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.
1 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 2
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
2 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 3
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
3 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 4
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
4 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 5
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
5 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 6
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
6 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 7
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
7 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 8
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
8 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 9
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
9 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
CRWP-124 of 2021 10
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
10 of 10
::: Downloaded on – 22-08-2021 07:26:11 :::
Comments