# Smt. Babli alias Maya & anr v. State of U.P. through Home Secretary & others

- **Citation:** (2002) 1 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-02-26
- **Case number:** Civil Misc. Writ Petition No. 545 of 2002
- **Bench:** Binod Kumar Roy, R.C. Deepak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-babli-alias-maya-anr-v-state-of-u-p-through-home-secretary-others-39814
- **Pages:** 13

## Headnote

Constitution of India, Article 226-The
question as to whether petitioner no.1 is
minor or major, shall have a vital bearing
- the divergence in the two medical
opinion - a three Member Medical Board
was constituted. Even a major girl or
woman can not invoke any fundamental
right to live with a male who is having a
wife and child.

Held - Para 21 & 22

The Constitution of India vide Article 23
(1) forbids immoral traffic. So does the
Prevention of Immoral Traffic Act. The
Indian
Penal
Code
and
the
Hindu
Marriage Act does not permit bigamy.
Section 18 of the Hindu Marriage Act
also prescribes punishment for violation
of conditions specified in Clauses (iii) of
Section 5. This Constitutional court if
proceeds to permit them to lead a
marital life it will apparently mean
perpetuating bigamy, which is an offence
under Sections 494 and 495 of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
258
Indian Penal Code as well as Section 17
of the Hindu Marriage Act, 1955.

Further as a guardian of the Constitution
of India so far as this State is concerned,
we cannot brush aside the fundamental
right of the wife and child of petitioner
no.
2
to
lead
a
meaningful
life
guaranteed to them under Article 21 of
the Constitution of India and other rights
available under the provisions of the
Hindu Marriage Act and we must uphold
rights giving liberty to them to ventilate
their grievances, if and when raised by
them, before any appropriate Authority
or Court, which is bound to adjudicate
them in accordance with law.

## Text

_Characters 0–39,972 of 41,122. This is a partial read: ask again with offset=39972 for what follows._

1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
257
respondents have refused to refer the
matter to the District Judge concerned
while dealing with the objection raised by
the petitioner. In this view of the matter,
in my opinion, the petitioner has made out
a case for getting his objection under
Section 18 of the Act decided on merits
by the respondent/collector, which has not
been done inspite of the long history
stated hereinbefore.

5. Apart from the reasons stated
above, the order dated 18.3.1998 also
suffers from the manifest error of law,
inasmuch
as
the
petitioner
having
satisfactorily explained the reasons in the
second application could have been
referred or in case the Collection wanted
to refuse it, he should have dealt with it in
accordance with law in the light of the
objection raised by the petitioner. Even
the order dated 6.4.1988 is a laconic order
which
has
been
passed
without
application of mind.

6. In this view of the matter, the writ
petition succeeds and is allowed. The
orders dated 18.3.1998 and 6.4.1988,
Annexure-1 and 2 to the writ petition, are
hereby
quashed.
The
Collector,
Mahrajganj is directed to dispose of the
petitioner's
objection
dated
9.5.1985
under Section 18 of the Land Acquisition
Act on merits by a reasoned order after
affording opportunity to the petitioner
within a period of three months from the
date of presentation of a certified copy of
this order before him. However, there will
be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD FEBRUARY 26, 2002

BEFORE
THE HON'BLE BINOD KUMAR ROY, J.
THE HON'BLE R.C. DEEPAK, J.

Civil Misc. Writ Petition No. 545 of 2002

Smt. Babli Alias Maya and another

...Petitioner
Versus
State of U.P. through Home Secretary,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Tej Pal

Counsel for the Respondents:
Sri A.K. Verma
A.G.A.
Sri Anoop Singh
Sri U.K. Saxena

Constitution of India, Article 226-The
question as to whether petitioner no.1 is
minor or major, shall have a vital bearing
- the divergence in the two medical
opinion - a three Member Medical Board
was constituted. Even a major girl or
woman can not invoke any fundamental
right to live with a male who is having a
wife and child.

Held - Para 21 & 22

The Constitution of India vide Article 23
(1) forbids immoral traffic. So does the
Prevention of Immoral Traffic Act. The
Indian
Penal
Code
and
the
Hindu
Marriage Act does not permit bigamy.
Section 18 of the Hindu Marriage Act
also prescribes punishment for violation
of conditions specified in Clauses (iii) of
Section 5. This Constitutional court if
proceeds to permit them to lead a
marital life it will apparently mean
perpetuating bigamy, which is an offence
under Sections 494 and 495 of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
258
Indian Penal Code as well as Section 17
of the Hindu Marriage Act, 1955.

Further as a guardian of the Constitution
of India so far as this State is concerned,
we cannot brush aside the fundamental
right of the wife and child of petitioner
no.
2
to
lead
a
meaningful
life
guaranteed to them under Article 21 of
the Constitution of India and other rights
available under the provisions of the
Hindu Marriage Act and we must uphold
rights giving liberty to them to ventilate
their grievances, if and when raised by
them, before any appropriate Authority
or Court, which is bound to adjudicate
them in accordance with law.

