IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.695 of 2008 UMA DEVI Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : M/s Daya Shankar Prasad, Bipul Kumar & Niranjan Kumar, Advocates For the girl : Dr. Shashi S.Kishore, Advocate For the respondents : Mr. A.Amanullah, Standing Counsel –XVII Mr. A.K.Prasad, Junior counsel to Standing Counsel XVII ------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 3rd September, 2008 This habeas corpus petition has been filed by Uma Devi, wife of Asarfi Mandal, seeking production of her daughter Kumari Awantika, who is said to have been kidnapped by respondents no.8, 9 and 10. It is also stated that after kidnapping her daughter, respondents no.8, 9 and 10 demanded ransom of rupees two lacs and although a first information report has been lodged against them but no action has been taken by the police authorities. 2. In pursuance of our order dated 11th August, 2008 and further order dated 20th August, 2008, the girl (Kumari Awantika) has been produced. The girl claims that her name is not Kumari Awantika, but her name is Madhu Kumari. She asserts that she is 19 years old and that she, of her own choice and volition, married respondent no.8- Rakesh Kumar. She has denied having been kidnapped by respondents - 2 - no.8, 9 and 10. 3. The only question that needs to be considered by us is: whether her custody be given to respondent no.8, to whom she is said to have married, or she may be asked to continue to remain in After Care Home, as has been ordered by the Court of Judicial Magistrate, Ist Class, Katihar or she be sent to her parent’s home. 4. The girl-Madhu Kumari (Kumari Awantika) emphatically stated before us that she was not willing to go to her parent’s place. So this option does not remain. 5. On the one hand, the girl claims to be of 19 years old, while on the other, her mother (petitioner) states that she is below 17 years, having been born on 22nd April, 1992. 6. The mother (petitioner) principally has relied upon mark sheet in the name of Kumari Awantika issued by the Bihar School Examination Board, Patna, wherein her date of birth is recorded as 22nd April, 1992. The provisional certificate of Secondary School Examination issued by the Bihar School Examination Board, Patna, in the name of Kumari Awantika also mentions her date of birth as 22nd April, 1992. 7. In the counter affidavit filed by respondent no.5 (Superintendent of Police, Katihar), a copy of voter list has been annexed, wherein the name of Madhu Kumari finds place at serial no. 1365 and her age has been shown to be 18 years. Then, there is a copy of affidavit said to have been filed by the petitioner before the Executive Magistrate, Forbesganj, (Araria), for correction of date of - 3 - birth of her daughter Madhu Kumari. In that affidavit, she (petitioner) has stated that the actual date of birth of her daughter is 22nd April, 1989. 8. The girl Madhu Kumari (Kumari Awantika) in her statement recorded under Section 164 Cr.P.C., stated her age to be 19 years. However, the Judicial Magistrate, Ist Class, Katihar got her age examined medically. The medical examination report states her age to be 17 to 18 years. 9. There is, thus, conflicting evidence with regard to age of the girl-Madhu Kumari (Kumari Awantika). In the light of Secondary School Examination certificate and the mark sheet issued by the Bihar School Examination Board, Patna, where her date of birth has been shown as 22nd April, 1992 and the medical examination report, prima facie, she can be assumed to have not attained majority. 10. Dr. Shashi S. Kishore, Advocate, for the girl-Madhu Kumari (Kumari Awantika) relies upon a decision of this court in the case of Shiv Shankar Bind Vs. The State of Bihar & Ors, 2008(2) PCCR 32, and submits that when the girl is not willing to go to her parent’s place and she has shown her willingness to go to her matrimonial home and she is more than 17 years of her age, she may be released from After Care Home and may be sent to matrimonial home. 11. In the case of Shiv Shankar Bind (supra), the factum of marriage did not seem to be in dispute and it was also not in dispute that the girl was more than 17 years old. In our considered view, the - 4 - decision in the case of Shiv Shankar Bind cannot be applied as there is serious dispute with regard to age of the girl and that she is not even 17 years of age. 12. In the backdrop of these facts, we are of the considered view that, as of now, no interference is needed in the order of the Judicial Magistrate, Katihar, whereby she has been put in After Care Home, Gaighat, Patna. However, we are of the view that the girl- Madhu Kumari (Kumari Awantika) shall be at liberty to apply for her release from After Care Home after 4-5 months. We direct that the girl Madhu Kumari (Kumari Awantika) be taken back to After Care Home, Gaighat, Patna. 13. Writ petition stands disposed of accordingly. R.M. Lodha, CJ Kishore K. Mandal, J. Sunil