ORDER
M.Y. Eqbal, Acting C.J.
Page 2054
1. In the instant writ application under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a writ of certiorari for quashing the order dated 16.6.2006 passed in C.P. Case No. 601/06 whereby the Sub-divisional Judicial Magistrate, Dhanbad, after holding that petitioner is a minor, directed her release in favour of her father respondent No. 4.
2. The facts of the case lie in a narrow compass:
Petitioner’s case is that she married respondent No. 5, Shyam Kumar Verma, on 17.2.2006 out of her own free will and the marriage was registered with the Marriage Officer, Dhanbad and a certificate to that effect was issued. According to the petitioner, she was major on the date of marriage as her date of birth is 5.1.1988. On the same day, petitioner and respondent No. 5 performed their marriage in Bhiphor Shankar Math and a certificate to that effect was also granted by the Secretary of the said Math. Information regarding their marriage was also given to the Superintendent of Police, Dhanbad and the Officer-in-Charge, Dhanbad Police Station. In the meantime, respondent No. 4, who is father of the petitioner, after knowing solemnization of marriage, filed a complaint in the court of Chief Judicial Magistrate, Dhanbad under Sections 364, 364A, 385, 365, 366, 494, 498A and Section 4 of the Dowry Prohibition Act which was registered as C.P. Case No. 601/06. Respondent No. 4 also filed application for recovery of his daughter and for giving custody of the petitioner on the ground that petitioner was minor on the relevant date of marriage. Petitioner was kept in Nari Niketan, Deoghar. Respondent No. 4 then filed application in the aforementioned case before the Chief Judicial Magistrate, Dhanbad for handing over the petitioner to him. Thereafter, the Sub-divisional Judicial Magistrate, vide order dated 20.5.2006, released the petitioner in favour of her husband respondent No. 5 where she lived for about 15 days. Against the said order, respondent No. 4 preferred revision before this Court being Cr. Revision No. 374 of 2006. Learned Single Judge of this Court, after hearing the petitioner, set aside the order dated 20.5.2006 passed by the Sub-divisional Judicial Magistrate and remanded the matter back to him for passing a fresh order. After the order of remand passed by this Court the matter was again heard by the Sub-divisional Judicial Magistrate and the impugned order dated 16.6.2006 was passed whereby it was held that petitioner was minor on the date of marriage and accordingly custody of the petitioner be given to her father respondent No. 4. Respondent No. 5, husband of the petitioner aggrieved by the said order filed writ petition before this Court being W.P.Cr.(HB) No. 122 of 2006 seeking issuance of a writ of Habeas-Corpus for the custody of his wife-petitioner. Respondent No. 5 also prayed for quashing the impugned order dated 16.6.2006 passed by Sub-divisional Judicial Magistrate, Dhanbad whereby Page 2055 the custody of the petitioner was given to respondent No. 4. The aforementioned Writ Petition(Cr.) was heard by a Division Bench of this Court. The Division Bench, following the ratio decided by the Supreme Court in the case of Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra , held that the writ petition is not maintainable against the impugned order dated 16.6.2006 and the appropriate remedy available to the writ petitioner is to challenge the said order under Section 482 Cr.P.C.
3. Now the instant writ application has been filed by the petitioner, namely, Ranjana Verma under Articles 226 and 227 of the Constitution of India challenging the impugned order dated 16.6.2006 passed by Sub-divisional Judicial Magistrate, Dhanbad in C.P.Case No. 601/06.
4. A counter affidavit has been filed by respondent No. 4, father of the petitioner stating, inter alia, that the instant writ petition filed under Articles 226 and 227 of the Constitution of India against the order dated 16.6.2006 passed by Sub-divisional Judicial Magistrate, Dhanbad is not maintainable. It is stated that. Sub-divisional Judicial Magistrate, Dhanbad, after considering the entire facts of the case, has recorded a finding that petitioner was minor and the said order needs no interference by this Court.
5. This writ application was first placed before the learned Single Judge of this Court on 9.8.2006 and the learned Single Judge, after considering the points involved in the writ application and the order passed by the Division Bench in W.P.Cr. (HB) No. 122 of 2006, referred the matter to the Division Bench for hearing. Hence this writ application before this Court.