(Delivered by Hon'ble Binod Kumar Roy, J.)

1. The petitioners have come up
with prayers to quash (i) the First
Information Report dated 4th December,
2001 appending its Zerox copy along with
typed copy as Annexure-1 drawn up on
the information of own younger brother of
Petitioner no. 1 named Shiv Kumar, son
of
Santosh
Singh,
giving
rise
to
registration of Case Crime No. 665
(wrongly stated in the prayer portion as
664) of 2001 under Section 363, 506 and
364 I.P.C. (ii) the Police investigation in
relation to the aforementioned case and
(iii) to command the Respondents not to
interfere with their liberty to lead their
marital life and take petitioner no. 1 in
custody and handover to Respondent no.
3.

2. The impugned First Information
Report states, interalia, to this effect:- at
about 5:00 A.M. early morning the
Informant's elder sister Babli (=Petitioner
no.1) aged 16 years and Maternal GrandMother went out of the Village for easing
out; after some time he, too, went for
easing; about 150 meters, away from the
Village, he saw that Badmash after
pushing
away
her
Maternal-GrandMother, forcibly putting her sister Babli
in a Marshal Deluxe vehicle belonging to
Petitioner no. 2 Om Veer singh after
tearing her cloths, where he rushed; he
was threatened by Katta and Aslahon and
was asked that if he will cry then he will
be murdered and thus he could not cry to
save her sister; Petitioner no.2, Driver
Mahipal Singh, Jagveer Singh, Karua,
Ashok and two other unknown were on
the vehicle, which they drove away; lateron his Tau Ashok Kumar came and was
apprised of the entire facts; her sister was
taken away with intention of either
kidnapping or committal of rape; he has
come alongwith his Tau to get his report
lodged, which be registered and action
taken against the aforesaid persons and
his sister be traced out.

3. The petitioners assert, interalia, to
this effect:- Petitioner no.1 is major aged
about 20 years; she has been medically
examined by the Chief Medical Officer,
Mainpuri, who found her age 20 years, a
true copy of her Medical Certificate is
being filed as Annexure-2; petitioner no.2
is aged about 25 years, literate and has
passed Intermediate; both are Hindus and
Yadav by caste; being unmarried they
were entitled to marry each other in view
of Section 5 of the Hindu Marriage Act
and in September, 2001 they married out
of free consent according to Hindu rites;
their marriage is valid under Section 5 of
the Hindu Marriage Act; both also
prepared an Ekrarnama on 14.12.2001 of
their marriage which has been verified by
the Notary, District Etah, a true copy of
which is being filed as Annexure-3; after
marriage both of them are living as
husband and wife; respondent no. 3 is
brother of petitioner no. 1, who despite
the fact that even though petitioner no. 1
1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
259
had become major took no pain for her
marriage due to ulterior reasons which
was the precise reason for petitioner no. 1
to marry petitioner no. 2 out of her free
will and consent; respondent no. 3 on
account of village partybandi did not
relish her marriage and maliciously and
falsely lodged the false, fabricated and
absurd First Information Report on which
no truthful person can place reliance and
thus in view of the decision in P.S. Rajya
Vs. State, Supreme Today 1996(4) 445 is
liable to be quashed; Nani or the
compainant himself had not received any
injury; it has been falsely stated that
clothes of petitioner no. 1 were torn; there
is no allegation in the First Information
Report that kidnapping was done for
commission of murder; the investigation
has been handed-over to respondent no. 2
Head Constable K.P. Singh, who is not
authorized under Paragraph 51 of the U.P.
Police Regulation; the entire investigation
is illegal in view of T.T. Antony Versus
State of Kerala 2001(5) Supreme Today
131; even though petitioner no.2 has not
committed any offence at all yet the
Investigating Officer is trying to arrest
him as well as petitioner no. 1 and
handover the latter to respondent no. 3.

3.1. This writ petition incorporates
only two grounds:- (A) `Because no
offence is made out (B) `Because
fundamental rights of the petitioners are
being violated'.

4. When this writ petition came up
for admission before a Division Bench on
29th January 2002, the following order
was passed:-

"Sri Tejpal learned counsel for the
petitioners states that before this writ
petition could come up for admission,
both the petitioners have been arrested by
police. Petitioner no. 2 is an accused in
the case in question while Smt. Babli alias
Maya is said to be the girl who is alleged
to have been kidnapped by petitioner no.
2. According to the petitioner's case she is
major and has married petitioner no.2 of
her own volition.

Issue notice to respondent no.2 with
a direction to produce petitioner no. 1
Smt. Babli alias Maya before this Court
on the next date of listing.

