# Smt. Manju Yadav Thru' Its Husband Yogendra Yadav v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 22
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-25
- **Bench:** Abhai Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-yadav-thru-its-husband-yogendra-yadav-v-state-of-u-p-ors-44018
- **Pages:** 8

## Text

22 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The facts of the present case are different from the facts mentioned in the above cited
case.

10. Rule 12 of The Juvenile Justice (Care and Protection of Children), Rules, 2007 does not
mention to consider the school leaving certificate to decide the juvenility. For this purpose,
matriculation or equivalent certificates, thereafter the date of birth certificate from the school (other
than a play school) first attended and thereafter birth certificate given by a corporation or a
municipal authority or a panchayat shall be obtained for seeking evidence by the Juvenile Justice
Board and in absence of all the above documents, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the juvenile or child.

11. In the present case, the age certificate dated 27.02.2013 of the revisionist issued by the
Chief Medical Officer, Gautam Budh Nagar is relevant, which has clearly declared the age of the
revisionist Mohit Mishra as above 19 years of age.

12. In the circumstances, there is no illegality, perversity or infirmity in the impugned
order. The revision sans merits and is liable to be dismissed.

13. The revision is accordingly dismissed. The interim order, if any, stands vacated.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.07.2016

BEFORE

THE HON'BLE ABHAI KUMAR, J.

Habeas Corpus Writ Petition No.- 22578 Of 2016

Smt. Manju Yadav Thru' Its Husband Yogendra Yadav ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Anil Kumar Pandey

Counsel for Respondents:
Government Advocate

Held

Writ of habeas corpus not maintainable where custody of a minor girl has been given to her parents by
a competent Magistrate under lawful authority and such order is not patently illegal or without jurisdiction.
Distinction drawn between Nari Niketan detention and parental custody.
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Earlier Division Bench judgments dealing with illegal detention in Nari Niketan are not applicable where
custody is restored to lawful guardians.
Article 21 not violated.
Personal liberty under Article 21 is subject to procedure established by law. When a Magistrate, after
determining minority, restores custody to lawful guardians, such action is in accordance with law.
Minor's consent irrelevant in kidnapping from lawful guardianship.
Under Section 361 IPC, taking a minor girl (below 18 years) from lawful guardianship constitutes an offence
irrespective of her consent.
Restoration to lawful guardians not illegal detention.
Once a minor girl is recovered and handed over to her parents (lawful guardians), custody cannot be termed
illegal confinement.
Alternative remedy relevant in present context.
Though habeas corpus is not barred by alternative remedy, where a judicial order exists and is not patently
illegal, the appropriate remedy lies in revision/appeal, not writ jurisdiction.
Magistrate's order not patently illegal.
If the Magistrate has exercised jurisdiction lawfully and custody has been awarded to parents, writ court
should not re-agitate the issue.
Petition dismissed.

CASE LAW CITED

1. Kalyani Chaudhary v. State of U.P.
1978 Cri LJ 1003

2. Smt. Mala (Corpus) v. State of U.P.
2015 (9) ADJ 737 (DB)

3. Pushpa Devi @ Rajwanti Devi v. State of U.P.
(1995) 1 JIC 189

4. Smt. Raj Kumari v. Superintendent, Women Protection Home, Meerut
1997 (2) AWC 720

5. Smt. Preeti Nishad v. State of U.P.
Habeas Corpus No. 146 of 2015

6. Sonu Paswan v. State of U.P.
2013 (31) LCD 1107

7. Sanno Devi v. State of U.P.
Habeas Corpus No. 309 of 2015

8. Delhi High Court decisions (Ravi Kumar v. State; Phoola Devi v. State)

(Delivered by Hon'ble Abhai Kumar, J.)

1. This petition has been filed to issue a writ, order or direction in the nature of habeas
corpus for producing the corpus - Smt. Manju Yadav before this Court who is said to be legally
wedded wife of the petitioner- Yogendra Yadav.
24 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The brief point that is under consideration for this order is regarding the maintainability
of writ of habeas corpus when an order of competent court/magistrate court is in existence for
giving the minor girl in the custody of father after she was recovered during the investigation upon
an FIR lodged under Sections 363 and 366 IPC.

3. The argument of learned counsel for the petitioner is two fold. Firstly, that Article 21 of
the Constitution guarantees liberty of a citizen irrespective of her age, and a girl who has married
and has gone out of her free will with the accused, cannot be detained against her wishes whether
she is minor or major. Secondly, it is contended that availability of alternative remedy is no bar in
maintainability of writ of habeas corpus and it is also stated by the learned counsel that even if the
order of magistrate court is in existence regarding the custody of the girl, even then writ of habeas
corpus is maintainable.

