- (1.) Heard learned counsel for the petitioner and learned AGA for the State and perused the record. This Habeas Corpus Writ Petition has been filed by the petitioners with the prayer to issue a writ of habeas corpus directing the respondent nos. 2 to 5 to produce the corpus of petitioner no. 2, Smt. Shalu Singh, before this court and set her at liberty alleging her illegal detention in Nari Niketan, Kanpur Nagar. A further prayer has been made for issuing a writ of certiorari quashing the order dated 24.6.2015 passed by the respondent no. 5 (Annexure no. 11).
(2.) The brief facts of this case are that the respondent no. 6, Rajendra Singh had lodged a first information report at Police Station Mangalpur, District Rama Bai Nagar, on 4.5.2015 alleging therein that his minor daughter Shalu Singh aged about 16 years had been kidnapped by the petitioner no. 1. The aforesaid FIR was registered as Case Crime No. 0190 of 2015 under section 363, 366 I.P.C. After the prosecutrix Shalu Singh was recovered she was subjected to medical examination and her statement under section 164 Cr.P.C. was also recorded. As per the medical opinion the age of the prosecutrix Shalu Singh was about 18 years and she in her statement recorded under section 164 Cr.P.C. had denied the prosecution case and had stated that she had left her parental home at her own accord and solemnized marriage with petitioner no. 1 voluntarily. She further stated that the petitioner no. 1 had neither enticed her away nor kidnapped her. On the application moved by the I.O. before the concerned Magistrate for passing an order with regard to her custody, the concerned court passed an order on 23.6.2015 for putting up the matter before the Child Welfare Committee at Kanpur Dehat, which passed an order on 24.6.2015 (Annexure no. 11) sending the petitioner no. 2 to Nari Niketan, Swarup Nagar, Kanpur Nagar, after holding her to be minor according to her date of birth recorded in her education certificates.
(3.) Learned counsel for the petitioners has submitted that as per the medical report of the petitioner no. 2 dated 20.6.2015 (Annexure no. 7) she is major and the respondent no. 5 committed a patent error of law in sending her to Nari Niketan instead of setting her at liberty. He further submitted that the date of birth of petitioner no. 2 recorded in the High School Certificate is incorrect and her date of birth recorded in her School Leaving Certificate issued by the Head Master of Sri Munshi Lal Jain Sahyogi Primary School, Badra Purwa, Kanpur Dehat (Annexure no. 3), which is the first school attended by her as 8.6.1996 is her correct date of birth and hence detention of the petitioner no. 2, who is legally wedded wife of petitioner no. 1, in Nari Niketan is per-se illegal. He lastly submitted that since marriage between the petitioners has been registered and even if it is assumed for the sake of argument that the petitioner no. 2 is minor as per her date of birth recorded in her High School certificate the marriage of the petitioners is not void but voidable and since neither of the parties has taken any steps for getting their marriage declared void, the petitioner no. 2 has a right to live in the company of her husband i.e. petitioner no. 1. Per contra learned AGA has supported the impugned order and submitted that the impugned order dated 26.6.2015 passed by respondent no. 6 is revisable and hence this writ petition is liable to be dismissed on the ground of alternative remedy. He next submitted that the petitioner no. 2 having been sent to Nari Niketan in pursuance of an order passed by a competent authority her detention cannot be said to be illegal and hence no writ of Habeas Corpus can be issued in this case. He lastly submitted that the date of birth of petitioner no. 2 recorded in her High School Certificate is conclusive proof of her age and respondent no. 5 did not commit any error in placing reliance on her High School Certificate in holding her to be minor and sending her to Nari Niketan after she refused to go with her parents.;