options postulated
in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect
over an option expressed in a subsequent
clause. The highest rated option available,
would conclusively determine the age of a
minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of
the concerned child, is the highest rated
option. In case, the said certificate is
available, no other evidence can be relied
upon. Only in the absence of the said
certificate,
Rule
12(3),
envisages
consideration of the date of birth entered, in
the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion."

16. Thus, principles applicable to
the determination of age in the case of a
juvenile would in terms apply to cases of
determination of the age of a victim as
well. It may be pointed out that at the point
of time when Mahadeo (supra) was decided
by their lordships of the Supreme Court,
the Juvenile Justice Act, 2000 was in force
and their lordships were interpreting the
provision of Rule 12(3) of the Juvenile
Justice (Care and Protection of Child)
Rules, 2007. The said Act of 2000 has
since been repealed and has been replaced
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
311
by the Juvenile Justice Act, 2015. The rules
framed under the Act of 2000 are thus no
longer on the statute book. However, the
provisions that found place in Rule 12(3) of
the Juvenile Justice (Care and Protection of
Child) Rules, 2007 framed under the
Juvenile Justice Act, 2000 are now, with
certain modifications engrafted into the the
Principal Act vide section 94 of the
Juvenile Justice Act, 2015. The inter se
priority of criteria to determine age under
Rule 12(3) of the Rules, 2007 (supra) and
section 94 of the Act, 2015 remains the
same albeit with certain modifications
which are of no consequences to the facts
in hand. In short, provisions of Rule 12(3)
of the Rules, 2007 framed under the
Juvenile Justice Act, 2000 are para meteria
to the provision of Section 94 of the
Juvenile Justice Act, 2015. This being the
comparative position, the principles of law
laid down by their lordships in the case of
Mahadeo (supra) would apply with equal
force to the provisions of section 94(2) of
the Juvenile Justice Act, 2015 while
determining the age of a victim of an
offence under Sections 363 and 366 IPC.
Thus, the submission of the learned counsel
for the petitioners, on this score, is not
tenable."

12. The provisions of Section 94(2) of
the Act of 2015 spare no room for the
Court to look into any evidence, in the face
of a date of birth certificate from the school
or the matriculation, or an equivalent
certificate from the examination board. In
the event, evidence about the date of birth
postulated in Clause (i) of sub-Section (2)
of Section 94 of the Act of 2015 is not
available, the birth certificate given by the
corporation or municipal authority or a
panchayat, as the case may be, is the next
evidence, in order of priority, that would
become relevant and can be considered to
determine the prosecutrix's age. If the
evidence envisaged in Clause (ii) of subSection (2) of Section 94 is also not
forthcoming,
the
age
of
the
victim/prosecutrix
is
required
to
be
determined by an ossification test or any
other medical test for the determination of
age that may have gained scientific
acceptability. That test is to be conducted
on the orders of the CWC or the Juvenile
Justice Board. In a given situation, the
jurisdiction to order a medical test may also
be exercised by a court before whom an
issue about the victim's age arises.
Therefore,
notwithstanding
the
prosecutrix's stand that she is 20-years-old
and has married Laxman of her freewill,
she cannot be heard to prove her age
anything different from what it is recorded
in her high school certificate. There is no
scope for her to be referred to a medical
board for the determination of her age, for
that reason. After the decision of their
Lordships of the Supreme Court in Suhani
v. State of U.P.8 there was some
uncertainty, whether a victim could be
referred to the medical examination of a
board of doctors for the determination of
her age, in the face of a recorded date of
birth in the high school certificate. The
decision of the Supreme Court in Suhani
(supra) did lead to some doubt whether a
victim could be referred for a medical
determination of her age, notwithstanding
the availability of her recorded date of birth
in the high school certificate. That doubt,
however, is no longer there, after the
decision of the Division Bench of this
Court in Nisha Naaz alias Anuradha &
Another v. State of U.P. & Others9
where it has been held that the decision in
Suhani does not lay down any law, but is
one on facts. The consequence of the
holding in Nisha Naaz (supra) is that the
principles in Priyanka Devi, following
312 INDIAN LAW REPORTS ALLAHABAD SERIES
Jarnail Singh emerge as the law to govern
the field. In Nisha Naaz, it was held :

14. A plain reading of Section 94
of the 2015, Act would reveal that only in
absence of: (a) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board; and (b) the birth
certificate given by a corporation or a
municipal authority or a panchayat, age is
to be determined by an ossification test or
any other latest medical age determination
test conducted on the orders of the
Committee or the Board. A Division Bench
of this court in the case of Smt. Priyanka
Devi Vs. State of U.P. and others in Habeas
Corpus Petition No.55317 of 2017, decided
on 21st November, 2017, after noticing the
provisions of the 2015, Act and the earlier
2000, Act and the rules framed thereunder,
came to the conclusion that as there is no
significant change brought about in the
2015, Act in the principles governing
determination of age of a juvenile in
conflict with law, in so far as weightage to
medico legal evidence is concerned, the
law laid down in respect of applicability of
those provisions for determination of a
child victim would continue to apply
notwithstanding the new enactment. The
Division Bench in Priyanka Devi's case
(supra) specifically held that as there is on
record the High School Certificate, the
medico legal evidence cannot be looked
into as the statute does not permit.

