KESHAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a petition filed by Smt. Keshar who is detained in Nari Niketan, Bharatpur. She claims to be a major woman of 21 years and is capable of taking decision about her career. Her allegations in the petition are that her parents arranged her marriage with a minor boy who is much younger to her age namely, Ghanshyam and that marriage was not a legal marriage in the eye of law. Her grievance is that the elder members of the family of said Shri Ghanshyam wanted to have illicit relations with her to which she objected and thus she left that place and voluntarily went with one Munna who is of her age and she voluntarily solemnised her marriage with him. Ghanshyam thereafter lodged a report being FIR No. 134/88 of Police Station Sarmathura for offence under Sections 366 and 379 I.P.C. She was recovered by police and was produced before the Munsif and Judicial Magistrate Bari. Before the learned Magistrate she moved an application that she should be permitted to go with Munna and her statement to that effect were also recorded under Section 164 of the Code of Criminal Procedure. There also she disclosed that she wants to go with Munna. How ever the learned Magistrate vide his order dated 5 -10 -1988 considered her to be a minor and ordered her to be sent to Nari Niketan. It is this order which has been challenged by her.

(2.) ON receipt of her petition she was summoned from Nari Niketan for ascertaining her wishes and her statements have been recorded. She has categorically stated that she is 22 years of age and wants to go with Munna. She has a strong protest to make for her continuous detention in Nari Niketan. In context of her statement, I perused the order passed by the learned Magistrate which does not disclose as to what was the basis for his coming to a conclusion that she is minor. On the contrary even the copy of the application filed by the SHO Sarmathura on 26th September, 1988 before the learned Munsif and Judicial Magistrate, Bari discloses that she is 22 years of age. Even by appearance she looks to be a major girl and at least of the age where she can give her sound discretion, I have already taken the view in Mst. Gurnamo v. State of Rajasthon 1987(1) RLR 599 that the Magistrate should not substitute his own estimate regarding the age; and secondly, she cannot be compelled to go to any place against her wishes. Similar view has been taken by my brother Kasliwal, J. in Munna v. State 1988 (1) RLR 145. She has categorically stated before the learned Magistrate that she wanted go along with Munna as is also observed by the learned Magistrate himself but he still directed her custody in the Nari Niketan holding without data that she is a minor and further that 'giving her custody to Munna will be encouraging the immoral act and it would have an adverse effect on the society. I may make it clear that this is not within the domain of the Court to consider what is moral or immoral and as to what would be the effect on the society. If there is clear mandate of law then he is obliged to decide the case in accordance with law. Every person has fundamental right of moving to any place of his/her choice and no restraint can be placed on such freedom save with the authority of law. Consideration on the pedestal of morality cannot over -rule the mandate of law much less breach the fundamental rights guaranteed under Articles 19(1)(d) and 21 of the Constitution of India. Since Mst. Keshar who as per her own statement and as per the application of the Police itself is major girl, has expressed her desire to go with Munna whom as per application she has claimed to marry. I have no option but to direct that she should be set at liberty and be made free to go to place of her own choice.