JUDGMENT
P.N. Sinha, J.
1. This revisional application under Section 401 road with Section 482 of the Criminal Procedure Code (hereinafter called the Code) has been filed by the petitioner assailing the order dated 31.5.05 passed by the learned Sub-Divisional Judicial Magistrate (in short SDJM), Murshidabad, Berhampore in G. R. Case No. 321/04 rejecting prayer of the petitioner for releasing’ her from the Silayan Home on her own bond.
2. Learned Advocate for the petitioner submitted that O.P. No. 2 Mantu Fakir is the de facto complainant and on the basis of First Information Report (FIR) lodged by him the Nawda P.S. Case No. 23 dated 13.9.04 under Section 363/ 366/120B of the Indian Penal Code (in short IPC) was started. The petitioner married according to her own wishes against the consent of her father. The petitioner married one Mirjamal Sk. @ Mintu Sk. according to her own wishes after attaining puberty. In view of Section 251 of the Mahomedan Law a Muslim woman who attains puberty can marry according to her own wishes without consent of her parents. After marriage the petitioner became pregnant and on the basis of FIR during investigation she was recovered and kept in home. She gave birth to a son who is now hardly three months old and the said baby is seriously ill. After production in Court she went to her father’s custody but her father forcibly confined her and her baby child. She somehow managed to escape from custody of her father and filed an application for recovery of her baby. After recovery of her baby, the said baby was given to her custody. She is now lodged in the home and she filed an application for releasing her on her own bond, but the learned Magistrate by the impugned order rejected her prayer.
3. He further submitted that the petitioner is the victim of the case and is the main witness. After her marriage her husband is her guardian and her father cannot forcibly confine her either into his custody or in Home. As she married according to her own choice in accordance with Mahomedan Law she is entitled to be released. The order of the learned Magistrate being not in accordance with law is liable to be set aside. In support of his contention he cited a decision in Md. Idris v. State of Bihar, reported in 1980 Cr. LJ 764.
4. Learned Advocate appearing for the O.P. No. 2, the de facto complainant submitted that the petitioner was a minor at the time of incident. Her date of birth was 1.8.90 and the incident was on 9.2.04. The petitioner did not complete 15 years at the time of incident. The minor cannot be released on her own bond or in custody of the accused in a case under Section 366 of the IPC. The order of the learned Magistrate is correct, legal and proper. The said order is not revisable and there is no merit in the revisional application. The petitioner should be detained in Home till she attains majority. She may be released, if she wishes to go to custody of her father.
5. Learned Advocate appearing for the State submitted that there was no report of ossification test before the learned Magistrate to ascertain age of the victim. It requires determination as to whether at the time of marriage the petitioner attained puberty. Unless she attains puberty, the provisions of law as embodied in Section 251 of the Mahomedan Law is not applicable and she cannot marry according to her own choice. The learned Magistrate may be directed to enquire into these matters but, for the present, the order of the learned Magistrate does not appear to be illegal or grossly irregular.
6. The submissions of the learned Advocates for the parties make it clear that the petitioner according to FIR was a minor. The de facto complainant O.P. No. 2 in the FIR mentioned that her minor daughter Belowara Khatun, aged 15 years was kidnapped by Mirjamal Sk.@ Mintu Sk. and others on 9.2.04. Learned Advocate for the O.P. No. 2 produced before me a certificate of birth issued by Pradhan of Madhupur (No. 4) Gram Panchayat within Nawda P.S. which reveals that date of birth of Belowara Khatun is 1.8.90. On the other hand, learned Advocate for the petitioner produced before me a copy of the birth certificate issued by the Headmaster of Dangapara Mokterpur Jr. High School which reveals that date of birth of Belowara Khatun according to school admission register is 3.1.89. The certificate issued by the Madhupur Gram Panchayat and produced for the O.P. No. 2 cannot be relied upon as the person who issued the certificate put his signature with date 16.10.05 as the date of issue of it. The Court heard the matter on 31.8.05 and a certificate showing date of issue 16.10.05 cannot be relied upon as it is two months advance from date of hearing. It is clear that it was issued hurriedly without taking into consideration date of issue. In law also certificate produced by O.P. No. 2 cannot be recognised as valid and reliable when the petitioner has produced certificate of birth according to school admission register and the certificate issued by school must override the certificate issued by Panchayat in a subsequent date. It is clear that the learned Magistrate did not direct ossification test of the victim, i.e., the present petitioner who is now in Silayan Home. The age of the victim may a play vital role in the trial and accordingly, I direct the learned Magistrate concerned to take effective steps for holding ossification test of victim cum petitioner Belowara Bibi. The learned Magistrate must direct the Investigating Officer and the concerned doctor of the Government hospital to take steps for holding ossification test of the victim Belowara Bibi as early as possible and to produce before the learned Magistrate the ossification test report.