Sri Kumar respondent no. 3 who is
represented by Sri Rajeev Sharma holding
brief of Sri Anoop Singh is also directed
to produce Smt. Babli alias Maya before
this court in case she has been handed
over to him by the investigation officer of
this case.

List on 18th February, 2002.

In the meantime respondent no.3
may file counter affidavit.

5. Thereafter, on 18th February, 2002
this writ petition was placed before us.
What happened before us in court stands
reflected in our order dated 18.2.2002,
which reads as follows:-

"In terms of the court's order dated
29.1.2002 Babli alias Maya is being
produced before us. She makes statements
to this effect before us:- She had married
petitioner no. 2 Om Veer Singh of her
own sweet will and not under anyone's
enticement
or
coercion;
that
the
statements made in the writ petition to the
contrary have been made by her under
threat and coercion of her killing by her
father Santosh Singh, her uncles Rakesh
Singh and Kamlesh singh; her father's
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
260
elder brother Ashok Singh and a man who
is present in Court in yellow clothes with
turban on his head whose name she does
not known but identifies in court who has
been visiting her house for the last about
two months and doing some tantramantra, and her cousin Vinod Kumar son
of Ashok Singh; that they also threatened
her that if the Court sends her to Nari
Niketan she will be got killed there also;
and that they have got kept arms
inlawyer's Chamber no. 19.

In the larger interest of justice we
direct the police authorities deputed in the
court premises to visit lawyer's chamber
no. 19 atonce to find out as to whether
any arm has been kept in lawyer's
chamber no. 19 or not and if it has been
kept, to lodge a F.I.R. atonce against the
persons concerned and thereafter the
police will act in accordance with law.

We are required to rise at 3.15 P.M.
so as to assemble in the Full Court
reference. Thus it is not possible for us to
proceed with this case any further today.

Having regard to the peculiar facts
and circumstances, in the larger interest of
justice, we direct the Registrar-General of
the Court to send petitioner no. 1 at once
to Nari Niketan where she will be given
all possible protection so that no one
could coerce her or make any attempt to
kill her, who shall be further produced
before us tomorrow at 10.00 A.M. for
hearing this case further directing the
Senior
Superintendent
of
Police,
Allahabad to do the needful in this regard.

We also direct the police authorities
in the peculiar facts and circumstances to
release petitioner no. 2 forthwith on
furnishing Bail bonds of Rs. 5000/- with
two sureties of the like amount to the
satisfaction of Chief Judicial Magistrate,
Hathras who has been arrested in Case
Crime no. 665 of 2001 under sections
363, 504, 364 I.P.C., P.S. Sikandar Rau,
District Hathras.

The person in yellow dress and
turban on his head discloses his name as
Narain Das son of Sri Parmanand
Resident of Village Binarua, P.S. churkhi,
District Jalaun. The other two persons
present in court disclose their names as
Ashok Kumar son of Hari Mohan and
Shiv Kumar son of Santosh Kumar both
residents of village Sarai, P.S. Sikandra
Rau,
District
Hathras.
The
aforementioned three persons identified
by the petitioner no. 1 thus prima facie
had committed contempt of this court in
giving threats to her of being killed and
make incorrect statements and have
apparently obstructed the administration
of justice of this Court and thus we
initiate proceedings under Article 215 of
the Constitution of India against all of
them who are also forwarded before the
Registrar-General
of
the
Court
for
furnishing undertaking that they will
produce themselves tomorrow.

This Criminal writ petition and
Article 215 contempt proceedings both
shall be heard further tomorrow. It is
needless to clarify that this Division
Bench constituting Allahabad High Court
itself has plenary power under the
Constitution
of
India
to
initiate
proceedings in contempt under Article
215 of the Constitution of India for which
no rules have been framed under the
Rules of the Court and is competent to
deal with such a situation suo moto.
1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
261
Before parting for the day we point
out that Sri Udai Karan Saxena, who has
entered appearance on behalf of Babli
alias
Maya
aforementioned,
sought
withdrawal as the counsel from this case
but at the moment it will not be desirable
to pass any order in that regard for the
present.

The office is directed to send a copy
of this order to (i) Nari Neketan,
Allahabad and (ii) Senior Superintendent
of Police, Allahabad, in course of the day,
for a follow up action.

The office is further directed to hand
over a copy of this order to Sri A.K.
Verma, learned A.G.A., in course of the
day for its intimation to and follow up
action by the Chief Judicial Magistrate,
Hathras."

