Criminal Writ Petition No. 1943 of 2010 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Writ Petition No. 1943 of 2010 Date of Decision: 14.3.2011 Satnam Singh …Petitioner Versus State of Punjab and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? -- Yes 2. Whether to be referred to the reporters or not? -- Yes 3. Whether the judgment should be reported in the Digest?-- Yes Present: Mr. Rakesh Gupta, Advocate for the petitioner. Mr. B.S. Sra, Additional Advocate General, Punjab, for respondents No.1 to 3. Mr. R.K. Arya, Advocate for respondents No.4 and 5. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus for immediate release of Parveen Kaur, daughter of the petitioner, who is alleged to be illegally confined by respondents No.4 and 5. Case of the petitioner is that Parveen Kaur alias Pooja is his daughter, who was born on 15.1.1995. In support of this, a reliance has been placed upon Birth Certificate (Annexure P1) issued by the Sub Criminal Writ Petition No. 1943 of 2010 2 Registrar, Births and Deaths, Amritsar. It is pleaded in the writ petition that on the night intervening 3/4.10.2010, Parveen Kaur alias Pooja, daughter of the petitioner, was found missing from the house of her parents. All efforts, made by family of the petitioner, to trace out Parveen Kaur alias Pooja, proved futile. Lateron, the petitioner learnt that his daughter had left the house with a boy named Kawaljit Singh, respondent No.4. It is also an admitted case of the petitioner that respondent No.4-Kawaljit Singh had solemnized marriage with his daughter Parveen Kaur alias Pooja and they had filed Criminal Misc. No. M-29456 of 2010 in this Court on 4.10.2010, a copy whereof has been annexed with the present writ petition as Annexure P2. In the petition, so filed, the newly married couple stated that they had solemnized their marriage at Arya Smaj Mandir, Sector 22-B, Chandigarh. To prove the fact of their marriage, they had relied upon photographs also. In the petition (Annexure P2), Parveen Kaur alias Pooja stated her age as 21 years. It was further stated in the petition that since daughter of the petitioner and her husband belong to the different castes, therefore, their marriage was not accepted by father of Parveen Kaur alias Pooja. In the said petition, Parveen Kaur alias Pooja, daughter of the petitioner, had sworn an affidavit, in support thereof, and the same has been annexed as Annexure P3. She raised an apprehension therein that she may be the victim of honour killing. The above said petition was listed before learned Single Judge of this Court, who had issued notice for 8.12.2010 and an interim direction was issued that the petitioners, in the petition (Annexure P2), shall not be forcibly taken into custody by any of the respondents therein, on the allegation Criminal Writ Petition No. 1943 of 2010 3 that daughter of the petitioner has been kidnapped by her husband. According to learned counsel for the petitioner, lateron the said petition was dismissed as withdrawn. On 18.1.2011, Parveen Kaur alias Pooja appeared in this Court and her statement was recorded by this Court, which reads as under:- “...I was a student of 5th class in village Bauli. I am aged 19 years. I had married Kawaljit Singh son of Krishan Singh according to my own free will four months ago. We are married at Chandigarh. After marriage, I have been named as Pooja by my in- laws. I had filed Criminal Misc. No. M-29456 of 2010 seeking protection of me and my husband's life and liberty. I am happily married and residing with my in- laws. I do not want to accompany my father. I want to live in my matrimonial home. Xxxmn by Mr. Harsh Garg, Advocate. Nil. Opportunity given...” In her statement, Parveen Kaur alias Pooja has stated, in categoric terms, that she is married with respondent No.4-Kawaljit Singh and is residing happily with her in-laws. She refused to accompany her father. This Court has also ordered that to determine the age of Parveen Kaur alias Pooja, her ossification test be carried out at General Hospital, Sector 16, Chandigarh. A report of the ossification test is before this Court, wherein it is stated that radiological bone age of Criminal Writ Petition No. 1943 of 2010 4 Parveen Kaur alias Pooja is between 14 to 16½ years and dental age is between 14½ to 15½ years. This Court has a lot to comment upon the ossification test, as taking up the radiological bone age and dental age together into consideration, final opinion was not given by the Board of Doctors. Be that as it may, it is a commonly recognized fact in various judgments that ossification test can vary two years on either side. If this maxim is applied, Parveen Kaur alias Pooja is major. In support of this, a reference can be made to a judgment rendered in Alamelu and Another v. State represented by Inspector of Police 2011 (1) Recent Criminal Reports 498. The following portion of the said judgment justifies the above inference:- “...This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu & Kashmir & Ors.3, In the aforesaid judgment, it is observed as follows:- "......However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." It is stated that the date of birth is recorded in the register, maintained for births and deaths, on the information supplied by the Chowkidar. Whether such a birth certificate is admissible under Section 35 of the Indian Evidence Act, 1872, in itself is a moot question. Learned counsel for the petitioner has relied upon a judgment Criminal Writ Petition No. 1943 of 2010 5 rendered in Amninder Kaur and Another v. State of Punjab and Others 2010(1) Recent Criminal Reports 261 to say that being a minor, if girl less than 18 years approach this Court, her marriage is void and such a petitioner is not entitled to protection of police. At this juncture, this Court need not to examine the ratio of law as propounded in Amninder Kaur's case (supra). The question, which this Court has to decide, is whether lawfully wedded wife can be uprooted from her matrimonial home and forcibly be asked to leave her husband and accompany her parents, while exercising a writ jurisdiction under Article 226 of the Constitution of India, especially when the prayer is for issuance of a writ in the nature of Habeas Corpus. In the humble opinion of this Court, if the detention is unlawful or somebody is detained against his/her wishes, then only the Court will issue a writ of Habeas Corpus. There is no dispute that Parveen Kaur alias Pooja is a legally wedded wife of respondent No.4-Kawaljit Singh. Whether her marriage is void or voidable is to be determined by the Court which has a competent jurisdiction to try this issue. Therefore, this Court will be hesitant to command a lawfully wedded wife to desert her matrimonial home and go to the house of her parents because her marriage has no legal sanction (if the arguments of learned counsel for the petitioner is assumed to be accepted). Learned counsel for the petitioner has further relied upon a judgment rendered by a Division Bench of the Delhi High Court in Association for Social Justice & Research v. Union of India and Others (Writ Petition (Crl.) 535 of 2010, decided on 13.5.2010) wherein the matter was placed before the Full Bench to determine the question as to whether the marriage will be void or voidable in case the Criminal Writ Petition No. 1943 of 2010 6 marriage is performed by a child. As of now, the legal position, in view of the various pronouncements of the Delhi High Court, is that the wife, being a child, can stay with her husband. It is a different matter that the husband can be prosecuted for the offence under the Prohibition of Child Marriage Act, 2006. For the reasons stated above, this Court cannot declare that Parveen Kaur alias Pooja has been unlawfully detained by her husband- respondent No.4. Thus, no writ in the nature of Habeas Corpus can be issued and the same is dismissed. However, the petitioner, if so advised, may take recourse to lawful remedy available to him in the alternative forums. (Kanwaljit Singh Ahluwalia) Judge March 14, 2011 “DK”