Punjab-Haryana High Court
Mohd Iliyash And Another vs State Of Haryana And Others on 27 April, 2021CRWP-124 of 2021 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

112 CRWP-124 of 2021
Date of decision:27.4.2021

Mohd.Iliyash and another
… Petitioners
versus

State of Haryana and others
… Respondents

CORAM: HON’BLE MR. JUSTICE AMOL RATTAN SINGH.

Present: Mr.Abhinav Sood, Advocate,
for the petitioners
Mr.Neeraj Poswal, AAG, Haryana
Mr.Farukh Abdullah, Advocate,
for respondent no.4.

AMOL RATTAN SINGH, J. (Oral)

Case heard via video conferencing.

By this petition, the petitioners seek protection of life and

liberty at the hands of respondents no.4 to 12, upon the petitioners having

married each other (as contended) against the wishes of the said

respondents, on 2.1.2021.

On 7.1.2021, the following order had been passed by this

court:-

“Case heard by video conferencing.

By this petition, the petitioners seek protection of life and

liberty at the hands of respondents no.4 to 12, upon the

petitioners having married each other (as contended) against

the wishes of the said respondents, on 02.01.2021.

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Upon query to learned counsel for the petitioners as

regards proof of age of the petitioners, he points to Annexures

P-1 and P-2 which are shown to be copies of the Aadhar cards

issued in favour of the petitioners, showing the year of birth of

petitioner no.1 to be 1986 thereby making him about 34 years

of age, with the date of birth of petitioner no.2 being shown to

be April 28, 2002 thereby making her about 18 years and

about 8 months of age.

As regards the previous marital status of the petitioners,

learned counsel for the petitioners submits that even as per the

petition, petitioner no.1 has been married earlier and in fact

has four children from that marriage, whereas it is the first

marriage of petitioner no.2.

Notice of motion.

Mr. B. S. Virk, learned DAG, Haryana, accepts notice on

behalf of respondents no.1 to 3 at the asking of the court, with

Mr. Sunil Saharan, Advocate, appearing for respondents no.4

to 12 and accepting notice.

Mr. Saharan submits that as per the attested copy of the

birth certificate of petitioner no.2, as has been given to him,

her date of birth is August 01, 2003 thereby making her 17

years and about 4½ months as of today.

The Superintendent of Police, Palwal and the SHO of

Police Station City Palwal, are directed to have the age of

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petitioner no.2 verified from the educational institution that

she last attended, with a gazetted officer directed to file a reply

to the

petition as regards the age of petitioner no.2 and the marital

status of both petitiones.

Adjourned to 25.01.2021.

In the meanwhile, since protection of life and liberty is

fundamental right enshrined under Article 21 of the

Constitution of India, obviously such life and liberty of the

petitioners shall be protected from respondents no.1 to 3.

However, having said that, learned counsel for the

parties would address arguments on the following three issues

specifically (and any other arguments that they wish to raise):-

(i) As to why, despite both the petitioners being obviously

subject to Muslim personal law, they should not be prosecuted

in terms of the provisions of the Prohibition of Child Marriage

Act, 2006, if either of them (specifically petitioner no.2) is

found to be below the legally marriageable age for females in

terms of the provisions of the said Act, that Act not making any

distinction as regards prosecution under the provisions thereof,

on the basis of any caste, community and religion etc., and

with the offences punishable under the said Act being

cognizable offences in terms of Section 15 thereof;

(ii) As to why, if the age of petitioner no.2 is actually found to

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be below 18 years of age, the petitioners should not be

proceeded against under the provisions of the Contempt of

Courts Act, 1971, for deliberately misleading this court and in

addition thereto, why proceeding under the provisions of

Section 340 of the Cr.P.C. should not be initiated;

(iii) As to why the petitioners should also not be similarly

prosecuted if the statement, Annexure P-3, shown to be made

by the first wife of petitioner no.1, i.e. Shabnam, is found to be

actually a forged document, with Mr. Saharan submitting that

the said wife specifically made a statement that she never gave

any such consent.

Obviously, though such consent may not be required

under Muslim personal law from the first wife before marrying

a second time, that still would not absolve the petitioners from

trying to mislead this court by furnishing a false document (if it

is found to be actually false).”

Thereafter, on 9.2.2021, the following order had been passed:-

“Case heard by video conferencing.

Pursuant to the order dated 07.01.2021, a status report

dated 22.01.2021 has been filed by the DSP, Palwal, on behalf

of the respondent State, annexing therewith a copy of the

certificate shown to be issued by the Headmaster of the

Government Middle School, Village Saral(6038), Block

Nagina, Nuh (Mewat), dated 11.01.2021, stating therein that

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petitioner no.2, Ruqsar, attended that school upto class VIII,

with her having been admitted to that school on 07.04.2008,

and that as per the school records her date of birth is

28.04.2002.

Hence, counsel for the petitioners submits that the

marriage of the petitioners with each other having taken place

on 02.01.2021, petitioner no.2 was more than 18 years and 8

months old at that stage and therefore, even though it is the

second marriage of petitioner no.1, as they both belong to the

Muslim community, as per Muslim personal law the marriage

cannot be held to be invalid, regardless of whether the the first

wife consented thereto or not.

Mr.Abdulla, learned counsel for respondent no.4,

however refers to Section 35 of the Indian Evidence Act, to

submit that only in the absence of a birth certificate of any

individual, would proof of age be required by way of any

record of any educational qualification etc., and in fact there is

no board examination that petitioner no.2 has ever taken, for

her to have been issued a certificate by any competent board

and simply because at the time of her admission to school her

date of birth was wrongly given by her father, i.e. respondent

no.4, because otherwise she could not have been admitted to

school, does not mean that she was actually of the age of

majority at the time of her marriage, her actual date of birth

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being 01.08.2003.