6. Thereafter we had heard Mr.
Tejpal, the learned counsel for the
petitioners and Sri A.K. Verma, the
learned A.G.A. on 19.2.2002 and had
passed the following order:-

"The Registrar General of the Court
informs us that Hon'ble the chief Justice is
aware of the problem concerning security
of the Court premises which includes the
Bar Associations and has already taken
some decision. Since Hon'ble Chief
Justice of this Court is the administrative
head and already in seisin of the threat
perception we are of the view that for the
present no order on the judicial side of
this Court is required to be passed. We
give liberty to the Registrar General to
inform Hon'ble Chief Justice of the events
which had taken place yesterday which
stands recorded in our order dated 18th
February, 2002 and recovery of the live
cartridges and the Country made pistol as
orally reported to by the police.

2.
Petitioner No.1 Babli alias Maya has
been produced before us. She wants to
make some further statements. We direct
her to make her statements before the
Registrar General of the Court, who shall
either record himself or get the same
recorded by some other Registrar of the
Court. Her statements will be recorded in
the presence of the contemners.

3.
We also direct the contemners, who
are present before us to make their
statements, if they so like, before the
Registrar General of the Court, who shall
get the statements recorded personally or
through some other Registrar of the
Court.

4.
After recording of the statements of
Petitioner No. 1, she shall be taken to Nari
Niketan, Allahabad to be produced
tomorrow before us once again.

5.
We are being informed by the
learned A.G.A. Sri A.K. Verma that Case
Crime No. 25 of 2002 under Section 25
Arms Act Police Station Cantt. District
Allahabad has been instituted against the
contemners. He after perusal of our order
dated 18.2.2002 states that apart from
Section
25
Arms
Act
the
person
concerned have prima facie committed
offences under Section 342, 504 and 506
I.P.C. also.

6.
Since the contemners against whom
criminal prosecution has been launched
are required to be produced before the
C.J.M., Allahabad or any other competent
Magistrate after their statements are
recorded, they shall be taken by the Police
to be produced before the C.J.M.,
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
262
Allahabad or any other Competent Court
for a follow up action but they shall be
produced by the Police once again
tomorrow before us.

7.
Put up tomorrow for further hearing
this writ proceedings as well as the
contempt proceeding awaiting receipt of
the statements."

7. It appears that Joint Registrar
(Confidential) Sri N.K. Singh recorded
the statements of Petitioner No. 1 and
three of the contemners.

8. On 20.2.2002 after further hearing
Sri Tejpal and Sri Verma we had passed
the following order:-
"The
Registry
has
forwarded
the
statements of Petitioner No. 1 and other
three persons in a sealed cover. We direct
our Bench Secretary, to open it for our
perusal.

2.
Yesterday on the basis of the
statements made by Sri Verma, learned
A.G.A., before us we had passed our
order, the relevant part of which, reads as
follows:-

"5. We are being informed by the learned
A.G.A. Sri A.K. Verma that Case Crime
No. 25 of 2002 under Section 25 Arms
Act
Police
Station
Cantt.
District
Allahabad has been instituted against the
contemners. He after perusal of our order
dated 18.2.2002 states that apart from 25
Arms Act the persons concerned have
prima facie committed offences under
Section 342, 504 and 506 I.P.C. also.

6. Since the contemners against whom
criminal prosecution has been launched
are required to be produced before the
C.J.M., Allahabad or any other competent
Magistrate after their statements are
recorded, they shall be taken by the Police
to be produced before the C.J.M.,
Allahabad or any other Competent Court
for a follow up action but they shall be
produced by the Police once again
tomorrow before us."

3.
Today we are being informed by Sri
Verma,
learned
A.G.A.,
that
the
aforementioned Case Crime No. Is 31 of
2002 and not 25 of 2002 and that it was
registered only against Ashok Kumar
Yadav alias Ashok Kumar Singh, Son of
Harimohan Singh, Resident of Village
Sarai Mahamai Salawat Nagar, Police
Station Sikandra Rau, District Hathras,
who has been described by petitioner no.
1 before us as Ashok Singh who is her
father's elder brother; that Ashok Kumar
Yadav alias Ashok Singh aforementioned
was produced before the Chief Judicial
Magistrate, Allahabad who remanded him
in judicial custody till 3rd March, 2002
and is in Jail from where he has been
taken to the Court in terms of the
directions made by us.

4.
Sri Verma, learned A.G.A., also
informs us that Respondent No. 2 the
Investigating Officer of Case Crime No.
665 of 2001, which is sought to be
quashed has not contacted him even
though he was directed by the Court's
order dated 29th January, 2002 to produce
Petitioner No. 1 Smt. Babli alias Maya
before this Court on 18th Febraury, 2002
or even till date and obviously in not
adhering to comply with the directions of
this Court aforementioned he has prima
facie undermined the authority of the
Court.

5.
However, as prayed for by the
learned Government Advocate Sri R.P.
1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
263
Dubey,
indulgence
is
granted
to
Respondent No.2 to explain his conduct
in this regard, who shall appear in Court
on Monday dated 25th February, 2002
alongwith
his
entire
papers
of
investigation at 10:00 A.M. when this
case will be taken up for further hearing.

