# Shalu Mishra v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 904
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-05
- **Case number:** Habeas Corpus No. 190 of 2013
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shalu-mishra-v-state-of-u-p-and-ors-42644
- **Pages:** 6

## Headnote

Constitution of India, Art. 226- Habeas
corpus
Petition-petitioner
when
marriage solemnized in Arya Samaj
Mandir-girl being less than 17 yearsaccording to High School certificatemore than 17 years-but as per medical
certificate her age found 19 years-if
variation
of
3
years
allowed-found
major-even
being
minor-if
marriage
accepted-only the husband entitled to
get her custody-even before this court
expressed
girl
desire
to
joint
the
company
of
her
husband-petition
allowed-direction issued accordingly.

Held: Para-29 & 30

## Text

904 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
landlord. In the absence of such a
legislation a landlord has a common law
right to evict the tenant other in the
determination of the tenancy by efflux of
time or for default in payment of rent or
other grounds after giving notice under
the Transfer of Property Act. This broad
right has been curtailed by The Rent
Control Legislation with a view to give
protection to the tenants having regard to
their genuine and dire needs. While the
rent control legislation has given a
number of facilities to the tenants it
should, not be construed so as to destroy
the limited relief which it seeks to give to
the landlord also. For instance one of the
grounds for eviction which is contained in
almost all the Rent Control Acts in the
country is the question of landlord's
bonafide personal necessity. The concept
of
bonafide
necessity
should
be
meaningfully construed so as to make the
relief granted to the landlord real and
practical. "

15. In view of the discussions as
made above, the landlord has got success
in proving his bona fide requirement and
there is no need to remand back this
matter afresh which will ultimately delay
the disposal of the case and lingering out
unnecessarily.

16. In result, the writ petition is
allowed. Both the orders passed by
learned Prescribed Authority as well as
the learned Appellate Court are set aside
and the release application is allowed,
which stands released in favour of the
landlord-petitioners.
The
learned
Prescribed Authority shall proceed on to
execute the release order in terms of the
release order contained in sub-section 6 of
Section 21 of U.P. Act No. 13 of 1972.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2013

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

Habeas Corpus No. 190 of 2013

Shalu Mishra

...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri G.S. Pandey, Sri Himanshu Tiwari

Counsel for the Respondents:
G.A.

Constitution of India, Art. 226- Habeas
corpus
Petition-petitioner
when
marriage solemnized in Arya Samaj
Mandir-girl being less than 17 yearsaccording to High School certificatemore than 17 years-but as per medical
certificate her age found 19 years-if
variation
of
3
years
allowed-found
major-even
being
minor-if
marriage
accepted-only the husband entitled to
get her custody-even before this court
expressed
girl
desire
to
joint
the
company
of
her
husband-petition
allowed-direction issued accordingly.

Held: Para-29 & 30
29. 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.
Sessions
Judge
has
himself
while
making
transitory
arrangement
observed that his order shall be subject
to the decision of this writ petition.

30. Taking into consideration the
marriage
certificate,
educational
certificate, medical reports regarding
2 All] Shalu Mishra Vs. State of U.P. and Ors.
905
age and her categorical statement, this
Court is of the opinion that this petition
deserves to be allowed.

Case Law discussed:
[2013(1) JIC 578 (All.)]; [2013 (1) JIC 224
(All.)]; Crl. Misc. Case No. 1705 of 2012(u/s
482 Cr.P.C.); AIR 2009 AP 52

(Delivered by Hon'ble Sudhir Kumar
Saxena, J.)

1. 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.

2. I have heard Sri G.S. Pandey,
learned counsel for petitioner, Sri Sunil
Dixit, learned counsel for respondent and
Km. Nand Prabha Shukla, learned A.G.A.

3. Briefly stated petitioner's case is
that Sunil Kumar Mishra married Shalu
Mishra on 16.05.2013 before 'Arya Samaj
Mandir, Aliganj, Lucknow'. Copy of
marriage
certificate
as
well
as
photographs have been filed to buttress
the submission. Parents of Shalu Mishra
are trying to marry her with some other
person, although she is married wife of
Sunil Mishra.

