GHASIL AND OTHERS Vs. CHOTE ALIAS VISHNU

JUDGEMENT

(1.) Ghasil, who is father of petitioner No. 2, Papita, instituted this Habeas Corpus Petition for obtaining the custody of Papita, who, according to him, had been illegally detained in the custody of Chote alias Vishnu. According to him, the age of the detenue in about 15 years only and she used to live along with her father. She belonged to the community of Dharkar in which the custom of child-marriage was prevalent. The detenue was married in 1985 at the age of 7 years only to Kamlesh. The respondent used to visit the house of Kamlesh off and on and he had allegedly developed intimacy with the detenue. His other daughter, elder to Papita, was married to Bahadur who was a bad character and he had planned to abduct the detenue as a result of which the opposite party Chote alias Vishnu had abducted Papita. He had detained her forcibly and against her will. Petitioner No. 1, Ghasil, reported the matter with the police but inspite of his best efforts he could not get the custody of Papita and, therefore, he instituted this Habeas Corpus petition on the basis of the alleged instructions from the detenue. The opposite party filed counter affidavit, according to which Papita was a grown-up lady and had married him wilfully after abandoning her first husband Kamlesh. He denied that he had detained her forcibly against her will in his house. Further he contended that the age of Papita was 25 years. Papita had sworn an affidavit before the Notary Public, a copy of which has been filed as Annexure 1 of the counter affidavit. In this document she gave her age as 25 years and admitted that she had married Chote alias Vishnu. Petitioner No.' filed rejoinder affidavit in which he reasserted his allegations particularly of the majority of Papita.

(2.) This Court directed for medical opinion regarding her age from the Chief Medical Officer, Allahabad, on the date of her medical examination, which was done on 20-10-94, The report of the Chief Medical Officer has been received, according to which Papita is aged about 18 years although before him she stated her age as 17 years. The radiological findings revealed that epiphyses of her wrist and the elbow had fused. She was in family way, due to which her ultra-sound was done and it revealed the pregnancy of about 23 weeks. She was medically examined by a Senior Lady Doctor who had found that the secondary sex characterstics were well developed. Learned counsel for the respondent contended that she had not stated before the Chief Medical Officer, Allahabad that her age was 17 years that she had given her age as 25 years and that a wrong mention was made that she reported her age as 17 years.

(3.) For the petitioners it has been contended that the father of Papita was the only competent witness regarding her age, that according to him she was only 15 years old and that the medical opinion therefore, was liable to be disbelieved. It was, however, difficult to agree with this contention. Her father Shasil was an illiterate villager who had thumb-marked the Habeas Corpus Petition. It is a matter of common experience that an illiterate villager states recklessly about age and time. He has not given the age of Papita in the Habeas Corpus petition. A general allegation has been made that she was only 15 years old Under the circumstances his affidavit cannot be relied upon and it cannot be said that Papita was a minor. The Chief Medical Officer has, given all the relevant data in support of his opinion about the age of the detenue. His evidence however, also is an opinion which is much reliable in nature than the evidence oil Ghasil but even then it admits of a margin of about two years on either side and it was due to this reason that specific direction was given to the Lady Doctor for reporting about the secondary sex characterstics. The Lady Doctor in her medical examination report dated 20-10-94 has mentioned that the secondary sex-characterstics were well developed and that she had got pregnancy of about 20 weeks. Tho finding regarding pregnancy was not much relevant but the development of the secondary characterstics indicated that the possibility of margin in the age of Papita was towards the higher side. In view of this evidence it could reasonably be held that she could be even 19 or 20 years of age on the date of her medical examination i.e. 20-10-94. She thus was a major when she had gone along with Vishnu The contention of her father that she was minor and had been kidnapped by Vishnu appeared to be devoid of merits. She, to the contrary, was an adult and, therefore, was free to live any where according to her choice Whether she had committed any offence by entering into wed-lock with Vishnu was beyond the question of this petition, may be that in her community there was a custom permit ting (he second marriage.