7. Section 251 of the Mahomedan Law proscribes that, “Every Mahomedan of sound mind who has attained puberty may enter into a contract of marriage …Explanation.– Puberty is presumed, in the absence of evidence, on completion of the age of 15 years.” The incident was on 9.2.04. According to certificate issued by the school, date of birth of victim is 3.1.89 and accordingly the victim completed age of 15 years on 2.1.04. It makes clear that at the time of incident she was just above 15 years and attained puberty according to Mahomedan Law and being so she was competent to contract marriage according to her own choice without consent of father.
8. In the matter of Dhuronidhur Ghose reported in ILR 17 Cal 299 a Hindu girl of fifteen years in age was given in marriage and the father of the girl took away the said minor girl from custody of her husband without consent of husband. It was held that the husband of Hindu girl of fifteen is her lawful guardian and taking away of father of such minor married daughter without consent of the husband amounts to kidnapping from lawful guardianship even though the father may have had no criminal intention in so doing. This decision is squarely applicable in the instant case and after marriage of the victim her husband is her lawful guardian.
9. In Saroj Singh v. State of West Bengal reported in 2004 C.Cr LR(Cal) 392, Kalyani Chaudhari vs. State of U.P., reported in 1978 Cr. LJ 1003, Neetu Singh v. State, reported in 1999 (4) Crimes 20, Seema Devi @ Simaran Kaur vs. State of H.P., reported in 1998(2) Crimes 168, Raj Kumari v. Superintendent, Women Protection House, Meerut reported in 1998 Cr. LJ 654, Lila Gupta v. Laxmi Narain and Ors. , it was held that even a minor cannot be confined or detained in a protective home against her wishes. Speaking truly, there is no law which permits Court to give direction for keeping even a minor in Nari Niketan or any home against her will. Question of giving the victim girl to the custody of her father, the present petitioner does not arise as the father was himself instrumental in getting the victim girl confined into protective home through the aid of police. Not only that, once the father took away the victim to his house and tortured her and illegally confined the minor baby of the victim. The ordersheet of the learned SDJM reveals that the victim refused to go to custody of her father.
10. In Md. Idris v. State of Bihar (supra) it was held that a Muslim girl who has attained age of puberty (15 years) can marry without consent of her parents. Learned Advocate for the State submitted that whether at the time of marriage she attained puberty requires determination. The submission of the learned Advocate for the State is not acceptable in view of the Explanation of Section 251 of the Mahomedan Law. The said Explanation reveals that puberty is presumed, in the absence of evidence, on completion of age of fifteen years. The Patna High Court decision makes it clear that under the Mahomedan Law accordingly, who has reached the age of puberty, i.e., in normal course at the age of 15 years, can marry without the consent of her guardian. Here not only the life of the petitioner is involved but another life, i.e. minor baby of petitioner is involved and the said minor baby is now ill as submitted to this Court. The learned Magistrate cannot confine the victim in Government rescue Home or any other Home against her wishes. When the victim has married after attaining age of 15 years she is entitled to be released according to her wishes subject to the conditions that may be imposed by the learned Magistrate to ascertain her address where she would be available and other conditions to secure her attendance in Court at the time of trial and for any other matter if required for investigation e.g. recording of statement under Section 164 of the Code, medical examination etc.
11. The learned Magistrate will accordingly direct completion of the ossification test as early as possible and obtaining the ossification test report after hearing the parties concerned afresh relating to her age as appeared in the certificate issued by school and other papers including ossification test report will ascertain the age of the victim at the time of incident and also on the date of her marriage and thereafter would pass the necessary order in accordance with law keeping in mind legal principles as disclosed above relating to confinement of a victim girl who is the main witness of the case. The learned Magistrate is directed to dispose of the matter in view of the observation made above as early as possible and preferably within two months from the date of communication of the order.
12. In view of the aforesaid discussion the order dated 31.5.05 passed by the learned SDJM, Berhampore is set aside and the learned Magistrate now CJM or ACJM, Berhampore who would hear the matter is directed to dispose of the matter in view of the guidelines indicated above. The revisional application is accordingly disposed of.
13. Send a copy of this order to the learned Chief Judicial Magistrate and learned Additional Chief Judicial Magistrate, Murshidabad, Berhampore for information and necessary action.
14. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.