4. It is stated that mother of Shalu
Mishra lodged an F.I.R. against Sunil
Mishra, registered as Case Crime No. 872
of 2013 under Sections 363, 366, 120-B
I.P.C., Police Station Purwa, District
Unnao alleging that Sunil Mishra had
enticed Shalu Mishra, aged about 16
years, with the collusion of Mukesh and
Ashish and father of Sunil Mishra is also
involved in the incident.

5. 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:

"Heard
learned
counsel
for
the
petitioners
and
also
learned
A.G.A.
appearing for the State. 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. Issue
notice to respondent no.3 who may file
counter affidavit within four weeks. Learned
A.G.A. may also file counter affidavit within
the same period. Rejoinder affidavit may
thereafter be filed within two weeks. List this
matter after expiry of the aforesaid period.
Till the next date of listing, the arrest of the
petitioners, who are involved in case crime
no.617 of 2013 under Sections 363, 366 and
120-B I.P.C P.S. Purwa District Unnao shall
remain stayed."

6. 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.

7. 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.
906 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

8. This Court on 03.06.2013 directed
S.P., Unnao to hold enquiry into the
allegations made in the application dated
24.05.2013.

9. A.G.A. informed the Court that
application dated 24.05.2013 led to the
registration of a Case Crime No. 696 of
2013, under Sections 364-A, 307, 352,
506, 323 I.P.C. on 04.06.2013 and on
05.06.2013 final report was prepared.

10. Shalu Mishra was directed to
appear in the Court who stated that she
wants to go with Sunil Mishra. Case was
fixed on 13.06.2013 on which date S.O.,
Mahila Thana, Unnao submitted report
informing that Shalu Mishra had stated
that she and her husband were dragged by
Jai Prakash Tiwari and Rajendra @
Bawali and taken them in a Bolero
vehicle forcibly from where she was
detained in her parental house.

11. This Court directed S.P., Unnao
to get the investigation done by the officer
not below the rank of Deputy S.P. as
Shalu in her statement partly confirmed
the incident dated 21.05.2013. 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.

12. 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.

13. From the case diary submitted
by learned A.G.A., it 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.

14.

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. This
order was further subjected to the order
that may be passed by this Court in this
writ petition.

15. Except under the provisions of
Juvenile Justice Act where question
regarding determination of age of juvenile
in conflict with law is concerned, there is
2 All] Shalu Mishra Vs. State of U.P. and Ors.
907
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.

16. 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.

17. It is argued that it is not a case of
private detention as such Single Judge
cannot hear this matter.

18. In reply it is submitted that
petition was filed on 30th May, 2013
before this Court challenging private
detention of Shalu Mishra in Home; after
filing of the writ petition, she was
produced before the Sessions Judge for
deciding the question of custody who sent
her to Naari Niketan.

19. Matter has come up before this
Court after report of Stamp Reporter. In
the matter of violation of fundamental
rights, Court has a duty to zealously
safeguard the same.

20. Sri Sunil Dixit, learned counsel
for the respondents has cited a decision of
this Court given in the case of Smt.
Sakshi Tomar Vs. State of U.P. and
others [2013(1) JIC 578 (All)].

21. The aforesaid case was decided
on it's own facts as apparent from Para-7
of the judgment. Court found that there
was no proof of marriage. Victim stated
her place of marriage to be some temple
in Mansoorie while Munnu Bhati stated
the place of marriage to be some Shiv
Temple at Ghaziabad. Her date of birth
being 20.09.1996, she was less than 16
years on the date of alleged marriage i.e.
26.05.2012. Moreover, the Court has
found on the basis of it's own assessment
of X-ray report that she was below 18
years. Regarding age, there was no
material. Court upheld the detention of
victim in Naari Niketan. Court has
specifically relied on the finding in Para-7
that no marriage has been proved.

22. In the instant case, not only
certificate of marriage has been filed but
also on the date of alleged marriage, even
according to High School Certificate, she
was more than 17 years and according to
medical certificate, she was more than 19
years, as such, above cited case has
clearly no application.

23. The case of Smt. Manoja Devi
and Another Vs. State of U.P. and
others [2013(1) JIC 224 (All)] was also
decided on it's own facts. Court has found
that "Corpus was telling a lie and
according to medical examination report
also she was aged about 18 years". So far
as the person claiming her custody was
concerned, Court observed that " he could
not disclose the name and address of his
owner. He stated that he wanted to keep
corpus in his detention and ready to
maintain her as wife but he did not appear
to be mature person." Consequently,
Court did not find it proper to give corpus
in the custody of Santosh. This decision is
also not useful to the respondents.

