- (1.) VIRENDRA Satan, J. Budh Ram has filed this revision against the judg ment and order dated 8-9-1993, passed by Sri O. P. Garg, Sessions Judge, Allahabad in Criminal Revision No. 543 of 1993. The learned Sessions Judge has set aside the order dated 24-8-1993, passed by judicial Magistrate I, Allahabad who had directed that custody of Manju be given to her elder brother Budh Ram (applicant) in connection with Crime No. 184 of 1993, under Section 363/366, I, P. C. , P. S. Tharwai, District Allahabad.
(2.) I have beard Sri D. N. Wali, learned Counsel for the applicant, learned State Counsel and Sri A. K. Bhatt, learned Counsel representing respondent No. 2-Nand Lal. It appears that a case under Section 363/366, I. P. C. was registered against Nand Lal, alleging that Manju was only 14 yeara of age and had been kidnapped. This report was lodged by applicant Budh Ram, After Manju was recovered she was lodged in the 'nari Niketan'. She was produced before the learned Magistrate for recording her statement under Section 164, Cr. P. C. on the objection of the applicant that she was a minor, her statement was not recorded and she was sent for medical examination and for the purpose of ascertaining her age. According to the medical opinion, the age of Manju was 14 years. Applicant Budh Ram made an application that Manju be given in his custody as he claimed himself to be lawful guardian of his minor sister. 4 Nand Lal opposed this prayer and claimed custody of Manju alleg ing that she was his legally wedded wife. According to Nand Lal the age of Manju was 19 years and in support of his claim he relied on the family register in which the age of Manju is recorded as 19 years. 5. I have gone through the orders passed by the learned Magistrate as well as learned Sessions Judge. The learned Sessions Judge has placed reliance on the family register in preference to the medical report In the family register the age of Manju is recorded as 19 years. The learned Sessions Judge has given cogent and sound reasons fur his conclusions. The learned Sessions Judge has rightly observed that the age recorded in the family register cannot be ignored and has to be given due weight as it is maintained in discharge of official duties. In support of his conclusion the learned Sessions Judge has relied on AIR 1981 SC 361-Harpal Singh and another v. State of H P. t in which it has been held that the age noted in the birth register is admissible in evidence under Section 35 of the Evidence Act. The authenti city of the entries assumes greater importance when the register has been produced from proper custody. As for the opinion of the doctor regarding the age, my attention has been drawn to the photostat copy of the medical report submitted by the Medical Officer, Women Hospital, Allahabad. It goes to show that the doctor had earlier noted the age of Manju as 16 years but by cutting it out it was changed into 14 years. There is another report of X-ray which was conducted at M. L. N. Hospital, Allahabad which goes to show that epicondyles of ulna and the head of radius bones had not com pletely united with their shafts but epipbysis of the bones of elbow joined with their respective shafts was there. Thus ossification of bones of the right elbow indicates that Manju bas definitely completed the age of 16 years As regards the epiphysis of lower ends of radius and ulna, the report shows that there was no fusion. According to Modi's book on Medical Jurisprudence in case of girls in Uttar Pradesh, this fusion takes place at the age of 19 years. As regards right knee joint the report shows that bones had not completely fused. It means that there was fusion which bad not completed. The ossification test, therefore, does not show that Manju was a minor of 14 years of age. It may further be pointed out that the doctor should have taken X-ray of both right and left limbs which bas not been done. The medical examination reports further shows that breasts and axillary and pubic hair were well developed. Hymen was found having old tear and Manju was described as a woman used to sexual intercourse. 6. In order to ascertain the wish of Manju she was summoned before this Court on 15-9-93. She was produced by the Superintendent, Nari Niketan, Allahabad at about 11 a. m. on 15-9-93 to ensure that Manju is free fionj influence of others she was directed to remain in my chambers and police guard was posted to see that no one unnecessarily influences Manju. The Superintendent, Nari Niketan, was also asked to remain with Manju. The statement of Manju was recorded at 3 pm. Manju ntated that her father has died and that she had entered into marriage with Nand Lal without any deception on her and she had gone away with Nand Lal out of her own free will. Manju expressed her desire that she be allowed to go with her husband to her Sasural. 7. The demeanour of Manju shows that she has attained the age of dis cretion and can make intelligent preferences and knows her well-being. 8. The judgment of the learned Sessions Judge goes to show that Manju had given an affidavit before him stating that her brother (applicant Budh Ram) had evil intentions and, therefore, she got married to Nand Lal. Sri D. N. Wali learned Counsel for the applicant has submitted that there is no guarantee that Nand Lal would keep Manju and on the other hand he may sell her away. I am unable to accept the submission. Here is no allegation that Nand Lal has been indulging in trafficking in women or has any other bad antecedent. 9. The learned Counsel for the answering respondent has submitted that there is every likelihood that if Manju is forced to go with her brother she might be treated with cruelty and her life would be in danger. He further pointed out that brought of up of Manju before her marriage was not well and she was not given any education. The submission of the learned Counsel for the answering respondent has force. The ethos of conservative village life is taboo ridden in matters of sex and there can be no doubt that in her native village Manju would be subjected to ridicule her life would become miserable. More over she is grown up and ought not be forced to go against her will to her brother. 10. Considering entire circumstances of the case I am of the opinion that the revision has no merits. 11. Before parting with I would like to point out that learned Judicial Magistrate 1st, Allahabad has erred in not recording the statement of Manju under Section 164, Cr. P. C. , when she was produced in Court on the objection of the applicant that she was a minor. Even a minor is competent witness and the learned Magistrate should have recorded her statement. The question of evidentiary value would have been considered at the appropriate stage. 12. In the result, this revision is dismissed. The Superintendent, Pro tective Home, Allahabad is directed to allow Manju to go alongwith Nand Lal where she will reside as a free citizen. The Superintendent, Protective Home, Allahabad informed the Court that both the parties have been thronging the Protective Home. The S. S. P. , Allahabad is directed to provide police escort to Manju from the Protective Home, Allahabad to the house of Nand Lal in village Assepur. P. S. Handia, district Allahabad in case a request comes from the Superintendent Protective Home, Allahabad for providing police escort. Revision dismissed. .;