6. We have heard Mr. Indrajeet Sinha, learned Counsel appearing on behalf of the petitioner, Mr. A.K. Sahani and Mr. R.S. Mazumdar, learned Counsels appearing on behalf of respondent Nos. 4 and 5 respectively and the learned Counsel for the State.
7. Mr. Sahani, learned Counsel appearing on behalf of respondent No. 4 mainly contended that in view of the order dated 24.7.2006 passed by a Division Bench of this Court in W.P. (Cr) (HB) No. 122/2006, the instant writ petition is not maintainable. Learned Counsel submitted that the only remedy available to the petitioner is to challenge the order dated 16.6.2006 under Section 482 Cr.P.C.
8. As noticed above, the Division Bench dismissed the writ petition as being not maintainable after holding that the impugned order passed by the Sub divisional Judicial Magistrate can be challenged only under Section 482 Cr.P.C.. The Division Bench observed:
Coming to the facts of the present case, as has been noticed above that the petitioner by seeking relief for issuance of writ in the nature of habeas corpus has virtually sought to set aside the order dated 16.6.2006, whereby custody of the girl, has been given to her father (respondent No. 4). However, subsequently by filing supplementary affidavit specific prayer for setting aside the order dated 16.6.2006 was sought to be added which even if allowed, no relief can be granted in view of the ratio laid down by the Supreme Court in Naresh Shridhar Mirajkar’s case, as has been noticed above, as according to ratio laid down in the aforesaid case no writ would lie against the judicial process established by law then plainly the order passed by the Judicial Page 2056 Magistrate would be totally out of the purview of the writ of habeas corpus and is amenable only to the process of appeal/revision or the inherent jurisdiction of the High Court under Section 482 CrP.C. by way of special leave to Hon’ble Supreme Court.
9. The Division Bench mainly relied upon the ratio decided by the Supreme Court in the case of Naresh Shridhar Mirajkar (Supra). The ratio decided in Naresh Shridhar Mirajkar (Supra) has been considered by the Supreme Court in series of decisions.
10. In the case of Surya Deo Rai v. Ram Chander Rai and Ors. , the Supreme Court, while considering the constitutional jurisdiction conferred on the High Court under Articles 226 and 227 of the Constitution in the matter of issuance of writ of certiorari, observed as under:
22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain, specific powers by Clauses (2) and (3) of Article 227 with which we are not concerned here at. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is under than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
11. In para-16 of the judgment, their Lordships considered the earlier decision in Naresh Shridhar Mirajkar (Supra) and observed as under:
17. A perusal of the judgment shows that the above passage has been quoted “incidentally” and that too for the purpose of finding authority for the proposition that a Judge sitting on the original side of the High Court cannot be called a court “inferior or subordinate to the High Court” so as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the above said passage has been quoted but nowhere the Court has laid down as law by way of its own holding that a writ of certiorari by the High Court cannot be directed to a court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar Mirajkar case is from the third edition of Halsbury’s Laws of England (Simond’s Edn., 1955). The law has undergone a change in England itself and this changed legal position has been noted in a Constitution Bench decision of this Court in Rupa Ashok Hurra v. Ashok Hurra. Justice S.S.M. Quadri speaking for the Constitution Bench has quoted the following passage from Halsbury’s Laws of England, 4th Edn. (Reissue), Vol. 1(1):
103. Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued Page 2057 to bring the record of an inferior court into the King’s Bench for review or to remove indictments for trial in that court; mandamus was directed to inferior courts and tribunals, and to public officers and bodies, to order the performance of a public duty. All three were called prerogative writs;
* * *
109. Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the Court may determine whether they should be quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities.
12. The Supreme Court in the aforesaid judgment has categorically held that there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
13. The Constitution Bench judgment in Naresh Shridhar Mirajkar’s case (supra) was again considered in the case of Rupa Ashok Hurra v. Ashok Hurra and Anr. and in the case of Ranjit Singh v. Ravi Prakash .