4. This Court is also of the considered view that Article 21 of the Constitution of India,
provides guarantee against life of personal liberty except according to procedure established by
law.

5. A person what to say about girl cannot be detained against one's wishes unless it is
provided by law. This point was considered by a division bench of this Court in the case of Kalyani
Chaudhary Vs. State of U.P., 1978 Cr.L.J. 1003, wherein it was provided that in pursuance of
Suppression of Immoral Traffic in Women and Girls Act, 1956, a girl cannot be sent to Nari
Niketan, unless it is permitted to detain her in such a Home. Hon'ble Judges, observed as follows:

"4. A reading of the provision of the Suppression of Immoral Traffic in Women
and Girls Act clearly shows that a person can be kept in a Protective Home only when she is being
dealt with under the Act. No person can be kept in the protective home unless she is required to be
kept there either in pursuance of the Suppression of Immoral Traffic in Women and Girls Act, or
under some other law permitting her detention in such a Home. It is admitted that the case does not
fall under this Act, no other law has been referred to."

6. This is abundantly clear that personal liberty of a person cannot be curtailed by any
order, unless it is passed in accordance with law. So the contention of the learned counsel for the
petitioner that right under Article 21 has been guaranteed is curtailed by the order of the magistrate
court is to be seen in the perspective whether any such right to the magistrate is being provided by
law or not.

7. Learned counsel fortified his assertions on the basis of observations made by this court
in the cases of Smt. Mala (corpus) and another Vs. State of U.P. and others, 2015 (9) ADJ 737
(DB); Pushpa Devi alias Rajwanti Devi Vs. State of U.P., (1995) 1 JIC 189 and Sanno Devi Vs.
State of U.P. and others, Hapeas Corpus No. 309 of 2015.

8. In the case of Smt. Mala (supra), division bench of this court has elaborately discussed
the detention of a girl in Nari Niketan by the order of a magistrate court/competent court and came
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to the conclusion that judicial magistrate did not have any right to snatch the custody of the detenue
from her husband and place her in a Protective Home. Division Bench also observed the contential
issue whether a minor can be sent to Nari Niketan against her wish, and observed that it is no
longer res-integra and stands conclusively settled by a catena of decisions of this Court. The case of
Smt. Kalayani (supra) was referred by the bench and quoted the following portion as follows:

"No person can be kept in a Protective Home unless she is required to be kept there
either in pursuance of Immoral Traffic in Women and Girls Protection Act or under some other law
permitting her detention in such a home. In such cases, the question of minority is irrelevant as
even a minor cannot be detained against her will or at the will of her father in a Protective Home."

9. Further the case of Pushpa Devi (supra) was also discussed by the division bench and
observations made in Pushpa Devi's case is reproduced below:

"In any event, the question of age is not very material in the petitions of the nature of
habeas corpus as even a minor has a right to keep her person and even the parents cannot compel
the detention of the minor against her will, unless there is some other reason for it."

10. The division bench further discussed the law laid down in the case of Smt. Raj Kumari
Vs. Superintendent, Women Protection, Meerut and others House, 1997 (2) AWC 720. In Smt.
Raj Kumari's case, the detenue was sent to Protective Home and in that circumstances it was found
unwarranted that the order of the magistrate directing for her detention till the party concerned gets
a declaration by the Civil Court or the competent Court of law regarding her age. Division Bench
further discussed other proposition made by another division bench of this Court in Habeas Corpus
No. 146 of 2015, Smt. Preeti Nishad through her Husband Mahendra Kumar Vs. State of U.P.
and quoted the observation made by the division bench in Smt. Preeti Nishad (supra):

""The main objection of Sri S. N. Tilhari, learned A.G.A. that the petitioner should
be asked to file revision at this stage will be defeating the spirit of Article 21 of the Constitution of
India. The petitioner is neither an accused nor an offender of law. She is simply a citizen of this
country who has done no wrong. She is major. The C.M.O. concerned has given her age to be
around 20 years. This is based on medical examination and x-ray report. So far the certificate
submitted by the father is concerned, it appears to be fabricated. Detenue has clearly mentioned that
she has never studied in the school from where the age certificate has been obtained. It is not a
matriculation certificate. It is a lower class certificate issued recently after the controversy arose. It
cannot be trusted compared to the C.M.O. report and her own version before the Court."