15. The judgment of the apex
court in Suhani's case (supra) does not lay
down law or guidelines to be used for
determination of the age of child victim.
Further, it neither overrules nor considers
its earlier decisions which mandated that
the age of child victim is to be determined
by the same principles as are applicable for
determination of the age of juvenile in
conflict with law. From the judgment of the
apex court in Suhani's case (supra), it
appears
that
the
concerned
victim
(petitioner no.1 of that case) was produced
before the court and the court considered it
apposite that she should be medically
examined by the concerned department of
All India Institute of Medical Sciences (for
short AIIMS). Upon which, AIIMS, by
taking radiological tests, submitted report
giving both lower as well as higher
estimates of age. On the lower side the age
was estimated as 19 years and on the higher
side it was 24 years. Therefore, even if the
margin of error was of 5 years, the victim
was an adult. Hence, on the facts of that
case, in Suhani's case, the first information
report was quashed by the Apex Court. The
decision of the Apex Court was therefore in
exercise of its power conferred upon it by
Article 142 of the Constitution of India
which enables it to pass such decree or
make such order as is necessary for doing
complete justice in any cause or matter
pending before it. The said decision cannot
be taken as a decision that overrules the
earlier binding precedents which lay down
the manner in which the age of a child
victim is to be determined."

13. In view of what the consistent
position of law appears to be, Chhavi has to
be held a minor on the date of her marriage
and till date. Her recorded date of birth in
her high school certificate is 08.07.2003
and she would turn a major on 09.07.2021.
The CWC have ordered her to be given in
the foster care of Laxman's sister. Laxman
is an accused in Crime No. 84 of 2020,
under Sections 363, 366 IPC, Police Station
- Barsana, District - Mathura. Even if
Chhavi's case that she has married Laxman
of her freewill were accepted, she cannot
be permitted to live in the foster care of his
sister, where access to each other cannot be
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
313
guarded. So long as Chhavi is a minor,
irrespective of the validity of her marriage
to Laxman, she cannot be permitted to be
placed in a position where there is a
likelihood of carnal proximity. If it were
permitted, it would be an offence both
under the Penal Code and under the Act of
2012. In no eventuality, so long as Chhavi
is a minor, can she be placed in a situation
where any exposure of the kind indicated
above cannot reasonably be expected to be
guarded against. The decision of the
Supreme Court in Independent Thought
v.
Union
of
India
&
Another10
completely excludes the possibility of
sanctioning
or
decriminalising
carnal
relations between a man and his wife, the
wife being below the age of 18 years. The
entire protective regime of the Act of 2012
is not compatible with an arrangement of
the kind of foster care ordered for Chhavi
by the CWC. Of course, as soon as Chhavi
turns a major, she would be free to go
wherever
she
likes
and
stay
with
whomsoever she wants, but till she attains
the age of majority, in the considered
opinion of this Court, she cannot be
permitted to stay in the foster care of
Meena, Laxman's sister.

14. The conclusion on facts that
Chhavi is not inaccessible to Laxman in the
foster care of Meena, is particularly based
on a note of the Judicial Magistrate,
Mathura, while proceeding to examine
Chhavi on this Court's commission, on
15.10.2020. This note reads thus :

ekuuh; mPPk U;k;ky; ds fjV
fiVh'ku la[;k 340 lu~ 2020 esa vkns'k fnukafdr
14-10-2020 ds izdk'k esa ekuuh; ftyk U;k;k/kh'k
eFkqjk ds vkns'k fnukafdr 15-10-2020 izkIr gksus
ij eSa vpZuk flag U;kf;d eftLVasV] eFkqjk] cYnso
okl lhdjh Hkjriqj jktLFkku ehuk iRuh
jk/kkd`".k ds ?kj mifLFkr vkbZA ehuk ds llqj
jktsUnz] ifr jk/kkd`".k] uun iwue feys o xkao ds
lHkzkUr yksx lR;iky] y{e.k] cyjke] xksih
mifLFkr vk;sA mijksDr us voxr djk;k fd
ehuk o Nfo ;gha jgrs gSA ehuk o Nfo dks 13-102020 dks S.I. ftrsUnz flag ds lkFk bykgkckn
tkus ds fy;s xbZ FkhA jkLrs esa xHkZorh Nfo dh
rch;r [kjkc gksus ij mls dqEgsj Hkjriqj
jktLFkku esa ljdkjh vLirky ys x;s gSA blh
vLirky esa gh Nfo dk bykt py jgk gSA

g0 (Archana Singh)
U;kf;d eftLVasV
eFkqjkA

15. The circumstances indicated in the
note above extracted show that Chhavi is
staying in a home in the foster care of
Meena, where, besides Meena, she has her
father-in-law Rajendra, husband Radha
Krishna and her sister-in-law (nanad)
Poonam. Meena, being Laxman's sister,
who is staying with her in-laws, cannot be
trusted with that kind of a foster care for
Chhavi, where she is not inaccessible to
Laxman. Going by Chhavi's stand that she
has validly married Laxman, the fact that at
the time of the Magistrate's visit, she had
begotten a child from Laxman, are also
circumstances which point to the possibility
of carnal relations between the two. It is not
difficult to infer that in the home, where
Laxman's sister Meena stays with her inlaws, Chhavi cannot be extended the
protective cover envisaged for a girl below
the age of 18 years, insulating her from any
kind of sexual activity, even with her
husband.