6.
Sri R.P. Dubey, learned Government
Advocate, takes up a stand that due to
some misunderstanding on the part of the
Police authorities and the absence of the
copy of the order dated 18th February,
2002, wherein the statements made by the
petitioner no.1 before us have been
referred to, the First Information Report
could not be bonafide registered against
the remaining persons under appropriate
Sections of the Indian Penal Code which
shall be corrected/rectified in course of
the day and the remaining persons shall
also be produced before the Chief Justice
Magistrate, Allahabad for a follow up
action.

7.
Respondent No. 3, Shiv Kumar, Son
of Santosh Singh, Resident of Village
Sarai Mahamia, Salawat Nagar, Police
Station Sikandra Rau, District Hathras has
been apparently described incorrectly as
Shri Kumar. He has been produced before
us. He claims his age about 14 years,
though in his statement made before the
Registry he has asserted his age to be 15
and half years. Thus, he prima facie
appears to be a juvenile.

Accordingly, we direct the local
Police to release him on bail in the Case
Crime in question in which he is likely to
figure after taking a personal bond of Rs.
1,000/- (Rupees One thousand only) from
his father's elder brother Ashok Kumar
Yadav, subject to further order of the
Court.
8.
Petitioner No. 1 in her statement
before the Registry of the Court has stated
that she knew Om Veer Singh (Petitioner
No. 2) for the last three years who is
having a wife and son living.

In this view of the matter we are
prima facie of the view that the alleged
marriage of Petitioner No. 1 with
Petitioner No. 2 is void in law being
contrary to the provisions of Section 5 of
the Hindu Marriage Act even though she
asserts that she is bearing a child through
Om Veer Singh.

We order that Petitioner No. 1 shall
be taken to Nari Niketan till further orders
to the contrary clarifying that she will be
produced before us, if and when we pass
an order in that regard directing further
that the person and property, if any which
she is carrying, shall be protected by the
Police authorities in terms of our earlier
order.

9.
The contemners except the juvenile
once will be produced on Monday dated
25th February, 2002 for further hearing of
the writ proceeding and the contempt
proceedings so that article of charges in
regard to committal of Criminal contempt
be framed in their presence.

10. If anyone applies for having a
certified copy of the statements made by
the four persons concerned, he shall be
supplied the same as per the law.

11. Let a copy of this order be handedover to Mr. A.K. Verma, learned
Additional
Government
Advocate/Mr.
R.P.
Dubey,
learned
Government
Advocate, in course of the day for its
intimation to and follow up action by the
authority concerned."
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
264
9.

In
his
Counter
Affidavit
Respondent No. 2 the I.O. Kripal Singh
has stated, inter alia, that he has recorded
the statements of the Constable clerk
Pradeep Kumar, the first Informant Shiv
Kumar, Ashok Kumar, Smt. Hardai (the
grand mother),
Rakesh
Kumar and
Santosh Singh; that he also did the spot
inspection and prepared site plan; that on
9.12.2001 he also recorded the statement
of accused Jagveer Singh but the
investigation was transferred from him to
Manoj Kumar Singh the sub-Inspector;
and that thereafter he handed-over the
entire case diary to Manoj Kumar Singh
the sub-Inspector.

10. In his Counter Affidavit the subInspector Manoj Kumar Singh has stated,
inter alia, that he moved an application
before
the
Magistrate
for
initiating
proceeding under Sections 82/83 Cr.P.C.
on which non-bailable warrant was issued
against
the
accused
persons;
on
26.1.2002, when he was in search of the
victim Km. Babli and the accused Om
Veer Singh at about 4:35 P.M. arrested
them near Sikandara Railway Station and
recorded their statements; Km. Babli filed
an application that she wanted to go
alongwith her father then on that very day
she was permitted to go alongwith her
uncle Ashok Kumar, who was directed to
produce her for her medical examination
and X-ray on 28th January, 2001; On 28th
January Km. Babli was brought to the
Police Station, but she declined to give
her statement due to her illness and then
she was sent for her medical examination
and X-ray, on 30th January he obtained
the medical report of the C.M.O.; the
Statement of the victim was recorded
under Section 164 Cr.P.C. on 2nd February
which he could see on 4th February, 2002;
and that after perusing all the records
including the statements of the victim as
well as the medical report he has added
Section 363, 366, 506 I.P.C. but the
investigation is still going on after
completion of which the report will be
submitted before the competent court.

11. What had happened before us on
25th February, 2002 stands reflected in our
order, which reads thus:-

"Mr. A.K. Verma, learned Additional
Government Advocate, files a Counter
Affidavit sworn by Kripal Singh, who
was the earlier Investigations Officer and
another Counter Affidavit sworn by the
subsequent Investigating Officer which
are being kept on the record.