24. This Court is not going into the
merits of the investigation and the
908 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
statement given by her before the I.O. or
the Magistrate. In this Court she has
categorically stated that she does not want
to stay in Naari Niketan. She wants to go
with her husband Sunil Mishra.

25. 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:

"husband is the natural guardian of a
married girl and it is not in the welfare of
female to keep her in Nari Niketan for
prolonged period, particularly when she
wants to join the company or remain in
the custody of her husband, who would be
the natural guardian."

26. 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.

27. 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."

28. In another case of Smt.
Lakshmi @ Kamini & another Vs.
State of U.P. and others (Habeas
Corpus writ petition no. 33814 of 2011),
a Division Bench of this Court consisting
of Hon'ble Dharnidhar Jha and Ramesh
Sinha,JJ. dealt with a case where age
recorded in medical report was at variance
with the age mentioned in the educational
certificate. Following observations can be
usefully quoted :

"...............We want to point out that
there was no such law which could justify
the above observation of the A.C.J.M, that
in a case of present nature the assessed
age of the victim in an offence of the
present nature has to be discarded in the
light of the entries made in the school
records.
Probably,
the
A.C.J.M.,
Farrukhabad having in his mind the
provisions of Juvenile Justice (Care and
Protection of Children) Rules, 2007, by
virtue of Rule 12, had granted credence to
the age of a victim of such an offence
which is mentioned in the school leaving
certificate over the medically assessed age
of such a victim.

....................We have repeatedly been
pointing out that the victim of an offence
under Sections 363, 363A or 366 I.P.C. may
not be confused as an accused. She may also
not be treated, if she is below 18 years of age
2 All] Ram Pratap and Ors. Vs. Gulab
909
as a juvenile in conflict with law, and the law
applicable to juvenile may not be applicable
to such a victim of the offence. We have also
noted at some earlier occasions that even a
child had its rights internationally recognized
which
as
per
cultural
heritage
and
constitutional provisions inherently assumed
the character of fundamental rights of a child
and no Court could have the authority to
encroach upon those rights of a child. If at all
any offence is constituted by facts, no law
could justify the dentention of such a victim
if there is a dispute of custody of the victim.

...................On account of being a citizen
of India, she could have enjoyed the
fundamental rights and move in whatever
direction she desired if that movement was not
detrimental to the Constitutional provision and
national security."

29. 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. Sessions
Judge has himself while making transitory
arrangement observed that his order shall be
subject to the decision of this writ petition.

30. 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.

31. Petition is allowed.

32.

Superintendent,
Government
Protective Home, Lucknow is directed to set
Shalu Mishra free to go with Sunil Mishra.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Second Appeal No.352 of 1993

Ram Pratap and Ors.

...Appellants
Versus
Gulab

 ...Respondent

Counsel for the Appellant:
Sri S.K. Srivastava, Sri A.D.R. Srivastava
Dr. L.P. Mishra

Counsel for the Respondents:
Nazim Ali Siddiqi

C.P.C. Section-100- Second Appeal suit
for specific performance decreed by Trial
Court first appellate court dismissed suit
on
ground
of

transaction
being
contravention of Section 168-A-direction
for refund of earnest money with 12%
interest per annum-at Second appeal
stage-suit was rightly dismissed by first
appellate Court but, when second appeal
is going to be decided-existing provision
shall be considered-accordingly when by
U.P. Amendment Act no 27 of 2004provision of Section 168-A shall ceased
to operate after expiry of 2 years-suit
liable to decreed question decided in
favor of appellant-appeal allowed.

Held: Para-13
In the above mentioned case the sale
deed had been executed and in the
instant case before this Court the sale
deed is to be executed. Learned First
Appellate Court has decided the matter
in accordance with law as applicable on
the date of decision. But, this Court has
decided the second appeal as on today
when Section 168-A is no more in force
and, as such, the discretion to decree the
suit by specific performance of contract
cannot
be
legally
denied
to
the
plaintiffs/appellants. As of now, there is