- (1.) THIS Habeas Corpus Writ Petition has been filed by the petitioner, Khusboo, for quashing the order dated 12.10.2008 passed by the S.D.M., Sadar, Gorakhpur, in Misc. Case No. 3 of 2008 and for issuing a direction to the respondents to produce her corpus before this Court and for other suitable directions.
(2.) THE petitioner's case is that she is major and her date of birth is 5.2.1989. She has filed a photocopy of the School Leaving Certificate issued by the Headmaster, Primary School, Khorabar, Gorakhpur. She has alleged that she performed marriage with Ram Dayal out of her own choice but her parents were not satisfied with this marriage. She also moved an application before the S.D.M., Sadar, Gorakhpur, on 12.2.2008 asserting that she wanted to go with her husband. It was registered as Misc. Case No. 3 of 2008. THE petitioner Khushboo was produced before the C.M.O., Gorakhpur, by the police and the C.M.O. after obtaining x-ray report ascertained her age to be about 19 years. A photocopy of the medical certificate issued by the C.M.O., Gorakhpur, has been annexed as Annexure 3 to the petition. Even then the S.D.M., Sadar, Gorakhpur, did not permit her to go to her nuptial home and passed order for keeping her at the Rajkiya Paschatyavarti Dekhrekh Sanrakshan, Varanasi, (respondent No. 2). She alleged that since she is major, she has the right to live with a man of her choice and so she filed this petition challenging the above order. She has also alleged that her parents are not ready to keep her with them. The State filed a counter affidavit of Devendra Prasad Tiwari, Sub-Inspector of Police, Police Station Khorabar, District Gorakhpur, in which he stated that on the basis of the information given by Rajendra Prasad, respondent No. 3, Case Crime No. 1498 of 2008, under Sections 376, 506, I.P.C. was registered at Police Station Khorabar, District Gorakhpur, on 19.7.2008, and in this case Ram Dayal, so called husband of the petitioner, is an accused. The case was investigated and after investigation the charge-sheet has already been submitted against Ram Dayal. It was also alleged that Khusboo is still minor. Her date of birth according to her School Leaving Certificate (Annexure CA1) is 5.2.1995. It was on the basis of the above School Leaving Certificate in which the date of birth of Khusboo was mentioned as 5.2.1995, that the S.D.M., Sadar, Gorakhpur, held that she was still a minor and so she should not be permitted to reside according to her wishes and he passed an order that she should be kept at Rajkiya Paschatyavarti Dekhrekh Sanrakshan, Varanasi. A rejoinder affidavit has been filed by Ram Dayal disputing the allegation of minority of Khusboo mentioned in the counter affidavit.
(3.) WE have heard learned counsel for the petitioner as well as learned AGA for the State and perused the record. It is to be seen that according to the medical certificate issued by the C.M.O., Gorakhpur, the age of the petitioner-Khusboo was about 19 years on 23.7.2008. The medical report reveals that all the epiphysis of elbow joints and knee joints were fused. In case of wrist, lower ends of ulna and radius were also fused. It may also be mentioned that Khusboo was produced by the police before the C.M.O. for her medical examination and there is no reason to doubt its veracity regarding ascertainment of the age done by the C.M.O., Gorakhpur, on the basis of fusions of the epiphysis.;