2.
Mr. Verma also produces two X-rox
copies of the Police diary which are being
kept on the record.

3.
Mr. Tejpal, learned counsel for the
petitioners, challenges the correctness of
the Medical examination of the petitioner
no. 1 and the opinion given by the doctor
that petitioner no. 1 is aged 17 years as
stated in the Police diary whereas
according to the medical examination and
the certificate granted by the C.M.O.,
Mainpuri as contained in Annexure-2 to
the writ petition, she is aged 20 years.

4.
We also put on record the stand of
the Investigating Officer that he had
arrested the petitioners near Hathras
Railways Station which fact has been
disputed by Sri Tejpal, learned counsel
for the petitioners, stating that in fact the
petitioners were arrested by the Police of
Police Station Colenlganj, town and
District Allahabad on 23.1.2002 from
Aman Hotel, Mohalla Katra nearby the
Lower court where they were staying
1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
265
which fact has also been published in
form of a news item at page 3 of the
newspaper
named
`Amrit
Prabhat'
Allahabad dated 24.1.2002 which is being
produced by him and kept on the record
and that this fact was also apprised to the
Court on 29th January, 2002 on which a
direction was issued to the Investigating
Officer (Respondent no. 2) to produce
petitioner no. 1 and that as a face saving
device deliberately incorrect entries have
been made in the Police diary.

5.
In this back ground we, for the
present in the interest of justice, direct the
Senior
Superintendent
of
Police,
Allahabad to see that the records of Police
Station Colonelganj of 23.1.2002 are
produced before us to find out as to
whether entries in the Police diary which
have been produced before us are
fictitious, forged and fabricated.

6.
The Senior Superintendent of Police,
Allahabad will also see that through some
responsible Police Officer petitioner no.
1, who is presently in Nari Niketan, is
produced before us tomorrow.

7.
The contemners who have been
produced before us shall be re-produced
tomorrow.

8.
Put up tomorrow for further hearing.

9.
The office is directed to serve a copy
of this order on Sri Verma, learned
A.G.A. if possible in course of the day
who is authorized by us to inform the
substance
of
this
order
to
Senior
Superintendent of Police, Allahabad for
compliance
of
the
direction
aforementioned."

12. Today what happened before
lunch before us stands reflected in our
order, which reads as follows:-

"26.2.2002 - In terms of our direction
the General Diary entries made in the
General Diary of the Police Station
Colonelganj,
Allahabad
from
17th
January, 2002 to 25th January, 2002 has
been produced by Sri A.K. Verma,
learned A.G.A. Entry No. 44 of which is
at page 90 of the General Diary shows
arrival of Sub Inspector Manoj Kumar
Sharma,
constable
no.
648
Suresh
Chandra and Constable No. 10 Bhagari
Prasad from Hathras in connection with
the case crime no. 665 of 2001 under
section 363/366/364 I.P.C. and returned
back. This entry has been recorded at
18.35 that is to say 6:35 P.M. in the
evening which prima facie corroborates
the statement of petitioner no. 1 that she
was arrested from Allahabad and belies
the claim of the Police investigation that
she was arrested in the manner as
indicated in the Police Diary.

Accordingly, in the interest of
justice, we direct the S.H.O., P.S.
Colonelganj to be present in Court at 1:45
P.M. to have his version in this regard.

After dictation of the aforementioned
order 15 minutes was granted to the I.O.
Sub Inspector Manoj Kumar Sharma and
the Head Constable (No. 153) Ram Lal to
rethink over the correctness of their
statements made before us as well as in
the Police Diary. Mr. A.K. Verma,
learned A.G.A., after some talks with
them informs us that it is a fact that the
petitioner no. 1 as well as petitioner no. 2
both were arrested at Allahabad.
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
266
We give a chance to the I.O., S.I.
Manoj Kumar Sharma to make his
statements on oath by way of a
supplementary affidavit while adjourning
the
further
hearing
of
these
two
proceedings to be resumed today at 1.45
P.M."

13. After lunch Mr. A.K. Verma,
filed an Affidavit of the Investigating
Officer stating that the figure `25' is a
typographical error in lieu of `24' as
mentioned
in
the
earlier
part
of
Paragraph-2 and that the I.O. who has
tendered his unqualified apology has left
himself at our mercy and that he be
exonerated and pardoned.

14. Mr. Tej Pal contended that in
view of the fact that petitioners being
major had married lawfully much before
the alleged occurrence, therefore, the
entire accusations in the impugned F.I.R.
are false and it is liable to be quashed, the
petitioner's fundamental rights enshrined
under Article 21 of the Constitution of
India, which guarantees them to lead a
meaningful married life cannot allowed to
be breached, and thus the reliefs prayed
for be granted.