14. In the case of Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. , a question arose before the Supreme Court as to whether High Court can exercise its extraordinary certiorari jurisdiction against the order passed by the Magistrate taking cognizance under Section 190 Cr.P.C. In that context their Lordships observed:
25. It is no doubt true that in a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of the Magistrate taking cognizance under Section 190 of the Code of Criminal procedure will stand somewhat on a different footing as an order taking cognizance can be the subject–matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Constitution against a judicial officer. (Seen Naresh Shridhar Mirajkar v. State of Maharashtra). However, we are not oblivious of a decision of this Court in Surya Dev Rai v. Ram Chander Rai wherein this Court upon noticing Naresh Shridhar Mirajkar and also relying on a Constitution Bench of this Court in Rupa Ashok Hurra v. Ashok Hurra opined that a Judicial Court would also be subject to exercise of writ jurisdiction of the High Court. The said decision has again been followed in Ranjeet Singh v. Ravi Prakash. It is, however, not necessary to dilate on the matter any further. The jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure was noticed recently by this Court in State of U.P. v. Surendra Kumar holding that even in terms thereof, the Court cannot pass an order beyond the scope of the application thereof. In Surya Devi Rai, we may, however, notice that this Court categorically stated that the High Court in issuing a writ of certiorari exercises a very limited jurisdiction. It also made a distinction between exercise of jurisdiction by the High Court for issuance of a Page 2058 writ of certiorari under Articles 226 and 227 of the Constitution. It categorically laid down that while exercising its jurisdiction under Article 226, the High Court can issue a writ of certiorari only when an error apparent on the face of the record appears as such; the error should be self-evident. Thus, an error according to this Court needs to be established. As regards, exercising the jurisdiction under Article 227 of the Constitution it was held: (SCC p. 689, para 24)
The power may be exercised in cases occasioning grave injustice of failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does not have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.
15. In the light of the decisions referred to herein above, it is manifestly clear that all those decisions rendered by the Supreme Court were not brought to the notice of the Division Bench of this Court in W.P. Cr. (HB) No. 122 of 2006. The Division Bench held that order passed by the Judicial Magistrate is amenable only to the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure. Now the question that needs consideration is whether the decision rendered by the Division Bench in the aforesaid case is per incuriam.
16. A judgment per incuriam is one which has been rendered inadvertently due to obvious inadvertence and also on account of the fact that the decisions of the Supreme Court have not been brought to the notice of the Court.
17. In the book Drafting and Interpreting Legislation 60 (1988), the author Louis-Philippe Pigeon stated:
There is at least one exception to the rule of stare decisis, I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind first, where the judge has forgotten to take account of a pervious decision to which the doctrine of stare decisis applies. For all the care with which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; thus, it has no authority…. The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation has not invoked
18. Rupert Cross & J.W. Hams, in the book “Precedent in English Law 149 (4th edn. 1991) stated:
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some features of the decision or some step in the reasoning on which, it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided Page 2059 per incuriam, must in our judgment consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence.
19. In the case of Mamleshwar Prasad and Anr. v. Kanahaiya Lal , their Lordships of the Supreme Court observed:
Para.7 – Certainty of the law, consistency of rulings and comity of courts – all flowering from the same principle – converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.
20. In the case of Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, Chandigarh and Ors. , the Supreme Court again dealt with the case of per incuriam and observed:
Para.40- We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions. The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court. It cannot be doubted that Article 141 embodies, as a rule of law, the, doctrine of precedents on which our judicial system is based. In Bengal Immunity Company Ltd., v. State of Bihar, it was held that the words of Article 141, “binding on all courts within the territory of India”, though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This in necessary for proper development of law and justice. May be for the same reasons before judgments were given in the House of Lords and Re Dawson’s Settlement Lloyds Bank Ltd. v. Dawson, on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary:
Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
Page 2060
Para.43- As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to “declare the law” on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25-G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present not difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together. The question however is whether in this case there is in fact a judgment per incuriam. This raises the question of ratio decidendi in Hariprasad and Anakapalle cases on the one hand and the subsequent decisions taking the contrary view on the other.
21. In the case of Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. , the Apex Court while discussing the applicability of principle of per incuriam observed:
Para- 19. In Mamleshwar Prasad v. Kanhaiya Lal reflecting on the principle of judgment per incuriam, in paras 7 and 8, this Court has stated thus: (SCC P. 235):
7. Certainly of the law, consistency of rulings and comity of courts – all flowering from the same principle – converge to the conclusion that a decision once rendered must later bind like cases. We do not find intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It would be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.
8. Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.
Para.20. This Court in A.R. Antulay v. R.S. Nayak has quoted the observations of Lord Goddard in Moore v. Hewitt (1947)2 All ER 270 (KBD and Penny v. Nicholas to the following effect: (SCC p. 652).
Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
Para.21- This Court in State of U.P. v. Synthetics & Chemicals Ltd in para 40 has observed thus: (SCC p. 162)
40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.)
Page 2061
Para.23- A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment “per incuriam”. It is also not shown that some part of the decision was based on a reasoning which was demonstrably wrong, hence the principle of per incuriam cannot be applied. It cannot also be said that while deciding Thyssen the promulgation of the first Ordinance, which was effective from 25-1-1996, or subsequent Ordinances were not kept in mind more so when the judgment of the Gujarat High Court in Western Shipbreaking Corpn. did clearly state in para 8 of the said judgment thus:
8. We now come to the Arbitration and Conciliation Ordinance, 1996 which was promulgated on 16-1-1996 and brought into force with effect from 25-1-1996. The second Ordinance, 1996 was also promulgated on 26-3-1991 as a supplement to the main Ordinance giving retrospective effect from 25-1-1996. The Ordinance received assent of the President on 16-8-1996 giving the retrospective effect from 25-1-1996. Thus the Ordinance has now become and Act. All the provisions of the Ordinance as well as the Act are same. Therefore, the use of the words ‘the Ordinance’ shall also mean the Act and vice versa
It appears in the portion extracted above that there is a mistake as to the date of promulgation of the second Ordinance as 26-3-1991. But the correct date is 26-3-1996.
22. Having regard to the decisions of the Supreme Court discussed hereinabove, we have no hesitation in holding that the view taken by the Division Bench of this Court in Cr.W.(HB) No. 122/2006 is per incuriam. Hence, in the facts and circumstances of the case, the order passed by the Sub divisional Judicial Magistrate is amenable to the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India.
23. Now coming back to the merit of the case, as noticed above, the petitioner, Ranjana Verma, married respondent No. 5, Shyam Kumar Verma on 17.2.2006 out of her own free will. The marriage was registered by the Marriage Officer, Dhanbad. According to the petitioner she was major on the date of marriage as her date of birth is 5.1.1988. Subsequently the marriage was also performed in Bhiphor Shankar Math and, thereafter, it was intimated to the Officer Incharge, Dhanbad Police Station and also the Chief Judicial Magistrate, Dhanbad. When respondent No. 4 (father of the petitioner) came to know about the said marriage, he lodged a complaint in the court of the Chief Judicial Magistrate, Dhanbad which was registered as C.P.Case No. 601/2006 under different sections including Section 498A I.P.C. Respondent No. 4 then filed an application for issuance of search warrant for recovery of the petitioner. Accordingly the petitioner was recovered from the custody of her husband, respondent No. 5 and under the order of the court the petitioner was sent to Nari Niketan Deoghar on 26.4.2006. Thereafter, respondent No. 4 filed an application in the court below praying therein to handover the victim girl (petitioner) to him which was objected to by the husband of the petitioner (respondent Page 2062 No. 5) on the ground that the petitioner is major and she has married out of her own free will. In support of her age a registration card (admit card) showing the date of birth of the petitioner as 5.1.1988 issued by the Council for Indian School Examination, New Delhi was filed. The said certificate was not disputed by the father of the petitioner. However, on the date of hearing, respondent No. 4, father of the petitioner, produced a birth certificate showing the date of birth of the petitioner as 5.12.1989. The Sub-divisional Judicial Magistrate, after considering the entire facts of the case and the documents relating to date of birth of the petitioner, held that the petitioner was major and she was at liberty to go to any place as per her own wish. Accordingly, the petitioner was ordered to be released.
24. Respondent No. 4, the father of the petitioner, challenged the said order before this Court in Criminal Revision No. 374/2006 on the ground that though in the registration card issued by the Council for Indian School Examination, the date of birth of the petitioner was recorded as 5.1.1988 but, in fact, the date of birth of the petitioner is 5.12.1989 and in support of that a certificate under the Birth and Death Registration Act was filed. A Bench of this Court, taking into consideration the statement of the father that since the petitioner was genius in study, her year of birth in the school register was mentioned as 5.1.1988, allowed the revision application and set aside the order dated 20.5.2006 passed by the Sub-divisional Judicial Magistrate, Dhanbad and remanded the matter back to him for giving a fresh finding. After remand the matter was again heard by the Sub-divisional Judicial Magistrate and after hearing the parties the impugned order dated 16.6.2006 was passed directing release of the petitioner in favour of her father, respondent No. 5. In the impugned order the Sub-divisional Judicial Magistrate took the view that in case of determination of date of birth the best evidence is the evidence of the father and mother. Relying upon the statement of the father and ignoring the certificate issued by the Council for Indian School Examination, the learned Single Judge came to the conclusion that the petitioner was minor.