11. After discussing ratio laid down by various benches of this Court, division bench
observed as follows:

"We now proceed to examine the third objection raised by learned A.G. A. before
this Court that the detenue being a minor cannot be set at liberty and allowed to go with her
husband merely on account of her having solemnized marriage with him. The detenue-petitioner
26 INDIAN LAW REPORTS ALLAHABAD SERIES

no. 1 as per her date of birth recorded in her Transfer certificate, is at present aged about sixteen
years two months. There is nothing on record showing that the mother or the father of the corpus
had made any application claiming her custody before the learned Magistrate. There is also no
dispute that the petitioner no. 1 has solemnized marriage with petitioner no. 2, Gautam Chauhan,
and they were living as husband and wife till the petitioner no. 1 was snatched away from her
husband's custody and sent to Nari Niketan. A Division Bench of this Court in the case of Sonu
Paswan Versus State of U. P. and another reported in 2013 (31) LCD 1107 has held that "a child
marriage will be voidable at the instance of the minor. Otherwise, the marriage is not void ipso
facto. In this view also the Magistrate does not have any right to snatch the custody of the detenue
from the husband and place her in a protective home."

12. Learned counsel for the petitioner further made his thrust on the basis of law
propounded in the case of Sanno Devi (supra). Division Bench of this court in that case while
discussing the point giving the custody by a magistrate court after taking the statement under
Section 164 Cr.P.C. of the victim thereby quashed the order of the magistrate court dated 7.1.2015
passed by Additional Chief Judicial Magistrate IIIrd, Hardoi and certain observations made by the
division bench of this court are reproduced below:-

"29- While considering a petition filed for issuance of a writ in the nature of Habeas
Corpus, the writ court is not required to go into the complexities of law, once it is made evident to
the Court that personal liberty of a citizen has been curtailed. A writ court cannot contemplate any
limitation on its power to deliver substantial justice. Equity justifies bending the Rules, where fair
play is not violated , with a view to promote substantial justice.

35- When the facts are cumulatively considered, we find that liberty of the petitioner
is being curtailed without any legal cause. Order Annexure No.-1 has been passed by the
Magistrate without giving due importance to the personal liberty of the petitioner. The desire of the
petitioner has been ignored without any legally tenable reason. The age determined through
Medical/ossification test has been overlooked for the wrong reasons.

13. The ratio laid down by the division bench as well as in the above referred decisions
per-se not applicable for the purpose of order under consideration. The only consideration that is
required to be dealt with is regarding the maintainability of the writ of habeas corpus during
existence of an order of a competent court whereby minor girl was given in the custody of her
father.

14. All the judgments referred above are conspicuously silent regarding the order when
custody of the girl was given to the parents. All the judgments dealt with the position where the girl
was sent to Nari Niketan against her wishes and this Court is totally inconsonance with the
observations made by the above referred division bench as well as bench of this court that a girl
either minor or major cannot be sent to Nari Niketan against her wishes but what will happen if a
minor girl has been given in the custody of her parents is not being discussed elaborately.
7 All. Smt. Manju Yadav Thru' Its Husband Yogendra Yadav Vs State Of U.P. & Ors.

27
15. The observation of the division bench in the above referred cases that even a minor girl
cannot be sent to Nari Niketan or otherwise is not elaborate enough to include the order regarding
giving the minor girl to the parents. This Court is not inclined to discuss the order of the magistrate
court in detail whether magistrate court reached to the conclusion regarding the minority of the girl
is correct or not and whether magistrate court gave the custody to the parents without observing the
specific provisions made in this regard.

16. No doubt there was an order in existence for giving the girl to the parents may be
against her wishes and by the order of the magistrate court girl is said to be minor.

17. This Court is also of the view that was taken by the learned counsel for the petitioner
that the alternative relief cannot abrogate the right of a person to seek remedy in the writ
jurisdiction. When alternative remedy has already been exhausted then can a prayer under writ
jurisdiction is maintainable where the order of the magistrate is not perse illegal or devoid of merit.
Where by the order magistrate directs the girl to be sent to Nari Niketan is patently illegal order and
in no circumstances that order is maintainable. In the circumstances, in the above referred writ
petitions relief was given by the court.

18. Whether order giving a minor girl in the custody of parents can be said to be illegal
order, certainly not.

19. Reference of Section 361 IPC is necessary and punishment for that is provided under
Section 363 IPC. Section 361 is reproduced below:-

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any
minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any
person of unsound mind, out of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said to kidnap such minor or person from
lawful guardianship.

Explanation.--The words "lawful guardian" in this section include any person
lawfully entrusted with the care or custody of such minor or other person.

Exception --This section does not extend to the act of any person who in good faith
believes himself to be the father of an ille-gitimate child, or who in good faith believes himself to
be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful
purpose"

20. When a minor girl under the age of 18 years is taken away from the lawful
guardianship then that offence is punishable under Section 363 IPC. It is inherent right provided to
lawful guardian to have the custody of a minor girl under the age of 18 years and whenever this
right of lawful guardianship is infringed then he is having right to lodge an FIR.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

21. After recovery of the girl, if she is again restored to the lawful guardianship then that
order cannot be said to be illegal. When a magistrate finds that the girl is minor and has been taken
away from the custody of the lawful guardianship, even if she is a consenting party, offence is
made out and in the circumstances directing the girl into custody of lawful guardianship, cannot be
an order that can be said to be patently illegal.