15. Mr. A.K. Verma contended as
follows:- In view of the statements made
in the Counter Affidavits of the two I.O.s
this writ petition is liable to be dismissed.
In any view of the matter in view of the
statements made by petitioner no. 1
herself before the Joint Registrar of the
Court she has married petitioner no. 2,
who was a married person and having his
wife and a child living and thus the case
set-forth in paragraph 7 of this writ
petition
that
petitioner
no.
2
was
unmarried is absolutely a false statement;
since the petitioner no. 2 is already having
a wife, the alleged marriage of petitioner
no. 1 with petitioner no. 2 was void and
nullity in the eye of law; true it is that
mistake has been committed by the
present I.O. in the diary in showing the
arrest of the Petitioners nearby Hathras
Railway Station, whereas they were
apprehended at Allahabad in that regard
to which has filed his Affidavit and has
tendered unqualified apology and grant of
mercy and pardon for his exoneration but
the materials collected by him during
investigation which have been mentioned
in the Diary prima facie shows that
petitioner no. 1 on examination by the
C.M.O., Hathras, was found to be aged
about 17 years only and thus there is no
question of giving of her any consent
whatsoever in law so as to give a handle
to petitioner no. 2 to escape the
investigation and if charge sheet is
submitted the consequent trail and thus
this writ petition is fit to be dismissed.

16. Sri Tej Pal, on the other hand,
replied that petitioner no. 2 had married
petitioner no. 1 after divorcing his first
wife as per the custom prevalent in their
caste, which is permissible under Section
29(2) of the Hindu Marriage Act, 1955.
He took up a stand that the Petitioners are
prepared
to
file
a
Supplementary
Affidavit in this regard bringing on record
the relevant pleadings. Alternatively, he
contended that since the Doctor's report,
appended
as
Annexure-2,
shows
Petitioner no.1 as major, therefore, she is
entitled to reside with her husband
petitioner no. 2 as his wife invoking her
fundamental right to lead a meaningful
life as enshrined under Article 21 of the
Constitution of India. He also emphasized
that no Counter Affidavit having been
filed by the Respondents therefore the
1All] Smt. Babli alias Maya & anr. V. State of U.P. through Home Secretary & others
267
statements made by the petitioners on
oath be accepted as correct.

17. Mr. Verma replied that in terms
of
the
order
dated
29.1.2002
the
Petitioners were required to take steps to
serve Respondent no.2 who has been
impleaded by his name and that both I.O.s
have appeared and filed Counters and the
case diary when they were apprised of our
order for production of the Diary.

18. This issue as to whether
petitioner no. 1 is minor or major, which
is a question of fact and shall have a
crucial effect should not be adjudicated in
this summary proceeding under Article
226 of the Constitution of India specially
when the Chief Judicial Magistrate,
Hathras is in seisin of the case, which,
when properly contested by petitioner no.
2, can be appropriately adjudicated.

19. In Pargraph-7 of this writ
petition it has been asserted by the
petitioners that both of them were
unmarried and entitled to marry each
other in view of Section 5 of the Hindu
Marriage Act. The statement to the effect
that petitioner no. 2 was unmarried cannot
be accepted by us in view of the clear cut
statement made by petitioner no. 1
hereself in her statement before the Joint
Registrar of the Court in terms of our
directions that petitioner no. 2 was
married and having his wife and child.

Apparently, the petitioners have
taken recourse to falsehood in this regard.
The statement made by petitioner no. 1
that petitioner no. 2 was married and
having a wife and a child has not been
dubbed as incorrect by Mr. Tejpal before
us. We, however, in the peculiar facts and
circumstances do not intend to issue
notices to the petitioners for showing
cause as to why a proceeding in contempt
be not initiated against them for swearing
a false affidavit and that a prosecution be
launched for perjury.

20. The belated statement of Mr. Tej
Pal that before performing his marriage
with petitioner no. 1 petitioner no. 2 has
divorced his first wife as per the custom
does not require our scrutiny. The law is
well settled that plea of custom is required
to be taken and proved. No such pleading
having been taken in this writ petition that
as per the custom petitioner no.2 had
divorced his first wife we do not feel
persuaded to adjourn this case and give a
handle to the petitioners to introduce a
new case after we had recorded a finding
on 20.2.2002 that prima facie the
marriage is void. Significant in this
context that the petitioner no. 1 had also
stated that the petitioners had married
with consent of the wife of Petitioner No.
2.

