PRATHVI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner Prathvi Singh S/o Shri Chheluram has filed the present Habeas Corpus Petition under Article 226 of the Constitution of India seeking directions against the respondents-State authorities and private persons to search his missing daughter Pratibha Kumariand produce her corpus in the court.

(2.) IT has been alleged in the petition interalia that on 15.9.12 his daughter Pratibha Kumari aged about 15 years was abducted by some persons, and subsequently it was found that she was confined by the respondent No.4 Sandeep Prajapat S/o Nagarmal at Trivendrum. The petitioner, therefore, had lodged a complaint before the police station Khetri District Jhunjhunu, which was registered as an FIR being No. 560/12. According to the petitioner, since the police authorities were not taking any steps to find out his daughter, though his daughter was in wrongful custody of the respondent Nos. 4 to 8, the petition was filed. The petition has been resisted by the respondent No.4 Sandeep Prajapat by filing the reply contending interalia that the daughter of petitioner was not in any illegal confinement, but at her own sweet will and consent, he had married her at Delhi on 16.9.2012 and the said marriage was also got registered at the office of Registrar on 17.9.2012. It was further contended that the said Pratibha Kumari, daughter of the petitioner was got medically examined at the Government Medical Hospital, Jhunjhunu for the determination of her age, and as per the age examination report, her age was found to be between 18-20 years. The petitioner, challenging the contentions raised by the respondent No.4 as regards the age and marriage of his daughter with the respondent No.4, has filed an additional affidavit alongwith the documents with regard to her school record and ration card.

(3.) IT was submitted by the learned counsel Mr Anil Upman for the petitioner that the date of birth of Pratibha Kumari as per the school record is 5.5.97 and accordingly she is hardly 15-1/2 years and, therefore is a minor. Placing heavy reliance on the provisions contained in Rule 12 of The Juvenile Justice (Care and Protection of Children Rules, 2007 (hereinafter referred to as 'the Rules') as also on the judgment of the Apex Court in case of Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and Anr. (2009) 6 SCC 681 and of this Court in case of Pratapa Ram Vs. State of Rajasthan 2012 (4) Cr.L.R.(Raj.) 1759, Mr. Upman vehemently submitted that the medical opinion from the Medical Board as regards the age of the minor should be sought or relied upon only when the school certificate or birth certificate is not available. Since in the instant case, the petitioner has produced the marks-sheet of Secondary Examination issued by the Board of Secondary Education, Rajasthan and the copy of Scholar's Register, wherein the date of birth of Pratibha Kumari having been mentioned as 5.5.97, the report of Medical Board regarding her age should not be taken into consideration. He further submitted that the respondent No.4 in order to marry the daughter of the petitioner had concocted the documents including the Ration Card of the petitioner by correcting the age of Pratibha Kumari and had also sought PAN Card for the petitioner on the basis of the said ration card, however the daughter of the petitioner being below the age of 18 years of age the respondent No.4 not have married her. Lastly he submitted that as per the provisions contained in The Prohibition of Child Marriage Act, 2006 (hereinafter referred to as 'the Act') the alleged marriage of Pratibha Kumari with the respondent No.4 being illegal,could not be said to be a lawful marriage, and the daughter of petitioner being minor, her custody should be handed over to the petitioner only.