25. Before deciding the issue, we would first like to refer some of the decisions rendered by the Supreme Court on the same issue. In the case of Sudesh Jale (Dr.)III. v. State of Haryana and Ors. (2005)XI SCC-425 a letter written by the girl to Hon’ble the Chief Justice of India was treated as a writ petition and was posted before his Lordship for consideration. The parents of the girl were directed to produce the girl and after counseling it was found that the girl expressed her desire to live with her husband. The Apex Court proceeded by taking into consideration the womens’ right to personal liberty particularly in the matter of custody of a married woman.
26. In the case of Lata Singh. v. State of U.P. and Anr. , the Supreme Court again considered the question relating to right to life and freedom particularly womens’ right in the matter of marriage. Their Lordships observed:
Since several such instances ore coming to our knowledge of harassment, threats and violence against young men and women who marry outside their cast, we feel it necessary to make some general comments on the matte. The Nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the Page 2063 challenges before the nation unitedly. Hence, inter- caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter – caste marriage, are threatened with violence or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter- caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
27. As noticed above, according to the petitioner she was born on 5.1.1988 and she was major on the date she was married with respondent No. 5. On the other hand, according to the statement of the father given in the court the petitioner was born on 5.12.1989 and therefore, she was minor i.e. she was 16 years 2 months 12 days. We fail to understand as to how the court below ignored the undisputed registration certificate issued by the Council for Indian School Examination, according to which she was major, and relied upon a birth certificate produced by the father on the date of hearing issued on the same date. The father of the petitioner got the date of birth entered in the register maintained by the authorities on the same date when the certificate was issued. Obviously this birth certificate was procured by the father to show the petitioner as minor.
28. Similar matter was considered by the Supreme Court in the case of Jaya Mala v. Home Secretary, Govt. of Jammu and Kashmir and Ors. . In that case the dispute was with regard to age of the accused who was detained under the Jammu and Kashmir Public Safety Act 1978. Their Lordships held that in a case where the age of a person is assessed on medical examination, a margin of two years on either side is to be presumed. In the instant case, as per the unimpeachable document which has not been denied by the father of the petitioner, her date of birth was recorded as 5.1.1988 and thereby she was major on the date of marriage, whereas, on the basis of subsequent statement of the father coupled with the birth certificate procured by him on the date of hearing, the petitioner was of 16 years 2 months 12 days on the date of marriage.
29. In the case of Vishnu @ Undrya v. State of Maharashtra 2006 (37) AIC 310 (S.C.), the facts was quite different from the facts of the instant case. In that case the prosecutrix who was below the age of 16 years, was raped by force against her wishes. The age of prosecutrix was recorded concurrently by both the trial Court and the High Court on the basis of consideration of evidence of her father and mother and the same was corroborated by the age of the prosecutrix recorded in the Page 2064 birth register granted by the Bombay Municipal Corporation and also in the hospital register where the prosecutrix was born.
30. In the instant case, the date of birth of the petitioner was recorded in the school register at the instance of her father which is evident from the registration certificate issued by the Council for Indian School Examination. It is only during the pendency of the case, the father of the petitioner procured a certificate alleged to have been issued under the Death and Birth Registration Act and tried to impress the Court by giving evidence that petitioner’s date of birth is 5.12.1989 and thereby she was of 16 years, 2 months, 12 days. In our opinion, therefore, the said decision of the Supreme Court will not apply in the facts of the present case.
31. Besides the above, the petitioner married respondent No. 5 out of her own sweet will and she is still ready to live with her husband by leading a happy marital life. In the aforesaid premises, we are of the view that the petitioner must be treated as major and considering the constitutional right of liberty given to her in the Constitution, she is at liberty to live with her husband.
32. For the aforesaid reasons, this writ application is allowed and the impugned order dated 16.6.2006 passed by the Sub Divisional Judicial Magistrate, Dhanbad in C.P. Case No. 601 of 2006 is set aside. Consequently, the entire criminal proceedings initiated against respondent No. 5, namely the husband of the petitioner, are also quashed.