16. There is one more facet of the
matter that deserves note. Chhavi was
reported to be in the family way by the
learned Judicial Magistrate, Mathura, and
by now, may have been blessed with a
child. Therefore, wherever Chhavi is placed
until time that she turns a major, the child
314 INDIAN LAW REPORTS ALLAHABAD SERIES
would have to stay with her and be taken
care of as well.

17. Now, what is required to be
examined is the validity of Chhavi's
marriage to Laxman. As said earlier, the
validity of that marriage would have
consequences for the parties later in life.
Chhavi is not far away from attaining
majority and if she elects to go along with
Laxman, accepting him as her husband, the
validity of that marriage would be decisive.
In the opinion of this Court, the validity of
the marriage must be examined in order to
do substantial justice to the parties. Given
that Chhavi was a minor on the date of
marriage, which she claims to have
solemnized with Laxman, the provisions of
Sections 3 and 12 of the Prohibition of
Child Marriage Act, 200611 are required to
be surveyed. Sections 3 and 12 of the Act
of 2006 read :

"3. Child marriages to be
voidable at the option of contracting
party being a child.--(1) Every child
marriage, whether solemnised before or
after the commencement of this Act, shall
be voidable at the option of the contracting
party who was a child at the time of the
marriage:

Provided that a petition for
annulling a child marriage by a decree of
nullity may be filed in the district court
only by a contracting party to the marriage
who was a child at the time of the marriage.

(2) If at the time of filing a
petition, the petitioner is a minor, the
petition may be filed through his or her
guardian or next friend along with the
Child Marriage Prohibition Officer.

(3) The petition under this section
may be filed at any time but before the
child filing the petition completes two
years of attaining majority.

(4) While granting a decree of
nullity under this section, the district court
shall make an order directing both the
parties to the marriage and their parents or
their guardians to return to the other party,
his or her parents or guardian, as the case
may be, the money, valuables, ornaments
and other gifts received on the occasion of
the marriage by them from the other side,
or an amount equal to the value of such
valuables, ornaments, other gifts and
money:

Provided that no order under this
section
shall
be
passed
unless
the
concerned parties have been given notices
to appear before the district court and show
cause why such order should not be passed.

12. Marriage of a minor child
to be void in certain circumstances.--
Where a child, being a minor--

(a) is taken or enticed out of the
keeping of the lawful guardian; or

(b) by force compelled, or by any
deceitful means induced to go from any
place; or

(c) is sold for the purpose of
marriage; and made to go through a form of
marriage or if the minor is married after
which the minor is sold or trafficked or
used for immoral purposes,

such marriage shall be null and
void."

18. Now, Chhavi, in her stand about
her marriage to Laxman recorded by the
Judicial Magistrate on 15.10.2020, has
clearly said that she has married Laxman
according to Hindu rites, on 24.03.2020, of
her free will. There
are,
thus, no
circumstances indicating enticement of the
prosecutrix, taking her out of the keeping
of the lawful guardian, or a case of
compelling her by force, or inducing her by
deceitful means to go to any place along
with Laxman. There is also no case about
3 All. Km. Chhavi (Minor) & Anr. Vs. State of U.P. & Ors.
315
the prosecutrix being sold for the purpose
of marriage, and made to go through a form
of marriage. There is nothing there in
Chhavi's stand, recorded by the Judicial
Magistrate, that may attract the provisions
of Section 12 of the Act of 2006. Thus,
Chhavi's marriage to Laxman is not a void
marriage; rather it is a marriage which is
voidable at the option of Chhavi, by virtue
of Section 3 of the Act last mentioned.
Chhavi, after she turns a major or even
before that, can petition the competent
court to have the marriage annulled, and
she can do so within two years of attaining
majority. Of course, she can acknowledge
and elect to accept the marriage. All that
Chhavi chooses to do is not this Court's
determination, but it is to clarify the inter
se rights of parties vis-à-vis their marriage,
that the Court has ventured to examine the
legal status of the marriage, which Chhavi
supports as her voluntary act, while a
minor.

19. So far as the question of custody
or care for Chhavi, while she is a minor
different from the foster care of Meena is
concerned, one possible option for Chhavi
would be to go back to her father Chhanga,
who has petitioned this Court. That option,
however, stands foreclosed in unqualified
terms, in view of Chhavi's unequivocal
stand in her statement to the Judicial
Magistrate made on 15.10.2020. There, she
has clearly indicated that her father would
do her and Laxman to death. Apparently,
she has a serious threat perception from her
father and apprehends an honour killing. In
the circumstances, she cannot be placed in
the custody of her father, or even within his
reach.

20.