Even if that is so, learned counsel for the parties would

still be required to address arguments in terms of the

judgement of the Supreme Court in “Hardev Singh vs.

Harpreet Kaur and another” (Crl. Appeal no.1331 of 2013

decided on 07.11.2019), as to how proceedings under the

provisions of the Prohibition of Child Marriage Act, 2006, can

continue even against petitioner no.1.

For arguments to be addressed on that or any other

issue that learned counsel may wish to address arguments

pertaining to the case, adjourned to 26.04.2021.

Interim order to continue.

To be taken as the first case of the day.”

Today, Mr.Abdullah, learned counsel for respondent no.4, again

reiterates that in terms of Section 35 of the Indian Evidence Act, 1872, the

birth certificate of petitioner no.2 being a relevant document, that cannot be

ignored.

The said provision reads as follows:-

“35. Relevancy of entry in public record or an

electronic record made in performance of duty.- An entry in

any public or other official book, register or record or an

electronic record, stating a fact in issue or relevant fact, and

made by a public servant in the discharge of his official duty,

or by any other person in performance of a duty specially

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enjoined by the law of the country in which such book, register,

or record or an electronic record is kept, is itself a relevant

fact.”

Upon query to Mr.Abdullah, he submits that as per the said birth

certificate, the date of birth of petitioner no.2 is 1.8.2003, therefore making

her 17 years and about 4-1/2 months of age at the time that she and

petitioner no.1 got married to each other on 2.1.2021.

However, even in the 2 months and 17 days that have gone by

since the last date of hearing, no application has been filed by respondent

no.4 (or any of the other respondents), even seeking to place on record any

such birth certificate.

Hence, even today, such averment is only in the air.

It is to be noticed here that Section 94 of the Juvenile Justice

(Care and Protection of Children) Act, 2015, reads as follows:-

“94. Presumption and determination of age.- (1) Where, it is

obvious to the Committee or the Board, based on the

appearance of the person brought before it under any of the

provisions of this Act (other than for the purpose of giving

evidence) that the said person is a child, the Committee or the

Board shall record such observation stating the age of the

child as nearly as may be and proceed with the inquiry under

section 14 or section 36, as the case may be, without waiting

for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable

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grounds for doubt regarding whether the person brought

before it is a child or not, the Committee or the Board, as the

case may be, shall undertake the process of age determination,

by seeking evidence by obtaining–

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the

concerned examination Board, if available; and in the

absence thereof;

(ii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age

shall be determined by an ossification test or any other

latest medical age determination test conducted on the

orders of the Committee or the Board:

Provided such age determination test conducted on the order

of the Committee or the Board shall be completed within fifteen

days from the date of such order.

(3) The age recorded by the Committee or the Board to be the

age of person so brought before it shall, for the purpose of this

Act, be deemed to be the true age of that person.”

Thus, even for the purposes of that Act, it is the “date of birth

certificate” issued by a school, or the matriculation or equivalent certificate

from the concerned examination board, which is to be looked at for the

purpose of determining the age of any person to determine if he/she is a

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juvenile/child; and only in the absence thereof; is the birth certificate issued

by a municipal authority or a panchayat to be looked at.

Thus, unless that the school certificate itself can be disproved

by evidence being led before a competent court to show that the date of birth

is wrongly recorded in the certificate issued by the school (as has been

issued by the Headmaster of the Government Middle School, Village Saral,

District Nuh), obviously this court would be, for the purpose of this petition

at least, bound to accept that certificate, it having been verified by the DSP,

Palwal.

Mr.Abdullah next submits that petitioner no.2 is almost half the

age of petitioner no.1, and with petitioner no.1 having no source of income

and this being his second marriage, it cannot be allowed to continue.

Whereas this court can obviously understand the concern of any

father and family members of petitioner no.2 in that regard, however the

court is first bound by the provisions of law and admittedly, as per Muslim

Law, a male is permitted to enter into a second marriage (with the consent of

the female) and further, as regards Muslim Personal Law itself, even the age

of puberty is sufficient to allow the parties to enter into a marriage.

Of course, the Prohibition of Child Marriage Act, 2006, does

not distinguish between caste/community/religion for the purpose of

prosecution qua the cognizable offences enumerated in that Act (such

offences being cognizable in terms of Section 15 thereof); however, as

already observed herein above and in the previous orders, at least at this

stage, the certificate issued by the aforesaid school not having been

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disproved before this court, I would see no reason to issue any direction for

registration of any FIR under the provisions of that Act either (on the prayer

of counsel for respondent no.4).

Yet further, this being a petition seeking protection of life and

liberty, and with no law is shown to have been violated so far at least before

this court, other than directing the official respondents to ensure the

protection of life of the petitioners, which in any case is a fundamental right

enshrined in Article 21 of the Constitution of India, even as regards

protection of liberty, they are bound to be give such protection as per law.

Mr.Sood, learned counsel for the petitioners, has submitted that

at the instance of respondent no.4, an FIR has also been registered against

petitioner no.1 and other family members alleging therein the commission of

offences punishable under the provisions of Sections 363 and 366-A of the

IPC, for quashing of which petitioner no.1 and his co-accused therein have

already filed CRM-M-8500 of 2021 before this court.

Naturally, that being so, that petition would take its own course

before the appropriate bench.

As regards this petition seeking protection of life and liberty of

the petitioners, it is allowed, with respondents no.1 to 3 directed to ensure

that such life and liberty of the petitioners is duly protected, as per law.

27.4.2021 ( AMOL RATTAN SINGH )
pk JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No

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