22. It is stubbornly contended by the learned counsel for the petitioner that the division
bench decisions referred above clearly hold that even a minor girl who has married to the abductor
cannot be sent back, and it is her right to remain with the person of her choice and whom she has
married and have spent time with him after marriage or even without marriage.

23. At this juncture, I would like to draw the attention towards the observation made by the
division bench of Delhi High Court wherein marriage of minors was discussed elaborately and the
court has observed as follows in paras 16 and 18:

"16. In our judgment in Ravi Kumar v. The State and Anr. and Phoola Devi v. The
State and Ors. (supra), we followed the existing legal position as noted in the preceding paras as the
marriages solemnized in contravention of the age prescribed under section 5(iii) of the Hindu
Marriage Act i.e 21 years for male and 18 years for female were neither void nor voidable under
sections 11 and 12 of the Hindu Marriage Act. Such under age marriages were only punishable
under Section 18 of the Hindu Marriage Act with imprisonment of 15 days and a fine of Rs. 1000/-
as also under the provisions of Child Marriage Restraint Act.

18. `Run Away Marriages' are manifestation of a generational change due to variety
of factors, including increased interaction between the sexes, with young boys and girls attaining
maturity rapidly. It is a complex problem with inter play of social, economic, religious, caste,
educational factors, including sex education and vulnerability and backwardness of the weaker sex
having its impact. The Child Marriage Restraint Act, 1929 as well as relevant provisions of the
Hindu Marriage Act are social legislations aimed at protection and development of the vulnerable
sex and have to be interpreted and worked accordingly. The consequences of considering such
marriages as void or voidable need to be evaluated since the State as well as the social reformists
who have not been successful to change the mindset of the people tuned to early marriages. By an
estimate, prevalence of child marriages in the major States of West Bengal, Rajasthan, Bihar and
Madhya Pradesh varies from 56 to 59%. Moreover, it is also to be noted that any adverse fall out of
any law that makes such underage marriages as void or voidable would be borne by none other than
the women and their progeny.

It is for the Parliament to consider whether the present provisions of the Hindu
Marriage Act and the Child Marriage Restraint Act have proved insufficient or failed to discourage
child marriages and to take such remedial steps, as are required in their wisdom."

24. Prior to amendment that was done by the Criminal Law Amendment Act 2013 (13 of
2013) in the Indian Penal Code, consent of the girl was 16 years and by the amendment that age has
7 All. Chotey Lal Yadav & Anr. Vs Union Of India & Ors.

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been increased to 18 years. From this very fact, it can be inferred that consenting age of 16 years
was not found appropriate and it was thought that age of 16 years is not mature enough to give her
consent for sexual relationship. The bar is being increased 18 years and certainly this was being
increased to make the law very stringent towards the child marriage or consenting marriage against
the provisions of Hindu Marriage Act as referred above.

25. We are being of progressive society, liberties should be accorded to every citizen to
think independently and seeking his/her welfare on his/her own but by that we cannot accord the
permission to do an illegal act and thereby creating imbalance in the society.

26. If a power has been provided to a magistrate and magistrate has exercised his power
with due diligence and after consideration of the matter before it, if order is not patently illegal then
same cannot be again reagitated by way of a writ petition. Moreso, when further remedy is
available to the petitioner that is by way of a revision to the revisional court and further to the High
Court. This court is of the view that when an order by magistrate has been passed that order is not
patently illegal then same cannot be allowed to be challenged again by way of writ of habeas
corpus because that will make the order of the court futile and of no consequence.

27. Summing-up if an order of a competent court/magistrate court is in existence and
custody has been awarded to the parents and that order in itself is not beyond the jurisdiction of the
magistrate court then same should not be interfered. In the present case custody of the minor girl
has been given by the court as per law, hence Article 21 of the Constitution is not violated in any
manner. As the girl is being given in the custody of her parents by order of a competent court, in
the circumstances that custody cannot be held to be illegal and it cannot be said that the girl is in
illegal detention of her parents. In the result, writ petition fails and is liable to be dismissed.

28. The writ petition is dismissed with the aforesaid observations.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Misc. Bench No.- 16136 Of 2016

Chotey Lal Yadav & Anr. ...Petitioners
Versus
Union Of India & Ors. ...Respondents

Counsel for Petitioner:
Sanjay Kumar Srivastava