GYANO Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition came up for admission before me on May 5, 1987. I issued notices to the respondents and meanwhile directed that the custody of Mst. Gyanobai not be handed over to her mother Mst Amar Kaur and that she should be produced before this court on May 11, 1987 In pursuance of the aforesaid order the Superintendent, Nari Niketan, Bharatpur Smt. Chandrakala Arya produced Mst. Gyano before this court. After hearing the learned Counsel for both the parties I thought it proper to give sufficient opportunity to the mother to talk and pursuade her in case she was willing to go to her. They remained together for an hour and half and thereafter her statement was recorded which is placed on record. In her statement Mst. Gyano has categorically stated that she has married Surjeet Singh son of Kartar Singh present in the Court of her own free will and she has been living with him till recovered by the police and further that she is carrying pregnancy of 2 -1/2 months from the loins of Surjeet Singh. She has categorically stated that she does not want to go with her mother but wants to go with Surjeet Singh. In this view of the matter the only thing remains to be seen is whether the girl is mature enough or major for acting upon the statement she has given above. She has given her age to be 20 years and the same age has been given in her statement under Section 164 Cr.PC. In affidavit she has given her age as 22 years. She was sent for medical examination by the lower court and the Doctor opined her age between 18 to 20 years. The mother has given her age to be less than 16 years which obviously appears to be erroneous. The girl is present in the court and I have seen her also, she appears to be approximately 20 years of age and I have no hesitation in holding that she is a major. Keeping in view all statements and her wishes and that a major person has a fundamental right of liberty of movement and living of her own choice she cannot be compelled to go at any place against her wishes, obviously she is free to go to the place she wants to go. As she has expressed her wishes that she wants to go with Surjeet Singh no court can compel her to go elsewhere. The Superintendent, Nari Niketan, therefore, shall release her forthwith and permit to go to the place where she wants to go of her own choice. It is directed that respondent No. 2 shall not place any hurdle in the way of the prosecutrix's going of her own will.

(2.) BEFORE I conclude I would like to observe that it is regrettable that the learned Magistrate did not record the wishes of the girl before directing her custody to the mother. He has himself stated that the Doctor has given his opinion that the girl is about 18 years and less than 20 years. He ought not to have substituted his own estimate for this purpose particularly in the circumstances of the case where the girl herself has given out her age to be 20 years which was being corroborated by the medical evidence. So far as the mother's evidence is concerned, it is neither corroborated by any evidence nor by the medical report, therefore, there was no occasion for taking a decision in her favour The learned Magistrate in a case like the one has unnecessarily dragged in the provisions of the Hindu Minority and Guardianship Act of which there was hardly necessity.