21. The argument made by Mr. Tej
Pal that the petitioners are entitled to
reside as married husband and wife
invoking Article 21 of the Constitution of
India does not appeal to us at all. Firstly
the question as to whether Petitioner No.
1 is minor or major shall have a vital
bearing. Secondly, even a major girl or
woman cannot invoke any fundamental
right to live with a male who is having a
wife and child. The Constitution of India
vide Article 23 (1) forbids immoral
traffic. So does the Prevention of Immoral
Traffic Act. The Indian Penal Code and
the Hindu Marriage Act does not permit
bigamy. Section 18 of the Hindu Marriage
Act also prescribes punishment for
violation of conditions specified in
Clauses
(iii)
of
Section
5.
This
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
268
Constitutional Court if proceeds to permit
them to lead a marital life it will
apparently mean perpetuating bigamy,
which is an offence under Section 494
and 495 of the Indian Penal Code as well
as Section 17 of the Hindu Marriage Act,
1955. The two decisions of the Apex
Court cited by the petitioners are of no
help to them. Thus for the aforesaid
reasons we reject grant of the prayers.

22. Further as a guardian of the
Constitution of India so far as this State is
concerned, we cannot brush aside the
fundamental right of the wife and child of
petitioner no. 2 to lead a meaningful life
guaranteed to them under Article 21 of
the Constitution of India and other rights
available under the provisions of the
Hindu Marriage Act and we must uphold
their right giving liberty to them to
ventilate their grievances, if and when
raised by them, before any appropriate
Authority or Court, which is bound to
adjudicate them in accordance with law.

23. In view of the divergence in the
two medical opinion we, in the interest of
justice,
constitute
a
three
Member
Medical
Board
comprising
(i)
the
Principal of the S.N. Medical college,
Agra as its Chairman (ii) Head of the
Department of Orthopedics of the S.N.
Medical College as its Member and (iii)
Head of the Department of Gynecology of
the S.N. Medical as its 2nd Member,
which will examine petitioner no. 1 after
obtaining
Radiological
Report
(Ossification of Bones Test of petitioner
no. 1) from their Radiology Department
and opinion of their Radiologist whether
petitioner no. 1 was minor or major on
4.12.2001. The Medical Board shall be
obliged to give its Report keeping in mind
the decisions of the Supreme court that
such a report does not conclusively prove
the correct age of a person and that there
are chances of error of one or two years
on either side, which shall be forwarded
to the C.J.M., Hathras. The costs in this
regard has to be met by petitioner no. 2.

24.

The
admission
of
the
Investigating Officer before us that he has
committed mistake in showing the arrest
of
the
Petitioners
nearby
Hathras
Railways Station coupled with the fact
that since petitioner no. 1 had not
committed any offence she could not have
been arrested at all added by contradictory
medical opinions brought on our record in
regard to which we have constituted a
Medical Board and since the question of
minority and/or majority of petitioner no.
1 shall have a vital bearing in the interest
of justice, we direct the Superintendent of
Police, Hathras to get further investigation
done by a Police Officer not below the
rank of a Deputy Superintendent of
Police, who shall proceed with the further
investigation of the Case Crime in
question only after the receipt of the
report
of
the
Medical
Board,
aforementioned.

25. Petitioner no. 1 was taken to
Nari
Niketan,
Allahabad.
She
has
expressed a desire before us that she will
like to reside with her Maternal Uncle
Prem Singh son of Yadram, Resident of
Village Onni, Police Station Mehrar,
District Etah (U.P.) and/or Yadram
himself who is her Maternal-grand-father,
if we do not allow her to reside with
petitioner no. 2. She will remain in Nari
Niketan, Allahabd for three days. Her
Maternal Uncle and/or Maternal Grand
Father aforementioned shall be at liberty
to visit Nari Niketan, Allahabad to take
her away for her living with them, who
1All] Pintu and another V. State of U.P.
269
shall produce her before the Chief Judicial
Magistrate, Hathras within one week for
sending her to the Medical Board for the
purpose already indicated earlier. In the
event of their failure to take petitioner no.
1 from Nari Niketan the Hathras Police
will take her before the C.J.M., Hathras
for doing the needful in accordance with
law.

26. Our direction to release
petitioner
no.
2
vide
order
dated
18.2.2002 shall remain in operation till
the receipt of Report of the Medical
Board of the C.J.M., Hathras.

27. The Criminal Case instituted by
the Allahabad Police shall proceed in
accordance with law.

28. As prayed for by Mr. U.K.
Saxena,
Advocate,
who
has
filed
subsequently a further Vakalatnama of
petitioner no. 1, his appearance is
cancelled.

29. In regard to the security of the
premises of this court we have already
directed the Registrar General to appraise
Hon'ble the Chief Justice, who is
administrative head of the court, for doing
the needful and in that view of the matter
no further direction of ours is required.

30. The General Police Diary of
Police Station Colenganj, Allahabad is
being returned back to Mr. A.K. Verma,
learned
Additional
Government
Advocate.

31. Let a copy of this order be
dispatched forthwith to the Chief Judicial
Magistrate, Hathras for a follow up action
by the Medical Board and him as well.

32. Let a copy of this order be also
handed over to Mr. A.K.