SAHEBI KHATOON Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Sri Nayeeb Ahmad, learned counsel for the petitioner, Sri Wasi Ahmad Khan, learned counsel for the respondent no.6 and Sri Prabhat Kr. Singh, learned counsel for the State.

(2.) The petitioner Sahebi Khatoon @ Sahebi has been produced before this court as per the direction dated 21.9.2010. Petitioner's prayer is for a direction to the respondent to release her immediately from the illegal confinement, so that she may start to live with her husband.

(3.) The facts of the case is that petitioner and respondent no.6 Md. Arif got married as per their own choice and since it was not a marriage of their parents consent, so they thought it proper to go away for some time from their place of residence, in order to get the matter settled. Petitioner and her husband went to Kolkata and for some time they resided there. The father of the petitioner Abdus Salam filed a written complaint before officer-in-charge of Azam Nagar police station alleging that her minor daughter Sahebi Khatoon has been kidnapped by respondent no.6 and other eight accused persons, Azam Nagar police station case no. 76 of 2010 was registered for offence under Section 363, 366, 379, 120B and 34 of the IPC. On 6.7.2010. The respondent no.6 was arrested at Kokata. The petitioner was also brought and produced before Chief Judicial Magistrate, Katihar. She was sent for her medical examination to get her age assessed and her statement was also recorded under Section 164 Cr.PC, wherein she narrated her case regarding her marriage with the respondent no.6 being a consented marriage and also that she has not been kidnapped by any one. She also disclosed that on account of this marriage, she is carrying a pregnancy of eight months. The medical report, also disclosed that she is carrying a pregnancy of 32-34 weeks and her age was assessed in between 16-17 years. As per own disclosure of the petitioner she was 20 years but the court assessed it as 18 years. All these facts indicate that even though a police case has been instituted against respondent no.6, alleging kidnapping of the petitioner but in reality it was not a case of kidnapping, rather it was a case of elopement. The petitioner being practically major, on account of her age being 16-17 years, and by adding three years as per the judgment of the Apex Court in Jaimala Vrs. Home Secretary, Govt. of Jammu and Kashmir, 1982 AIR(SC) 1297, her age should have been presumed to be 19 years which is the age of majority. Being major she was legally entitled to decide her own fate and to live with the person of her choice. In the given facts and circumstances of case, there was no reason to arrest the respondent no.6, and for sending the petitioner to after Care Home at Patnacity.