SANJAY Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition has been filed under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus directing the respondents to produce Smt. Devki wife of the petitioner before this Court as she is in illegal custody of the In-charge, Nari Niketan, Karnal (respondent No.2). It is submitted that the petitioner married Smt. Devki on 18.10.2006 as per Hindu Vedic Rites and customs. The marriage certificate from Arya Samaj, Sector 16, Chandigarh has been placed on record. In the said certificate (Annexure-P.3) the date of birth of Smt. Devki has been mentioned as 17.8.1985. Another birth certificate dated 2.7.2003 has been placed on record as Annexure-P.2 which has been issued by the Board of School Education, Haryana in respect of the Middle Standard Examination Cr.W.P. No.102/2007

(2.) held in April 2003. In the said certificate, the date of birth of Smt. Devki is indicated as 4.6.1987. The petitioner claims the custody of Smt. Devki being his legally wedded wife. Reply has been filed by the SHO, Police Station, N.I.T., Faridabad. It is submitted that in terms of the order dated 9.2.2007 passed by the learned Additional Sessions Judge, Faridabad it has been observed that as per certificate produced by the complainant the date of birth of Smt. Devki is 4.6.1990 and as per Middle Standard Examination it is recorded as 4.6.1987. The copy of the order dated 9.2.2007 passed by the learned Additional Sessions Judge, Faridabad has also been shown and placed on record. The said order has been passed seeking discharge of the accused in case FIR No.534 dated 16.8.2006 registered at Police Station, N.I.T., Faridabad for the offences under Sections 363, 366 and 120-B IPC. The learned Additional Sessions Judge in her order dated 9.2.2007 has observed that the date of birth of Smt. Devki is 4.6.1990 as per the photo copy of the Middle Standard Certificate issued by the Board of School Education, Haryana. The said examination was taken by Smt. Devki in February 2005. Therefore, under the circumstances when two dates of birth certificates are there, it was observed that no definite finding could be given about the age of the prosecutrix and also as to the fact whether Smt. Devki was able to give her consent or not. It was observed that it has generally been seen that in cases of like nature the prosecutrix (Smt. Devki) go on changing their statements giving different versions at different times. Accordingly, it was observed that since the age of the prosecutrix Smt. Devki was in dispute and she has herself chosen to go to Nari Niketan, Karnal as she did not want to Cr.W.P. No.102/2007

(3.) go to her parents, there was no reason found to release her from Nari Niketan. A perusal of the order dated 9.2.2007 shows that the age of Smt. Devki is indeed in dispute. In fact different dates of birth have been given by Smt. Devki at various points of time. In the petition itself two dates of birth have been given i.e. 17.8.1985 in the marriage certificate (Annexure- P.3) issued by Arya Samaj, Sector 16, Chandigarh and in para 4 of the petition also it is mentioned that the date of birth of Smt. Devki is 17.8.1985. However, at the same time reliance has been placed on the certificate dated 2.7.2003 (Annexure-P.2) issued by the Board of School Education, Haryana in which her date of birth has been mentioned as 4.6.1987 whereas before the learned Additional Sessions Judge in the order dated 9.2.2007 seeking discharge of the accused it was found that the date of birth of the prosecutrix was 4.6.1990. It is well settled that this Court in exercise of its writ jurisdiction under Articles 226/227 of the Constitution is not to go into the veracity of the facts so as as to ascertain the actual date of birth. The petitioner has sought the release of Smt. Devki from the custody of Nari Niketan, Karnal (respondent No.2). However, the custody in the said Nari Niketan cannot be said to be illegal as she has chosen to go there which is evident from the order dated 9.2.2007 passed by the learned Additional Sessions Judge, Faridabad. Smt. Devki is in the Nari Niketan under the orders of the Court. Consequently, the petitioner is not entitled to seek her custody in the given circumstances and the criminal writ petition is dismissed.